author: DENTON, Chief Justice.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Myrtle Pauline WILLIAMS et al., Appellees.
    No. 7339.
    Court of Civil Appeals of Texas. Amarillo.
    March 23, 1964.
    Rehearing Denied April 20, 1964.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Kolander; Moser & Templeton, Amarillo, for appellees.
   DENTON, Chief Justice.

This is a workmen’s compensation case. The Travelers Insurance Company has appealed from a judgment based on a jury verdict awarding Myrtle Pauline Williams and Ronald D. Williams, the widow and minor child of Obie Lee Williams, deceased, a recovery of lump sum death benefits because of the death of Obie Lee Williams. Article 8306, Section 8, Vernon’s Ann.Civ. St.Tex.

Obie Lee Williams was a forklift operator employed at the Pantex Ordinance Plant in Carson County, Texas. Williams operated this forklift in loading and unloading merchandise and material from trucks at his employer’s plant. While in the process of operating this equipment on October 20, 1961, Williams was stung by a wasp on his right ankle. It is undisputed this incident occurred at approximately 4:00 o’clock p. m. of the above date, and he died the following day at 11:35 o’clock a. m. An autopsy report gave the cause of death as an acute coronary occlusion in a case of severe coronary arteriosclerosis. It is appellees’ contention the deceased suffered anaphylactic shock from the wasp sting which was the producing cause of the coronary occlusion, the admitted cause of the deceased’s death.

Appellant’s first four points, briefed together, assert that as a matter of law appellees failed to establish an accidental injury sustained in the course of his employment. This general contention is based on the alleged failure of appellees to sustain the burden to show deceased sustained an injury arising out of or originating in the course of his employment; that the alleged injury sustained was an act of God; the injury being an act of God, required an affirmative finding that the deceased was subject to a greater hazard from such act of God than that ordinarily applied to the general public. Appellant’s last three points, also briefed together, challenge the sufficiency of the evidence to show a causal connection between the wasp sting sustained by the deceased on October 20, 1961, and his death the following day as the result of a coronary occlusion. Although appellant’s seventh point of error contends there was “insufficient evidence” to support the jury finding and that such finding is “against the great weight and overwhelming preponderance of the evidence” the point is based on the action of the trial court in refusing to grant appellant’s motion for judgment non ob-stante veredicto. Such an attack necessarily constitutes a “no evidence” point as opposed to an “insufficient evidence” point. Rule 301, Texas Rules of Civil Procedure. We must therefore disregard the seventh point as its legal effect is identical to appellant’s sixth point, namely: there is no evidence to support the jury’s finding that the deceased died as a natural result of an injury sustained by him on or about October 20, 1961. As all points are “no evidence” points it is our duty to view the evidence and the reasonable inferences therefrom most favorably in support of the jury’s findings. To sustain a judgment non obstante veredicto the reviewing court must deter-' mine that there is no evidence of probative force upon which the jury could have made its findings. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682.

The trial court correctly charged the jury in its definition of “injury sustained in the course of employment”. The court followed the applicable statute by defining the above phrase as “such injury having to do with and originating in the work, business or trade of the employer sustained by an employee while engaged in or about the furtherance of the affairs or business of the employer.” Article 8309, Section 1, V.A. T.S. We agree with appellant that this statute not only requires proof that the injury occurred while the claimant was engaged in or about the furtherance of his employer’s business, but he is also required to show the injury was of a kind and character that had to do with and originated in the employer’s work, trade or business. Smith v. Texas Employers Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350.

We will first consider appellant’s contention the wasp sting was an act of God, and as such, was precluded as a matter of law from being considered a compensable injury. If the wasp sting can be said to be an act of God, then in order to effect recovery it is incumbent upon deceased’s beneficiaries to show deceased was “engaged in the performance of duties that subject him to a greater hazard from an act of God responsible for the injury than ordinarily applies to the general public.” Article 8309, Section 1, V.A.T.S. We are of the opinion, and so hold, a wasp sting is not an act of God. Although an act of God is not defined in the workmen’s compensation act, the phrase has been considered by our courts. Even though it is not susceptible of an accurate and comprehensive definition, the courts use such language as “[t]he act must be one occasioned exclusively by the violence of nature”, and such injury “is due directly and exclusively to natural causes, without human intervention, where no amount of foresight or care which could have been reasonably required * * * could have prevented the injury.” Travelers Ins. Co. v. Randall (5 Cir.), 264 F.2d 1; Texas Employers Ins. Ass’n. v. Moyers (Tex.Civ.App.), 69 S.W.2d 777, 779 (Writ Dismissed). The Beaumont Court of Civil Appeals had the identical question before it in Indemnity Ins. Co. of North America v. Garsee, 54 S.W.2d 817. Although the court did not discuss the question at length, it held that an insect bite was not an act of God, and that the trial court did not err in refusing to define the term to the jury. We reach the same conclusion. Being of the opinion the wasp bite was not an act of God, it was not error to refuse to submit an issue to the jury as to whether the deceased was exposed to a greater hazard in his employment than ordinarily applies to the general public.

The next question to be determined is whether or not Williams’ injury was of such a kind and character that had to do with or originated in his employer’s work or business. The deceased had been an employee at Pantex Ordinance Plant since 1952. As a forklift operator he worked in and about the various buildings loading and unloading material from trucks. Several employees testified to the presence of wasps on the premises. They had been seen around the buildings and in the trucks. Several other employees had been stung by wasps in the same vicinity. It is un-contradicted the deceased was stung by a wasp while he was in the actual performance of his duties. Thus, it is evident the injury was sustained while he was engaged in his employer’s business.

The Supreme Court in a landmark case has laid down the rule “[a]n injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business.” Lumbermen’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402. The court there quoted with approval a statement of the Supreme Court of Iowa, to-wit: “What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s tasks.” See also Aetna Ins. Co. v. Hart (Tex.Civ.App.), 315 S.W.2d 169 (Refused, NRE).

There was evidence that wasps were commonly seen about the premises of the deceased’s employer. Other employees had been stung by them while on the same job. Although it may be argued that anyone who happened to be in that particular area might be stung, the fact is the deceased was stung while in the performance of his duties of employment. He was subjected to this risk by carrying out his designated duties. We think it is clear the wasp sting was a risk or hazard of his employment and is compensable. Indemnity Ins. Co. of North America v. Garsee, (Supra) ; Vivier v. Lumbermen’s Indemnity Exch. (Tex.Com.App.), 250 S.W. 417.

Appellant next contends there is no evidence to show a causal connection between the wasp sting and the coronary occlusion, the admitted cause of deceased’s death. In determining this question of “no evidence” we must consider only the evidence favorable to the issue and disregard all evidence which is adverse, contrary, or conflicting to the favorable evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

The deceased received the wasp sting on his right ankle at approximately 4:00 o’clock p. m. on Friday, October 20, 1961. He died the following day at approximately 11:35 o’clock a. m. as a result of an acute coronary occlusion. Appellees pleaded the deceased suffered an anaphylactic shock from the wasp sting, which was the producing cause of the coronary occlusion. In reviewing the evidence favorable to the jury’s finding there was direct testimony of the wasp sting by a fellow employee. The deceased told several fellow employees of the sting and told one “about the little booger really sitting down”. According to the testimony of the wife of Williams the deceased came home that day exhausted and told her “never had anything to hurt any worse in his life”. She further testified he became dizzy and had difficulty breathing, h'e rubbed his ankle and that the expression in his face revealed he was suffering pain. When he arose the next morning the widow testified he appeared tired and sluggish and told her “Seem like I can’t get enough air.” She applied vinegar to the area of the sting and a heating pad was placed on his ankle. After breakfast the deceased went out into their garage to work on a toy tractor. At approximately 9:00 o’clock he returned to the house and “fell across the bed” complaining of pain in his chest and left arm. He was then taken to an Amarillo hospital where he died shortly thereafter.

■ The medical testimony, as is often the case, was conflicting, but in considering the “no evidence” question wc are tp. consider. only the evidence favorable to the issue. A hypothetical question, which in our opinion, included the material facts and circumstances in evidence with reference to Williams’ -injury and its effects proceeding his death, was put to a doctor who testified that in his opinion the wasp sting was a producing cause of the coronary occlusion. The doctor further testified that the symptoms given were consistent with a continuing anaphylactic shock ' reaction up to the time of the coronary occlusion. The doctor who attended the deceased in the hospital just prior to his death testified certain symptoms such as shortness of breath, dizziness, and conjestion of the lungs may be symptoms of an anaphylactic shock reaction. This latter symptom was shown by the autopsy report. The autopsy report showed the deceased was suffering from a severe case of arteriosclerosis or hardening of .the arteries.. However, there is no evidence- he was aware of this condition, and had received no treatment for it. The fact the deceased had been suffering from this disease for at least a year prior to his death does not alter the right of recovery. Compensable benefits will be awarded if the workman, as the result of an accidental injury sustains ruptures or heart attacks, notwithstanding the fact that predisposing factors contributed to the incapacity or death. Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581; Texas Employers Ins. Ass’n v. Smith (Tex.Civ.App.), 235 S.W.2d 234; Traders & General Ins. Co. v. Rooth (Tex.Civ.App.), 268 S.W.2d 539. In our-opinion the evidence, viewed in a light most favorable to the verdict, was amply sufficient to support the causal connection between the wasp sting received by the deceased and the coronary occlusion which caused his death. Tex. Employers’ Ins. Ass’n v. Talmadge (Tex.Civ.App.), 256 S.W.2d 945, (Refused, NRE): Hartford Accident & Indemnity Co. v. Gant (Tex.Civ.App.), 346 S.W.2d 359; Texas Employers’ Ins. Ass’n v. Rogers (Tex.Civ.App.), 368 S.W.2d 21 (Refused, NRE).

We therefore hold there was evidence to support the submission of issues of injury and the causal connection between the injury and the death of Williams, and the trial court did not err in overruling appellant’s motion for judgment non obstante veredicto.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    O. J. GILSON, Trustee et al., Appellants, v. UNIVERSAL REALTY CO. et al., Appellees.
    No. 14064.
    Court of Civil Appeals of Texas. Houston.
    March 12, 1964.
    Rehearing Denied April 9, 1964.
    Second Rehearing Denied April 30, 1964.

      Price, Guinn, Veltmann & Skelton, Houston, for appellants O. J. Gilson, trustee, and others, and Barnet B. Skelton, Houston, of counsel.
    John E. Lewis, Harlingen, for appellants William F. Schoeneweiss and wife.
    Sam W. Mintz, Houston, for appellees S. Alex Susholtz, Myron C. Kyckelhahn and E. F. Wilson.
    Jesse J. Lee, Williams, Lee & Lee, Houston, for appellee Otis E. Manger.

      Bonham, Stanley & Campbell, Houston, of counsel, for appellee Universal Realty Co.
    Peggy Clare Satterfield, C. M. Hudspeth, and De Lange, Hudspeth & Pitman, Houston, for appellees Universal Realty Co., Leo L. Born, Jr., and Anthony C. Guerrero, and others.
    Paul W. Wommack, Houston, for ap-pellees Leo L. Born, Jr., and others.
    Carl J. Rector, Houston, for appellee Phinehas D. Hoggatt.
    Charles L. Laswell, Houston, for ap-pellees Clark W. Henry and Bessie Margaret Higgins Henry.
   COLEMAN, Justice.

This is a suit in trespass-to-try title involving a 61.3 acre tract of land out of the J. B. Gardiner Survey in Harris County, Texas.

In the interest of brevity the names of the numerous parties, as well as the lengthy description of the particular tract of land involved, will he omitted. The real controversy between the parties revolves around the location on the ground of the east and west lines of the J. B. Gardiner Survey.

Appellants rely on thirty points of error. The first ten are briefed together and present in various manners appellants’ contention that the J. B. Gardiner Survey can be located on the ground from its own field notes, and that when so located they have title to the property in controversy by an unbroken chain of conveyances from the State of Texas. It is undisputed that the Gardiner Survey can be located by its own field notes from the west boundary line of the senior E. Barker Survey, since the field notes of the Gardiner Survey call for the S. W. Corner of the Barker as its beginning corner, and places its N. E. Corner on the N. W. Corner of the Barker.

It is settled that where a survey can be established on the ground from the calls in its own field notes, it must be established in that manner. Petty v. Paggi Bros. Oil Co., Tex.Com.App., 254 S.W. 565; State v. Franco-American Securities Co., Tex.Civ.App., 172 S.W.2d 731, writ ref.

Neither the S. W. Corner nor the N. W. Corner of the Barker Survey is described in the field notes of the Survey with reference to natural objects and the original markers have long since disappeared. In Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623, it was held that there was a presumption that a surveyor, in constructing a survey, ran his course and distance as called for by him in his field notes, and that a survey must be so constructed unless later surveyors following the original surveyor’s footsteps, show that the original surveyor’s calls are a mistake and incorrect.

It is clear from, the testimony in this case that some of the calls appearing in the field notes of the Barker Survey are incorrect. No matter which of the established corners is taken as a beginning point, conflicts arise between calls for course and distance and calls for adjoinder with senior surveys. Parol evidence was admissible to show where on the ground the line was actually made. Gill v. Peterson, Tex.Com.App., 126 Tex. 216, 86 S.W.2d 629; Blake v. Pure Oil Co., Tex.Com.App., 128 Tex. 536, 100 S.W.2d 1009. Since the evidence introduced in the trial court failed to establish as a matter of law the location on the ground of the west line of the Barker Survey, the location became an issue for the jury. Appellants’ contention as to the proper location of the west line of the Barker Survey was presented to the jury and appellants failed to secure a favorable finding.

The evidence reflects that no corner of the Gardiner Survey can be established on the ground without dispute, however the jury found, in answer to a proper issue submitted to them,' the location of the west line of the Gardiner Survey in accordance with the contentions of appellees. There was sufficient evidence to support this finding.

It is not questioned that the judgment of the trial court properly disposed of the land in controversy, if it is located on the ground in accordance with the verdict of the jury. The appellants’ Points One through Ten present no error.

Appellants’ Points Eleven, Twelve and Thirteen complain that the court erred in submitting to the jury Special Issue No. Six relating to an alleged parol boundary agreement. Since we have determined that the judgment of the trial court is fully supported by the answers of the jury to Special Issues One and Five, the answer made to Special Issue No. Six is immaterial and the error, if any, of the trial court in submitting it could not have affected the judgment entered. -

By Points of Error Fourteen through Seventeen,' appellants contend that the trial court erred in refusing to admit into evidence testimony of E. H. Timmerman that his mother and two óf his brothers pointed out to him' the dividing line between the Gardiner and the Barker Surveys, and a line which they said was a line dividing the Gardiner Survey in half. He testified that he heard a discussion of these matters between his mother, his older brothers and A. E. Connable, during negotiations for the purchase of land from Connable. E. H. Timmerman is an interested party. His testimony, properly preserved by bill of exceptions, negatives any contention that the statements made reflected a general reputation of the community. The statement that certain lines were pointed out to him by his mother and by Mr. Connable would properly be regarded as statements made by owners in possession at 'a time prior to this controversy. Both of these parties are deceased. Evidence- of this nature has been held admissible. Stroud v. Springfield, 28 Tex. 649; Evans v. Hurt, 34 Tex. 111; Russell v. Hunnicutt, 70 Tex. 657, 8 S.W. 500; Cockrell v. Work, Tex.Civ.App., 94 S.W.2d 784, writ dism.

. While Being examined with reference to defendant’s exhibit 83, a deed from A. E. Connable to Mrs. C. L. Timmerman, Mr. Timmerman clearly testified that the west line of the 17 acre tract described therein ran along the east’line of Campbell Road, and that the entire tract was located east of Campbell Road. The deed located the N. W. Corner of this tract at the N. W. Corner of the E. Barker Survey and the N. E. Corner of the J. B. Gardiner Survey, and described that point as being 1319 feet (475 varas) west of the South East Corner of the Alexander Area Survey. By the same deed another tract of land containing 23 acres described as being a part of the Gardiner Survey and west of and adjacent tó the 17 acre tract was conveyed to Mrs. Timmerman. Mr. Timmerman testified that the Campbell Road ran between the two tracts and that he lived in a house on one side of Campbell Road and his mother lived on the other side, of the road for many years. There, was other testimony locating the Timmerman land with reference to Campbell Road, and there is no substantial dispute with reference to these matters.

While there was no dispute as to the location of the Timmerman land with respect to Campbell Road, there was dispute as to the location of Campbell Road with respect to the Gardiner east line and the Barker west line. The testimony excluded was to the effect that Mr. Timmerman heard a discussion between his mother, his two brothers and Mr. Connable, the purport of which was that a survey had been made which reflected that the property they purchased was on the dividing line between the two surveys and extended west to the mid-line of the Gardiner Survey. This conversation took place more than forty years previously ’ when the witness was about nine'years of age. It is largely cumulative and, being hearsay, would be admissible only by reason of the fact that it is the best available evidence. Since the location of the Timmerman land is not in issue, the location of their lines is not relevant by reason of the fact that the description in their deeds refers to the Survey corners. Since the same deed locates the corners with reference to a known corner of the Alexander Area Survey, their testimony would not constitute the best available evidence of the location of the Survey corners. The extent of their claim as owners would not seem to be relevant to the issue of the location of the Survey corners unless based on the description contained in their deeds. Since it appears from the bill of exceptions that the opinions as to the location of the Survey lines were based on a survey made either by Mr. Connable or the Timmerman brothers, neither of whom is shown to be a surveyor, in 1916, and were not shown to be based on general reputation in the community, the testimony would have no probative value as to the original location of the Survey lines. State v. Dayton Lumber Co., Tex.Civ.App., 159 S.W. 391; Dunn v. Land, Tex.Civ.App., 193 S.W. 698.

In any event, we do not think it probable that the exclusion of this testimony probably resulted in the rendition of an improper judgment. If error was committed, it was not such as to require a reversal of the judgment rendered.

By their Eighteenth and Nineteenth Points appellants complain of the court’s refusal to define the term “artificial object” as used by the court in this portion of his charge:

“You are instructed that you are to undertake to locate such boundaries as you are called on to locate in answering the special issues herein as they were located by the surveyor who made the original survey on the ground and in so doing you should give priority to natural objects, artificial objects, courses, distances and quantity, in the order herein stated.”

Appellants objected that the court failed to instruct the jury that a line of a located survey is an artificial object and controls a call for distance. Since the court gave an instruction on priority of calls, the requested instruction was improper in that it would have unduly emphasized the matter of priority of calls for artificial objects over calls for distance. Swearingen v. Brown, Tex.Civ.App., 195 S.W.2d 724; Sanders v. Worthington, Tex.Civ.App., 349 S.W.2d 115.

There was no error in refusing the requested explanatory instruction since the substance of the matter contained therein was included in the court’s charge. Funderburk v. Dofflemeyer, Tex.Civ.App., 234 S.W.2d 889, error ref. The objection to the failure of the court to define the term “artificial object” does not present error since' appellants did not súbmit to the court a definition which was substantially correct. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, Texas Employers Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000.

Appellants complain of the refusal of the trial court to grant a new trial based upon newly discovered evidence. It is our view that the evidence, on which the motion for new trial was based, was admissible only to impeach certain of appellees’ witnesses on the collateral issue of the location on the ground of the Gottlieb Wolff Survey made by Bringhurst. While the field notes state that the Wolff Survey is bounded on the south and west by the Barker Survey, the field notes do not call for any line or corner of the Barker. It is of doubtful value in attempting to locate the footsteps of the surveyor of the Barker Survey which calls for the lines of the original Gottlieb Wolff Survey. This survey may be platted on the ground from an established corner called for in its own field notes, which are not ambiguous. As a matter of law the survey would have to be so constructed on the ground. Thomson v. Langdon, 87 Tex. 254, 28 S.W. 531; Wood v. Stone, Tex.Civ.App., 359 S.W.2d 68.

It is our opinion that appellants failed to show diligence in discovering the evidence relied on; that the testimony was both cumulative and impeaching; and that it was not of such materiality that, if believed, it would probably result in a different verdict upon another trial. The trial court did not err in refusing the motion for new trial. McDonald, Texas Civil Practice, Vol. 4, Sec. 18.16; Redden v. Pure Oil Co., Tex.Civ.App., 86 S.W.2d 874; Peterson v. Clay, Tex.Civ.App., 225 S.W. 1112.

Appellants’ requested special instruction No. 2 was properly refused by the trial court. The court was requested to submit to the jury the following instruction :

“You are instructed that in locating the lines of a survey that there can be no possible overlapping surveys where a junior survey expressly calls to begin at a senior line or corner, and that where the line or corner of the senior survey is established the junior begins, and the calls for distance of the junior must yield accordingly.”

As applied to the facts of this case, the instruction on priority of calls given by the trial court was a more appropriate guide for the jury in following the footsteps of the surveyor. In Blake v. Pure Oil Co., Tex.Com.App., 128 Tex. 536, 100 S.W.2d 1009, the court stated:

“But as to the location of a survey on the ground the inquiry is where the surveyor actually placed it, not where he originally intended to place it or where he should have placed it.”

Appellants contend that the trial court erred in overruling their motion for instructed verdict on appellees’ cross-action because appellees showed no title to the land sued for except through a deed from Bessie. Margaret Higgins Henry to the Veterans Land Board to which was attached a copy of the Roy Pitner map, which reflects that the west line of the J. B. Gardiner Survey-is 544.85 feet east of its true boundary line as determined by corners and measurements-reflected on the map. The deed describes the land with reference to the map, but also-describes it with reference to certain recorded deeds in the chain of title, which do-not refer to the Pitner map, and which contain a metes and bounds description. The-Pitner map reflects that the west line of the Gardiner Survey is located at the place-fixed by the jury in this case. Since that line is fixed on the map with reference to-the Wilkins fence, the fact that it also-fixes the west line of the Barker Survey by-course and distance from its south east corner shows on its face that the map is-ambiguous and self-contradictory. The-trial court was not required, as a matter of law, to find that appellees were estopped to-deny the truth of the notations found on the-map.

Appellants contend that as a matter of law the S. W. Corner of the Barker Survey,, also the beginning corner of the Gardiner Survey, must be located by metes and. bounds from its S. E. Corner as the nearest: established corner with which the Gardiner Survey is connected by its field notes-None of the corner markers placed by the original surveyor can be located today. No-natural objects were called for by the field, notes of the Gardiner Survey. The point: of beginning was the South West Corner of the E. Barker Survey. This corner can-, be located on the ground by course and distance from the South East Corner of the-Survey. This South East Corner can be-located on the ground from the N. W. Comer of the senior William C. Wallace-Survey, and there is no substantial dispute-as to its actual location on the ground.

By reversing the calls, the N. W. Corner-of the Barker Survey can be located from its most northerly N. E. Corner, which is. located by the field notes at the S. E.. Corner of the Alexander Area Survey. The location on the ground of this S. E„ 'Corner of the Alexander Area Survey is •stipulated.

The west line of the Barker Survey located from the S. E. Corner of the Alexander Area Survey is 183.01 varas east of the place it would be located by measuring the ■call for distance from its S. W. Corner.

It is well established that in lo•cating lines of a survey, one corner is entitled to no more weight than any other ■established corner. A survey constructed from a recognized beginning corner is entitled to no more weight than one constructed from another established corner. Davidson v. Killen, 68 Tex. 406, 4 S.W. 561; Kirby Lumber Co. v. Gibbs Bros. & Co., Tex.Com.App., 14 S.W.2d 1013; Humble Oil & Refining Co. v. Ellison, Tex.Com.App., 134 Tex. 140, 132 S.W.2d 395.

In Kirby Lumber Co. et al. v. Adams, 127 Tex. 376, 93 S.W.2d 382, the court said:

“ * * * where the natural and artificial objects of the grant cannot be identified upon the ground, the proper method of locating the lines and corners will be by course and distance from from the nearest recognized and established corner or artificial object with which the field-notes are connected. Petty v. Paggi Bros. Oil Co. (Tex.Com.App.) 254 S.W. 565.”

If this rule of construction be held applicable in this case, as a matter of law, the east line of the Gardiner Survey must be established by course and distance from the south east corner of the Alexander Area Survey since that is the nearest recognized and established corner with which the field notes of the Gardiner Survey connect.

Appellees’ motion to dismiss the appeal of appellants Schoeneweiss is granted. Since those parties prevailed in the trial court on all material points placed in issue by their pleadings, the judgment of the trial court was not adverse to their interests. “The right of review on appeal is limited to errors which are prejudicial, and the burden, at least prima facie, of showing prejudice, is on appellant.” Douglas Oil Co. v. State, Tex.Civ.App., 70 S.W.2d 452. See also Royal Neighbors of America v. Fletcher, Tex.Civ.App., 230 S.W. 476; Hunt v. Burrage, Tex.Civ.App., 84 S.W.2d 1098; Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960.

The judgment of the trial court is affirmed.

On Motions for Rehearing

In their motion for rehearing appellants have pointed out that we stated in our opinion that the Southwest corner of the Barker Survey could be located on the ground from the metes and bounds description found in the Barker field notes. We were careful to point out that the corner markers, if any, placed by the original surveyor cannot be located today. A question of fact was raised by the evidence as to the location of this corner, as well as of other comers, of the Barker Survey as marked by the original surveyor because conflicts arise between course and distance and artificial monuments called for in the field notes when the description contained in the Barker field notes is run out on the ground. Gill v. Peterson, Tex.Com.App., 126 Tex. 216, 86 S.W.2d 629, opinion adopted.

In that case the Commission of Appeals quoted with approval from State v. Post, Tex.Civ.App., 169 S.W. 401, as follows:

“In the absence of natural or artificial marks called for in the field notes showing error in course or distance, and in the absence of proof as to how surveys were actually made, they must be run out course and distance from known corners with which they connect by their callings.”

In the case.of the Barker Survey there are artificial marks called for in the field notes showing error in distance, and in both course and distance if the Northeast ' re-entrant corner is used as a-' place o-f beginning with the calls reversed.

However, we are attempting to locate land in the Gardiner Survey. The rule of State v. Post, supra, is applicable. It is appellants’ contention that the Gardiner Survey must be constructed from the Southwest corner of the Barker Survey called for in the Gardiner field notes as the beginning corner. The Northwest corner of the Barker Survey- is also called for in the field notes of the Gardiner Survey. We have held that the proper location on the ground of the west line of the Barker Survey was not established by the evidence as a matter of law. If, therefore, we attempt to fix the location on the' ground of - the Gardiner Survey, as a matter of law, we must locate either the Northwest or the Southwest corner of the Barker Survey. In attempting to do so the evidence demonstrates that the Southeast corner of the Alexander Area Survey is located at a stipulated place on the ground. The Northwest corner of the Barker Survey can be constructed course and distance from this corner. The evidence discloses that the location on the ground of the most southerly Northeast corner of the Barker.Survey is undisputed. By running course and distance the Southeast corner can be constructed, and, from that point by course and distance, the Southwest corner. Ordinarily, under such circumstances, we would be required to giv.e preference to the nearest established corner with which the field notes connect. Clarke v. Klein, Tex.Civ.App., 166 S.W. 1179; Standefer v. Vaughan, Tex.Civ.App., 219 S.W. 484; Matador, etc. v. Cassidy, Tex.Civ.App., 207 S.W. 430; Jones v. Burgett & Hickock, 46 Tex. 284; Randall v. Gill, 77 Tex. 351, 14 S.W. 134. To do so in this case would support the judgment of the trial court based on findings of fact made by the jury. We have not been content to rest our decision on this basis alone because the evidence casts doubt on the accuracy of the distance calls in the Barker Survey field notes. See Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266; Jones v. Burgett, supra.

In Standefer v. Vaughan, supra, the court 'said:

“While general rules of surveying have been formulated and to some calls greater dignity is given than to others, yet the lowest may be resorted to and adopted to arrive at the' intention of the locator, and to. establish the real location-of the land. ,-It is only at last a . question of fact ‘or evidence in boundary suits.”

We do not consider it essential to attempt to find the true location on the ground of the Barker Survey when the jury on proper evidence has located the west line of the Gardiner Survey from which the true location of the property in dispute was established.

The motions for rehearing are overruled.


author: DIXON, Chief Justice.

text:
    KEETCH METAL WORKS OF DALLAS, INC., Appellant, v. Robert B. YATES et al., Appellees.
    No. 16332.
    Court of Civil Appeals of Texas. Dallas.
    April 17, 1964.

      McDonald, Sanders, Nichols, Wynn & Ginsburg, Fort Worth, for appellant.
    Watts, Stallings & Maloney, Julian F. Foster and Woodruff, Hill, Bader & Kendall, Dallas, for appellees.
   DIXON, Chief Justice.

This appeal calls on us to construe Article 5160, Vernon’s Ann.Civ.St. as amended in 1959.

Keetch Metal Works of Dallas, Inc., hereinafter called Keetch, is a subcontractor under B & M Service, which company is itself a subcontractor under a prime contractor, Yates Construction Company, hereinafter called Yates. Keetch seeks to hold Yates, the prime contractor, and the surety on Yates’ payment bond liable for retainage as provided in Article 5160, V.A. C.S.

After a non-jury trial judgment was rendered in favor of Yates and his surety on the ground that Keetch had not complied with the requirements of the statute in regard to notices applicable to a claimant who does not have a direct contractual relationship, with the prime contractor. Art. 5160, section B(b), V.A.C.S.

Appellant, who gave the notice provided in Section B(c) of the statute, contends that he was not required to give the notices provided for in Section B(b).

All the material facts have been stipulated. In September 1959 Robert B. Yates, doing business as Yates Construction Company, as prime contractor, entered into a written contract with the Irving Independent School District for the construction of a high school for a consideration of $2,613,-872. Yates duly executed a payment bond as provided by Article 5160, V.A.C.S. with National Surety Corporation as surety. The bond obligated Yates and his surety to make payment promptly to all claimants supplying labor and material to Yates, the prime contractor, or to a subcontractor in the prosecution of the work.

In October 1959 Yates entered into a contract with B & M Service Company, a subcontractor, whereby the latter company agreed to furnish certain labor and materials for an agreed sum of $490,000.

In November 1959 B & M Service Company entered into a contract with appellant Keetch whereby Keetch agreed to furnish and install certain equipment at the agreed price of $49,500. This contract provided for monthly payments by B & M Service Company to Keetch of 90 percent of the value of labor and material furnished each month, each payment to be made on the 10th of the month following the month of performance. The 10 percent retained each month should be payable by B & M Service Company to Keetch thirty days after the entire completion and final acceptance of the job.

All the monthly payments of 90 percent were duly made by B & M Service Company to appellant Keetch. But the 10 percent retainage amounting to $4,950 has not been paid. Appellant Keetch has sued for said amount, alleging that he has met all the requirements of Article 5160, V.A.C.S., therefore Yates as prime contractor, and National Surety Corporation as surety on Yates’ bond, are obligated to pay the 10 percent retainage which B & M Service Company has failed to pay, though the job has been completed and accepted.

It is undisputed that appellant Keetch complied with the provisions of Art. 5160, subd. B(c), V.A.C.S., but that it did not comply with the provisions of Art. 5160, subd. B(b), V.A.C.S.

OPINION

Prior to the amendment of 1959 Article 5160, V.A.C.S. made no distinction between claimants who contracted directly with a prime contractor and claimants who contracted only with a subcontractor without having any contractual relationship with the prime contractor. Under the statute ás then written a prime contractor, though he might have no knowledge of the indebtedness of his subcontractor, might pay his subcontractor in full what was owed only to find subsequently that a claim had been filed with the County Clerk by a person or persons who had dealt only with the subcontractor. Thus the prime contractor or his surety would have to pay the same debt twice.

It was to correct such a situation that the Legislature amended the statute in 1959, This is shown by the emergency clause which we here quote:

“The fact that contractors on public works have suffered enormous losses by virtue of having made regular and timely payments to subcontractors, who in turn fail to pay their suppliers and subcontractors, or who pay their suppliers and subcontractors from funds, thus received, on running account in lieu of applying said payments to and for the account of work for which the payment bond is to be made, and the fact that the provisions of this Act are necessary to provide simple direct methods of giving notice and perfecting claims of laborers, materialmen, and subcontractors of all classes create an emergency and an imperative public necessity * *

Under Section B(b) of the amended statute a claimant such as appellant here, who does not have a direct contractual relationship with the prime contractor, must give “Additional Notices.” If the claimant has an agreement between himself and any subcontractor whereby payments are not to be made in full in the month following the performance or delivery of materials (in other words, if the agreement provides for a “retainage” of 10 percent or less), the claimant must give written notice to the prime contractor within thirty-six days following performance or delivery that he, the claimant, has an agreement with the subcontractor providing for the retention of part of the funds.

We think it is obvious that the purpose of Section B(b) is to put the prime contractor on notice that the claimant has a retainage agreement with the subcontract- or. The amount retained, or to be retained, may not yet be due and payable. In fact in many cases the retainage will not be due and payable until completion and acceptance of the main job, which could be many months in the future. By serving the notices the claimant does not file a claim for a debt past due and unpaid. He merely alerts the prime contractor to the fact that the funds retained will be due and owing to the claimant after completion and acceptance of the job. Thus the prime contractor, being forewarned, may protect himself from double liability by withholding full payment to the subcontractor until the subcontractor discharges his retainage debt to the claimant.

The purpose of Section B(c) of the statute is quite different. It provides that a claimant must give written notice within ninety days after final completion of the job that the money retained is due and unpaid. It is more than a notice of the terms of the contract, as were the notices under Section B(b). The notices under Section B(c) are in effect the filing of a claim for an amount of money, previously retained, which has become due and payable, but has not been paid. The section expressly includes claimants who have dealt with a subcontractor.

We have concluded that a claimant who does not have any direct contractual relationship with a prime contractor must give to the prime contractor the notices provided in Section B(b) of Art. 5160, V.A. C.S. as a condition precedent to the enforcement of liability of the prime contractor and his surety. Thus the prime contractor will be informed of the retainage feature in the claimant’s agreement with the subcontractor. Being so informed the prime contractor will know not to pay the subcontractor in full, but to withhold a sum sufficient to pay the claimant the retainage in case the subcontractor fails to do so.

Of course if the subcontractor pays claimant the retainage when it finally becomes due and payable, there will be no need for claimant to file the notice provided for in Section B(c) of the statute. Claimant will have been paid in full. But in case the subcontractor defaults in payment of the retainage when due, the claimant must then give the notice provided in Section B(c) of the statute. This is necessary to perfect his claim for money past due and unpaid.

It is undisputed in this case that appellant Keetch did not give the notices required in Section B(b) of Art. 5160, V.A.C.S. We hold that the giving of such notices was a prerequisite to his recovery against Yates, the prime contractor, and his surety. Therefore the court properly rendered judgment in favor of Yates and his surety.

The judgment is affirmed.

Affirmed.

      . Appellees in their brief describe a hypothetical situation which strikingly illustrates the hazard to which prime contractors were subjected prior to the amendment of 1959. We quote from ap-pellees’ brief:
      “By a hypothetical situation, we believe we may demonstrate the necessity for these provisions. Assume that Prime Contractor is employed to construct a large public building and that the estimated time for completion of the contract is three years. Assume, further, that Prime Contractor enters into a contract with Subcontractor for excavation of the ground upon which the building is to be constructed; that Subcontractor, in turn, contracts with Claimant to rent from him certain earth-moving equipment. The contract between Subcontractor and Claimant provides for a retain-age. Tbe work of excavation is then completed within tbe first three months of the contract and after its completion, and after Prime Contractor has signified his acceptance of the excavation, Prime Contractor pays Subcontractor.
      “If Appellant’s contentions are correct, 33 months later, when the entire job is completed, Claimant will have an additional 90 days, under Article 5160(B) (e) within which to file his claim for the retainage even though Prime Contractor has no knowledge that Subcontractor rented the equipment or had any dealings with Claimant, that there was any agreement for a retainage, or that Claimant had not been fully paid at the time the work was done and completed.”


author: PER CURIAM.

text:
    BEXAR COUNTY, Texas, et al., Appellants, v. Earl J. WENTWORTH, Appellee.
    No. 14304.
    Court of Civil Appeals of Texas. San Antonio.
    April 8, 1964.
    Rehearing Denied April 24, 1964.
    James E. Barlow, Dist. Atty., Carl Wright Johnson, Jess W. Young, Teairl W. Lewis, S. Benton Davies, Jr., San Antonio, for appellants.
    Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellee.
   PER CURIAM.

This is an appeal from an order granting appellee, Earl J. Wentworth, a temporary injunction restraining appellant, Bexar County, from carrying out a contract to purchase from appellant, The Shoup Voting Machine Corporation, one hundred new voting machines for the sum of $182,300. Wentworth, as a taxpaying citizen of Bexar County, alleged that the contract was'illegal and void because Anthony J. Ploch, who cast the deciding vote to let the contract (the count stood 3-2), holds an exclusive sales contract with the Shoup Corporation whereby Ploch receives a commission of 10% on the sale of every voting machine sold by Shoup in the State of Texas, except in Bexar County.

Ploch has served as Commissioner of Precinct 4 of Bexar County since 1946. He testified that in about 1948 he and two other members of the Bexar County Commissioners’ Court went to Louisiana and inspected the Shoup voting machine. Ploch was very much impressed with the capabilities of this machine and saw that it represented a “gold mine.” Shortly thereafter he secured an agency contract with Shoup, and at the time of the present attempted purchase Ploch was operating under the following contract:

“THE SHOUP VOTING MACHINE CORPORATION MANUFACTURERS AND DISTRIBUTORS SHOUP VOTING MACHINE
260 Madison Avenue New York 16, New York
August 19, 1954
Mr. Anthony J. Ploch 2319 South Hackberry Street San Antonio, Texas
Dear Mr. Ploch:
You are hereby appointed our sole and exclusive representative for the promotion, exploitation and sale of our voting machines within the State of Texas, except in Bexar County, and your approval of this agreement is indicated by your acceptance at the end hereof. You are to give your best efforts to the carrying out of this appointment and will render such services in connection therewith as may be reasonable and necessary. You understand and agree that you are neither authorized to employ or retain any persons on our behalf nor to contract for or obligate this company in any manner and that all proposals or orders are subject to written acceptance by us and the right is reserved to reject any order obtained by you.
We agree to pay you as your sole compensation, and in lieu of any expenses you may incur, sums or commissions equal to 10% of the net sales price f. o. b. the factory, Canton, Ohio, of the machines sold by you or us in the territory above mentioned. The said payments are to be made to you within ten days after we have received payment for machines delivered by us. We agree to pay the premium on any performance bonds or other bonds and to make any deposit in cash or by certified check which may be required in connection with the obtaining of orders.
This agreement shall continue in full force and effect for a period of one year from the date hereof and shall then automatically be renewed for one-year periods thereafter unless either party gives written notice at least one month prior to the expiration of the onc-year period of their intention not to renew the agreement.
This represents the entire agreement between us and there are no other understandings.
Very truly yours,
THE SHOUP VOTING MACHINE CORPORATION
By: /s/ Harold J. Lewison_ Harold J. Lewison Executive Vice President
ACCEPTED:
/s/ A. J, Ploch A. J. Ploch”

It is seen that Ploch agreed to use his best efforts to promote, exploit and sell Shoup voting machines throughout the State of Texas, except in Bexar County. No reason appears in the record as to why Bexar County was excluded in this statewide contract, unless in the hope that Shoup would be able to sell Bexar County these machines. The record shows that Ploch’s efforts for Shoup were largely confined to the promotion and exploitation of the machines in that all demonstrations were handled by other Shoup representatives.

Ploch testified that he assigned this contract to “The Anthony Company,” a partnership composed of himself and his three sons-in-law. The office and principal place of business of this partnership, as well as the residence of all the partners, is in Bexar County. Tax returns show that this partnership has received commissions from the sale of Shoup machines averaging in excess of $25,000 over the past ten years, and Ploch expressed a hope for the same for the next ten years. Under the undisputed record, neither Ploch nor the Anthony Company will receive any money from the sale of voting machines to Bexar County.

Under the provisions of Article 2340, Vernon’s Ann.Civ.Stats., Ploch, in addition to his constitutional oath of office, was required to, and has taken the following oath each time he has been re-elected, to-wit: “I, A. J. Ploch, do solemnly swear that I will not be directly or indirectly interested in any contract of claim against the County in which I reside, except such warrants as may issue to me as fees of office, so help me God.” It is quite clear under this oath, that if Ploch is directly or indirectly interested in the contract to purchase the 100 Shoup voting machines, within the meaning of the above oath, such contract is against public policy and null and void. Art. 373, Vernon’s Ann.Penal Code; City of Edinburg v. Ellis, Tex.Com.App., 59 S.W.2d 99; Starr County v. Guerra, Tex.Civ.App., 297 S.W.2d 379; Knippa v. Stewart Iron Works, Tex.Civ.App., 66 S.W. 322.

This being an appeal from an order of the trial court granting a temporary injunction, we should affirm the order unless we find that the court abused its discretion in making the order. Appellee was not required, at this hearing, to show that the contract to purchase the 100 Shoup voting machines is null and void, or to show that Ploch was disqualified to cast the deciding vote, but only that there was a probability that such is the case. In Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, Chief Justice Calvert stated the rule thusly:

“The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. A trial judge therefore has broad discretion to grant or to deny a writ when the pleadings and the evidence show a probable right of recovery in the applicant and a probable injury to him if the writ is not granted. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549. A necessary corollary of that rule is that a trial judge abuses his discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. To furnish a reasonable basis for the conclusion the evidence need not establish that the applicant will finally prevail in the litigation, Transport Co. of Texas v. Robertson Transports, supra, but it must, at the very least, tend to support a right of recovery. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.”

The question here is whether there is evidence showing that Ploch has a probable interest, either directly or indirectly, in the contract of Bexar County to purchase 100 Shoup machines. In our opinion, the record here shows such probable interest.

Ploch is the sole and exclusive representative for the promotion, exploitation and sale of the Shoup voting machines within the State of Texas, except in Bexar County. He is obligated to give his best efforts to the carrying out of his appointment, and to render such services in connection therewith as may be reasonable and necessary. The contract makes it clear that he is not to receive any commission from machines sold in Bexar County, but it is difficult for us to say that he would be carrying out this contract as to the rest of the State if he stood silently by and did or said nothing to sell such machines in Bexar County. Could he say that he was using his best efforts to promote and exploit the sale of these machines throughout the State if he stood by and saw 100 voting machines of another brand sold in the county of his residence, where he is the “voting machine commissioner,” without lifting a finger to aid his company ? As a matter of fact, the evidence shows that no one could have done or said more on behalf of the Shoup voting machines in securing this contract than did Ploch.

Under all of the circumstances, it is presumed that Ploch was not in a position to give to Bexar County his undivided loyalty and support in seeing to it that Bexar County got the very best deal possible in the purchase of 100 new voting machines, when he was at the same time obligated to use his best efforts to promote and exploit the sale of Shoup voting machines throughout the State, except in Bexar County. The fact that he was not to receive any money from such a sale in Bexar County would not prevent him from having an indirect interest in promoting and exploiting Shoup voting machines elsewhere in the State by a sale in Bexar County.

The trial court, after hearing the witnesses and observing their demeanor on the witness stand, decided that a temporary injunction should be granted prohibiting the completion of the contract for the purchase of one hundred Shoup voting machines until the matter could be heard on the merits, and we are unable to say, in the face of this record, that the trial court abused its discretion in ordering the issuance of this temporary injunction.

The judgment of the trial court is affirmed.


text:
    PONCA WHOLESALE MERCANTILE COMPANY, Appellant, v. Roy Lee ALLEY et al., Appellees.
    No. 7337.
    Court of Civil Appeals of Texas. Amarillo.
    March 16, 1964.
    Rehearing Denied April 13, 1964.

      Key, Carr & Clark, Lubbock, for appellant.
    Thomas J. Griffith, Jr., Lubbock, for ap-pellees.
   DENTON, Chief Justice.

This case is before this Court by way of petition for writ of error filed by Ponca Wholesale Mercantile Company against Doy Nichols and H. P. Terry seeking to set aside a default judgment entered against Ponca. Articles 2249 and 2249a and 2255, Vernon’s Ann.Tex.Civ.St.

On September 22, 1961, Ponca filed suit in the 47th District Court of Potter County against Roy Lee Alley for conversion of funds belonging to Ponca while an employee of that company. The suit sought recovery against Alley as principal and R. A. Pendergrass, Doy Nichols, H. P. Terry and W. L. Combes as sureties on the fidelity bond of Alley. These defendants were represented by two different law firms. On December 19, 1961, Nichols and Terry filed a cross-action against Ponca, and citation, with service thereon, was filed on December 22, 1961. The defendants’ pleas of privilege were ultimately sustained and the case was ordered transferred to the 99th District Court of Lubbock County on October 3, 1962. Ponca’s suit, on motion filed by its attorney, was dismissed without prejudice by the judge of the 99th District Court on March 5, 1963. Subsequent to the order of dismissal of the Ponca suit, Nichols and Terry took a default judgment on their cross-action against Ponca on March 23, 1963. It is this default judgment this petition for writ of error seeks to set aside.

Appellant Ponca attacks the default judgment on the following grounds: (1) the service of citation on Ponca was insufficient to confer jurisdiction in the trial court to enter the judgment on the cross-action; (2) the record does not affirmatively show the service of citation was obtained on a person authorized by law to accept service for Ponca; and (3) the cross-action is not sufficient to support a judgment by default.

Before proceeding with a determination of appellant’s points of error, we must consider and pass upon appellees’ motion to dismiss the petition for writ of error. Respondents’ motion to dismiss is primarily based on the ground the writ fails to name all parties with adverse interests to appellant’s position, namely Alley, Pendergrass and Combes. Article 360, Texas Rules of Civil Procedure, provides a petition for writ of error “shall state the names and residences of the parties adversely interested”. It has been held “parties adversely interested” are parties whose interest in the subject matter of the proceeding is adverse to that of the parties seeking-the-writ of error or whose interest may be affected by the modification or reversal of the judgment in question. Sanitary Appliance Co. v. French (Tex.Civ.App.), 58 S.W.2d 159, (Error Dismissed) ; Highsmith v. Tyler State Bank & Trust Co. (Tex.Civ.App.), 194 S.W.2d 142, (Error Refused). Ponca’s suit named Alley principal and Nichols and Terry along with Pendergrass and Combes as sureties on the fidelity bond. Subsequent to the filing of the cross-action of Nichols and Terry, the principal suit was dismissed. No affirmative relief was ever asserted by Alley, Pendergrass or Combes. When the principal case was dismissed these three defendants were no longer parties to the suit. -These former defendants did not have an adverse interest which may be affected by this proceeding. We conclude the writ of error should not be dismissed on the ground the same fails to name all parties with an adverse interest. McPhaul v. Byrd (Tex.Civ.App.), 174 S.W. 644; City of Corpus Christi v. Scruggs (Tex.Civ.App.), 89 S.W.2d 458; First National Bank v. Cole (Tex.Civ.App.), 264 S.W. 926; Liquid Carbonic Co. v. Head (Tex.Civ.App.), 48 S.W.2d 464, (Error Dismissed). Appellees’ contention that appellant having had actual or constructive notice of the judgment, was negligent in failing to appeal by the ordinary method is without merit. This record discloses appellant had no notice, actual or constructive, within the time allowed to pursue the ordinary appeals procedure. Neither can it be said appellant abandoned its right to appeal by failing to answer appellees’ cross-action. Appellees’ motion to dismiss is overruled.

In passing upon appellant’s points of error we are concerned with a direct attack upon the default judgment brought by writ of error. ' In such a proceeding we are to look only to the alleged errors appearing on the face of the record. Texaco, Inc. v. McEwen (Tex.Civ.App.), 356 S.W.2d 809, (NRE); 3 Tex.Jurs.2d, Section 17, page 287, and cases cited therein. Appellant first attacks the service of citation had on the cross-action. There is no controversy but that Ponca Wholesale is a domestic corporation existing under the laws of Texas with its principal office located in Amarillo, Potter County, Texas. It is well settled that in order for a default judgment on a cross-action to stand, legal service of process on the plaintiff must be shown in the record. Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6.

The material part of Article 2029, V.A.T.S. provides:

“In suits against any incorporated company or joint stock association, the citation may be served on the President, Vice President, Secretary, Cashier, Assistant Cashier, or Treasurer of such company or association, or upon the local agent of such company or association in the county where the suit is brought, or by leaving a copy of the same at the principal office of the company during office hours.”

Article 2.11 of the Texas Bus.Corp.Act, V. A.T.S. provides in part:

“A. The president and all vice presidents of the' corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.”

It is our opinion Article 2.11 of the Business Corporation Act, a specific act, which became effective in 1955 should be applied here rather than Article 2029. The former article eliminates the practice of service upon local agents authorized under Article 2029. Much litigation involved the question whether a person served was in fact an agent of the corporation being sued. The obvious purpose of Article 2.11 was to provide a definite manner of service and remove the uncertainty that had arisen in the construction of Article 2029.

Appellees’ cross-action alleged “Cross-plaintiffs are residents of Lubbock County, Texas. Cross-defendant is a corporation located and existing under the laws of the State of Texas with resident agents in the City of Lubbock, Lubbock County, Texas, upon whom service of process may be obtained.” It is to be noted the petition named no person upon whom service of process might be had. The cross-action was filed in the District Court of Potter County prior to the removal of the case to Lubbock County, and the petition alleged service could be obtained upon “resident agents in the City of Lubbock, Lubbock County, Texas.” The citation, with return thereon, contained the following:

“Came to hand on 20 day of Dec, 1961, at 12 o’clock noon-M., and executed in Lubbock County, Texas, by delivering to each of the within-named defendants, in person, a true copy of this Citation, having first endorsed thereon the date of delivery, together with the accompanying true and correct copy of the Plaintiff’s petition, at the following times and places, to-wit: Ponca Wholesale Mercantile Co by delivering copy to Manager Don Landers 12 20 61 3 30 p. m. 1301 H Lubbock, Tex.”

The law is well settled that the record must show affirmatively a strict compliance with the manner of service provided in order to support a default judgment. Household Furniture Co. v. Alvarado (Tex.Civ.App.), 246 S.W. 1111; United States Fidelity & Guaranty Co. v. Daniel (Tex.Civ.App.), 52 S.W.2d 108; Latham Co. v. J. M. Radford Grocery Co., 54 Tex.Civ.App. 510, 117 S.W. 909.

A reading of the petition, citation and return thereon clearly shows no designated officer or “registered agent” of appellant corporation was served with process. We think it is clear service of citation on “Manager Don Landers” was not proper service under Article 2.11. The record contains no other information as to what capacity Landers served the corporation. We cannot assume he was one of the designated officers upon whom service could be had under, Article 2.11. We think the same conclusion would be reached under Article 2029. It has been held that the service of a “manager” is not equivalent to service of a “local agent” and such service is not proper under that Article. United States Fidelity & Guaranty Co. v. Daniel, supra; State Trust & Savings Bank v. Ferguson Seed Farms (Tex.Civ.App.), 80 S.W.2d 417; Tompkins Machine & Implement Co. v. Schmidt, 4 Willson, Civ.Cas.Ct.App. § 134, 16 S.W. 174.

We are of the opinion, and so hold, the record does not show affirmatively that Ponca, a domestic corporation, was served with process in the manner provided for under either Article 2029 or Article 2.11. Neither the petition nor citation names Landers as “local agent” or “registered agent” or officer of the corporation. Service upon Landers in Lubbock County as “manager” is not sufficient to comply with the law and will not support a default judgment. In view of this holding it is deemed unnecessary to consider and pass on the other point of error brought forward by appellant.

The default judgment rendered against appellant is reversed and set aside and the cause is remanded to the trial court for a trial on its merits.

Reversed and remanded.


author: MURRAY, Chief Justice.

text:
    Howard F. CONNOR, Appellant, v. Morris L. COLLINS et al., Appellees.
    No. 14242.
    Court of Civil Appeals of Texas. San Antonio.
    April 1, 1964.
    Rehearing Denied April 29, 1964.
    Phillip E. Palmer, San Antonio, for appellant.
    Leslie J. Bretz, V. H. McFarland, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the 45th District Court of Bexar County by Morris L. Collins and Bruce Waitz, attorneys at law, against Howard F. Connor, Mary Connor Minor and, pro forma, her husband, Ray W. Minor, seeking a declaratory judgment to the effect that they were entitled to have an execution issued in the name of Mary Connor Minor for their benefit, against Howard F. Connor in Cause No. F-141,302, a divorce case in the 57th District Court of Bexar County, in order that they might collect tlie sum of $500.00, awarded Mary Connor as attorneys’ fees for their services in that cause.

Defendant Howard F. Connor filed a plea to the jurisdiction of the 45th District Court, asserting that the amount involved was the sum of $500.00, and that the District Court was without jurisdiction to hear and determine a suit for the exact sum of $500.00, which plea to the jurisdiction was overruled and judgment rendered in favor of plaintiffs as prayed for, from which judgment Howard F. Connor has prosecuted this appeal.

Appellant’s first point is that the court erred in overruling the plea to the jurisdiction of the court. We sustain this point. The purpose of this suit is to collect the $500.00 attorneys’ fees awarded by the judgment rendered in Cause No. F — 141,302. The District Court does not have jurisdiction of a suit where the amount in controversy is exactly $500.00 or less. Gulf, C. & S. F. R. Co. v. Rainbolt, 67 Tex. 654, 4 S.W.2d 356; Waller v. Gray, 43 Tex.Civ.App. 405, 94 S.W. 1098.

Appellees contend that since this suit is one for a declaratory judgment brought under the provisions of Art. 2524 — 1 Vernon’s Ann.Civ.Stats., the question of the amount in controversy is not material. We do not agree.

The provisions of Art. 2524-1, supra, authorizing the bringing of suit for a declaratory judgment, do not in any way change the law as to jurisdiction of Texas Courts. Shaver v. Hughes, Tex.Civ.App., 214 S.W.2d 176; Lincoln v. Harvey, Tex.Civ.App., 191 S.W.2d 764.

In Cowan v. Cowan, Tex.Civ.App., 254 S.W.2d 862, in speaking of the Uniform Declaratory Judgments Act, the Court said:

“The Act is remedial in nature and procedural in character. It does not create jurisdiction in the courts over subjects in which they had no jurisdiction before the passage of the Act. It has only changed the method of exercising existing jurisdiction.”

The judgment of the trial court is reversed and the cause dismissed for want of jurisdiction in the trial court.


text:
    SOUTHWESTERN PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. William Clay SPURLOCK et al., Appellees. SOUTHWESTERN PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. Joyce Gilbert SPURLOCK et al., Appellees.
    Nos. 7340, 7341.
    Court of Civil Appeals of Texas. Amarillo.
    March 30, 1964.
    Rehearing Denied April 27, 1964.

      Stone & Stone, Amarillo, Lovell & Lyle, Dumas, for appellant.
    Richards & Ferguson, Dalhart, for appel-lees.
   DENTON, Chief Justice.

These two suits, consolidated for trial with one statement of facts, are condemnation proceedings. The suits were filed by Southwestern Public Service Company, a public utility corporation with power of eminent domain, against William Clay Spur-lock, the owner, and Harvey Spurlock, the tenant, of one tract; and against Joyce Gilbert Spurlock and husband, William Clay Spurlock, the latter as administrator of the Estate of Cline Gilbert, the owners, for the purpose of condemning an easement 30 feet wide for an electrical transmission line over and across the two tracts of land. Appel-lees, the condemnees, appealed from the awards of the special commissioners and the consolidated cases were tried in the County Court to a jury. The only disputed issue was that of damages. One tract, designated the Clay Spurlock land, contained approximately 320 acres; the other tract, designated the Cline Gilbert land, contained approximately 960 acres. The 30 foot strip condemned on the Clay Spurlock land contained 3.629 acres, and the condemned area on the Cline Gilbert land contained 1.822 acres. The jury found the 3.629 acre strip to be worth $725.80, and the 1.822 acre strip to be worth $273.30. The jury further found the remaining portion of the Clay Spurlock land to be worth $63,274.20 immediately before the condemnation and $60,110.49 immediately after the condemnation. The jury found the remaining portion of the Cline Gilbert land was worth $223,726.70 immediately before the condemnation and $222,135.81 immediately after the condemnation. 'Judgments were entered on the jury’s verdicts awarding damages of $3,889.51 for the Clay Spurlock land and $1,864.19 for the Cline Gilbert land. From these judgments Southwestern Public Service Company has perfected these appeals.

The record shows the utility company had erected its power lines across the two tracts at the time of the trial. The lines are H-Frame type of construction, each consisting of two poles spaced 12j/á feet apart with cross arms from which insulators are extended to carry the conductors or power lines. The poles are spaced from 600 to 700 feet apart. The 65 foot poles are set 81/2 feet in the ground with the conductors placed approximately 43 feet above the surface of the ground with the lowest point of clearance approximately 28}^ feet above the surface. Eight H-Frames were placed on the Clay Spurlock land and four on the Cline Gilbert land. The usual rights of ingress and egress were given the condem-nors for the purposes of constructing, maintaining and reconstructing the transmission lines.

Appellant does not complain of the value placed on the 3.629 and 1.822 acre easement strip or the value placed on the remainder of appellees’ two tracts of land immediately before the condemnation. The complaint is there is no evidence and insufficient evidence to sustain the jury findings as to the value of the remainder of the two tracts immediately after the condemnation. It is appellant’s position that the testimony of witness Hodge, an expert witness called by appellees, does not support the jury’s findings as to market value of the remainder after the taking. This contention is based on the premise Hodge did not properly appraise various parts of the remaining land in accordance with their respective relationships to the condemned easement. Under the facts and circumstances of these cases we think appellant’s contention is too restrictive and is not supported by the authorities. Each of the two tracts here involved were operated as a unit. Although both tracts contained pasture land as well as cultivated land, it was uncontradicted that the highest and best use of the premises is irrigated, cultivated land.

It is well settled that in the taking by condemnation of an easement strip across a tract of land, damages to the remaining portion of the tract is determined by ascertaining the difference between the market value of the remaining portion of the tract immediately before and immediately after the taking. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979; Texas Electric Service Co. v. Merket, (Tex.Civ.App.), 300 S.W.2d 167. As held in State v. Carpenter, supra, the issue of depreciated market value is largely a matter of opinion evidence, and a very wide range of factors may be legitimately taken into consideration by qualified witnesses on the foundation of their opinion. See also Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151. It has further been held that in order to enable a jury to determine the depreciation of the remainder, the parties have the right to introduce evidence of anything which would tend to affect the value of the land in the eyes of a prospective purchaser or tend to make it more or less valuable to the owner. Brazos River Conservation & Reclamation Dist. v. Costello, (Tex.Civ.App.), 169 S.W.2d 977, (Refused, WM) ; Texas Electric Service Co. v. Etheredge, (Tex.Civ.App.), 324 S.W.2d 322.

Appellees’ expert witness, whose qualifications were not questioned, testified to a difference in the market value of each tract of land in question immediately before and immediately after the condemnation of the easement strips. Each of these amounts were greater than those found by the jury. Factors which Hodge testified he considered in determining the depreciated market value included: the right of the condemnor of ingress and egress onto the land to maintain and repair the power lines and equipment; the easement separated a portion of the land from the existing irrigation wells on one of the tracts; it is more inconvenient and more expensive to cultivate appellees’ land after the condemnation because of the presence of the large poles; it is difficult to operate large farm machinery near these structures; the presence of the power line would interfere with the dusting of crops by plane; the use of trucks on the premises by the condemnor would affect the irrigation plans of the appellees ; real and apparent damage from the high voltage lines across the two tracts; additional expense to keep the weeds down in the right-of-way; the presence of trucks and cars on the land would attract the cattle “thinking they will get feed. That results in a walking off of weight off of the animal”; and the fact keys to the gates surrounding the premises were provided to both the condemnor and condemnee, and could result in keys getting into the possession of unauthorized persons. Hodge declared these factors, and others not listed here, were considered by him in determining the depreciation of the land, and that such factors would influence prospective purchasers. Other witnesses, including farmers living in the area, substantiated much of this testimony. These elements of damages have been held to be properly considered in assessing damages to the re-xnaínder. Texas Electric Service Co. v. Etheredge, supra; Texas Electric Service Co. v. Merket, supra; Wilbarger County v. Hall, (Tex.Com.App.), 55 S.W.2d 797; Southwestern Public Service Co. v. Goodwine, (Tex.Civ.App.), 228 S.W.2d 925, (Refused, NRE) ; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191. We conclude there was sufficient evidence to support the jury’s findings as to the value of the remainder of the two tracts immediately after the condemnation

The judgment of the trial court is affirmed.

Affirmed.


text:
    Earl L. (Hank) MITTERLEHNER, d/b/a S & M Distributing Co., Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS, Trustee, Appellee.
    No. 16319.
    Court of Civil Appeals of Texas. Dallas.
    March 13, 1964.
    Rehearing Denied April 10, 1964.
    Harold B. Berman, Dallas, for appellant.
    Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellee.
   DIXON, Chief Justice.

Earl L. Mitterlehner, appellant, doing business as S & M Distributing Company, brought this suit against his landlord, Mercantile National Bank at Dallas, Trustee, for damages to merchandise stored in a leased building which damages are alleged to have been caused by water leaking from water pipes in the building.

Appellant is in the bonded warehouse business. The merchandise alleged to have been damaged belonged to one of his customers. The Bank is trustee for the Estate of Carl Wallace and Wanda Mae Wallace, owner of the building.

The appeal is from a summary judgment entered in favor of the Bank. The record before us consists of the pleadings of the parties, answers of appellant in response to written interrogatories propounded by ap-pellee, and the deposition, of J. L. Willess, a trust officer of the Bank. Several exhibits are attached to the depositions.

PLEADINGS

In his original petition appellant alleges that in a written lease agreement landlord, Bank, Trustee, obligated itself to place in good condition and repair the plumbing in the building but that it faiied to do so with the result that water damage occurred in the amount of-$3,603.89. In the alternative appellant alleges that the Bank was negligent in that the Bank failed (1) to place, the plumbing in good condition, (2) and (3) to cap or cap properly a water pipe, and further, the Bank (4) turned the water on without inspecting all-outlets, (S) left the water on after using same, and (6) failed to advise appellant that it had turned the water on.'

Appellee, the Bank, in addition to a general denial, pled three provisions of the contract as defenses to appellant’s action, which three provisions will be copied in full later in this opinion.

In its unsworn motion' for summary judgment the Bank alleges that there is no liability on the Bank for the water damage for the reason that “no demand was made on the defendant.to repair any plumbing prior to the time the damage is claimed to have been sustained.”

In his unsworn reply appellant contends that the lease itself contained notice to ap-pellee to repair the plumbing. He also reiterates his allegations of negligence.

FACTS

On January 18,.. 1962 the parties entered into a written.lease agreement made out on a, printed form styled “DALLAS REAL ESTATE BOARD OFFICIAL FORM-EXISTING BUILDING”.

. Our decision in this case depends mainly on the interpretations we give to three paragraphs of the lease and the relationship of these paragraphs to each other. Therefore we deem it well to copy these paragraphs in full:

“2. Tenant acknowledges that it has fully inspected the demised premises, and on the basis of such inspection, Tenant hereby accepts the demised premises, and the buildings and improvements situated thereon, as suitable for the purposes for which the same are leased, in their present condition, with such changes therein as may be caused by reasonable deterioration between the date hereof and the commencement date of this Lease; provided that in the event any presently installed plumbing, plumbing fixtures, electrical wiring, lighting fixtures, or air conditioning and heating equipment are not in good working condition on the commencement date of this lease, Landlord agrees to repair promptly any such defects of- which Tenant delivers written notice to Landlord within thirty days after the commencement date of this lease.”
“IS. Landlord shall not be liable to Tenant or Tenant’s employees, agents, or visitors, or to any other person whomsoever, for any injury to person or damage to property on or about the demised premises, caused by the negligence or misconduct of Tenant, its agents, servants, employees, or invitees, or caused by the building and improvements located on the premises becoming out of repair, or caused by leakage of gas, oil, water or steam or by electricity emanating from the premises, or due to any other cause whatsoever, and Tenant agrees to indemnify Landlord and hold it harmless from any loss, expense, or claims arising out of any such damage or injury.”
“27. Special provisions: Lessor will at his expense place in good mechanical condition the following items:
“1. Air Conditioning Equipment
“2. Electrical Wiring and Outlets
“3. Adjust Doors
“4. Plumbing.”

Paragraphs Nos. 2 and 15 are printed, as are most other paragraphs in the contract, but Paragraph No. 27 is typewritten in a blank, space following the printed caption “Special provisions”.

The lease is for a term of five years commencing February 1, 1962. It provides for rental of $250.00 per month for the first four months and $468.75 per month thereafter. For the first four months the premises were to be used only for warehouse purposes, but in June 1962 appellant expected to and did move his office and office staff into the building.

There is evidence that on January 23, 1962 the Bank employed a maintenance company to clean the building, which had been vacant for some time prior to the time appellant leased it. Nothing further was done to the building by the Bank until June 5, 1962 and June 7, 1962 when a plumbing company employed by the Bank repaired leaks and repaired a commode. This was after the alleged water damage had occurred.

Exhibits attached to the deposition of Willess indicate that the Bank paid a final water bill on January 24, 1962 representing service rendered to January 15, 1962. On January 24, 1962 the Bank returned to the Dallas City Water Works an unexecuted contract form for water service to the building, which contract form the Bank declined to execute “due to our leasing the building and service being discontinued in our name.” There is no evidence as to whether the water supply was disconnected at that time.

The alleged water damage occurred on or about April 5, 1962 when two of appellant’s employees saw water flowing into the premises from leaking water pipes. Appellant testified that he did not enter into a contract with the City to furnish water for the premises until June 15, 1962, and that he did not connect it until that date. He further testified that he did not use water on the premises in February, March, April or May 1962, but that the Bank turned the water on prior to the time of the flooding of the building which caused the damage.

OPINION

In two points on appeal appellant contends that the trial court erred in sustaining appellee’s motion for summary judgment on the grounds that (1) appellee had no liability for water damage because no demand was made by appellant on appellee to repair any plumbing prior to the time the damage is alleged to have been sustained; and (2) the lease agreement contained an exculpatory clause, Paragraph No. 15, which excused appellee from its own affirmative negligence in undertaking to perform its covenants as provided in said agreement.

It is our opinion that Paragraph No. 27 placed an obligation on appellee to put the plumbing “in good mechanical condition” and that the provision itself constitutes notice to appellee to perform its obligation. We do not believe that Paragraphs Nos. 2 and 27 are in conflict, but if they are Paragraph No. 27 must control for it is a special typewritten part of the contract while Paragraph No. 2 is part of the printed form. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341; 13 Tex.Jur.2d 325.

Appellant concedes that exculpatory provisions such as Paragraph No. 15 of the written lease are not contrary to public policy and are valid and enforceable in this state. Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775; Smith v. Ohio Oil Co., Tex.Civ.App., 356 S.W.2d 443. In the Mitchell’s, Inc., case above cited our Supreme Court said:

“It is not necessary, therefore, for the parties to say in so many words that they intend to protect the indem-nitee against liability for negligence. An obligation to hold harmless from claims, liability or damage resulting from a specified operation or instrumentality will be enforced in accordance with its terms even though the in-demnitee may thereby be relieved of the consequences of his own negligence. See also Houston & T. C. R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204, Id., 111 Tex. 18, 226 S. W. 140.”

We believe that Paragraph No. 15 in the contract under consideration here protects appellee from its own negligence.

Appellant says that exculpatory provisions are applicable to protect an indemni-tee only from its own passive negligence and that it will not serve to protect him from his own active negligence in performing a covenant to repair. 175 A.L.R. 89; 84 A.L.R. 654. We need not pass on the question here, for the record before us contains no evidence of active negligence on the part of appellee.

Appellee did employ a plumber to repair leaks, but this was in June 1962 after the damage occurred in April 1962. There is no evidence that the plumber was negligent in repairing the leaking pipe in June of 1962. In any event his negligence, if there was any, could not have been the cause of the damage in April of 1962.

The evidence is undisputed that some time in January 1962 appellee employed a maintenance company to clean the premises. There is no evidence that the maintenance company undertook to repair any plumbing, or that it even turned on the water. The evidence is also undisputed that on January 24, 1962 appellee paid a final water bill as of January 15, 1962 and declined to enter into a new contract with the City Water Department, its reason being that the premises had been leased. So far as the record before us shows appellee did nothing between January 1962 and June of 1962 toward placing the plumbing “in good mechanical condition.” If its failure to act is negligence, it is passive negligence, not active negligence; and under appellant’s own theory appellee would not be liable for such negligence.

The nearest the evidence comes to showing any active negligence on the part of appellee is a statement by appellant in his answer to interrogatories. He said that appellee “turned the water on prior to the time of the flooding of the building which caused my damage.” (Emphasis added.) The phrase “prior to the time of the flooding of the building” is too general and indefinite to have any probative value in fixing the time of the alleged turning on of the water by appellee. It could mean ten years prior to the time, or one year prior to the time, etc. It certainly is not evidence that appellee turned on the water on or about April 5, 1962, the time the water damage is alleged to have been sustained. This is especially true in the light of the undisputed evidence above referred to.

Under the circumstances of this particular case we believe the court properly rendered summary judgment for appellee. Both points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.

BATEMAN, J., not sitting.


text:
    GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant, v. SAN ANTONIO PLUMBING SUPPLY COMPANY, Appellee.
    No. 14232.
    Court of Civil Appeals of Texas. San Antonio.
    March 11, 1964.
    Rehearing Denied April 8, 1964.
    LeLaurin, Chamberlin, Guenther & Murry, Bettie J. Stock, San Antonio, for appellant.
    Brundidge, Fountain, Elliott & Churchill, Dallas, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by appellee, San Antonio Plumbing Supply Company, against appellant, Great American Reserve Insurance Company, seeking to recover upon a policy of life insurance issued upon the life of Sul Ross in the principal sum of $10,000.00. Appellant contends that the policy was never in effect. Both parties moved for summary judgment. The» trial court overruled the motion of appellant and granted that of appellee, and theii proceeded to render judgment against appellant in favor of appellee in the sum of $10,000.00, together with penalty, attorney’s fees and interest; from which judgment the Great American Reserve Insurance Company has prosecuted this appeal.

In November, 1961, Sul'Ross, Andrew Carl Tomlin, William August Stoeltje, and Martin F. Reinhard were officers of and .stockholders in appellee company, and decided to take insurance on their lives for the benefit of the company. They contacted Darrell Barnes, who at the time was a soliciting agent for appellant, and each gave him his signed application for $10,-000.00 of insurance. In each application it was. stated as follows:

“(2) That the policy hereby applied for shall not take effect unless the insured is alive at the time of its delivery to the insured provided that if this application is approved by the company and policy issued as applied for, and provided the first premium has been paid, the insurance applied for herein shall be effective from the date of this application, or the date of the medical examination of (sic) such examination is required, and, provided further, that in no event, shall the insurance applied for herein take effect unless the insured is in sound health at the time of the making of this application.”

Appellant required that Sul Ross take a physical examination, and it was discovered that he had high blood pressure and an excess of sugar in his urine. Ross was required to take another physical examination and to furnish a written report as to his health from his personal physician, and from this information appellant “rated up” the policy of life insurance being issued on the life of Sul Ross. There is no difficulty about the other three policies, this suit is based alone upon the Sul Ross policy. Appellant’s principal office was in Dallas, with a branch office in San Antonio. The four policies were prepared in the Dallas office and sent to the San Antonio office, with instructions to have each insured sign a declaration of no change in health. The policies were received on January 19, 1962, but nothing was done about them that day. On January 20, 1962, Sul Ross was taken sick and sent to the hospital. This information reached the San Antonio office on the same day. .

Joe Roger Davenport was the San Antonio Branch Manager, and Kenneth Stewart Wingfield was Unit Manager. Darrell Barnes was, no longer a soliciting agent; he had become a broker. When Barnes heard of Sul Ross’ hospitalization he called Wingfield and asked what should be done. Wingfield advised Barnes “to get a check.” In this connection, Wingfield testified as follows: • •

“Q All right. Did you ever tell Darrell Barnes to go out there and get a check?
“A Yes, I told him to.
“Q What were your words that you used in telling him this? Again, if you don’t remember specifically, just tell us generally what you said to him..
“A Okay. Generally, my words were T wish to heck we could have done this yesterday when the policies came in, rather than today, then the situation wouldn’t exist. Go out and get a check and if Mr. Ross is actually in the hospital, of course, you can’t let him sign the affidavit because he is not in good health, if he is in the hospital. We have got to hold the policy for instructions after he does get well and then we can go through the underwriting over again. Definitely get a check on these other fellows if they will give it to you and get their declaration signed/ By declaration, I am using this word for — we call our declaration of no change in health and so forth.”

Barnes went to appellee’s office and there received a check payable to appellant in the sum of $222.90, being the total amount required to cover the premiums on the four policies. The normal premium for Ross would have been $61.50 per month, but due to his high blood pressure and excessive sugar in his urine his premium was $113.-80.

Appellant’s point of error is:
“The Sul Ross application dated December 5, 1961, transmitted without any statement of premium and with a medical report showing high blood pressure and sugar in the urine was no more than an invitation for an offer. The Company responded with an offer to insure at a rate of $113.80, instead of a standard rate of $61.50, provided said Insured’s health at the time of delivery had not deteriorated since December 5, 1961, and he was able to sign a declaration to that effect. When the policy was otherwise ready for delivery on January 20, 1962, Sul Ross was in the hospital suffering from a brain stem hemorrhage from which he died on January 31, 1962. He was, therefore, physically unable to comply with the Company’s offer of insurance, did not do so, the policy was not delivered and no contract of insurance became effective.”

It occurs to us that, if on January 20, 1962, after the policies arrived at appellant’s San Antonio office and the amount of the first monthly premium was known, and with full knowledge that Sul Ross was in the hospital, Wingfield, appellant’s Unit Manager, told Darrell Barnes to go out to appellee’s office and get a check for the premiums, and Barnes did so and accepted the check as payment of the first month’s premium, without conditioning such acceptance in any way, such payment would he sufficient, under all of the circumstances, to put the insurance into effect then and there.

It is true that the instructions from the Dallas office to the San Antonio office were not only to collect the premiums, but also to have each of the four persons on whose lives the policies were issued, sign a statement to the effect that his health at the time of the delivery had not deteriorated since December 5, 1961. Barnes got a signed statement from Stoeltje, Tomlin and Rein-hard, but not from Sul Ross, because he was in the hospital.

The appellant’s instruction to have each insured sign such a statement was not a provision of the application each had signed, nor of the policy that was issued, it was in the nature of a secret instruction by appellant to its agents. Unless these secret instructions were made known to the officers of appellee they would not be binding in any way upon appellee who was the owner of the policies, the beneficiary in the policies and the one to pay.the premiums.

The statements Barnes made to Reinhard tend to establish the fact that this information was passed on to Reinhard, and they might he sufficient to show that Reinhard was informed that the policy on the life of Sul Ross was not to go into effect, but this evidence at most did nothing more than raise an issue of fact as to whether Barnes accepted the payment of the Sul Ross premium conditionally. The check was sent on to the Dallas office and cashed by the authorities there, but after tile death of Sul Ross a check was sent to appellee returning the amount of the Sul Ross premium.

The trial court erred in granting appellee’s motion for a summary judgment because, under the evidence, there is a disputed fact issue as to whether the check was received as payment of the premium, or only conditionally, depending upon Sul Ross’ being able to sign the statement. For the same reason the trial court did not err in overruling appellant’s motion for a summary judgment on its behalf.

Before appellee would be entitled to a summary judgment in its favor, the burden was upon it to show that there was no genuine issue as to any material fact. This appellee did not do and therefore was not entitled to a summary .judgment. Rule 166-A, Texas Rules of Civil Procedure. Futch v. Greer, Tex.Civ.App., 352 S.W.2d 896; Tigner v. First Nat. Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85; Crooks v. Aero Mayflower Transit Co., Tex.Civ.App., 363 S.W.2d 191.

All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment, and the party opposing the motion is entitled to the benefit of every reasonable inference which can properly be drawn in his favor. Hersh v. H. E. Butt Grocery Company, Tex.Civ.App., 338 S.W.2d 174.

Appellant relies on the case of Republic National Life Ins. Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697, but that case is not in point here. There the amount of the premium was never made known to the insured, and of course was never paid conditionally or otherwise.

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