author: McDONALD, Chief Justice.

text:
    Will BIDDLE, Administrator, Appellant, v. R. L. HOLLEMAN et al., Appellees.
    No. 4194.
    Court of Civil Appeals of Texas. Waco.
    Jan. 16, 1964.

      Boyd M. Bailey, Lloyd C. Martin, Madi-sonville, for appellant.
    Mac L. Bennett Jr., Normangee, for appellees.
   McDONALD, Chief Justice.

Plaintiff filed this suit to reform a deed on the ground of mutual mistake as to the number of acres contained in the tract conveyed.

The land involved was previously conveyed by L. H. Miller, by deed, in 1905 to C. S. Biddle. Such deed contained a purported metes and bounds description of such lands, and immediately following the field note description, were the words, “containing 202 acres of land.” On April 18, 1944, C. S. Biddle conveyed the land to defendant R. L. Holleman, by deed, reciting a consideration of $1500., and using the same description as in the deed he had received from Miller.

C. S. Biddle died on May 24, 1954. Plaintiff, the Administrator of the estate of Biddle, filed this suit in 1962, alleging that a survey of such land made in 1962, revealed a total acreage of some 365 acres of land; that such constitutes an excess of 85% over the 202 acres recited in the deed; that a mutual mistake was made by grantor C. S. Biddle and grantee, Holleman, as to the actual acreage in the tract; that such mutual mistake is of such gross proportion as to warrant a reformation of the deed to convey only 202 acres, or in the alternative to warrant recomputation of the consideration based on the 85% greater acreage than that called for. Plaintiff prayed for such relief.

Defendant filed a general denial; alleged that the sale was in bulk; and pled the 4 and 10 Year Statutes of Limitations. Trial was before the court without a jury, which, after hearing, entered judgment that plaintiff take nothing. The Trial Court filed Findings of Fact and Conclusions of Law summarized as follows:

FINDINGS OF FACT

1 & 2. In 1905 Miller deeded to C. S. Biddle the tract here involved, described by metes and bounds, and concluding with the words “Containing 202 acres of land.”

3 & 4. Shortly thereafter C. S. Biddle went into possession of and fenced such land, such fence remaining in substantially the same position as originally set.

5. Plaintiff failed to establish by a preponderance of the evidence that C. S. Biddle did not know the approximate acreage enclosed within said fence.

6 & 7. On April 16, 1944, C. S. Biddle deeded the land to defendant Holle-man, describing same by metes and bounds exactly as in the deed from Miller, and reciting that it contained 202 acres.

8 & 10. Defendant Holleman immediately went into possession of the land enclosed within the fences, and remained continuously in possession since the date thereof.

9. There is no evidence that at the time of such deed defendant Hol-leman did not know an excess in acreage existed.

11. Defendant Holleman claimed all of the lands within such fence from 1944 until the filing of this suit.

12. If C. S. Biddle did not know of the excess acreage he should have known of same by the exercise of due diligence.

13. Plaintiff failed to establish by a preponderance of the evidence that C. S. Biddle, after the execution of the deed to Holleman, used due diligence to ascertain the existence of the excess acreage.

14. C. S. Biddle died intestate in 1954.

15. Plaintiff Will Biddle, as Administrator of the estate, used no diligence whatsoever to ascertain the existence of the excess acreage.

16. Plaintiff failed to establish by a preponderance of the evidence that the sale to defendant was on a per acre basis.

17. There was no evidence of mutual mistake on the part of C. S. Biddle and defendant Holleman at the time of the execution of the 1944 deed.

18. Plaintiff failed to establish by a preponderance of the evidence that C. S. Biddle did not acquire knowledge of the excess acreage more than 4 years prior to his death in 1954.

CONCLUSIONS OF LAW

1. Plaintiff having failed to establish by a preponderance of the evidence the existence of a mutual mistake on the part of C. S. Biddle and defendant Holleman is not entitled to judgment.

2. Plaintiff having failed to establish by a preponderance of the evidence that C. S. Biddle did not acquire knowledge of the excess acreage more than 4 years before his death, is not entitled to judgment.

3. Plaintiff having failed to establish by a preponderance of the evidence that C. S. Biddle and plaintiff, as Administrator,, used due diligence to ascertain the existence of the excess acreage, is not entitled to judgment.

4. Plaintiff having failed to establish by a preponderance of the evidence that the sale of the land was on a per acre basis, is not entitled to judgment.

Plaintiff appeals, contending:

1) There is no evidence to support findings of fact 5, 9, 12, 13, 15, 17 and 18; and such findings are against the great weight and preponderance of the evidence.

2) There is no evidence to support the judgment; and the judgment is against the great weight and preponderance of the evidence.

Plaintiff sought reformation of the deed from C. S. Biddle'to defendant Holle-man, on the ground of mutual mistake. The deed recited that it conveyed 202 acres, whereas there was an excess acreage of some 85% actually under fence, and delivered by the grantor, and gone into possession of by the grantee. The land was conveyed in 1944. This suit was instituted in 1962. It was the plaintiff’s burden, among other things, to establish by a preponderance of the evidence that C. S. Biddle and defendant both were mistaken as to the actual acreage involved at the time of execution of the deed, before plaintiff would be entitled to the relief sought. The record reflects, among other things, that C. S. Biddle paid taxes on some 425 acres out of the Viasca Survey in Leon County from 1923 to 1944. (The land here involved was out of the Viasca Survey.) Defendant Holleman was not called to testify by the plaintiff.

We think plaintiff has failed to discharge his burden to establish a mutual mistake by a preponderance of the evidence, and that the Trial Court’s findings 5, 9 and 17 (as well as the other findings), are sustained by the record.

C. S. Biddle executed the deed in 1944. He died in 1954. The instant suit was filed in 1962, more than 17 years after execution of the deed.

Defendant went mto possession under the deed in 1944; and remained in possession to the time of trial. We think plaintiff’s suit barred by the 10 Year Statute of Limitations.

Plaintiff’s contentions are overruled and the judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    DAVID BERG AND COMPANY, Appellant, v. David RAVKIND et al., Appellees.
    No. 16.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 30, 1964.
    Rehearing Denied Feb. 20, 1964.
    Bill C. Hunter and Gerald R. Coplin, Passman, Jones, Stewart, Andrews & Hunter, Dallas, for appellant.
    Joseph M. Stuhl, Wise & Stuhl, Dallas, for appellees.
   DUNAGAN, Chief Justice.

This is a suit upon a demand promissory note. David Berg and Company, as plaintiff, brought suit against David Ravkind, Shirley Ravkind, and Max Blasser upon a demand promissory note dated July 25, 1960, in the original principal sum of $17,000.00. Plaintiff sought judgment against the defendants, jointly and severally, for the full amount of such note, interest from July 13, 1961, and attorney’s fees as provided by said note. Trial upon the merits before a jury and upon special issues resulted in a verdict that payments totalling $11,450.00 had been made by defendants upon said note. Judgment was rendered in plaintiff’s favor and against defendants, jointly and severally, for the sum of $5,550.00 principal, interest thereon at ten percent (10%) per annum from and after July 13, 1961 until paid, attorney’s fees in the amount of $555.-00, and all costs of suit.

Appellant’s Motion for Instructed Verdict and for Judgment Non Obstante Vere-dicto, were overruled by the Trial Court. Appellant’s Amended Motion for New Trial was overruled on March 12, 1963, at which time the appellant gave notice of appeal. Appellant having perfected his appeal, the case is now before this court.

The appellant was a supplier of meat. The appellees, Dave Ravkind and wife Shirley Ravkind, operated a restaurant located at 8414 Preston Road in Dallas under the name of “Dudy’s Restaurant”. This restaurant was formerly operated by Phil Miller. In February, 1960, the Ravkinds became associated as partners in this restaurant with Phil Miller. At the time of establishing this partnership, Phil Miller and wife Sarah Miller, and Dave Ravkind and wife Shirley Ravkind, executed a note in favor of David Berg and Company dated February 1, 1960, in the sum of $48,282.22, payable in weekly installments of $200.00, beginning on February 8, 1960, with a like installment to be paid on or before each Monday thereafter until said note was fully paid. This note was given in renewal and extension of the unpaid balance then due and owing on a note in the original principal sum of $32,500.00, executed by the Millers to Kosher Zion Sausage Company, secured by a chattel mortgage. This note and chattel mortgage was assigned by Kosher to David Berg and Company by an assignment dated January 15, 1960. The balance of the $48,282.22 note was for the unpaid balance then due and owing on certain accounts owed to David Berg and Company.

The Ravkinds became sole operators of this restaurant in July, 1960, having acquired the Millers’ interest therein. On July 25, 1960, the Ravkinds executed a note in the sum of $42,927.05 as makers, and the Millers as accommodation co-makers, to David Berg and Company. This note was payable in weekly installments of $200.00 each, beginning July 25, 1960, with a like installment due and payable on or before every Monday thereafter until said note was fully paid. This note contained the following provision:

“This Note is given in renewal and extension of and continues to be secured by those liens securing one certain promissory note dated February 1st, 1960, made, executed and delivered by the Makers thereof to the Payee hereof in the original principal sum of $48,282.22, payable in weekly installments of $200.00, which said Note was given in renewal and extension of the unpaid balance then due and owing on that one certain note in the original principal sum of $32,500.00, dated September 4th, 1956, executed by Philip P. Miller and wife, Sarah Miller, payable to the order of Kosher Zion Sausage Company of Chicago, secured by Chattel Mortgage of even date therewith executed by said Philip P. Miller et ux. to Kosher Zion Sausage Co. of Chicago, and filed for record in the Chattel Mortgage Records of Dallas County, Texas, and which note and Chattel Mortgage were assigned by said Kosher Zion Sausage Co. of Chicago to David Berg & Company by an Assignment dated January 15th, 1960; and in further renewal and extension of the unpaid balance then due and owing on certain accounts then owned by DAVID BERG & COMPANY.”.,

Also, on July 25, 1960, Dave Ravkind and wife Shirley Ravkind, and Max Blasser executed a demand note in favor of David Berg and Company in the sum of $17,000.00 containing the following provision :

“In part, this note is given in renewal and extension of one certain promissory note of Phil’s, Inc. and Philip P. Miller and Sarah Miller, Individually, dated December 24th, 1948, in the original principal sum of $6,000.00, payable to the Payee hereof, in weekly installments of $25.00 each, which obligation, as partial consideration for a purchase and sale transaction between Phil’s, Inc. and the Makers hereof, has been and is by the execution hereof assumed by the Makers hereof; the unpaid balance of said note now being the sum of $5,800.00; and a further consideration for this Note is the sum of $7,200.00 in cash by the Payee hereof paid unto the Makers hereof coincidentally with the execution and delivery of this Note; and the remaining consideration for this Note is the assignment by the Payee hereof to Dave Ravkind and Shirley Ravkind, two of the Makers hereof, without recourse on the Payee hereof, of one certain promissory note in the original principal sum of $4,-000.00, dated December 24th, 1958, given by Phil’s, Inc. as Maker to the Payee hereof, payable in weekly installments of $25.00 each, commencing February 1st, 1960, on which there remains an unpaid principal balance of $4,000.00.”

This note did not provide for interest, except the usual provision of 10% on all past due principal and interest. Appellee Blas-ser is not shown to have owned any interest in the restaurant but signed the note only because the appellant required his signature thereto before the note would be acceptable. Max Blasser is the father of Mrs. Dave Ravkind.

It is without dispute that beginning with July 25, 1960, and thereafter, appellees made installment payments to appellant by depositing payments to appellant’s bank account in the Park Cities Bank & Trust Company, Dallas, Texas, in the total sum of $13,900.00. Whether this money or any part thereof was paid On the $17,000.00 note is in dispute. Dave Ravkind and Max Blas-ser testified that these payments were on the $17,000.00 note. Milton Lefton, Vice President and Assistant Treasurer of David Berg and Company, testified that the payments were made on the $42,927.05 note and were applied to said note.

The case was submitted to the jury on-two special issues, which, together with the answers thereto, were as follows:

“SPECIAL ISSUE NO. 1 Do you find from a preponderance of the evidence that any of the defendants, Dave Ravkind, Shirley Ravkind or Max Blas-ser have at any time made any payments on the $17,000.00 note in question * * * ?
“ANSWER ‘Yes’ or ‘no’.
“ANSWER: Yes
“If you have answered the preceding issue ‘yes’, then answer the following issue; otherwise, do not answer it.
“SPECIAL ISSUE NO. 2 From a preponderance of the evidence what do you find to be the total amount, if any, of payments made by the defendants on the $17,000.00 note in question * * if you have heretofore found that any of the defendants have made any payments on such note?
“Answer in dollars, if any, and cents, if any.
“ANSWER: $11,450.00”

This case was submitted to the jury entirely on the theory of payment — whether or not any payments were made on the note sued upon and if so, how much. The jury’s findings were contrary to appellant’s contention.

The appellant has assigned thirty points of error, being in substance as follows: (1) That the court erred in refusing to grant Plaintiff’s Motion for Instructed Verdict in its entirety and refusing to grant Plaintiff’s Motion for Judgment Non Obstante Vere-dicto because the undisputed and uncontro-verted evidence having probative force established that all money received by appellant was applied against the $42,927.05 note; (2) that the evidence was insufficient to raise or support the issues submitted by the court and the answers given thereto by the jury; (3) the court erred in permitting testimony before the jury of statements allegedly made by Milton Lefton to appellees Dávid and Shirley Ravkind contemporaneously with or at the time of the execution of the demand note as being in violation of the parol evidence rule; (4) the Trial Court erred in admitting testimony of appellant David Ravkind relating to statements or representations purportedly made by Milton Lefton contemporaneously with or at the time of the execution of the demand note and the installment note and statements or representations purportedly made by Milton Lefton to David Ravkind prior to or contemporaneously with the execution of the letter agreement as being in violation of the parol evidence rule; (5) that the court erred in admitting testimony of appellee David Ravkind to the effect that the payments he was making would be applied on the demand note under an understanding with Milton Lefton over appellant’s obligation that such was an unresponsive answer and a voluntary statement by the witness and the court in refusing to instruct the jury to disregard such testimony upon motion of the appellant; and (6) the Trial Court erred in admitting testimony of ap-pellee Max Blasser to the effect that deposits made to appellant’s bank account were being made for the demand note over appellant’s objection that same called for a conclusion on the part of the witness.

We will first discuss appellant’s contention that the special issues submitted to the jury and the answers of the jury were not supported by competent evidence. It is undisputed that these payments were made to appellant by depositing payments to appellant’s bank account and that many of them were made by appellee Max Blasser, who was a signer only on this note which is the basis of this lawsuit.

It is undisputed, and appellant’s agent, Mr. Lefton, so testified, that after the execution of the note in question he (Mr. Lefton) had frequent contact with Dave Ravkind concerning the operation of Rav-kind’s business and the payments on the note.

Mr. Ravkind testified that as a result of his contacts with Mr. Lefton it was Mr. Ravkind’s “understanding” that the payments to appellant’s bank account were to be applied on the note involved in this lawsuit.

It is important to understand the relationship between appellant’s business and that of Mr. Ravkind. Appellant was not simply a disinterested payee on a note; that is, one who has completed his part of the bargain and is completely through with the transaction except for being paid. Appellant was interested in the continued operation of Mr. Ravkind’s business as an outlet for appellant’s delicatessen products. Further, appellant was interested enough in the business to have supplied equipment and to supervise and control the placing of signs on the exterior of the building.

Appellant’s contention is that any agreements made prior to or contemporaneously with the execution of the note in question are of no probative value because barred by the parol evidence rule. The rule, though broad and sweeping on its face, is often narrow in its application, and is subject to many exceptions. The parol evidence rule does not bar evidence of prior oral agreements concerning the manner in which credits are to be applied on the note. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30; Edens v. Duncan, Tex.Civ.App., 331 S.W.2d 810 (writ dismissed). In both of these cases appellate courts upheld findings of such oral collateral agreements. In the Hubacek case the court said:

“The collateral agreement in this case is one which might naturally have been made by parties situated as were petitioner and respondent.”

It may well be said in this case that the collateral agreement is one which might naturally have been made by parties situated as were appellant and appellees, with the execution, renewal and extension of several notes and the negotiations that would necessarily follow such numerous business transactions between the parties.

In the Edens case the court said:

“The parol evidence rule is not a rule of evidence at all but a rule of substantive law * * *.
⅜ ijc ⅜ ⅝ ⅜ ⅜
“The general rule is well established that parol evidence is not admissible to vary or contradict the terms of a written instrument but there are many well established exceptions which are as well established as the rule itself. One of these exceptions is that a prior or contemporaneous parol agreement to apply certain credits as payment on a written instrument is enforceable and may be shown by parol. ‘Such matters relate to the performance of a contract and do not vary nor contradict it.’” Citing for such holding Dooley v. Gray, Tex.Civ.App., 54 S.W.2d 558.

Our Supreme Court in the case of Hubacek v. Ennis State Bank, supra, cites Dooley v. Gray with approval.

In the case of Dooley, et al v. Gray, Tex.Civ.App., 54 S.W.2d 558, the court held:

“The general rule is elementary that parol evidence is not admissible to vary or contradict the terms of a written instrument, and that such rule applies to bills and notes. But it is likewise well settled that a parol agreement mide at the time of the execution and delivery of a written instrument, or afterwards, to apply certain credits as payment thereon, or to show payments other than those indorsed on the instrument, is enforceable and may be shown by parol. Such matters relate to the performance of the contract, and do not vary nor contradict it.”

Thus, it is clear that the rule does not prohibit testimony of oral agreements subsequent to or contemporaneously with the execution of the note, concerning credits to be applied to it.

2 McCormick and Ray, Texas Law of Evidence 515, Sec. 1671:

“But there is nothing in the Parole Evidence Rule which prevents the written transactions from being later modified by the parties by a new agreement, though oral.”

Appellee Dave Ravkind testified:

“I always had an oral agreement with Mr. Passman (Plaintiff’s attorney), and my lawyer was present at the time, and at the end of the year the seventeen thousand dollar note, that it would be credited, the interest would be marked as paid, as long as I did business with them, and as long as I made my payments to them and in his terms, remained a good little boy, that then they would re-issue a new note.”

Appellee Dave Ravkind also testified that he had had “many conversations with Mickey Lefton (appellant’s agent)”, that it was “my understanding with Mr. Mickey Lef-ton” that the periodic payments were being made on the $17,000.00 note. We think that the evidence was of probative force and sufficient to support the issues submitted and the jury’s answers thereto.

Appellant also complains of the court’s action in permitting appellees to inquire about certain representation! prior to and contemporaneously with the execution of the note in question because such violated the parol evidence rule. In disposing of appellant’s complaint that the evidence was not sufficient to support the issues and the jury’s findings, we have discussed the parol evidence rule because it was an element of the complaint of the insufficiency of the evidence. In discussing this particular complaint, we might state that the record reflects the following:

“Q MR. PEVEHOUSE: At the time of the alleged making up of the note, did you make any statements to the Ravkinds concerning whether or not demand would be made or would be held up or when demand would be made?
“MR. HUNTER: Your Honor, the note itself is the best evidence of any particular matter that would concern how the note was to be paid, and we object to the question.
“THE COURT: He said at the time. It will have to be contemporaneously with the execution of the note. I will overrule the objection if it was made contemporaneously with the execution.
“MR. HUNTER: Could I also lodge an objection on the basis of the pa
“THE COURT: That is my ruling. If it is made contemporaneously with the execution of the note, then parole evidence can be received in the record. If it was made prior to the execution of the note, then any statement is merged with the execution. It will have to contemporaneously with, at the same time of the execution of the note.”

And subsequent to this, the court again reiterated his ruling during the trial of the case as follows:

“All the matters that you can go into, are matters that took place contemporaneously and simultaneously with the execution of the instruments, or items that have taken place since then, which are agreements to alter the instrument.”

As far as we can ascertain from the record, the Trial Court adhered strictly to these rulings, if an objection was made based upon this specific ground.

Appellant makes further complaint that the admission of testimony by Dave Rav-kind concerning discussions he had with Mr. Lefton about the payments over his objection was error, in that it violated the parol evidence law. The parol evidence rule does not bar testimony of oral agreements which are collateral to the written instrument.

Also, appellant complains about certain testimony of Dave Ravkind over his objection for the reason that the testimony called for a subjective intent of the witness. Such testimony has expressly been held to be admissible. In Reed v, Reed, Tex.Civ.App., 303 S.W.2d 460, reversed on other grounds, 158 Tex. 298, 311 S.W.2d 628, we find the following statement:

“A party may testify as to his own intentions. His testimony, however, is not conclusive, but it may be considered along with the other evidence in the case.”

In Fain v. Texas-Hanover Oil Company, Tex.Civ.App., 354 S.W.2d 949 (writ refused n. r. e.) the court said:

“One party to an agreement may testify as to his intent when such becomes a material point of inquiry, such evidence is not conclusive.”

The jury heard all the evidence, observed the witnesses and their demeanor as they testified. They are the exclusive judges of the facts proved, the truthfulness and credibility of the witnesses and the weight to be given their testimony. The jury accepted the testimony of the appellees concerning these issues as submitted to them and returned answers thereto in favor of the appellees. The appellate court cannot substitute its findings for that of the jury. We are bound by their answers in this case. The court has considered each assignment of points of error of appellant and each of them are overruled.

Finding no reversible error in the record, the judgment of the Trial Court is affirmed.


author: WILSON, Justice.

text:
    HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. RIESEL INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 4151.
    Court of Civil Appeals of Texas. Waco.
    Jan. 23, 1964.
    Rehearing Denied Feb. 20, 1964.

      Kerr, Day & Cook, Ft. Worth, Black & Stayton, Austin, Ñaman, Howell, Smith & Chase, Waco, for appellant.
    Murray Watson, Jr., Waco, Bracewell, Reynolds & Patterson, Grant Cook, Houston, for appellee.
   WILSON, Justice.

The school district sued the contractor and the performance bond surety for breach of contract to construct a school building, alleging faulty construction and failure to erect the building in accordance with the plans and specifications. Default judgment was rendered against the contractor. The jury found the contractor failed to construct the building, grade and foundation in a good and workmanlike manner in accordance with the plans and specifications, that the failures were material, that the building could not be repaired without substantial alteration of the structure as a whole, that if it had been constructed according to contract, plans and specifications, its value would have been $310,000, that its value in its condition at time of trial was $100,000, that the architect’s failure to design the building so it would be structurally sound was not the cause of plaintiff’s damages. The surety appeals from judgment against it for $210,000.

The surety’s initial attack on the judgment is that the school district either (a) made final payment to the contractor on the architect’s certificate of inspection and acceptance, which constituted a fulfillment of the contract; or (b) made such payment without the architect’s certificate, which constituted a violation of the district’s duty under the contract, and a change in its terms. It says that under either prong of this dilemma it was discharged from liability.

The surety’s postulate is based on contract provisions that monthly progress payments of 90% of the architect’s estimates would be made to the contractor, and “upon substantial completion of the entire work, a sum sufficient to increase the total payments to 90% of the contract price” ; that final payment should be due 10 days “after substantial completion of the work, provided the work be then fully completed and the contract fully performed” ; that upon receipt of written notice the work was ready for final inspection and acceptance, the architect should inspect, “and when he finds the work acceptable under the contract and the contract fully performed, he shall issue a final certificate over his own signature, stating that the work provided for in this contract has been completed and accepted by him under the terms and conditions thereof”, and that the entire balance is due and payable; that the contract would “be considered fulfilled (save as provided in any bond or bonds or by law), when all the work has been completed, and the final inspection made by the architect and engineer, and final acceptance and final payment made by the board”. It also urges the condition of the bond that the contractor shall promptly and faithfully perform the contract; and the surety’s options upon default: to remedy the default, complete the contract, or obtain bids for completion to be submitted to the owner.

The school district made a series of payments totalling more than the original contract sum, the last of which was on the same date the board minutes show a motion was carried “to accept the building” and pay the contractor and architect the balance due. The minutes recite that about one month before the final payment was made the board authorized payment of a monthly estimate to the contractor, who “agreed not to ask for any more until the corrections have been made to the building, and final acceptance.” Thereafter the school district occupied and continued to use the building. No certificate of the architect was introduced in evidence. Appellant’s motions for instructed verdict, for judgment, and judgment non obstante vere-dicto, based on the alternative contentions above, were overruled.

It is unnecessary to decide what the legal effect of these facts would be under authorities relating to finality of the architect’s decision, such as Boettler v. Tendick, 73 Tex. 488, 11 S.W. 497, 5 L.R.A. 270, relied on by appellant. The surety’s position overlooks other important contract provisions which make unsound this premise on which its motions were based.

In the first place, the contract contained no provision making the decisions of the architect final except “in matters relating to artistic effect”, and others, which are not involved here. It expressly provided the architect was the agent of the owner “only to the extent provided in the contract documents” and should “use his power under the contract to enforce its faithful performance by both” owner and contractor. It provided that partial payments under the contract would “not in any way relieve the contractor of the responsibility herein imposed.”

Art. 20 of the general conditions reads: “Neither the final certificate, nor payment, nor any provision of the contract documents shall relieve the contractor of responsibility for faulty materials or workmanship and, unless otherwise specified, he shall remedy any defects due thereto and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of substantial completion.” Art. 25 provides: “No certificate issued nor payment made to the contractor, nor partial or entire use or occupancy of the work by the owner, shall be an acceptance of any work or materials not in accordance with this contract.” The agreement contained additional express recitals to the effect that the “making and acceptance of final payment” shall not constitute a waiver of the owner’s claims “from faulty work appearing after final payment”. Construing the contract as an entity by considering all its terms, as we must do in determining intent, it is clear the parties did not intend that final payment or occupancy would conclude the contractor’s duty or relieve the surety of its obligation.

The court disregarded a negative jury finding, in answer to a special issue inquiring whether the architect issued his final certificate prior to final payment, upon ap-pellee’s motion that the finding was immaterial and was without support in the evidence. Appellant complains of this action.

We recognize the general rule urged by appellant that where the contract provides that payment shall he made to the contractor by the owner “only on certificate of the architect”, as in Williams v. Baldwin, Tex.Com.App., 228 S.W. 554; or “upon the architect’s certificate”, as in Park Presbyterian Church v. William Cameron & Co., Tex.Com.App., 58 S.W.2d 63, a payment in breach of the condition will relieve the surety. See 127 A.L.R. 22. There is no such prerequisite, however, in the present contract. It is agreed only that “final payment shall be due 10 days after substantial completion of the work provided the work be then fully completed and the contract fully performed.” The provision for the architect’s certificate is not related to any condition of final payment, and such payment is not made contingent on the certificate. The provision for payment “upon certificate of the architect” is only in the event “full completion is delayed through no fault of the contractor”, a circumstance not here involved. The only other provision for certification concerns partial payment estimates. There was no pleading by the surety of any breach in the latter respect.

Aside from the absence of any condition in the contract requiring an architect’s certificate as a prerequisite to the making of final payment, the only direct evidence in the record on the issue is that of appellee’s subsequently employed engineer, which is not here complained of, that he believed he saw the architect’s final certificate that the building was completed according to the plans and specifications and that he recommended it be accepted and paid for. “Q. Where did you see it? A. In the file of the school board” in the superintendent’s office. The school board minutes of June 22, 1955 recite that the contractor attempted to “get them to accept the building. The board decided it would rather meet with the architect before making a decision.” The last payment was not authorized until August 8, 1955. The circumstance relied on by appellant to raise an inference to support the jury’s answer is that the last payments to the contractor on or after June 22, 1955 were less than 10% of the total contract price, and on the latter date the board desired to meet with the architect before accepting the buildings. It is also said that failure of appellee to produce the architect’s certificate tends to strengthen the probative force of this circumstance. No demand was made for its production. Appellant did not plead failure to retain 10% of the contract price. After expressly pleading the architect made a final inspection and approved the work, it pleaded alternatively that appellee made final payment without obtaining an architect’s certificate. In our opinion, the record fails to raise an inference to support the jury finding, and it was properly disregarded.

The surety next says there was no evidence that the defects for which damages were awarded developed during the one-year guarantee period after final acceptance to which liability under the contract and bond was limited. The provision on which this contention is predicated reads, “In addition to the specific guarantees as are required by the several sections of the specifications for the work to be performed thereunder, the contractor shall guarantee, in writing, all of the work to be performed and all of the materials and/or workmanship, for a period of one year from and after the date of final acceptance by the owner, of the completed work”. Any defects in material or workmanship or damage to other work caused thereby “which may develop within said one-year period”, the contractor was to make good at his expense, and without cost to the owner. The school district did not plead or rely on this additional written guarantee, and it was not introduced in evidence. The surety did not plead the quoted provision. The contract otherwise reiterates the obligation of the contractor to perform the work in a good and workmanlike manner and to execute the work completely and satisfactorily in compliance with the specifications. It provides acceptance and payment shall not constitute a waiver of claims for faulty work. The condition of the bond is that the contractor shall promptly and faithfully perform the contract.

Appellee did not sue on the additional written one-year guarantee. It sued for breach of contract. The quoted clause did not prescribe an exclusive remedy, and appellee was not restricted to such a cause of action. The “guarantee in writing” which the contractor was obligated to execute “in addition to” those otherwise provided in the contract, was one to make good at his own expense defects which developed during one year. This did not destroy his general obligation to faithfully perform the contract proper in accordance with the specifications. As is stated on the face of the agreement, it was to be an added guarantee. The distinction is drawn in Butler, Williams & Jones v. Goodrich, Tex.Civ.App., 306 S.W.2d 798, 807; and Huntington Corp. v. Inwood Construction Co., Tex.Civ.App., 348 S.W.2d 442, 445. See Stark v. George, Tex.Com.App., 252 S.W. 1053. Whether the proof established that the defects appeared or developed within a year is therefore immaterial to appellee’s right of recovery.

Appellant further urges that it executed two separate performance bonds sued on, each covering a separate building project; and the pleadings, evidence and charge erroneously fail to segregate the damages as between the two projects and the two bonds.

By a single instrument the contractor agreed to furnish materials and perform work required by drawings and specifications entitled “Plans for a high school, cafeteria and gymnasium.” Under the heading, “Contract Sum”, was the owner’s agreement to pay therefor $216,462, and the further language: “Contractor agrees for the sum of $74,419 to build Elementary School as shown on plans and specifications. This figure includes School Master Monitor controls, book cases and base (glaze tile) for Elementary, High School, Gym and Cafeteria.” The contract was dated August 31, 1954. Appellant executed one performance bond in the sum of $216,462 dated August 31, 1954, and another “additional” performance bond dated November 1, 1954. The first was conditioned on performance of contract dated August 31, 1954 for “construction of high school, i gymnasium and elementary school”; the second for performance of contract (date blank) for “construction of elementary school.” The general specifications consist of a single document dated July 10,, 1954 entitled “general specifications for high school, cafeteria, gymnasium and elementary school”. The single set of plans is entitled, “Plans for an High School, Cafeteria, Gymnasium and Elementary School.” The building was a single structure, the elementary school and high school areas constituting separate wings between which were the gymnasium and cafeteria.

The parties approached consummation of their agreement by successive steps, apparently, increasing the scope of the project after a successful bond election. But these steps led to a compact which was an entity, and of which the concomitant bonds were an integral unit. Appellant’s additional bond was obviously intended to cover the increased contract price and additional work which encompassed all four areas of the unified structure: elementary school wing, high school wing, cafeteria and gymnasium.

Written contracts “executed in different instruments whereby a single transaction or purpose is consummated are to be taken and construed together as one contract.” Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 475; Pacific Mut. Life Insur. Co. v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113, 116. The parties treated the contract and work as a unit; the trial court did not err in doing likewise.

Appellant complains of refusal of its requested issues which would have inquired whether the architect agreed that re-enforcing rods, prefabricated for 10-foot pier holes, would be installed after the holes were deepened; and whether the use of such rods “was a material change from the .original plans.” In our opinion these were evidentiary issues. Art. 15 of the general contract conditions entitled “changes in the work,” provided: “The owner, without invalidating the contract, may order extra work or make changes by altering, adding to, or deducting from the work, the contract sum being adjusted accordingly.”

Complaints are made of overruling objections to the court’s charge. The record does not reflect that the objections were presented to or acted on by the court as required by Rule 272, Texas Rules of Civil Procedure. Other points have been carefully considered and are overruled. Affirmed.

ON MOTION FOR REHEARING

By extended printed argument appellant insists we are in error in holding liability is not limited to defects appearing within one year.

In support of its position, appellant urges the provision in the specifications as to the contractor’s one-year guarantee, quoted in the original opinion; provisions as to termination, full performance and completion; and particularly Article 20 of the standard form American Institute of Architects contract general conditions (which the parties used), providing that neither final certificate nor payment shall relieve the contractor of responsibility for faulty materials and workmanship, and adding that he shall remedy defects and pay for damage to other work resulting therefrom “which shall appear within a period of one year from the date of substantial completion.”

Appellant’s argument is simply, logically and authoritatively answered by the manual designed for use in interpretation and construction of the A. I. A. standard contract documents: Parker & Adams, “The A. I. A. Standard Contract Forms and the Law” (Little, Brown & Co. 1954), pps. 38, 39. After noting that no court decision had passed on the contention now made by appellant that the contractor’s liability is limited to one year by Article 20, that text states:

“It does not seem sound to read into this provision an intent to void the broad generalities of the immediately preceding clause, and the clear statement in Article 25 that ‘no certificate issued nor payment made * * * shall be an acceptance of any work or materials not in accordance with this contract.’ The statute of limitations in a given state would determine the duration of the contractor’s responsibility under this broad provision. There would be no reason for the insertion of this provision in Article 25, nor the similar provision in Article 20, if the intention were to limit the contractor’s responsibility for defects to the one year period named in Article 20. It seems more reasonable to interpret the provision requiring correction of defects appearing within a year as constituting a specific contractual liability that would be covered by a guaranty bond which would cease to be in effect long before the end of the period established by the statute of limitations.”

The specifications in the present case emphasize the correctness of this construction that the “additional guarantee” and the one-year liability provision in Article 20 constitute a “specific contractual liability” separate from the general liability of the contractor and its surety on the performance bond.

Appellant now shows by supplemental transcript that its objections to the charge were presented to and overruled by the trial court. We therefore consider its points complaining of submission of Special Issue No. 1, inquiring whether the contractor failed to construct the school building in accordance with the contract and the plans and specifications; and Issue No. 3, inquiring whether the contractor failed to construct the foundation of the building in a good and workmanlike manner. Appellant’s objections were that the issues constituted general charges, and did not limit the jury to specific failures pleaded and raised by the evidence.

To meet appellant’s exception to appellee’s general pleading that the building was not constructed in accordance with the plans and specifications and in a good and workmanlike manner, the court required appellee to specify the deviations from the contract, plans and specifications, and failures to construct in a good and workmanlike manner. Appellee thereupon alleged 21 such specifications, on which evidence was introduced.

These special issues are undoubtedly general. Generality does not always constitute reversible error. Some determining factors are suggested in Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 104. In City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 14 A.L.R.2d 61, the issue submitted was whether buildings “[constituted] a serious fire hazard to life and property.” The petition alleged various facts as constituting the buildings a fire hazard, 22 specifications of which are itemized in the opinion. Following these specifications the pleading alleged that “due to the foregoing conditions” the buildings were a serious fire hazard to life and property. The Supreme Court said, “Respondent would have the trial court submit to the jury as separate issues each of the foregoing allegations of fact.” The Court then held the charge had submitted the controlling issue, and the specific allegations were “of matters of fact that fall within the scope of the ultimate question. They are evidentiary in their character, being facts that tend to prove that the buildings are fire hazards, facts to be considered by the jury in answering the issues submitted.”

In Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978, the issue was whether the acts and conduct of defendant in a divorce case constituted cruel treatment. The Supreme Court held there was but one ultimate issue of fact to be submitted to the jury: whether the acts and omissions of defendant under all the evidence constituted cruel treatment, although the jury was required to consider a “group of facts”, and although the one ultimate issue embraced “a number of subsidiary facts.”

The ultimate issues here involved were discussed in Sands Motel v. Hargrave, Tex.Civ.App., 358 S.W.2d 670, writ ref. n. r. e. There, issues were submitted as to whether the work under a construction contract was done in a workmanlike manner, and whether the contract was performed in accordance with the plans and specifications. After holding that the good workmanship obligation was relative, and qualified by the workmanship practices allowed by the plans, the court said “the special issue on performance in accordance with the plans, that the appellant moved the trial court to disregard, submitted this ultimate issue. This issue was worded, ‘Do you find ⅜ * * Har-grave performed the contract in accordance with plans and specifications ? ’ ”

Appellant’s present contention under its objections would have left the trial court but one alternative: to submit a series of issues inquiring whether each separate specified failure or deviation did constitute (either or both) a deviation from the plans and specifications, or a failure to perform the work in a good and workmanlike manner. Although this alternative would have only required a minimum of 21 issues in the present case, suppose, for illustration, that plaintiff had alleged several hundred specified defects, deviations or failures to perform in a good and workmanlike manner. The practical impossibility of so splitting the ultimate issues in this case is obvious. In our opinion the objections to these issues (or at least to Special Issue No. 3 which would support the judgment), were properly overruled. See Hodges, Special Issue Submission in Texas, p. 101; Pope, Broad and Narrow Issues, 26 Tex.Bar J. 921. Other points concerning objections to the charge do not present reversible error.

We have considered appellant’s points relating to objections to the court’s charge, although we have doubt as to our authority to do so. The supplemental transcript contains a nunc pro tunc order overruling appellant’s objections to the charge, which order is signed, rendered and entered on. February 11, 1964, after the original opin-( ion of this court was delivered. Rule 272, Texas Rules of Civil Procedure provides that the requirement that objections to the court’s charge shall be in writing will be sufficiently complied with if the objections are dictated to the court reporter as therein provided “and are subsequently transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript.” It is obvious “the ruling and signature on” these objections were not transcribed, endorsed and filed in compliance with said rule “in time to be included in the transcript.” In order that appellant’s points may be fully considered, however, we have treated them as if the rule was complied with without intending to hold that we have authority to pass on the points.

Appellant’s motion for rehearing is overruled.


author: HUGHES, Justice.

text:
    CENTRAL STATES LIFE INSURANCE COMPANY, Appellant, v. Mrs. Margaret M. BYRNES, Appellee.
    No 11143.
    Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1964.
    Rehearing Denied Feb. 19, 1964.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, for appellant.
    Fred Parks and Donn C. Fullenweider, Houston, for appellee.
   HUGHES, Justice.

This suit was brought against Central States Life Insurance Company, appellant, by Margaret Byrnes, widow of Galen Byrnes, to recover on a life insurance policy (No. OL78S4) issued to him by Community National Life Insurance Company on August 12, 1954, in the amount of $25,-000.00 and in which she was designated beneficiary. Mr. Byrnes died November 28, 1960. The policy sued on contained an incontestability clause reading, “This Policy will be incontestable after two years from its date of issue, except for non-payment of premium and except as to provisions and conditions relating to benefits in the event of disability and those granting additional insurance specifically against loss by accidental means.”

It was stipulated between the parties herein that at the time of the death of Galen Byrnes, all premiums accrued and due under the policy in question were paid.

Appellant’s liability under the policy is based on its assumption of liability thereon under a merger agreement, effective October 1, 1959, between it and the issuing Company.

Trial was to a jury after which, and upon its verdict, judgment was rendered for Mrs. Byrnes against appellant for the face value of the policy sued on, 12% statutory penalty, $7500.00 attorneys’ fees, $2500.00 of which was contingent on appeal, and 6% interest from December 5, I960, until paid.

It is our opinion that any defense based on the invalidity of this policy is precluded by force of the incontestable clause quoted above, however, in order to reflect the position of appellant and our holding relative thereto, we outline the facts and state the substance of appellant’s points and contentions.

Appellant primarily contends that the policy was issued in violation of fiduciary duties which the deceased, Galen Byrnes, and appellee owed to the issuing Insurance Company.

When the policy in suit was issued Galen Byrnes was President, General Manager and Director and appellee was Secretary-Treasurer and a director of the issuing Company. The by-laws of such Company provided that its president and secretary should sign all policies issued. The instant policy was signed by Mr. and Mrs. Byrnes.

This policy was issued pursuant to a salary contract between Galen Byrnes and the Community National Life Insurance Company acting by and through Galen Byrnes, President, Paul I. Ross, Vice-President and M. M. Byrnes (appellee) Secretary-Treasurer. The execution of such contract was authorized by the bylaws of the Insurance Company and the minutes of the Company reflect that an executive committee was named to execute “salary contracts.” The salary contract of Mr. Byrnes provided, in part:

“5. PROTECTION During the life of this Contract, the Company shall furnish personal insurance on the life of Galen Byrnes in the minimum amount of $25,000.-00, with adequate increasing amounts as Company earnings and growth warrants.
“6. IRREVOCABILITY (a) In the event the Company merges, sells, or changes to any other form or name, this Contract must follow and be fully honored with such change.
“(b) This Contract shall remain in full force and effect, irrespective of any Directorship or Officership that Galen Byrnes may or may not hold.”

All premiums on this policy were paid by the Company prior to its merger with the appellant. As part of the agreement of the two Insurance Companies to merge, a mutual release was authorized and executed, October 22, 1959, between Central States Life Insurance Company and Galen Byrnes and others in consideration of the cancellation of certain stock and the right to purchase additional stock. We quote from such release:

“NOW, THEREFORE, in consideration of the premises and other good and valuable considerations hereinabove recited, Community National Life Insurance Company and Central States Life Insurance Company, and Central States Life Insurance Company, the surviving corporation, having been duly authorized by its Board of Directors in accordance with the resolution hereto attached, and in pursuance thereto, does release the said Galen Byrnes, E. F. Lingle and Weldon A. Steinmann, individually and collectively, from any and all claims of every nature whatsoever by reason of their actions as an organizer, original incorporator, stockholder officer or director of Community National Life Insurance Company and/or Community National Corporation.
“For the same consideration, Galen Byrnes, E. F. Lingle and Weldon A. Steinmann, individually and collectively, do hereby release Community National Life Insurance Company and Central States Life Insurance Company and Central States Life Insurance Company, the surviving corporation, of any and all claims of every nature whatsoever by reason of being an organizer, original incorporator, stockholder or director or officer of Community National Life Insurance Company and/or Community National Corporation.”

Following the execution of this release appellant, in August 1960, sent a notice to Mr. Byrnes that the annual premium of $1,082.00 was due on the policy in suit. Such premium was paid by Mr. Byrnes on September 6, 1960, and it has since been exclusively retained by appellant.

On the trial of this case, appellant made no offer to return this premium, or any of the premiums paid on this policy under the salary contract, nor did it offer to pay the cash surrender value of such policy.

There is in the record an agreement, dated April 12, 1954, between Community National Life Insurance Company and Republic National Life Insurance, Company by which, in general, Community National agreed to cede to Republic and Republic agreed to automatically accept for reinsurance all amounts of life insurance in excess of the amount regularly retained by Community National, but not exceeding 400% of such retention. The amount of such retention was originally $2500.00, and was later raised to $5000.00.

Subsequent to the issuance of the policy in suit, application was made to Republic by Mr. Byrnes for reinsurance of its amount in excess of $2500.00. On August 24, 1954, Republic advised Mr. Byrnes by wire and letter that it would not reinsure. This wire and letter were not found in the records of either Community National or appellant.

There are, however, records of these two Companies in evidence from which it could have been ascertained by anyone who had access to them, which would include the officers of the Company, that no reinsurance had been issued by Republic on the Byrnes policy. We do not discuss these records in detail but we refer specifically to the statements sent by Republic to appellant or its predecessor for its portion of the premiums due on policies reinsured by it. These statements did not include any claim for premiums for reinsuring any portion of the Byrnes policy. This knowledge that the Byrnes policy was not reinsured is reinforced, as to appellant, by its retention •of the whole cash premium received by it -in 1960.

The Trial Court submitted many issues -to the jury, and we will give the substance •of its findings.

Galen Byrnes was at the time the policy sued on was issued was insurable; at such time Mr. Byrnes believed he was insurable; Mrs. Byrnes at such time believed her husband to be insurable. When appellant sent notice of policy premium due to Mr. Byrnes its records reflected that such policy was not reinsured with Republic; that at such time the officers and employees • of appellant knew such policy was not re-insured with Republic; that appellant waived its right to contend that the Byrnes policy was unenforceable because of its :non-reinsurance with Republic by accepting the 1960 premium, and that by such action it ratified such policy.

That Mr. Byrnes did not fail to disclose to the other Directors of Community National that his policy was not reinsured; that Mrs. Byrnes did fail to make such disclosure; that Mr. Byrnes did not remove the letter and telegram from Republic rejecting reinsurance from the files of Community National; that Mrs. Byrnes did not so remove such exhibits. Mr. Byrnes did not fail to disclose to Officers and Directors of appellant that his policy was not reinsured.

That the life underwriting precedures of Republic and Community National were the same; that a part of the underwriting procedure of Community National was that it would reinsure all life insurance policies in excess of $2500.00; that as a part of such procedure Community National would not issue a policy where such excess was rejected by Republic for reinsurance; that the Byrnes policy was issued in violation of these procedures; that the Directors of Community National never had actual knowledge that- Republic had declined to reinsure the Byrnes policy.

The jury also made findings as to attor-eys’ fees which we will notice infra.

Appellant has points to the effect that many of these findings are without any support in the evidence or that they are against the overwhelming weight and preponderance of the evidence. Since we believe the incontestable clause is applicable in this case we pretermit a discussion of these evidentiary points.

The two year incontestable provision in the Byrnes policy was mandatorily required by Art. 3.44, Vol. 14 V.A.C.S., Insurance Code, which provides, in part, that no policy of life insurance may be issued or delivered in this State by a life insurance company organized under the laws of this State which does not contain a provision, “That the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable not later than two years from its date, except for nonpayment of premiums; * * * ”

The premiums on the Byrnes policy were fully paid; more than two years elapsed from the date of such policy before any contest of it was made. Therefore, the policy is, ipso facto, incontestable.

This statutory provision has been a part of insurance law since 1909 (Acts 1909, p. 192). It has been before our Courts many times. Its application is inflexible. In American National Insurance Co. v. Tabor, 111 Tex. 155, 230 S.W. 397, the Court stated:

“The policy before us departs from subdivision 3 in that it allows the insurer to contest same for fraud, after two years, though all premiums have ■been paid. It was the obvious purpose of subdivision 3 to prescribe two years as a maximum period of limitation, after which no defense should be allowed to defeat payment of the policy, except nonpayment of premiums, or violations of conditions relative to naval or military services during war. The subdivision allows the insuring company to fix a period of time, not to exceed two years, during which it may make fully available to itself all the legal consequences of fraud which ought to be discovered through the exercise of proper diligence; but, after the expiration of the period fixed, the subdivision eliminates all defenses, save those specially mentioned.”

In Howard v. Missouri State Life Ins. Co., 289 S.W. 114, San Antonio Civil Appeals, writ ref. 3-2-27, the Court in reference to an incontestable period of one year as provided in the policy stated:

“ * * * that after the lapse of the first year the insurer is prohibited from contesting the validity of the. policy, from abrogating it, from avoiding it, from escaping the liability fixed by its terms upon the insurer; that after the lapse of that period the insurer will be bound by its terms against every defense.”

Peculiarly applicable here is the case of Kansas Life Insurance Company v. First Bank of Truscott, 124 Tex. 409, 78 S.W.2d 584, opinion by Smedley, Judge, writing for the Commission of Appeals. There it was held that after expiration of the incontestable period a life insurance company could not defeat suit on a policy on the ground of fraud notwithstanding its agent was a participant in the fraud. We quote from that case:

“The Supreme Court of Tennessee, in construing an incontestable clause in similar language to that in the policy in this case said:
“ ‘The meaning of the provision is that, if the premiums are paid, the liability shall be absolute under the policy, and that no question shall be made of its original validity. No reasonable construction can be placed upon such provisions other than that the company reserves to itself the right to ascertain all the facts and matters material to its risk and the validity of its contract, for one year; and if within that time it does not ascertain all the facts, and does not cancel and rescind the contract, it may not do so afterwards upon any ground then in existence. * * * It is said, however, that fraud appearing in the origin of the contract must, .as in any other case, render it null and void from the beginning. It is true that fraud vitiates all agreements and undertakings based upon it, and they may be set aside at the instance of the party defrauded. So, in this case, fraud in obtaining the policy would vitiate at the option and upon the motion of the party defrauded; but, under the provision in question, the party must within the year exercise his right to repudiate and rescind it. The effect of this agreement not to contest is to put the company in the attitude of being unable to set up any fraud or false swearing in obtaining the policy, or any other defense to it, save the one excepted, so far as its original validity is concerned.’ Clement v. New York Life Insurance Company, 101 Tenn., 22, 46 S.W., 561, 562, 42 L.R.A., 247.
“The fraud alleged in the answer of plaintiff in error is urged as a defense to defeat the payment of the policy, and further the allegations go to the original validity of the policy, presenting as grounds of invalidity facts existing at the time the policy was issued. The facts alleged therefore are defensive matters which, by the terms of the incontestable clause as construed in the authorities cited, the insurer has agreed shall not be urged, after the expiration of the period named, to defeat payment of the policy.
“Plaintiff in error concedes the validity of the statute and of the incontestable clause contained in the policy, and does not question the general rule that the incontestable clause, after the expiration of the prescribed period, eliminates the defense of fraud in connection with the application for the policy. It contends, however, that because Mrs. Clark, in procuring the issuance of the policy, represented both parties to the contract without the knowledge of plaintiff in error and acted against the interest of plaintiff in error, her principal, and in the interest of the other party, and participated in a fraud upon her principal, no contract binding upon plaintiff in error was ever made.
“[2] The fault in this contention is that perfidy of an agent in negotiating a contract for his principal does not render the contract absolutely void, but makes it voidable at the option of the principal.”

Citation of other authorities would be mere supererogation. It is our opinion that the evidence in this case does not make issuable any fact which could be offered as a defense to this suit.

Appellant’s only complaint regarding the allowance of attorneys’ fees is in regard to the contingent allowance of $2500.00 in the event of an appeal. The jury found that such amount was reasonable in the event of an appeal. This point is overruled upon the authority of American Bankers Insurance Co. v. McDonald, 369 S.W.2d 688, Austin Civil Appeals, writ dism., w. o. j. See also Grimes v. Robitaille, 288 S.W.2d 211, Galveston Civ.App., writ ref., n. r. e.

The judgment of the Trial Court is affirmed.

Affirmed.

      . This Company and appellant were insurance companies organized under the laws of Texas.

      . “CENTRAL STATES LIFE INSURANCE COMPANY HOUSTON, TEXAS ASSUMPTION CERTIFICATE ' M
      To be attached to and made a part of Policy No. OL7854
      of the
      COMMUNITY NATIONAL LIFE INSURANCE COMPANY
      Effective October 1, 1959, the above designated policy issued by the Community National Life Insurance Company of Houston, Texas, is hereby assumed by Central States Life Insurance Company of Houston, Texas, in accordance with the terms of a Merger and Consolidation Agreement which Agreement has been approved by the Commissioner of Insurance for the State of Texas, as provided by the Texas Insurance Code-
      Central States Life Insurance Company does hereby agree to fulfill all obligations and pay all benefits in the same-manner and to the same extent as provided in said policy. The premiums of this policy will remain the same.
      IN WITNESS WHEREOF the Central States Life Insurance Company has caused this Assumption Certificate to be executed at its Home Office as of the first day of October, 1959.
      CENTRAL STATES LIFE
      INSURANCE COMPANY
      By: /s/ John W. Collis
      President
      Attest:
      /s/ W. .T. Noad.
      Secretary”

      . See Art. 3.62, Texas Insurance Code, V.A.C.S.


author: PHILLIPS, Justice.

text:
    PHILLIPS PETROLEUM COMPANY, Appellant, v. John W. MECOM, Appellee.
    No. 11141.
    Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1964.

      Wm. J. Z email, Lloyd G. Minter, Bartles-ville, Okl., E. H. Brown, Marion R. Froeh-lich, Houston, for appellant.
    Butler, Binion, Rice & Cook, Cecil N. Cook, W. C. Perry, Louis Paine, Jr., Houston, for appellee.
   PHILLIPS, Justice.

This case involves a plea of privilege.

Suit was brought by Phillips Petroleum Company against John W. Mecom, a resident of Harris County, Texas, in the District Court of Galveston County, Texas, to enforce certain rights which Phillips claims to have acquired by virtue of several ordinances passed by the City of Hitchcock, Texas. Mecom filed his plea of privilege to be sued in Harris County, Texas, and, both parties having waived a jury, trial of the plea of privilege was by the Court. After a full hearing, the trial court sustained Mecom’s plea of privilege and ordered the suit transferred to Harris County, Texas. No findings of fact and conclusions of law were requested by either party, and none was made or filed. There is no question but that the land involved is situated in Galveston County.

We affirm the judgment of the trial court.

Phillips is before this Court on two points of error to the effect (1) that the trial court erred in sustaining Mecom’s plea of privilege because this is a suit for land in Galveston County within Subdivision 14 of Article 1995 Vernon’s Ann.Civ.St.; (2) that this is a suit to stay waste on lands in Galveston County, within Subdivision 14 of Article 1995 V.C.S.

Article 1995 V.C.S. states that no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: Exception 14 states that suits for the recovery of land or damages thereto or to remove encumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.

Phillips contends that the City of Hitchcock passed ordinances 4 and 11 which governed the drilling for oil and gas within the City by creating drilling blocks providing that only one well could be drilled on any one block; that Phillips obtained a permit under these ordinances to drill Block 5 and did drill a producing gas well on Block 5; that under said ordinances, Me-com, who was a lessee under adjoining acreage, elected not to participate as a working interest owner in said well, but to receive the royalty and bonus money, as provided in said ordinances, in lieu of his working interest in the oil and gas; and by reason of these facts Phillips, as permittee, became vested with the title to the oil and gas attributable to the working interest in the lands described in Phillips’ petition and prays for recovery of title to the oil and gas in and under said land.

Ordinance No. 4 is a comprehensive ordinance designed to control the drilling of oil and gas wells within the City of Hitchcock. Ordinance No. 11 amends Sections 6 and 9 or Ordinance No. 4.

Section 6 of Ordinance No. 4, for the purposes of this lawsuit, provides the conditions upon which any permit to drill a well within the city will be issued. It provides that the owner of any lots with whom the owner of a permit to drill has failed to reach agreement shall have the option to either (1) treat his interest as a working interest and contribute to the well cost, as provided, and share in the production as provided, or (2) to treat his interest as being leased to permittee, and receive a sum in cash equal, on a acreage basis, to the highest cash bonus per acre paid by the permittee for any lease covering lands within said drilling block; and to receive as a royalty a share of all oil and gas produced and saved from such well equal to one-sixth (l/6th) of the proportion of the whole quantity of oil so produced and saved that the number of square feet in the area owned by him bears to the number of square feet in such drilling block.

Section 1 or Ordinance No. 4 recites the risks inherent in oil and gas development, and generally states the purpose of the ordinance. The ordinance, if valid, and this Court is not here called upon to pass upon this question, was passed under the police power of the city to promote the health, safety and welfare of its citizens.

Phillips relied on its pleadings to show the nature of its suit and it introduced in evidence its original petition which set out the ordinances outlined above; that on April 5, 1961, Phillips, pursuant to said ordinances, was granted a permit to drill a gas well on the abovementioned Block 5, that Phillips drilled the well and completed it in August of 1961. That Mecom had three oil, gas and mineral leases each dated prior to April 6, 1960, covering land included within Block S. That every notice provided by Ordinance No. 4, as amended, pertaining to the drilling of the well by Phillips in Block 5 was given and that Mecom failed and refused to make an election to participate as to working interest owners as provided in Section 6 of said ordinance, as amended, as to any interest in Block S, and particularly with regard to the interest covered by the leases described. That Phillips is ready, willing and able to pay Mecom the sum per acre that he is entitled to by reason of the foregoing facts. That Phillips’ well drilled on Block No. 5, under the terms and provisions of Ordinance No. 4, as amended, fixed the rights of the parties in said Block No. 5 as to the minerals produced from the Hitchcock Northeast 9100-foot Frio Field. That at the time Phillips drilled its well, the ordinances of the City of Hitchcock provided that no more than one well could be drilled to any producing formation, and that any permittee drilling any. such well must agree to share production therefrom as set forth in said Ordinance No. 4. That any attempt to alter said ordinance to allow Mecom to drill a well on a tract of land within said Block 5 in the same field that Phillips’ well is producing from and without requiring him to share such production with all the other owners within said Block 5, is arbitrary and capricious and deprives Phillips and every owner of working interest or royalty interest in Block 5 of their rights without due process of law. That Mecom has taken pretended oil and gas leases that purport to cover the same lands as covered by the leases described therein; that said leases were taken in disregard of the rights of Phillips; that Mecom threatens to drill a well on said leases in the Hitchcock Northeast 9100-foot Frio Field; and that such well would be wasteful and would not aid in any way in the development of this land and that any such well would not recover any oil or gas that would not be produced through the present wells.

After Mecom had filed his plea of privilege and Phillips had filed a controverting plea and Mecom had filed a sworn reply to Phillips’ controverting plea to Mecom’s plea of privilege, Phillips filed its first amended original petition containing substantially the same allegations as theretofore contained in the original petition and formal allegations in trespass to try title were added. In such formal allegations Phillips alleged that on December 1, 1962, it was the owner in fee simple of the oil, gas and other minerals in and under and that may be produced from the land covered by Mecom’s leases in Galveston County, Texas, and that Mecom has wrongfully taken therefrom oil and gas of a value of one million dollars.

Concurrently with the filing of its first amended original petition Phillips also filed its sworn first amended controverting plea to the plea of privilege, which adopted by reference both Phillips’ original petition and first amended original petition.

There is no showing of any record title of any kind into Phillips with respect to Mecom’s leases or any of the land covered thereby or any interest in oil, gas or other minerals in or under such land.

Mecom contends that since the only-source of title plead by Phillips are the abovementioned ordinances, such ordinances do not purport to effect any transfer of title or any pooling of rights or interests in lands, minerals, or mineral leases and that any allegations of waste contained in pleadings is not waste of such a nature as to bring the suit under the exception to the venue statute relied upon. Mecom has interposed other defenses to the judgment of the trial court such as the contention that Ordinance No. 66 has repealed Ordinances Nos. 4 and 11, and that Mecom presently holds a permit issued by the City of Hitchcock to drill on his leases in addition to other defenses, however, we do not deem it necessary for the purposes of this opinion to go into any questions other than those of whether or not the abovementioned ordinances Nos. 4 and 11 vested any title in land to Phillips and the question of waste as alleged.

As we read Phillips’ pleadings construed as a whole, Ordinances 4 and 11 have been specially plead as its source of title, consequently we must rely on these special pleadings in exclusion to any formal generalities that have also been plead. Gann v. Putman, Tex.Civ.App., 141 S.W.2d 758, writ dism.

The character of a lawsuit as a whole governs the matter of venue and the inclusion of a plea in trespass to try title cannot by itself change the character of the lawsuit. Ulmer v. Ulmer, 139 Tex. 326, 162 S.W.2d 944, Milburn v. Minette, Tex.Civ.App., 278 S.W.2d 269, no writ history.

This case is controlled by the holding of the Texas Supreme Court in Mills et vir v. Brown et al. 159 Tex. 110, 316 S.W.2d 720. Here the City of Post had ordinances regulating the drilling of oil and gas wells within the city limits similar to those of the case at bar. Appellees due to a series of facts not pertinent here contended that by virtue of compliance with these city ordinances they had gained title to a portion of the working interest in the oil and gas produced from appellant’s lease. The trial court and Court of Civil Appeals upheld appellees’ contention. In reversing and remanding the case, the Supreme Court held that it knew of no legal means of so transferring title to real estate from one owner to another by any such method as appellees claimed. The Court held that appellant was still the owner of her property and entitled to receive from appellees her proportionate share of the proceeds from the sale of her property.

It is not the purpose of ordinances such as those passed by the Cities of Hitchcock and Post to vest or divest title in and among the various interests to oil and gas in place within their limits. As stated in the Mills case, supra, an oil and gas lease is an interest in land. The purpose of these ordinances is to limit the number of wells to be drilled in populated areas for reasons of health and safety and to allocate either the products or proceeds from the sale of the products from these wells. By its pleadings, Phillips is seeking a determination of certain alleged interests either in oil and gas that has been severed from the earth or interests in the proceeds from the sale of such oil and gas so severed. The law is well settled in Texas that oil and gas when produced and severed becomes personal property. Cates v. Greene, Tex.Civ.App., 114 S.W.2d 592, Chaffin v. Hall, Tex.Civ.App., 210 S.W.2d 191, writ ref. N.R.E.; Chapman v. Parks, Tex.Civ.App., 347 S.W.2d 805, writ ref. N.R.E.

Phillips has cited Amis v. Bryan Petroleum Corporation by the Oklahoma Supreme Court, 185 Okl. 206, 90 P.2d 936, which had under consideration an ordinance of Oklahoma City that forced the parties holding certain mineral interests within the city to an election of interests under an ordinance similar to those at bar. Here the Court held that the city created a relationship in the nature of a tenancy in common resulting as an incident to the application of the city’s policy powers. While the court admitted that such a tenancy does not exist at common law, such tenancy owes its existence to the city’s powers and is subject thereto.

As shown in the Mills case above our Courts do not recognize any such fiction indulged by the Oklahoma Court to transfer title to an interest in land. Any change in the position of the parties due to ordinances such as those before us would not affect the title to oil and gas in place but possibly a right to share in the rights to minerals already produced or the proceeds from the sale therefrom. Thus they would be sharing in personalty and not realty. Also, there is no compulsory uniti-zation in this State. Ryan Consol. Petroleum Corp. v. Pickens, Tex.Civ.App., 266 S.W.2d 526, affirmed 155 Tex. 221, 285 S.W.2d 201, certiorari denied, 351 U.S. 933, 76 S.Ct. 790, 100 L.Ed. 1462; Nale v. Carroll, Tex.Civ.App., 266 S.W.2d 519, affirmed 155 Tex. 555, 289 S.W.2d 743. Furthermore, ordinances 4 and 11 did not contain provisions for pooling leases.

It is apparent that Phillips’ pleadings when taken as a whole do not allege a present title or present right to the legal title to any land located in Galveston County or elsewhere; nor does it allege that Phillips is the owner of any fractional interest in Mecom’s leasehold estate; and furthermore, it does not allege any facts which would require the court to determine such ownership. Phillips is merely attempting to assert some purported right as distinguished from title, alleged to have been acquired by virtue of the abovemen-tioned ordinances of the City of Hitchcock, Texas. Such claim does not come within Subdivision 14 of Article 1995 V.C.S.

With respect the Phillips’ allegation in its first amended petition that Me-com had taken oil and gas in the value of One Million Dollars from leases belonging to Phillips, the uncontroverted testimony at the hearing on the plea shows that no oil or gas has been produced by Mecom. Here an issue was raised at the venue hearing that the court had a right to determine. Batex Oil Company v. La Brisa Land and Cattle Company, Tex.Civ.App., 352 S.W.2d 769, writ dism. We presume due to the judgment that the court found in Mecom’s favor on this point.

Phillips’ contention that any production by Mecom of oil and gas from leases owned by Mecom is waste does not bring the case within the exception to the venue statute inasmuch as the alleged right on the part of Phillips to be the only lessee entitled to produce within the confines of the drilling block in question disregards the meaning of waste as used in Subdivision 14 of Article 1995. Waste as used at common law and as used in Subdivision 14 of Article 1995 refers to an unauthorized destruction or severance of improvements, trees, minerals or other corporeal hereditaments on land belonging to the person with respect to whom such waste is committed by some other person who did not have title but may be rightfully in possession. Gulf Oil Corporation v. Horton, Tex.Civ.App., 143 S.W.2d 132. The rule in this regard is well settled that only persons having a present vested estate in land are entitled to recover for waste committed on the land, or to restrain those in possession from committing acts of waste. 43B Tex.Jur., Waste, Sec. 9, pp. 590, 591. Thus an essential element to be alleged in a cause of action for waste is to show that the person complaining has title to the land or interest in the land with respect to which such waste is alleged to have been committed. As shown above, Phillips does not show the necessary title or interest in Mecom’s leases to bring itself under this exception.

The judgment of the trial court is affirmed.

Affirmed.


author: TIREY, Justice.

text:
    Maggie DAWKINS et al., Appellants, v. A. P. VAN WINKLE, Appellee.
    No. 4192.
    Court of Civil Appeals of Texas. Waco.
    Jan. 23, 1964.
    Baker, Jordan, Shaw & Foreman, Dallas, J. D. Dashiell, Buffalo, for appellants.
    Ñaman, Howell, Smith & Chase, Geo. Chase, Waco, for appellee.
   TIREY, Justice.

This is a negligence case. Appellant, the widow of Wesley Dawkins, brought the suit for herself and as next friend for her three minor children to recover damages for the loss of her husband while in the employ of appellee on appellee’s ranch in Leon County, and while her husband was in the discharge of his duties in the course of his employment. At the close of plaintiffs’ evidence defendant presented his motion for directed verdict, which motion was overruled. Thereafter the defendant refused to tender any testimony and rested and renewed his motion for directed verdict, which was overruled, and thereafter the court announced to the jury that the plaintiffs had failed to raise any issues of fact to be submitted to the jury and the court, on his own motion, withdrew the case from the jury and entered a judgment that plaintiffs take nothing by their suit, and that defendant go hence and recover his costs. We affirm the judgment of the trial court. Plaintiffs seasonably filed their amended motion for new trial and, it being overruled, perfected their appeal to this court.

The judgment is assailed on what plaintiffs designate as three points. They are grounded on assignments numbers 1, 2 and 4 in their amended motion for new trial and are to the effect that the court erred because there was evidence of probative force tendering the issues of negligence and proximate cause of defendant and his agents that resulted in the death of Wesley Daw-kins. We overrule each of these points for reasons hereinafter briefly stated.

A statement is necessary. Plaintiffs went to trial on their original petition and their trial amendment. Pertinent to this discussion plaintiffs, in their original petition, alleged that defendant was operating a ranch and that he had in his possession a large ferocious bull that the manager knew to be dangerous and illtempered; that the foreman directed Dawkins to move said bull from one location on the ranch to another; that the foreman did not provide proper equipment or help to move the bull and that such failure was negligence, and that as a result of such negligence while Dawkins was moving the bull from one part of the pasture to another he was attacked by the bull, gored, trampled and mauled, which severely injured Dawkins, and from which injuries he later died; that the negligence of defendant and his agents acting in the course of their employment proximately caused the injuries to Dawkins, resulting in his death. Plaintiffs, in their trial amendment, alleged generally that on the date in question defendant foreman directed Daw-kins to move the bull from one location on the ranch to another, and that such foreman did not provide proper help or equipment to move the bull, and then specifically alleged eight different acts of negligence. They are substantially to the effect that: (1 and 2) Not having a bull clamp in the nose of the bull; (3 and 4) Failing to send another employee to assist Dawkins in moving the bull; (5, 6, 7 and 8) In failing to have the bull properly retained at the time and place in question by the use of a rope halter manned on the left and right side of the bull, knowing the vicious propensities of said bull. Plaintiffs alleged that these acts were negligence and the proximate cause of the injuries resulting in the death of the employee Dawkins. It is our view that the pertinent and controlling evidence in this cause is without dispute. Mr. Magourik, foreman of the ranch, testified to the effect that on August 16, 1961, he asked Wesley Dawkins to go to the pasture and bring the bull to the barn; that he was at the barn at that time, and that Wesley and another employee, Harold Webb, went into the pasture and brought the bull to the barn without any incident whatsoever; that he saw Wesley bring the bull into the barn, and that he was leading the bull with a rope halter; that this, bull had been on the ranch a little more than three years, and that the bull was not ferocious. When Wesley got the bull into the barn he tied him to a post. The bull was brought to the barn for the purpose of breeding him to a cow that was in the barn and to complete the process that they used with reference to artificial insemination ; that after they got the bull into the barn for the procedures with reference to artificial insemination, Wesley untied the bull and brought him to the cow (some 2ft steps away from the post) and the first process was completed without incident and Wesley lead the bull back to the post and tied him again. After that a test was made of the semen caught and it was not satisfactory and they decided to make another catch of the semen and Wesley untied the bull and started to lead the bull back to the cow when he was gored by the bull. There is an absence of testimony as to what Wesley did except to untie the bull and start to lead him back to the cow and no testimony is given as to just what took place at the time or immediately before Wesley was gored by the bull. It is true that the foreman stated that the bull gored Wesley up against the fence, and he further testified that four other employees were around at the time besides himself, but there is an absence of testimony as to what caused the bull to gore Wesley, or any explanation as to what happened except that the bull gored Wesley while he was leading him to the cow for the second procedure, and that Wesley was thrown against the fence. Neither the plaintiffs nor defendant made further inquiry as to how or why the accident happened. The foreman testified to the effect that when Dawkins was injured the artificial insemination process was being conducted in the same manner in which it had been -done for many years, and that the exact procedure had been carried out only a few minutes before the accident, at which time Dawkins had brought the bull up to the cow alone as he started to do again, just before he was injured. He further testified that Dawkins had never asked for any additional help or equipment, and that Dawkins had never complained that the bull was dangerous. The evidence is further without dispute that there had never been any incident or activity on the part of the bull which would lead one to believe that he was not a completely docile animal, except at the time when Roy Webb stuck him with a pitchfork. The manager, to some extent, detailed the manner in which the artificial insemination process was completed and stated that four men were used in doing so, and that was all that was necessary. In Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, points 2, 3 and 4, we find the following pronouncement:

“The law imposes upon the employer the duty to exercise reasonable care in providing for an employee adequate help in the performance of work required of him.
⅛ ⅜ ⅜ ⅜ ⅜ ⅜
'So far as the movements of servants may depend upon their own volition, and are not in any way affected by the control of a superior, it is clear that there can be no recovery on the theory that the number of servants was temporarily inadequate at the time and place where the injury was received, unless it is shown that such inadequacy was known, actually or constructively, to the master or his representative’ ”.
■“The employer is not liable when he has provided help and injury results from the act of the employee in voluntarily proceeding to do the work without assistance. The same is true when sufficient help is nearby and available and the employee does the work without seeking or asking for assistance.”

It is true that Roy Webb testified about the bull having gored him some IS months before Wesley Dawkins was hurt. At the time Roy Webb was hurt he was feeding the bull at one end of the feed trough and he decided it was necessary to move the bull to another place on the feed trough in order to make it easier to bring horses through the gates leading to the barn; that when he attempted to move the bull to the other end of the feed trough he had a pitchfork and stuck the bull with the pitchfork and that caused the bull to attack him. That was the only incident that occurred prior to the time that Wesley Dawkins was injured, and Roy further testified to the effect that the bull was real gentle and that they had never used a halter on the bull until after he had hooked him; that they rvould go to the pasture after the bull and it wasn’t necessary to put a halter on him because he was so gentle; that they would drive him along by petting and coaxing him; that they always sent two men to bring the bull from the pasture to the barn. So, the evidence is without dispute that there had never been any incident on the part of the bull which would lead one to believe that he was anything but a completely docile animal, except the time Roy Webb jabbed him with a pitchfork as above detailed. It is also without dispute that there is no evidence of necessity for further help in bringing the bull from the pasture to the barn, or that the ranch foreman failed in any way to use reasonable care in the handling of the bull in completing this process of artificial insemination, which process had been conducted in the same manner at the ranch for some years.

Our view of this record is that there is no evidence of probative force that the bull was vicious or had vicious propensities which were known to appellee; all the evidence is to the effect that the hull was completely docile both before and after the Roy Webb incident. Wesley Dawkins had given the bull the pet name of Nap. As we understand the rule of law here applicable it only imposed upon the defendant and his employees the duty to use that degree of care that an ordinary prudent person would have used in employing the means in bringing the bull from the pasture to the barn, and that the same rule would apply in completing the process of artificial insemination. The burden was on plaintiffs to show that such care was not used and we think that under this record they failed to carry such burden. See Carson v. Knight (Com.App.), 294 S.W. 539 points (1, 2) page 540. See also Texas Digest, Vol. 2A, Animals, No. 66, Personal Injuries. See also D-Bar Ranch v. Maxwell, Tex.Civ.App., 170 S.W.2d 303 (w. o. m.).

Going back to the pleadings, they are to the effect that the defendant was negligent in bringing the bull from one part of the ranch to another location on the ranch, and there is an absence of testimony to show that anything happened while the bull was being led by a rope halter from the pasture to the barn. Two men were engaged in this task. Neither the original petition nor the trial amendment alleged that defendant was guilty of any negligence in the way he handled the bull after the bull was in the barn and while they were carrying out the process of artificial insemination. There is a total absence of testimony that the defendant failed to use sufficient help or sufficient equipment in the completion of this particular operation. So, we have a record before us where there is no proper pleading of a breach of duty upon which to submit the cause to the jury, nor is there any testimony tendering an issue as to the failure of the defendant to use ordinary care for the safety of his employees in accomplishing the task at hand. We do not find any act of negligence on the part of the employees or their agents, which was tendered by the evidence. In Texas and Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, our Supreme Court made this pronouncement:

“It is usually laid down, in cases of negligence, that, in order to constitute the proximate cause of an injury, the injury must be the natural and probable result of the negligent act' or omission. * * * the rule is that a party should not be held responsible for the consequences of an act which ought not reasonably to have been foreseen. In other words, it ought not to be deemed negligent to do or to fail to do an act when it was not anticipated, and should not have been anticipated, that it would result in injury to any one.”

Our Supreme Court has . not seen fit to change the foregoing rule. Under the record here made, it is our view that Wesley Dawkins assumed the risk incident to his employment and that it was the duty of the trial court to grant the defendant’s motion for instructed verdict, and having failed to do so it was the further duty of the court to withdraw the cause from the jury, and enter the decree it did. See also Union Stockyards v. Peeler (Com.App.) 37 S.W.2d 126, opinion by Critz. Each of appellants’ points have been fully considered, and each is overruled. Affirmed.