author: CHADICK, Chief Justice.

text:
    Richard E. McDANIEL et al., Appellants, v. F. G. CHERRY, Appellee.
    No. 7350.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 9, 1962.
    Rehearing Denied Jan. 30, 1962.

      Richard E. McDaniel, McDaniel, Hunt & Fairchild, Center, for appellants.
    G. R. Wellborn, J. N. Phenix, Law Office of Gordon R. Wellborn, Henderson, for appellee.
   CHADICK, Chief Justice.

This is an action for declaratory judgment and alternatively in trespass to try title and for damages. The trial court instructed a verdict. Judgment that plaintiffs take nothing is affirmed.

The suit was filed by heirs of Mahaly Mann Nero, deceased, and such parties’ vendees, as co-plaintiffs. These plaintiffs sought to establish title to an undivided interest in a 38 acre tract of land in the John Tomlinson Survey of Rusk County. They plead that the 38 acre tract was a part of a 46 acre tract acquired by Granville Nero and his first wife, Mahaly Nero, by a parol sale, and that F. G. Cherry as successor in title of Granville Nero and Ethel Moore was estopped by deed to deny the interest therein of Mahaly Nero’s heirs at law.

Granville Nero’s first marriage was to Mahaly Mann on December 17, 1885. There were born of this marriage the following children: Will Nero, Sally Lou Nero, C. Laud Nero and Sidney Nero. Mahaly Mann Nero, the first wife, died intestate on June 23, 1902. Will Nero, a son, died intestate on April 17, 1907; he was never married. Sally Lou Nero, a daughter, died intestate in 1940 survived by her daughters who are plaintiffs named as follows: Ada Johnson Pleasant, Connie B. Johnson Payne, and Lorene Brown Darden. C. Laud Nero, a son, died intestate without issue, leaving a surviving wife, Lillian Nero, who is not a party to this suit. Sidney Nero, a son, died December 13, 1955, and by a Will duly probated left his property to his son, Ilester Nero, a plaintiff.

Granville Nero’s second marriage was to Ada Cato on December 11, 1902. There was one child, Ethel Nero, born of the marriage on September 30, 1903. Gran-ville’s second wife, Ada Cato Nero, died intestate in 1909.

Granville Nero’s third marriage was consummated with Effie Menefee in 1910. Effie died intestate on February 14, 1934. Two sons, L. H. Nero and H. J. Nero, were born of that marriage. L. H. Nero is still living, but is not a party to the suit. H. J. Nero, a son, died intestate in 1953 survived by children who are not parties to this suit.

Granville Nero’s fourth marriage was with Lucinda Nero, who died intestate prior to Granville Nero’s death. No children were born of the marriage. Granville Nero died intestate in 1959.

A deed from W. W. Griffin and wife Ara Griffin to Granville Nero, dated May 18, 1903, conveying a 46 acre tract of land, a part of the John Tomlinson Survey, Rusk County, Texas, was introduced in evidence. The deed is dated at a time when Granville was married to his second wife, Ada, the mother of the only child of the second marriage, Ethel Moore. Thirty-eight acres out of this tract is the land in suit.

The following instruments were relied upon by the plaintiffs, the appellants here, as supporting the estoppel plead or placing the successors in title of Granville and Ethel Moore on notice of the title and interest in the 38 acres claimed by Mahaly Nero’s heirs at law that are plaintiffs in the suit, to-wit:

(1) A Warranty Deed to G. A. Johnson signed by Granville Nero and his fourth wife, Lucinda Nero, Ethel Garrison, Gran-ville Nero’s child by his second marriage, and her husband, Jim Garrison, L. H. Nero, H. J. Nero, Sidney Nero, Conneil B. Mills and her husband Gus Mills, Ada Pleasant and her husband, Ellison Pleasant and Lorene Brown. This instrument conveyed a tract of eight acres out of the 46 acre tract. Those joining Granville Nero in the execution of the Deed were his children by his second and third marriages, and Sidney Nero, the only surviving child of Mahaly Nero at that date, together with all other heirs at law of Mahaly Nero except the surviving wife of C. Laud Nero. The deed recited that consideration was the sum of one dollar cash paid to each grantor by G. A. Johnson “and the further consideration that the said G. A. Johnson liquidate all State, County and Tatum Independent School taxes now delinquent on all lands owned by us in common, and said cash consideration to he included in said tax liquidation.” The deed was recorded in the Deed Records of Rusk County on June 8, 1942;

(2) Two mineral leases, one dated July I, 1954, signed by Granville Nero, the other dated August 13, 1954, signed by Sidney Nero, Connie B. Benjamin, a widow, Ethel Moore and husband, Ernest Moore. Each instrument purported to lease the 46 acre tract for oil and gas, excepting therefrom the eight acres previously sold to G. A. Johnson. The description of the land in the leases made reference to the Johnson deed and where it was recorded. Each instrument undertook to describe 38 acres of land. The granting clause in each lease conveyed the entire leasehold interest. Annual delay rentals of $21.38 and $11.38 respectively were stipulated. Each lease provided that in the calculation of rental payments the tract would he considered as comprising 38 acres; hut also provided that in the event of failure of title, without impairment of the lessee’s rights under the warranty, the rentals and royalties would be reduced to accord with the interest the grantors owned;

(3)A Warranty Deed dated May 23, 1956, from Granville Nero, Ethel Moore, and husband Ernest Moore, to F. G. Cherry, the appellant here, in which the 38 acre tract is described as the same land deeded to Granville Nero by W. W. Griffin May 18, 1903, the description ending with this language: “Except eight acres out of the Northwest corner of the forty-six acres sold to G. A. Johnson June 13, 1941 by Deed of record in Volume 372, page 124, leaving thirty-eight acres of land more or less.” This deed was acknowledged by the grantors and placed of record.

Heirship is without question. The only child of Granville Nero and his second wife was the daughter named Ethel. This daughter appears in the deed to G. A. Johnson as Ethel Garrison, wife of Jim Garrison, and in the mineral leases and the deed to Cherry as Ethel Moore, wife of Ernest Moore. Jim Garrison was acci-dently killed in a sawmill mishap and Ethel thereafter married Ernest Moore.

The appellants primarily base their case on estoppel. The first theory is that the consideration recital in the deed to Johnson “that the said G. A. Johnson liquidate all State, County and Tatum Independent School taxes, now delinquent, on all lands owned by us in common”, etc., constituted an acknowledgment and recognition by Granville Nero and Ethel Garrison that their cograntors were tenants in common in the 46 acre tract, and that Cherry the grantee of Granville Nero and Ethel Garrison in the Warranty Deed of May 23, 1956, is estopped to aver otherwise. A concomitant theory is that joinder of the children and heirs at law of Granville Nero’s three deceased wives as grantors in the Johnson deed constituted acknowledgment and recognition by Granville Nero that the heirs of the deceased wives were vested with an interest in the 46 acre tract out of which was carved the 8 acres conveyed to Johnson.

Williams v. Hardie (Corzin’s heirs), 85 Tex. 499, 22 S.W. 399, holds the true basis of estoppel by deed to be in the concept that a party to a contract should not be permitted to take a position inconsistent with the contract’s provisions, to the prejudice of the other contracting party. It seems therefore that the reason for the estoppel is to prevent the assertion by the contracting parties or their privies of any fact or title in derogation of the agreement made. Such conclusion is in harmony with the rule frequently stated in broad language that parties and privies to conveyances, such as these under consideration, are bound by the recital of fact contained in the instrument of conveyance, and are estopped to deny a- transfer of title in accordance with the instrument’s terms. Examination of such cases as Hardy v. DeLeon, 5 Tex. 211; Box v. Lawrence, 14 Tex. 545; Parker v. Campbell, 21 Tex. 763; Kimbro v. Hamilton, 28 Tex. 560, 561; Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626; and Havard v. Smith, Tex.Civ.App., 13 S.W.2d 743, N.W.H., reveals that in instituting this last mentioned rule the courts used the term “parties” in the sense of grantor and grantee as principals in a contract with each other.

No appellant claims title by or through a grantee in either the Johnson deed or the mineral leases. If the conclusion reached above is correct that an. agreement is the basis, the indispensable-element of an estoppel by deed, the Johnson, deed and the August 13 mineral lease must evidence a contract made by the co-grantors-therein among themselves concerning their title to the 38 acres in suit; otherwise-these instruments do not constitute an es-toppel barring Cherry from asserting title-derived from Granville Nero and Ethel Moore. The other mineral lease signed', by Granville Nero alone is not pertinent to this particular inquiry. In pursuing the-inquiry indicated a search of the two-instruments reveals no agreement of any-nature made by one or more co-grantors with one or more of the other co-grantors. The only agreement expressed or implied in either instrument is the agreement the-grantors on the one hand made with the grantees on the other.

The requirement in the Johnson deed obligating Johnson to pay taxes on-“lands owned by us in common” neither expressly nor impliedly constitutes an agreement among the co-grantors that the tract from which the Johnson deed acreage was to be carved belonged in common to the co-grantors. It is well to note at this point that the record contains evidence that title to a tract not involved in this suit and in the record known as the Granville Nero “home-place”, acquired during the marriage of Granville Nero to Mahaly, was in Gran-ville Nero, but by inheritance each of the other co-grantors held some interest therein.

While it is entirely possible that Granville Nero and Ethel Moore believed at the time-of execution of the Johnson Deed that their co-grantors therein, the children and heirs-of the first wife, Mahaly Nero, and the children of the third wife, Effie Nero,, had some interest in the land conveyed,, no language is used in the conveyance expressly or impliedly evidencing an agreement between them that right, title or ownership was so vested.

No case has been cited holding co-grantors conclusively bound as to each other by recitals in a deed in the absence of some character of agreement between the co-grantors. This absence of precedent and inability to perceive a good reason therefor leaves this court unwilling to say as a matter of law that the simple act of joining in making a deed is an admission by the co-grantors that each has some right, title or interest in the land conveyed, or in cases such as this, that each of the co-grantors has an interest in the land that remains after a part is conveyed. It is a common practice, when the facts of ownership are difficult to ascertain, that all persons having an interest or who might possibly have an interest, be joined as co-grantors in a conveyance so that the grantee may be protected in his title regardless of ownership when the facts are finally settled. It is not in the public interest to hold that simple joinder as a co-grantor in a deed imports a recognition of a title or interest in other co-grantors, in the absence of an agreement in that respect.

Having reached the conclusion that the instruments relied upon do not show a contract between the co-grantors in the Johnson deed and the lease dated August 13, it follows that there is no basis for estopping Cherry from asserting title to the exclusion of the children and heirs of Mahaly Nero. From a very early date the courts of this State have held that a recital in a deed constitutes an estoppel only in a suit founded upon the instrument which contains the recital, or growing out of the transaction in which it is given. See Williams v. Chandler, 25 Tex. 4 at p. 11. The deed and lease discussed are not the source of title to the 38 acres claimed by any party to this suit. The instruments are not the foundation of the cause of action asserted, and are relevant only as a collateral transaction.

Next for consideration is the contention of the appellants that a fact issue was raised which should have been submitted for jury determination. The theory is that Cherry, as successor in title of Gran-ville Nero and Ethel Moore, was visited with notice of the appellants’ claim to an interest in the 38 acre tract by the recitals in the several instruments and by joinder of some of the children and heirs at law of Mahaly Nero in one of the mineral leases and the Johnson deed, and that an investigation by Cherry would have disclosed the existence of the interest the appellants claim. The appellants urged application of the rule from 43 Tex.Jur. 647, Sec. 343, quoted in Tuggle v. Cooke, Tex.Civ.App., 277 S.W.2d 729, n. r. e., as follows: * * * the purchaser is charged with knowledge of any equity or interest of a third person which is disclosed or recognized by a conveyance through which he claims, as well as notice of any fact recited or revealed in such conveyance, in the certificate of acknowledgment, or in another instrument to which the conveyance refers. And when a fact is recited which is sufficient to put a prudent man on inquiry, the purchaser is charged with notice of facts which might have been ascertained by a proper inquiry.”

It is thought, however, that it is not necessary to determine the question of notice because the record does not disclose that by making inquiry Cherry would have discovered appellants claimed equity in the 38 acres. The appellants’ claim is that the 46 acre tract of which the 38 acres in suit is a part was acquired by Granville Nero by parol sale during the period of time that Granville Nero was married to their mother, Mahaly Nero, and therefore is a part of the estate of Mahaly Nero which passed to her heirs at her death. The record contains no proof of a parol sale, nor is there evidence of facts essential to the establishment of an enforceable parol sale of land. The record’s silence on such factors as payment of consideration, possession and making valuable and permanent improvements by the vendee, as discussed in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216, pretermits any issue of fact in this respect.

In addition to what has been said, Cherry as the vendee of Granville Nero and Ethel Moore was entitled to rely on the statute of frauds as a bar to appellants’ claim that an interest vested in Mahaly Nero by a parol sale of the land involved to Granville Nero. Franzetti v. Franzetti, Tex.Civ.App., 124 S.W.2d 195, err. ref.; 26 Tex.Juris.2d 206, Sec. 42. The record as it stands does not raise a fact issue on the question that an investigation by Cherry would or should have revealed that a parol sale of the tract was made to Granville Nero during the time of his marriage to Mahaly and prior to the date of his deed. Nor is there a question of fact raised by the joinder of the several co-grantees in the Johnson Deed. It has been held that a deed by co-grantors is not proof of title in one grantor that will support a judgment of title in him in a suit against other co-grantors and their privies. Ford v. Anderson, Tex.Civ.App., 83 S.W.2d 443, err. dism. The presence or absence of notice to Cherry is not decisive of any question because of this hiatus in proof.

Appellants’ other points deal with the admission of evidence. The court sustained an objection when a witness was asked if Granville Nero ever denied that Sidney Nero, a son of Granville and Mahaly Nero, had an interest in the 46 acre tract. The question propounded was not limited to the time before the sale to Cherry, nor to a time after the sale when Cherry was present. Verbal declarations of a grantor in a Warranty Deed to land made after he has parted with title and possession, and outside the presence of vendee cannot be received in evidence to defeat the title of the vendee to the property conveyed. Thompson v. Herring, 27 Tex. 282; Hinson v. Walker, 65 Tex. 103; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 136 S.W.2d 207. The answer to the question propounded was properly excluded.

A witness was asked whether or not there was a reputation in the community that Granville Nero acquired an interest in the land before the termination of his first marriage. Objection was sustained and no answer permitted to the question. Courts have long permitted the introduction of testimony to show by reputation the identity of persons claiming land and its possession. However, the question propounded was to ascertain the time of acquisition of an interest by Granville Nero, the question pre-supposing title in him, rather than whether he was claiming an interest therein during the time of his marriage to Mahaly Nero. An answer to the question asked would violate the hearsay rule.

The appellants’ several points of error have been given careful consideration and are respectively overruled. In the opinion delivered in this case December 5, 1961 several inadvertent errors appeared. Since correction became necessary an effort has been made to state the reasons for the court’s views in more detail. The opinion dated December 5, 1961 is withdrawn and this substituted for it. Appellants may if they desire file a second motion for rehearing herein.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RICHARDS, Justice.

license: Public Domain

text:
    Charlie W. ROSSE, Appellant, v. NORTHERN PUMP COMPANY et al., Appellees.
    No. 10918.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1962.
    Rehearing Denied Jan. 31, 1962.

      Gus L. Kowalski, Kingsville, Lloyd, ■Lloyd & Dean, Alice, for appellant.
    Perkins, Floyd, Davis & Oden, Alice, Keys, Russell, Keys & Watson, H. J. Pren-dergast, Corpus Christi, for appellees.
   RICHARDS, Justice.

Suit was brought by Charlie W. Rosse, appellant, against Northern Pump Company, John B. Hawley, Jr., Henry W. Volk, Jr., Dr. Mclver Furman, W. Preston Pittman and T. S. Scibienski, Trustees under the Last Will and Testament of Clara Driscoll, Deceased, Dr. Mclver Furman, W. Preston Pittman and T. S. Scibienski, Trustees of the Robert Driscoll and Julia Driscoll and Robert Driscoll, Jr. Foundations, King Ranch, Trustee, Mrs. Louise E. Flato, Mrs. Florence Arnold East, Allen B. East, Mrs. Annie Mae East, and Alice National Bank, appellees, seeking a judgment declaring that he owns a royalty interest of ¼6th of all oil, gas and other minerals in and under and that have been and may be produced from lots 1 to 8 inclusive, Block 41, Kleberg Town and Improvement Company’s Subdivision, in Kleberg County, Texas.

Appellees King Ranch, Trustee, and Mrs. Louise E. Flato filed answers admitting the interest claimed by Rosse to be a royalty interest. Appellees Northern Pump Company and John B. Hawley, Jr. assignees of W. R. Lokey, lessee, under an oil, gas and mineral lease executed by all other appel-lees and their predecessors in title as lessors covering the oil, gas and other minerals in and under the property in controversy, answered stating that they had no interest in the subject matter of the suit other than as stakeholders to pay over to the parties entitled thereto the proceeds of the production covered by the lease. Appellee Henry W. Volk, Jr. owner of an overriding interest in the lease, filed no answer but the Trial Court denied Rosse any relief against him.

The remaining appellees Florence Arnold East, Allen B. East, Annie Mae East, Alice National Bank, Dr. Mclver Furman, W. Preston Pittman and T. S. Scibienski, Trustees under the last will and testament of Clara Driscoll, deceased, and Trustees of the Robert Driscoll, Julia Driscoll and Robert Driscoll, Jr. Foundations joined in an answer and cross action in which they contended that the interest asserted by Rosse was not a royalty interest but a participating mineral interest and that since lessee W. R. Lokey and his assigns, appel-lees Northern Pump Company and John B. Hawley, Jr., had developed and operated said lease thereby incurring certain reasonable and necessary expenses which inured to the benefit of Rosse as co-tenant, and as a result of which both oil and gas in commercial quantities had been produced from the land involved, Rosse should bear a ½6⅛ part of the necessary and reasonable expenses incurred in producing and marketing the oil and gas and prayed that judgment be rendered declaring Rosse’s interest to be a reservation of a participating mineral interest as distinguished from a royalty interest and that such mineral interest' in Rosse as well as the proceeds of the sale of the production attributed thereto held by appellees Northern Pump Company and John B. Hawley, Jr. be charged with ¾6th of the cost of production heretofore and hereafter incurred by the owners of the lease and the appellee lessee be directed to pay to them a %rds part thereof. They further pleaded in the alternative that since Rosse by his pleadings had adopted the lease to W. R. Lokey, he was entitled to only ¾eth of the royalties provided in the lease and they were therefore entitled to %rds of %6ths of the royalties and in the alternative prayed that the Court enter judgment accordingly.

The case was tried before the Court without a jury and judgment was rendered holding that Rosse’s interest was a participating mineral interest and not a royalty interest but awarded to Rosse and the other appellees, except lessees Northern Pump Company and John B. Hawley, Jr., various portions of the mineral interests and the proceeds thereof in the oil, gas and other minerals in, under and theretofore and thereafter to be produced from the land in question. The awards of the mineral interests will be detailed and discussed infra in this opinion.

No evidence as to the amounts expended by lessees Northern Pump Company, John B. Hawley, Jr. and Henry W. Volk, Jr. in drilling and developing the lease and the costs of production was offered by any of the parties upon the trial nor does the judgment award the lessees Northern Pump Company and Hawley any recovery against Rosse for his proportionate share of the cost of production incurred by the lessees. Rosse excepted to the judgment and gave notice of appeal to the Fourth Court of Civil Appeals at San Antonio.

At Rosse’s request, the Trial Court made and filed findings of facts and conclusions of law, to which Rosse filed exceptions and objections. The appeal was duly perfected to the Fourth Court of Civil Appeals.

In the interest of brevity, Charlie W. Rosse will be hereinafter referred to as appellant. Appellees Northern Pump Company, John B. Hawley, Jr. and Henry W. Volk, Jr. will be referred to as lessees. Appellees King Ranch, Trustee and Mrs. Louise E. Flato will be referred to as King Ranch and Flato and appellees Florence Arnold East, Allen B. East, Annie Mae East, Alice National Bank, Dr. Mclver Furman, W. Preston Pittman and T. S. Scibienski, trustees under the last will and testament of Clara Driscoll, deceased, and Trustees of the Robert Driscoll, Julia Driscoll and Robert Driscoll, Jr. Foundations will be referred to as appellees.

Appellant predicates his appeal upon six points of error. The primary question for consideration is whether the mineral interest owned and asserted by appellant in the lands in controversy is a royalty interest as asserted by appellant or a participating mineral interest as asserted by appellees.

Appellant claims title to the interest retained by Oscar Rosse et ux. in their deed to Robert J. Kleberg, Trustee, dated April 6, 1920 wherein the grant as well as the reservation reads as follows:

“All of our right, title and equity in and to all of the oil, gas, coal, sulphur or other minerals, save and except an equal one-sixteenth (Ms) part, which we hereby reserve for ourselves, under and upon all of that certain lot, tract piece or parcel of land lying and being situated in Kleberg County, Texas, * * * Farm Lots numbered one (1), Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7), and Eight (8), in Section numbered Forty-one (41), of the Kleberg Town and Improvement Company’s Subdivision of lands on Kleberg County, Texas * * * together with the right of agrees and ingress.”

Prior to the execution of this deed Oscar Rosse and wife on October 30, 1919 executed and delivered to Charles H. Flato, Jr. et al. an oil, gas and mineral lease on lots 3 to 6, inclusive, of Block 41 and on February 9, 1920 Oscar Rosse and wife executed a deed to Robert J. Kleberg, Trustee of "an undivided equal one half (½) interest to all of” their right, title and equity in and to the “oil, gas, coal, sulphur and other minerals under or upon” Lots 1 to 8, inclusive, Block 41.

By deed dated June IS, 1925 Oscar Rosse and wife conveyed to Charlie W. Rosse, appellant, Lots 1 to 8, inclusive, Block 41, the deed providing that:

“ * * * there is also conveyed hereby a one-sixteenth (¼6⅛) undivided interest in and to all the oil, coal, gas, sulphur or other minerals under or upon the above described land which is all of the interest of the grantors herein in and to the oil, coal, gas, sulphur or other minerals under or upon the above described land.”

Appellant asserts that the interest thus conveyed to him constitutes a ½6⅛ royalty interest in and to all of the oil, gas and other minerals in and under and which have been or will hereafter be produced from Lots 1 to 8, inclusive, Block 41, Kleberg Town and Improvement Company’s Subdivision. We are of the opinion that appellant’s contention is erroneous.

In Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004, the Supreme Court in construing a reservation in a deed reading as follows:

“Grantors expressly reserve unto themselves for a period of fifteen years from the date hereof an undivided one-sixteenth interest and estate in and to all of the minerals of every character, including oil and gas, in and under and appurtenant to all of the above described property, and said undivided interest in said minerals is not intended in any wise to be conveyed hereby, but the same is hereby excepted from this conveyance

held that the reservation contained in the deed was plain and unambiguous and reserved an undivided ¾6⅛ interest in the minerals in and under the land and “makes no reference whatever to any royalty to be paid under any existing or subsequent lease.” At the time the deed containing the reservation was executed, the grantor had executed a 10-year oil and gas mining lease in the usual form.

The reservation by Oscar Rosse and wife in their deed to Robert J. Kleberg, Trustee is a plain and unambiguous reservation of an undivided ¾⅛⅛ interest in the minerals under the lands conveyed “and makes no reference whatever to any royalty to be paid under any existing or subsequent lease” and under the rule announced in Murphy v. Dilworth, supra, constitutes the reservation of a participating mineral interest and not a royalty interest. Appellant’s third point of error is overruled.

Upon the trial appellant offered evidence, both oral and documentary, for the purpose of showing that the reservation in the deeds from Oscar W. Rosse et ux. to Robert J. Kleberg, Trustee, and from Oscar Rosse et ux. to appellant was interpreted both by appellant and his predecessor in title as well as the lessors and lessees under prior oil and gas leases to be a nonparticipating royalty interest rather than a participating mineral interest but the Trial Court sustained objections to the introduction of such testimony. Appellees also offered evidence of subsequent interpretation or construction by appellant and his predecessors in title that the reservation had been interpreted to be a participating mineral interest instead of a nonparticipating royalty interest. Appellant objected to the introduction of such evidence, which objections were overruled by the Trial Court who found as a fact that the interested parties had interpreted the reservation as being a participating mineral interest rather than a nonparticipating royalty interest and “that it was so intended by the parties.”

In Murphy v. Dilworth, supra, it was held that where the terms of a written contract are plain and unambiguous, parol evidence is inadmissible to vary its terms or show the construction placed upon it by the parties at the time of or subsequent to the making of the contract. None of the pleadings in the case at bar allege fraud in the execution of the deed or accident or mistake in reducing it to writing. Therefore, the fact that the grantors may have intended to make a different reservation than that contained in the deeds or afterwards believed that they had actually reserved a Vieth nonparticipating royalty interest instead of a participating mineral interest in the minerals conveyed by the deed is immaterial.

The Trial Court properly excluded the evidence offered by appellant to show the interpretation of the reservation but committed error in permitting appellees to introduce evidence in support of the interpretation that the reservation was that of a participating mineral interest rather than a nonparticipating royalty interest over proper objections by appellant. As a result the Trial Court’s findings of fact based upon inadmissible evidence must be disregarded. Appellant’s first and second points of error are sustained and his fourth point of error is overruled as are appellees’ second and third counterpoints.

As stated above, appellees and King Ranch, Trustee and Flato and their predecessors in title to the owners of 1%6ths of the mineral interest therein as lessors executed an oil, gas and mineral lease to W. R. Lokey as lessee on Lots 1 to 8, inclusive, Block 41, the properties involved herein, which lease reserved a royalty of ⅛⅛ of all the oil, gas or other minerals except sul-phur in favor of the lessors. This lease was subsequently acquired by appellees, Northern Pump Company and John B. Hawley, Jr. as lessees.

Paragraph 12 of the Lokey lease contains the following provision:

“It is understood and agreed that this lease is subject to that certain mineral interest reserved and excepted by Oscar Rosse and wife, Christine Rosse, in that certain deed dated April 26, 1920, to Robert J. Kleberg, Trustee, appearing of record in Volume 13, on pages 312-313, Deed Records of Kleberg County, Texas, to which reference is here made for complete description thereof. However, the Lessors agree to hold Lessee harmless from such an interest so excepted and hereby agree that such interest as the said Oscar Rosse and Christine Rosse reserved in said deed shall be deducted from and charged against the royalty interest to be paid the Lessors as set out in paragraphs 3 and 10 above.”

Appellant contends under his fifth point of error that he is entitled to he paid the royalty of ¾6⅛ of all the oil, gas and other minerals provided to be paid under the terms of the Lokey lease since appellees as lessors and lessees or their predecessors in title are bound by the lease. Appellees by their fifth counterpoint counter this contention by asserting that appellant judicially admitted in his first amended original petition that his interest was hound by the terms and provisions of the Lokey lease and therefore is entitled as between him and appellees only to a share of ¼6⅛ of 34rds of the ½⅛ royalty interest inuring to the lessors thereunder.

The judicial admission referred to reads as follows:

“Plaintiff alleges that defendants, Northern Pump Company and John B. Hawley, Jr., have been and are now claiming to have acquired and own the above described oil, gas and mineral lease from W. R. Lokey in some manner and in some proportion plaintiff cannot now allege, but plaintiff does allege that both Northern Pump Company and John B. Hawley, Jr., as well as all other parties hereto, have been and are now bound by the terms and provisions of said lease.
“That oil and gas have been heretofore discovered on and have been and are now being produced from the above described land under the aforesaid lease which has been and is now in force and effect.” (Italics supplied.)

The Trial Court concluded as a matter of law that:

“2. The Plaintiff, Charlie W. Rosse, as the successor to the interest so reserved by Oscar, et ux, and such interest, are bound by and subject to the terms of the oil, gas and mineral lease above referred to, the said Charlie W. Rosse having by his pleadings as a matter of law ratified and adopted such lease, and is estopped by his pleadings on which this case went to trial to herein contend otherwise.”

In support of their fifth point appellees cite Sec. 1144, McCormick & Ray, Texas Law of Evidence, which states that the pleadings in a case for the purpose of use in that case are to be regarded as judicial admissions rather than ordinary admissions since they are not evidence but a waiver of evidence.

Formal judicial admissions are really substitutes for evidence and such admissions include facts admitted by pleadings, by an agreed statement of facts, or by formal declarations in open court by a party or his attorney such as waiver of proof of certain facts. Sec. 1127, McCormick & Ray, Texas Law of Evidence. Judicial admission is a “waiver of proof” of a fact during the course of a judicial proceeding. United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, 229, error ref.

The so-called admission was based upon and coupled with the fact that appellant erroneously believed, and alleged, that as a matter of law the reservation which he acquired, the deed from Oscar Rosse et ux., was a nonparticipating royalty instead of a participating mineral interest. So treated, as we believe it must be, the admission is self serving and one which appellees deny. Appellees’ contention under their fifth counterpoint is without merit.

Since we have held that the Vieth mineral interest reserved in the deeds by Oscar Rosse et ux. to Robert J. Kleberg, Trustee and to appellant is a participating mineral interest and not a royalty interest, such mineral interest is subject to the rules of law governing participating mineral interests owned by co-tenants. The rule in Texas in oil and gas cases is that a co-tenant producing oil or gas must account to his co-owners for the value of the oil or gas produced less the reasonable cost of producing and marketing. Burnham v. Hardy Oil Co., Tex.Civ.App., 147 S.W.2d 330, 334; aff. 108 Tex. 555, 195 S.W. 1139; White v. Smyth, 147 Tex. 272, 214 S.W.2d 967, 975, 981, 5 A.L.R.2d 1348.

A tenant in common has the right to occupy the entire joint property but if he removes oil or gas he must account to the co-tenant for the value of the proportionate shares of the oil and gas upon one of two bases: (1) If the taking of the oil and gas is with the knowledge and consent of the co-tenant he must pay the usual and customary royalty for oil and gas in place in the vicinity of the premises but (2) if the removal of the oil and gas is without express permission of the co-tenant, the taker must account to the co-tenant by paying the value of the co-tenant’s proportionate share of the oil and gas at the mouth of the well, since he is regarded as a trespasser. Texas & Pacific Coal & Oil Co. v. Kirtley, Tex.Civ.App., 288 S.W. 619, 622, error ref.

In the instant case, appellant did not join with the appellees and King Ranch, Trustee and Flato or their predecessors in title in the execution of the Lokey lease nor was appellant estopped to claim his ¾6& participating mineral interest under the Lokey lease which specifically provided in paragraph 12 that it was executed "subject to” such mineral interest.

The use of the words “subject to” as used in a mineral deed means “subordinate to”, “subservient to”, or “limited by” and is a term of qualification and not of contract. Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, 531, error ref. Appellant not being a party to or having adopted the Lokey lease but merely claiming the ¾6⅛ mineral interest which was subservient to the lease did not thereby adopt the other provisions of the lease relating to the payment of the ⅛⅛ royalty to the lessors.

However, as a co-tenant holding a ⅛6⅛ participating mineral interest his share of the oil and gas produced therefrom is properly chargeable with his proportionate share of the cost and expenses entailed by the lessees in the exploration, drilling and production of oil and gas therefrom. Appellees admit in their briefs that if appellant is not bound by the lease as found by the Trial Court, his share of the proceeds of the production are properly chargeable with his proportionate share of such cost and expenses.

As above stated, no evidence was offered by any of the parties as to the costs incurred by lessees in the production of the oil or gas under the Lokey lease although appellees alleged in their answers and cross action that the lessees had incurred reasonable, proper and necessary expenses in the development and operation of the lease as of November 30, 1959 in the sum of approximately $308,080.96, which expenditures had inured to the benefit of appellant as a co-tenant and that the total production of both oil and gas by the lessees amounted to $145,874.72. Appellees alleged that they had at all times recognized the ownership by Oscar Rosse et ux. or their successors in interest of ¾6⅛ of such production less ¾6⅛ of the necessary and reasonable expense incurred in the production and marketing thereof and that the lessees had been so notified from time to time. Appellees further alleged that under the terms of the lease lessees were and are obligated to pay lessors the ⅛⅛1 royalty therein set out “less the portion to which appellant may be entitled as owner of ¾6⅛ of the minerals as distinguished from ¼eth as royalties” and therefore the lessees were and are obligated to account to ap-pellees for that part of the cost and expenses with which appellant’s ¾6⅛ mineral is chargeable, which allegation constituted a judicial admission of facts by appellees.

However, the Trial Court, for some reason not apparent from the record, having found that the interest claimed by appellant was a ¾6⅛ participating mineral interest instead of a royalty interest but having erroneously decided that appellant had adopted the terms of the Lokey lease thereby changing his ½6⅛ participating mineral interest into a ¾6th nonparticipating royalty interest in the ⅛⅛ royalty reserved to appellees and King Ranch, Trustee and Flato under the Lokey lease, proceeded to make awards to appellant, ap-pellees and King Ranch, Trustee and Flato of various fractional shares of such royalty.

The judgment entered by the Trial Court allocated and awarded the mineral interests in the property involved as follows: ⅛⅛ of ^sths to appellees Dr. Mclver Furman, W. Preston Pittman and T. S. Scibienski, Trustees under the last will and testament of Clara Driscoll, Deceased, and Dr. Mc-lver Furman, W. Preston Pittman and T. S. Scibienski, Trustees of the Robert Driscoll and Julia Driscoll and Robert Driscoll, Jr. Foundations; ¼⅛ of ^sths to appellee Mrs. Florence Arnold East; %th of ^eths to appellees Allen B. East and wife, Annie Mae East, subject to the lien of appellee Alice National Bank. The judgment further held that as between appellant and appellees, King Ranch, Trustee and Mrs. Louise E. Flato the reservation in the deeds by Oscar Rosse et ux. to Robert J. Kleberg, Trustee, as appellant “became a nonparticipating royalty interest” to the extent of l^rd to be a burden upon the Járd mineral interest of appellees King Ranch, Trustee and Mrs. Louise E. Flato. The Court then ordered appellees Northern Pump Company and John B. Haw-ley, Jr. to distribute the ¾6⅛ of the proceeds of the sale of the mineral production held by them as stakeholders in the following manner: á%i52nds to appellant and to appellees 4%i52nds. Appellees King Ranch, Trustee and Mrs. Louise E. Flato were not awarded any shares in the proceeds of the production held by the lessees as stakeholders.

Since the Trial Court erroneously held that appellant had adopted the Lokey lease and by such adoption his participating mineral interest had by some process of transmogrification changed into a nonparticipating royalty interest, the judgment awarding and allocating the various portions of the mineral interests and the royalty interests above set forth was in error.

The judgment of the Trial Court is reversed and this cause remanded for a new trial upon which evidence should be offered to show the amount of the reasonable and necessary costs and expenses incurred by appellees Northern Pump Company and John B. Hawley, Jr. in the exploration, production and marketing of the oil and gas produced from Lots 1 to 8, inclusive, Block 41, Kleberg Town and Improvement Company’s Subdivision, in Kleberg County, Texas, under the Lokey lease and the amount of the proportionate share thereof to be borne by appellant Charlie W. Rosse by virtue of his %eth participating mineral interest therein; the amount of the proceeds received from the oil and gas heretofore produced under such lease, and if desired by appellees Northern Pump Company and John B. Hawley, Jr. as lessees and all other ap-pellees as lessors for an adjudication of their respective interests under the clause contained in paragraph 12 of the Lokey lease whereby the appellees lessors agree to hold the appellees lessees harmless from the participating mineral interest owned by appellant by deducting such interest from and charging it against the royalty interest to be paid to the lessors, all of the parties being granted leave to amend their respective pleadings and upon the trial to offer additional evidence in support thereof without any limitation as to any additional issues of law or fact thereunder.

All costs of Court are taxed against appellees Florence Arnold East, Allen B. East, Annie Mae East, Alice National Bank, Dr. Mclver Furman, W. Preston Pittman and T. S. Scibienski, Trustees under the last will and testament of Clara Driscoll, Deceased, and Trustees of the Robert Driscoll, Julia Driscoll and Robert Driscoll, Jr. Foundations.

Reversed and remanded with instructions.

      . All parties seem to concede that the word “agrees” is a mispelling of egress,


author: WERLEIN, Justice.

text:
    Zolton GOTTESMAN, Appellant, v. Sam TOUBIN et al., Appellees.
    No. 13868.
    Court of Civil Appeals of Texas. Houston.
    Jan. 18, 1962.
    Rehearing Denied Feb. 8, 1962.

      Arthur Mitchell, Austin, for appellant.
    Richard Spinn, W. J. Embrey, Brenham, for appellees.
   WERLEIN, Justice.

This is an appeal by Zolton Gottesman, Garnisher, appellant, from a judgment of the District Court of Washington County, Texas, discharging Sam Toubin, Garnishee, appellee herein, from any liability in the garnishment proceeding.

Prior to this garnishment proceeding, appellant recovered a final judgment for $27,-500.00 in the District Court of Wharton County, against A. H. Toubin and Irwin Milner. Thereafter, appellant filed his application for a writ of garnishment in the District Court of Wharton County, directed to appellee, individually, a resident of Washington County. Other pleadings were filed which are referred to in the opinion of the Waco Court of Civil Appeals in Gottesman v. Toubin, Tex.Civ.App., 326 S.W.2d 586, affirming the judgment of the District Court of Wharton County sustaining appellee’s plea of privilege and transferring the garnishment proceeding to the District Court of Washington County.

Subsequent to said order of transfer entered July 29, 1958, appellee filed a motion in which he asked for judgment and that the garnishment proceedings be dismissed. In such motion he alleged in substance that although the affidavit requesting the issuance of a writ of garnishment shows on its face that the judgment was against two defendants, it fails to state that neither of the two defendants has any property to the knowledge of the garnisher in the State of Texas, subject to execution sufficient to satisfy such judgment. We have carefully examined the affidavit and have concluded that it is insufficient and that for such reason the garnishment proceedings were subject to •being quashed upon motion by the garnishee. It is clear that the affidavit failed to negate under oath that neither of the judgment debtors had property in the state subject to execution. Buerger v. Wells, 1920, 110 Tex. 566, 222 S.W. 151; Smith v. City Nat. Bank, Tex.Civ.App.1911, 140 S.W. 1145, error ref.; Beggs v. Fite, 1937, 130 Tex. 46, 106 S.W.2d 1039; 26 Tex.Jur.2d, p. 669, § 5.

Appellant contends that if the affidavit is not sufficient, the insufficiency thereof was waived by the garnishee. This contention calls for an examination of the record. The application for the writ was filed November 23, 1957 and served on appellee, Sam Toubin, on January 20, 1958. Instead of filing a motion to quash such affidavit because of its insufficiency, appellee filed an answer in which he stated in substance that he individually is not now nor was he at the time said writ of garnishment was served upon him, indebted to the said A. H. Toubin nor did he have in his possession any effects belonging to said A. H. Toubin. He pleaded facts, however, which we think established his individual liability, as follows:

“That Toubin Bros., a firm and co-partnership has effects or funds in its possession belonging to said A. H. Toubin in the following respects: That A. H. Toubin was heretofore a member of the firm of Toubin Bros., a copartnership composed of Helen Toubin, Sam Toubin, Milton Toubin and A. H. Toubin, and in which he owned a Y2\/¿% interest, under a written partnership contract, which provided that when they found it necessary, the senior members of the firm would have the right and privilege to purchase the interest of the junior members of said firm, at the book value thereof; that it became necessary to eliminate the said A. H. Toubin from such firm and partnership, and under the terms of said contract, the senior members of the firm offered to and attempted to purchase the interest of said A. H. Toubin, and tendered the book value price therefor, which he refused, and he refused to carry out and perform the terms of the partnership contract; that thereupon, on January 1st, 1956, the firm and partnership of Toubin Bros., was dissolved, and the book value of his interest therein, at the time and on said date, amounting to the sum of $14,156.13 was tendered to him, which he refused to accept; and thereupon, a new firm and partnership was formed composed of Sam Toubin, Helen Toubin, and Milton Toubin, and in which the said A. H. Toubin has no interest, but said firm and copartnership has in its possession the funds amounting to $14,156.13, allotted to said A. H. Toubin, and which from time to time have been tendered to him, and which he has refused to accept, and said funds are and were in the possession of the firm and partnership of Toubin Bros., when this writ of garnishment was served upon the said Sam Toubin; that he does not know of any person or persons who are indebted otherwise to said A. H. Toubin or have effects belonging to him in their possession.”

He also prayed that A. H. Toubin be made a party to the suit in order that he might be bound by any judgment rendered and that the garnishee might be protected from any further liability by reason of having filed his answer, or by reason of any judgment of the court which might be rendered against A. H. Toubin. He further pleaded that he had had to employ attorneys to protect his interest and prayed for attorney’s fees in the sum of $1,000.00. He then prayed that he be discharged from any liability individually under said garnishment, with his costs and attorney’s fees.

Appellant filed an answer and cross-action, in which he did not controvert that ap-pellee was not individually indebted to the judgment debtor, A. H. Toubin. tie merely referred to the answer of appellee to the writ of garnishment and quoted what appel-lee had alleged with respect to the partnership and A. H. Toubin, as hereinabove set out. He also prayed that citation be issued upon A. H. Toubin and that Toubin be made a party to the garnishment proceedings.

Thereafter, on March 10, 1958, A. H. Toubin and wife, Hadassah Toubin, filed an answer to the cross-action of appellant and alleged among other things that he, A. H. Toubin, had made an assignment to Daniel Schlanger, an attorney at law, of an undivided 15% in and to all the interest of the said A. H. Toubin in Toubin Bros., and that in October, 1956 he had transferred and assigned and conveyed to his wife as trustee for his minor children his remaining interest in said Toubin Bros, partnership. He denied that his 121⅛% interest in the partnership assets had a book value of only $14,156.13 and claimed that his interest was in excess of $100,000.00. He then alleged that Helen Toubin and Milton Toubin were indispensable parties, and prayed that they be cited and that he have judgment against them and Sam Toubin for 12of the assets of the partnership.

By a first supplemental petition appellant denied the priority of the assignments to Schlanger and Hadassah Toubin and alleged that any such assignments were fraudulent. On April 16, 1958 Milton Toubin and Helen Toubin filed an answer and prayed that they be dismissed from the suit on the ground that no writ of garnishment had issued to' them or to the partnership. On May 12, 1958 appellant filed a second supplemental petition in reply to the answer of Milton Toubin and Helen Toubin, in which he alleged that they were indispensable parties in determining the amount owing A. H. Toubin by the partnership.

The record shows also that counsel for appellant offered in evidence two writs of execution issued before this cause was transferred to Washington County, but said writs of execution and the returns thereon are not contained in the record, and according to the court reporter were never delivered to him for inclusion in the statement of facts.

All of the foregoing proceedings occurred prior to the filing by appellee on March 28, 1960 of his motion for judgment in which he asked that he be discharged from the garnishment proceedings because appellant had not filed an affidavit controverting the garnishee’s answer that individually he did not owe A. H. Toubin anything. He also alleged in such motion that the affidavit requesting the issuance of the writ of garnishment was fatally defective. There is nothing in the record to show that appellee’s motion was ever called to the attention of the court or acted upon by the court until judgment was rendered by the court on April 4, 1961. Indeed, the record and judgment of the trial court fail to show that the court at any time considered or acted upon the matter of the defective affidavit.

The judgment recites that the garnishee’s answer was controverted by appellant, without controverting Sam Toubin’s denial of individual liability to A. H. Toubin; that A. H. Toubin and Hadassah Toubin also did not controvert the fact that Sam Toubin was not individually liable to A. H. Toubin, but instead sought a partnership accounting, making Helen Toubin and Milton Toubin parties to the suit. The judgment also recites that interventions were filed by T. E. Dunnam and by M. M. Rattner; and that Sam Toubin had filed a motion to be dismissed from all liability in the garnishment proceedings, based on his answer that he was not individually liable.

The entire matter was heard by the court on January 2, 1961 and all parties were given until March 6, 1961 in which to file trial briefs. Thereafter on April 4, 1961 judgment was entered by the court finding that A. H. Toubin and wife had taken a nonsuit as to their cross-action which was granted; that the plea in abatement filed by Helen Toubin and Milton Toubin should be granted; that the intervenors, T. M. Dunnam and M. M. Rattner, should be dismissed from the proceedings on the motion of Sam Toubin, garnishee; that the said Sam Toubin was entitled'to be discharged from the proceedings and that the garnisher take nothing and that the garnishee recover of appellant the sum of $750.00 stipulated as reasonable attorney’s fees.

In our opinion the trial court erred in rendering judgment based upon appellee’s answer that he individually was not indebted to A. H. Toubin in any amount. Appellee’s answer, after denying individual liability, clearly states that A. H. Toubin had a 121^% interest in the old partnership which was dissolved and that he had never been paid the sum of $14,156.13 which was owing him. The Articles of the old partnership, introduced in evidence, give the senior members, one of whom was Sam Toubin, upon a disagreement arising between them and the junior partners, one of whom was A. H. Toubin, the right to buy the junior partner’s interest at its book value, and the junior partner agrees to sever his connection with the partnership. This was in effect done, although A. H. Toubin refused to accept the amount due him. He did not become a partner in the new firm, nor did he authorize his former partners to put the amount owing him in the new firm.

From appellee’s answer it appears evident that the affairs of the old partnership had been wound up, and that there were not outstanding claims of creditors that might be entitled to priority, for otherwise appellee could not have stated definitely, as he did, that the value of the interest of A. H. Toubin was $14,156.13. The general rule applicable to the facts of the instant case is stated in Burdick on Partnership, 346, as follows: "They [the individual creditors of a partner] have a right to his individual interest only, and this, as has been stated repeatedly, is his share of what may remain after payment of the partnership debts, and after a settlement of the accounts between the partners.” See First Nat. Bank of Horton v. Schuetz, 1918, 103 Kan. 229, 173 P. 278; Diversified Fruit Farms v. Johnson, Tex.Com.App.1933, 58 S.W.2d 73. The creditor may put himself exactly in the place of his debtor who is a partner in the firm. He may attach the interest of the debtor partner in the partnership property—all subject to payment of partnership debts. See Parsons, The Law of Partnership, 2nd Ed. 1870, p. 365, § 352.

It is our view that under the facts pleaded by appellee, A. H. Toubin became a creditor of the partners composing the new firm, to the extent of the amount owing him since his funds were turned over by them to the new firm. Diversified Fruit Farms v. Johnson, supra. The partners in the new firm became and are jointly and severally liable to A. H. Toubin both as trustees and creditors. 68 C.J.S. Partnership § 251, p. 747; Goldman v. Marcus, 1891, 4 Willson Civ.Cas.Ct.App. § 208, 15 S.W. 412. As liquidating partners they are under a duty to pay A. H. Toubin the amount owing him. We know of no reason why a liquidating partner should be under less obligation to account to an ousted partner than a surviving partner to the estate of his deceased partner. See Dial v. Martin, Tex.Civ.App., 37 S.W.2d 166, reversed on other grounds, 57 S.W.2d 75, 89 A.L.R. 571. Since they are under a duty jointly and severally to pay A. H. Toubin, they are each subject to garnishment. Beggs v. Brooker, Tex.Civ.App., 79 S.W.2d 642, affd. Beggs v. Fite, 1937, 130 Tex. 46, 106 S.W.2d 1039; O. S. Kelly Co. v. Zarecor, Tenn.Ct.Chan.App., 62 S.W. 189; 71 A.L.R., p. 87.

It will be noted also that it was stipulated by the parties that the old partnership was dissolved January 1, 1956, and that the funds due and owing A. H. Toubin following the dissolution are in the bank in the hands of the new partnership; that appellant had not received any funds or payment on the judgment, and that he is the legal holder thereof. In Thompson v. Fulton Bag and Cotton Mills, 1956, 155 Tex. 365, 286 S.W.2d 411, the court said: “The scope of the inquiry in a writ of garnishment is broad enough to impound funds of the debtor, held by the garnishee, even though title thereto stands nominally in a third person. Rule 661, Texas Rules of Civil Procedure.”

The burden of proof rested on appellant to prove by a preponderance of evidence that the money in question was the money of A. H. Toubin. Nesbit v. Dallas Bank & Trust Co., Tex.Civ.App.1935, 82 S.W.2d 692. It is our view that appellant established by uncontroverted evidence that the amount of $14,156.13 was owing A. H. Toubin and that it was in the hands of his former partners.

We are not unmindful of the general rule that a partnership fund is not subject to garnishment for the individual debt of a member of the firm, especially where the firm’s assets are insufficient to satisfy its debts. Brown v. Cassidy-Southwestern Commission Co., Tex.Civ.App.1920, 225 S.W. 833; Barrett v. Craft, Tex.Civ.App. 1933, 57 S.W.2d 387; Farmers’ Nat. Bank of Dublin v. Carmony, Tex.Civ.App.1933, 62 S.W.2d 1115. Such rule is inapplicable to the present case, in that the funds owing A. H. Toubin for his interest in the old dissolved firm, the affairs of which had evidently been wound up, are not subject to claims of creditors of the old firm since such claims had been satisfied as evidenced by the garnishee’s admission of the exact amount due Toubin. The money belongs to A. H. Toubin. It does not constitute assets of the new partnership, and is not subject to claims of creditors of the new partnership.

In Mackey v. Lucey Products Corp., 1951, 150 Tex. 188, 239 S.W.2d 607, our Supreme Court held that the rule laid down in Buerger v. Wells, supra, and similar cases, did not apply where one of the judgment debtors was dead, and under such circumstances the issuance of an execution against his estate would have accomplished nothing toward reducing the original judgment. Although it was not shown in the instant case that Milner was dead, or that he was a fugitive, or that he had no property in the State of Texas subject to execution, it was stipulated by counsel that appellant had not received any funds or payment on the judgment held by him against Toubin and Milner.

It is our view that appellee waived the insufficiency of the affidavit by failing to file a motion to quash the proceedings and by proceeding to trial without calling to the attention of the court the matter of the defective affidavit and obtaining a ruling thereon.

We think the defect in the affidavit is not fundamental or jurisdictional, but is one that may be waived. It does not render the garnishment proceeding void. This is clearly implied in the holdings in Reinertsen v. E. W. Bennett & Sons, Tex.Civ.App.1916, 185 S.W. 1027, error ref.; Mackey v. Lucey Products Corp., supra; Smith v. Miller, Tex.Civ.App.1957, 298 S.W.2d 845, writ ref., n. r. e.; Goodbar v. City Nat. Bank, 1890, 78 Tex. 461, 14 S.W. 851; Seinsheimer v. Flanagan, 1897, 17 Tex.Civ.App. 427, 44 S.W. 30, error ref. The trial court had jurisdiction over the funds and the various claimants. Home Improvement Loan Co. v. Brewer, Tex.Civ.App.1958, 318 S.W.2d 673, writ ref., n. r. e.

Since the case was tried on the wrong theory with respect to Sam Toubin’s individual liability, and for that reason not fully developed, we think in the interest of justice it should be reversed and remanded for a new trial, thereby giving appellant and any others claiming an interest in the fund an opportunity to prove up their respective claims if such they have.

Reversed and remanded.


author: HUGHES, Justice. RICHARDS, Justice

text:
    HARDWARE MUTUAL CASUALTY COMPANY, Appellant, v. Claudine COURTNEY et vir, Appellees.
    No. 10908.
    Court of Civil Appeals of Texas. Austin.
    Jan. 3, 1962.
    Rehearing Denied Jan. 24, 1962.

      Taylor & Tyler, Austin, for appellant.
    Byrd & Davis, Austin, for appellee.
   HUGHES, Justice.

This is a Workmen’s Compensation case in which the only point presented here is whether or not the Trial Court correctly refused to permit appellant, Hardware Mutual Casualty Company, to plead, and to introduce evidence in support thereof, the question of whether a surgical operation if performed upon appellee, Mrs. Claudine Courtney, will effect a cure or will materially and beneficially improve her physical condition.

Mrs. Claudine Courtney was an employee of Gem Fabric Shop in Travis County, Texas, when, October 5, 1959, she was accidently injured while in the course and scope of her employment. She is joined in this action by her husband, E. L. Courtney.

The case was tried to a jury which resulted in verdict and judgment for Mrs. Courtney for compensation for total and permanent disability.

Sustaining appellees’ preliminary motion, the Court instructed appellant and its counsel :

“ * * * not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly, that Claudine Courtney ever refused to submit to a myelogram or surgery, or that an operation may cure or benefit her condition, without first obtaining permission of the court outside the presence and hearing of the jury, and the defendant and its counsel are further instructed to warn and caution each and every one of its witnesses to strictly follow these instructions.”

The permission mentioned was not obtained. Appellant did, however, offer evidence in the jury’s absence in support of its bill of exception to the effect that Mrs. Courtney would be materially benefited by surgery.

The injury sustained by Mrs. Courtney was to her back. It resulted in a lumbar disc protrusion.

The solution of the problem presented requires a detailed statement of the activities of the parties before the Industrial Accident Board made its final award.

Commencing October 5, 1959, the date of injury, Mrs. Courtney was paid compensation by appellant for 33 weeks, through June 13, 1960. These payments were stopped by appellant, as testified by its adjuster, Edward Ray Mount, because

“We discontinued it based on the medical reports received from Dr. Esquivel and also Dr. Tisdale to the effect that this was merely a lumbar sprain, and also from my own personal knowledge that Mrs. Courtney had ceased receiving any medical attention whatsoever for this alleged injury.”

In its notice to the Board that compensation payments had been stopped appellant stated as its reason “Doctor indicated claimant is no longer disabled and medical treatment has ceased.”

The doctors named by Mr. Mount were the only doctors who saw Mrs. Courtney during this period, and they were selected by appellant, who paid their fees and charges. Mrs. Courtney subsequently saw Dr. Albert A. LaLonde at the suggestion •of Dr. Tisdale. This was in January, 1961.

Dr. Esquivel in his report dated March 18, 1960, stated:

“Although her symptoms did not suggest an intervertebral disc lesion, allowing her the benefit of the doubt, I recommend she be examined by a neurosurgeon and perhaps have myelo-gram studies made to rule out such a lesion.”

On October 21, 1960, an attorney for appellant wrote the Board as follows :

“The insurer advises that weekly compensation was discontinued because the claimant has not been back for any further treatment to the attending physician, Dr. S. Esquivel, orthopedic surgeon, here in Austin, since December 11, 1959, and, as far as we can determine; has not been seen by any other doctor except Dr. Albert A. Tis-dale, another orthopedic surgeon, here in Austin, on March 28, 1960.
“It therefore appears that this claimant has been overpaid for temporary total incapacity, not having reported back for treatment since December 11, 1959, and we have no evidence that the claimant should have any residual disability or loss of earning power whatever.
“The insurer advises that, to their knowledge, none of the doctors who have seen the claimant have at any time recommended surgery, and we have no medical information to indicate that the claimant requires surgery.
“However, we at this time are giving notice, through your Honorable Board, that if claimant’s attorney has any evidence or any information indicating that this claimant requires surgery, then the insurer hereby tenders the claimant a surgical operation at the hands of Dr. S. Esquivel, Austin, Texas, or at the hands of any other doctor designated by your Honorable Board.”

Mrs. Courtney, through her attorney, replied to this letter by a letter addressed to the Board, dated October 22, 1960, from which we quote:

“The medical report of Dr. S. Es-quivel dated March 18, 1960, a copy of which was sent to the carrier, recommended that the claimant have a myelo-gram in order to rule out an interverte-bral disc lesion.
“The report of Dr. Albert A. Tisdale dated June 8, 1960, to the carrier also mentions the possibility of a disc protrusion.
“The carrier has not paid weekly compensation since June 13, 1960, and has not offered, tendered, or suggested any further medical treatment.
“While at the present time neither Dr. Esquivel nor Dr. Tisdale have recommended surgery, their reports indicate the distinct possibility that the claimant has a disc protrusion which may necessitate surgery in the future.
“Since the carrier ceased weekly compensation on June 13, 1960, the claimant was forced to seek a hearing of her claim in order to obtain the compensation to which she is entitled.
“If the carrier will bring the claimant’s weekly compensation up to date and continue to pay such compensation until it is definitely determined whether or not the claimant’s condition requires surgical intervention, claimant will have no objection to the postponement of this hearing. However, since the claimant is still unable to work she has no alternative than to proceed with the hearing unless she receives the weekly compensation to which she is entitled.
“Claimant also wishes to point out that one of the first requirements necessary in order for the carrier to demand that the claimant submit to surgical operation is the continued payment of weekly compensation.”

In similar manner this letter was replied to by appellant on October 24, 1960, from which we quote:

“We are in receipt of copy of Attorney Tom Davis’ letter to your Honorable Board dated October 22,1960, with reference to the insurer’s tender of surgery filed October 21, 1960. We note that Attorney Davis requests a myelogram in accordance with Dr. Es-quivel’s report of March 18, 1960.
“We were of the impression that a myelogram was merely a diagnostic procedure which is a part of the preparation for surgery since most doctors carry out a myelogram to determine where they will operate. We therefore felt that a tender of a myelogram was embraced in the insurer’s tender of surgery filed October 21, 1960.
“However, in view of Attorney Davis’ request for a myelogram and his. further request that weekly compensation be continued until it is determined. whether or not the claimant requires, surgery, we accordingly, hereby tender the claimant a myelogram at the expense of the insurer at the hands of Dr. S. Esquivel, Orthopedic Surgeon, 1306 Rio Grande Street, Austin, Texas, or at the hands of any other doctor designated by your Honorable Board in the-event that Dr. Esquivel is not acceptable to the claimant and her attorney. The insurer also offers to resume the-payment of weekly compensation when the claimant reports for the myelogram and to continue the payment of weekly-compensation until the claimant is released by Dr. Esquivel, or any other doctor designated by your Honorable Board to carry out the myelogram, in. the event that Dr. Esquivel is not acceptable to the claimant and her attorney.
“We request that your Honorable-Board take no further action in the case until the claimant and her attorneys advise your Honorable Board and the insurer whether or not they will accept the insurer’s tender of myelogram and surgery.”

Similarly reply was made for Mrs. Courtney on October 25,1960, as follows:

“Apparently the carrier has misinterpreted claimant’s letter of October 22, 1960, and, having misinterpreted such letter, has misstated its contents.
“Claimant is not requesting a myelo-gram or surgery unless it is the opinion-of either Dr. Esquival or Dr. Tisdale-that a myelogram or operation will effect a cure or will materially and beneficially improve claimant’s condition and that a myelogram or operation is advisable at this time. Claimant has no desire to submit to a myelogram or surgery merely to satisfy the carrier’s curiousity or in compliance with its ■“tactical defense.’
‘‘As stated in her previous letter, the claimant is willing to agree to a postponement of this hearing if, and only if, the carrier brings her weekly compensation payments up to date and continues to pay her weekly compensation until it is definitely established whether or not surgery is advisable. While not clear on this point, the carrier’s letter of ■October 24, 1960, appears to offer the payment of weekly compensation only ■during the time required to perform and recuperate from a myelogram. This offer obviously does not meet the legal requirement that the continued payment of weekly compensation is a prerequisite to the carrier’s demand for surgery.”

We quote from appellant’s reply to this letter:

“Reference is made to our brief submitted on hearing date in which we requested that action be withheld until the claimant’s attorney advised whether or not the claimant would accept the insurer’s tender of myelogram and surgery.
“We are in receipt of copy of the attorneys letter to your Honorable Board of October 25, 1960, from which you will note that the attorney and the ■claimant have not accepted the insurer’s tender.
“As pointed out in our brief, the insurer has paid 33 weeks compensation in this case up to June 13, 1960, but this claimant has not even been back for any medical treatment by Dr. Esquivel since December 11, 1959, and hasn’t been ■seen by any doctor since March 28,1960.
“The insurer discontinued weekly ■compensation in this case because the ■claimant had apparently recovered and hadn’t reported back for treatment in over six months.
“We, therefore, contend that this claimant has been overpaid for temporary total incapacity, and we certainly deny that she has any residual disability, or any loss of earning power.
“Inasmuch as this claimant has not reported back for any further treatment in over nine months, now, and does not want myelogram or surgery, we request that your Honorable Board proceed to a final award denying further recovery in this case.”

On November 3, 1960, the Board entered its final order on Mrs. Courtney’s claim, from which we quote:

“That following infliction of injury, named insurer assumed liability and made payments of compensation. That named employee and her attorneys have failed to establish by proof that she suffered further disability than that for which compensation has heretofore been paid. Therefore, claim for additional compensation is denied.
“That named employee has no loss in wage earning capacity.”

Shortly before trial, Dr. LaLonde re quested that Mrs. Courtney undergo a mye-logram, which she did at appellant’s expense. This test showed, as Dr. LaLonde testified, a lumbar disc protrusion.

In American General Insurance Company v. Quinn, 277 S.W.2d 223, Tex.Civ.App., writ ref., N.R.E., the Court in discussing the admissibility of evidence of the beneficial effects of an unperformed operation in a Workmen’s Compensation case and in construing Sections 12b and 12e of the Act (Art. 8306, Vernon’s Ann.Civ.St.) stated:

“Therefore, we hold that the two sections, 12b and 12e, must be construed together. In doing so, we find that under said sections of said article that the following steps are mandatory before a compensation carrier would be entitled to make such proof: (1) Admit liability; (2) tender the operation to the employee while the claim is pending before the Board; (3) if the employee refuses the operation, make a demand to the Board to require the examination, or examinations, required by the law; and (4) show that the examination or examinations were had and the action of the Board thereon. Having complied with the requirements of the statutes, the insurer would then be entitled to appeal from any refusal of the employee and any adverse ruling by the Board and to re-try any issue decided adversely to it by the Board and would certainly be entitled to prove the benefits of an operation in the event the employee refused the same.”

This case was cited, followed, and we believe generally approved, by the Supreme Court in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521. See also Texas Employers’ Insurance Association v. Shelton, 161 Tex. 259, 339 S.W.2d 519, Texas Supreme Court, where the Court stated:

“The tender of an operation without the admission of liability renders testimony relating to the beneficial effects of an operation inadmissible on the trial of the case on appeal.”

It is our opinion that appellant did not, while this claim was before the Board, make an “admission of liability” within the meaning given such phrase by the courts, nor within the meaning of the statutes from which its substance is derived.

Art. 8306, Sec. 12b, V.A.C.S., applicable solely to hernia, provides in part: “In all such cases where liability for compensation exists, * * the association shall provide surgical treatment.

Sec. 12e, of such Article, applicable here, provides, in part:

“In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will effect a cure of the employé or will materially and beneficially improve his condition, the association or the employé may demand that a surgical operation be had upon the employé as herein provided * *

These statutes constitute the basis of the Court phrase “admission of liability.” What does the phrase mean? A mere admission that the insurer is liable for such disability as the employee may ultimately establish? If so, it would, in most cases, be a rather innocuous admission. We believe it can only import an admission of liability for compensation for a specific disabling physical condition for which surgery is tendered to remedy.

Under Sec. 12b, supra, the admission of liability must be for hernia, National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089. We quote from that case:

“The Casualty Company earnestly insists that the above holding leads to great injustice to compensation' insurance carriers because it compels them to admit liability in all hernia cases, or run the risk of being held liable for general injuries if the case goes to court. We freely admit that our construction of the statute leads to just such conclusion.”

The holding was approved in Seelbach, supra.

Our construction of Sec. 12e, supra, is compelled by its own language and by the decision of the Supreme Court in Seelbach.

The statute plainly states that the existent liability must be for an “injury” for which a “surgical operation” will prove beneficial.

Unless the nature of the injury is known or admitted, then the proffer of surgery is meaningless, unless it could be said that surgery is beneficial for all ailments. The mere tender of surgery, of itself, is an admission of nothing.

We quote from Seelbach:

“While § 12b is applicable only to an inguinal hernia and provides that the Board initiate the steps preliminary to an operation for that kind of injury, and § 12e relating to all other injuries is permissive and optional in that respect, all of that creates no distinction so far as the admissibility of this testimony is concerned. Section 12e concludes as follows:
" 'The results of such operation, the question as to whether the injured employee shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the Board in the same way as is provided in the case of hernia in this law.’
“It must be conceded, we think, that in the case of an inguinal hernia where liability has not been admitted and the order for an operation has been refused by the insurer, testimony would not be admitted on appeal to prove that an operation would be successful and the disability reduced accordingly. Then it is difficult to see how or why it would be admissible in the case of any other kind of injury. The controlling principle is the same.” (Italics ours.)

Conceding, without deciding, that appellant made an unconditional tender of surgery to remedy a protruding disc, it is undisputed that appellant at no time while this claim was before the Board admitted that Mrs. Courtney suffered this infirmity. In fact, it consistently denied this nature of her injury.

Being of the opinion that appellant did not make the requisite admission of liability in order to invoke the procedures of Sec. 12e, supra, it is unnecessary for us to pass upon the remaining requirements laid down in Quinn, supra.

The judgment of the Trial Court is affirmed.

Affirmed.

RICHARDS, Justice

(dissenting).

The majority opinion holds that appellant did not, while this claim was before the Board, make “an admission of liability” within the meaning given such phrase by the courts nor within the meaning of the statutes from which its substance is derived. Being unable to agree with this conclusion, I respectfully dissent.

The majority holding is based upon the opinions of the Supreme Court of Texas in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, and Texas Employers’ Insurance Ass’n v. Shelton, 161 Tex. 259, 339 S.W.2d 519 and the Tex. Court of Civ. App. in American General Insurance Co. v. Quinn, 277 S.W.2d 223, error ref., N.R.E. It should be noted that in the Seelbach case the insurer did not admit liability. In addition no operation was tendered or requested by the insurer before the Industrial Accident Board and no surgery indicated.

The opinion in the Seelbach case cited and apparently approved the opinions in Texas Employer’s Ins. Ass’n v. Kubiak, Tex.Civ.App., 276 S.W.2d 909, error ref., N.R.E., General Accident Fire and Life Ass’n v. Coffman, Tex.Civ.App., 326 S.W.2d 287, error ref., N.R.E. and American General Ins. Co. v. Quinn, supra.

In the Kubiak case the insurer did not admit but denied liability. In addition the claimant was never tendered an operation prior to the Board’s final award and the Board never ordered one. In the Coffman case the tender of the operation was made after the Industrial Accident Board had entered its final order and appeal had been perfected to the District Court. In the Quinn case the insurer denied liability throughout the entire period and did not tender an operation while the claim was pending before the Board.

In Texas Employers’ Ins. Ass’n v. Shelton, supra, liability was not assumed by the insurer although surgery was tendered by the insurer to the claimant which was refused. No examination to determine the advisability of surgery was ordered by the Board and some time thereafter the Board “finding that no proof had been offered showing that Shelton’s condition was the result of an accidental injury suffered in the course of his employment” denied his claim and Shelton appealed to the courts. The Supreme Court held that while the Shelton case differed factually in some respects nevertheless it was controlled by the opinion in the Seelbach case, stating that the tender of an operation without the admission of liability renders testimony relating to the beneficial effects of an operation inadmissible in the trial of the case on appeal.

The majority opinion also cites National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, cited and approved in the Seelbach case, but neither before nor during the proceedings before the Board did the insurer acknowledge any liability to Lowery or tender him a surgical operation.

The facts in the instant case are materially different from the facts in any of the cases cited in the majority opinion in support of its holding. In addition to the statement of the factual situation in the majority opinion, it should be noted that after appellant had paid appellee compensation for 33 weeks from October 5, 1959, the date of the injury, through June 13, 1960, in addition to fees for medical services, hospital bills and other medical expenses, the payments were stopped by appellant by filing with the Industrial Accident Board its Form A2 in accordance with Sec. 11, Art. 8307, V.C.S., on June 14, 1960, notifying the Board that payment of compensation had stopped as of June 13, 1960 for the reason that “doctor indicated claimant is no longer disabled and medical treatment has ceased.”

Edward Ray Mount, appellant’s adjuster, testified that the compensation was discontinued on June 13, 1960 on the basis of the medical reports from Dr. Esquivel and Dr. Tisdale to the effect that the injury was a lumbar sprain and also from his personal knowledge that appellee had ceased receiving any medical attention whatsoever, and that appellant did not make any further payments because there was no medical evidence upon which appellant should start making payments again. The witness further testified:

“Q. Did you ask Mrs. Courtney to go for a medical examination ?
“A. I discussed that particular matter with her attorney, Mr. Davis.
“Q. What was the outcome of that discussion ?
“A. At that particular time, Mr. Davis did not see fit to discuss it at extreme lengths.
“Q. But you felt you had to bring the matter to a head, so you discontinued the payments at that time?
“A. Yes, sir, we did.
“Q. Mr. Mount, since the beginning of this case, have you ever denied liability in the case?
“A. No, sir, we have not.”

Dr. LaLonde, appellee’s witness, testified on cross examination by appellant’s counsel for the purpose of appellant’s bill of exception as follows:

“Q. What would be your professional opinion, based on Mrs. Courtney’s condition? Do you think she would successfully recuperate from such an operation so that she would no longer be even temporarily or partially disabled?
“A. Well, if Mrs. Courtney asked that question, ‘Doctor, will I be perfectly all right after this operation? Will I be free of back and leg pain? Will I be able to do any kind of work ?’ I would say, ‘No.’ I will not state that to you. You know that no doctor can forecast the outcome of an operation.
“Q. I didn’t ask you if you would guarantee results. I was asking you if it would be reasonably anticipated, in view of the fact that 85 percent of your patients recover from such an operation.
“A. Yes; it would be reasonably anticipated that she would probably be relieved of her back and leg pain.
“Q. Is there anything, in your opinion, that would place her outside of the category of 85 percent of the people who do recover?
“A. There is no way of knowing in any case whether a patient will get an excellent result or not. You cannot tell by the myelogram or by the symptoms.
******
“Q. And how long would it take the plaintiff to recuperate from such an operation if it were successful before she could get back to performing her normal duties?
“A. If she followed the usual course, she could get back to work in about three months.”

While appellee’s claim waas pending before the Industrial Accident Board appellant tendered appellee a myelogram at its expense at the hands of Dr. Esquivel or any other doctor indicated by the Board in the event that Dr. Esquivel was not acceptable to appellee and her attorney but the offer was refused by appellee unless appellant paid weekly compensation payments from June 13, 1960 to October 25, 1960 and would continue to pay such compensation until it was definitely established whether surgery was or was not advisable. Appellant then advised the Board that since appellee had not reported to the doctor for further treatment in over nine months and did not wish a myelogram or surgery, it requested the Board to proceed to a final award denying further compensation to appellee.

On November 3, 1960 the Board entered its final order which stated that although the insurer had assumed liability and made payments of compensation following the injury, appellee and her attorney failed to establish by proof that she had suffered further disability than that for which compensation had been paid and therefore claim for additional compensation was denied. In entering such order the Industrial Accident Board failed to follow the mandatory provisions of Sec. 12e, Art. 8306, V.C. S., which provides that where liability for compensation exists for injury sustained by an employee in the course of employment and a surgical operation for such injury will effect a cure of the employee or materially improve his condition, the association or the employee may demand that a surgical operation be had upon the employee and the association shall provide and pay for the necessary surgical treatment, medicines and hospital services incident to the performance of the operation.

Sec. 12e then provides:

“In case either of said parties demands in writing to the board such operation, the board shall immediately order a medical examination of the employé in the same manner as is provided for in the section of this law relating to hernia. If it be shown by the examination, report of facts and opinions of experts, all reduced to writing and filed with the board, that such operation is advisable and will relieve the condition of the injured employé or will materially benefit him, the board shall so state in writing and upon unanimous order of said board in writing, a copy of which shall be delivered to the employé and the association, shall direct the employé at a time and place therein stated to submit himself to an operation for said injury. If the board should find that said operation is not advisable, then the employé shall continue to be compensated for his incapacity under the general provisions of this law. If the board shall unanimously find and so state in writing that said operation is advisable, it shall make its order to that effect, stating the time and place when and where such operation is to be performed, naming the physicians therein who shall perform said operation, and if the employé refuses to submit to such operation, the board may order or direct the association to suspend the whole or any part of his compensation during the time of said period of refusal. The results of such operation, the question as to whether the injured employé shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the board in the same way as is provided in the case of hernia in this law.”

In the instant case although demand in writing was made by appellant to the Board for a myelogram and a surgical operation if necessary, the Board failed to immediately order a medical examination of appellee provided for in Sec. 12e but instead denied appellee’s claim for additional compensation.

Since the Workmen’s Compensation Law is in derogation of the common law, the rights and obligations of the parties in a suit brought thereunder are controlled by its provisions and where the statute directs that action be taken in a certain way, it may be performed in no other manner. Truck Insurance Exchange v. Seelbach, supra. In entering its final order denying appellee further compensation instead of complying with the mandatory provisions of Sec. 12e by ordering an immediate examination of appellee after appellant had made its offer and tender of a myelogram and a surgical operation if necessary, the Board failed to follow the procedure outlined in the statute and the order was not a final order. Tally v. Texas Employers’ Ins. Ass’n, Tex.Comm.App., 48 S.W.2d 988; Petroleum Casualty Co. v. Webb, 127 Tex. 91, 92 S.W.2d 236. However, appellee served notice of appeal therefrom and perfected her appeal to the District Court having jurisdiction of any proper appeal from a final order of the Board.

In Texas Employer’s Ins. Ass’n v. Chancellor, Tex.Civ.App., 292 S.W.2d 360, 362, error ref., N.R.E., which was cited and distinguished in Texas Employers’ Ins. Ass’n v. Shelton, supra, the injured employee perfected an appeal from a purported final order of the Industrial Accident Board which awarded fifty-two weeks of compensation as provided in Sec. 12e but with a finding that the employee had failed and refused to undergo an operation as ordered by the Board. On appeal to the District Court the insurer pleaded defensively that it had demanded that a surgical operation be had upon the employee as provided by Sec. 12e and the Board had ordered the employee to submit to an operation which the employee refused. The employee excepted to the defensive pleading upon the ground that no proper defense was stated because it appeared that neither the Company nor the Board had observed the requirements of Secs. 12b and 12e, Art. 8306, with respect to requiring the employee to submit to a surgical operation. The Trial Court sustained the exception and refused to permit the insurer to introduce evidence in support of its defense upon the trial.

The Court held in part as follows:

“We believe that when an insurance company follows the procedure prescribed by Section 12e and demands that a surgical operation be had, it becomes entitled to an issue on trial de novo upon the matter of whether such an operation would be ‘not more than ordinarily unsafe’, in the event such operation is expressly or constructively refused by the injured employee.
⅝ ⅜ ⅜ ⅝ ⅜ ⅜
“We do not understand the employee to challenge the jurisdiction of the trial court, invoked by him when he perfected an appeal in this case from an order final on its face. The insurance ■company has not challenged the trial ■court’s jurisdiction. It is well settled that the Workmen’s Compensation Law is to be given a liberal construction, and incident thereto we are satisfied that attention to such principle would persuade a holding in this case that the Industrial Accident Board did become vested with authority to enter a final order premised upon the refusal of the ■employee to abide by a valid operation ■order. To attribute invalidity to either the order for an operation or to the Board’s final order would be to force the employee’s case back into the hands of the Industrial Accident Board. It is often stated that ‘justice delayed is justice denied’, and from the record in this case it is apparent that should we hold that the trial court was without jurisdiction, thus returning the employee’s claim to the Industrial Accident Board for more meticulous attention to form in its procedure pursuant to ordering an operation, only the employee would suffer prejudice. Yet, such a holding on our part would appear as the only alternative to that we believe correct, i. e., that the insurance company is entitled to have the cause remanded to the court below for a trial on the merits, in the course of which it should be permitted to try out the issue of whether the operation demanded by it, or ordered by the Board, would not have been more than ordinarily unsafe.”

and reversed and remanded the cause for a new trial. Traders & General Ins. Co. v. Wilkinson, Tex.Civ.App., 261 S.W.2d 863, error ref., N.R.E. Cf. De Leon v. Western Casualty Co., Tex.Civ.App., 114 S.W.2d 274, no writ history, and Western Casualty Co. v. De Leon, Tex.Civ.App., 148 S.W.2d 446, error dism.

Here appellant affirmatively pleaded as a ■defense in paragraph III of its first amended answer that it tendered appellee a surgical operation in accordance with law ■on October 21, 1960 (while the claim was still pending before the Board) but that appellee refused even to have a myelogram made until March 13, 1961 (after this suit was filed and appellee’s motion in limine had been filed but not ruled upon by the Trial Court) ; that appellee had not suffered any injury which is permanent in nature and if given an operation she would be able to perform the usual duties of a working woman and the disability complained of which is partial and temporary would be completely removed by the operation, and that it had complied with all laws requiring the curative effects of such an operation as shown by the certified copies of the proceedings before the Industrial Accident Board attached to the answer.

Appellee’s motion in limine was heard by the Court on February 27, 1961 and on March 21, 1961 the motion was granted as shown in the majority opinion. Appellant excepted to the motion and presented its bill of exception on the trial of the case in which bill of exception the proceedings before the Industrial Accident Board were introduced, together with the testimony of appellee’s witness, Dr. LaLonde, on cross examination set forth in part supra.

It is my opinion that the principles of law enunciated in the Chancellor case are applicable to the case at bar. The purported final order of the Board in the Chancellor case was defective as is the purported final order in this case. Appellee’s refusal to submit to the myelogram and a surgical operation if the myelogram should disclose its necessity, unless appellant paid appel-lee the weekly compensation from June 13, 1960 to the time of and continuing while appellee submitted to the myelogram and the results thereof were ascertained, constitutes no legal ground for such refusal. I fail to find any statutory provision in the Workmen’s Compensation Law which would authorize an injured employee to refuse to submit to a myelogram and a surgical operation if necessary unless the weekly compensation allegedly in arrears was paid to the employee.

On the contrary, Section 11, Art. 8307, V.C.S., specifically authorizes the association to discontinue payments by notice to the Board giving the reason for such discontinuance. In case the association fails or refuses to pay compensation when the same matures, it is the duty of the Board to notify the association and if after such notice the association refuses to make the payments as provided, the Board shall certify such fact to the Commissioner of Insurance as a ground for revoking or forfeiting the permit or license of the association to do business in Texas. Sec. 18, Art. 8306. This -is a drastic penalty.

Appellant having complied with the provisions of Sec. 11, Art. 8307 by notifying the Board that it had discontinued the payments to appellee because the doctor indicated that appellee was no longer disabled and medical treatment had ceased, it then became appellee’s duty to request the Board for a hearing as to the justification for appellant’s refusal to make further payments, which was done in this case. Upon the hearing the Board found as a fact that ap-pellee had failed to establish that she had suffered no further disability than that for which compensation had been paid and denied appellee’s claim for additional compensation.

Since the Workmen’s Compensation Law is to be given a liberal construction, it is clear that both the injured employee and the insurer have equal rights to have their respective interests protected in the courts. If the injured employee is dissatisfied with the medical diagnosis or treatment received from the physician selected by the insurer, such employee may request the insurer to designate another physician and if such request is refused then the employee may provide such medical aid and other services at the expense of the insurer under the provisions of Sec. 7, Art. 8306. Here appellee was last examined by Dr. Esquivel on December 11, 1959 except for one visit to Dr. Tisdale on March 28, 1960. If ap-pellee was dissatisfied with the diagnosis and methods of treatment prescribed by these physicians, she owed a duty to the insurer to request the designation of another physician for further diagnosis and treatment, which she did not do. In my opinion the appellant insurer assumed all liability which was required under the provisions of the Workmen’s Compensation Act.

Applying the principles set forth in American General Ins. Co. v. Quinn, supra, which principles were evidently approved by the Supreme Court of Texas in Truck Insurance Exchange v. Seelbach and Texas Employers’ Ins. Ass’n v. Shelton, supra, and construing Secs. 12b and 12e, Art. 8306 together, it seems clear that appellant (1) admitted liability, (2) tendered the operation to appellee while her claim was pending before the Board, and (3) when appel-lee refused to submit to a myelogram and an operation if necessary made a demand to the Board to require appellee to submit to an examination under the provisions of Sec. 12e. Appellant could not comply with the fourth requirement by showing that the examination was had and the action of the Board thereon since the Board itself failed to immediately order the medical examination of appellee as required by law. Instead the Board at the request of appellant found as a fact that appellee had failed to establish that she had suffered further disability than that for which compensation had already been paid and denied further compensation, which order was entered as requested by appellant.

Since in my opinion the Trial Court committed error in sustaining appellee’s motion in limine and refused to permit appellant to submit to the jury the evidence contained in its bill of exception for the purpose of showing whether the operation, demanded by it would have been “not more than ordinarily unsafe” and would have partially if not totally removed the appel-lee’s disability, I would reverse the judgment and remand the cause to the Trial Court for trial on the merits in the course of which appellant should be permitted to submit evidence upon the issue as to whether the operation proffered by it to appellee would be “not more than ordinarily unsafe” in view of the refusal of appellee to submit thereto.