author: McDONALD, Chief Justice.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Troy Burton HELSTROM, Appellee.
    No. 3951.
    Court of Civil Appeals of Texas. Waco.
    Sept. 28, 1961.
    Rehearing Denied Nov. 9, 1961.

      Ñaman, Howell, Smith & Chase, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   McDONALD, Chief Justice.

This is a compensation case. Parties will be referred to as in the Trial Court. Plaintiff alleged that he sustained accidental injury by falling from a platform while storing furniture; that said fall resulted in his left heel bone being crushed; both bones in his right wrist being broken; fracture of the 8th and 9th ribs;' and injury to the lumbar region of his back; that he suffered permanent total loss of the use of his right hand and of his left foot; that the injury to his left foot extended to and affected other parts of his body, causing total and permanent incapacity; and that the injury to his back resulted in total permanent incapacity.

Trial was to a jury which resulted in a verdict of total and permanent disability. Such verdict is summarized as follows:

1) Injury to plaintiff on 15 March, 1960 resulted in total incapacity to plaintiff.

2) Plaintiff’s, total incapacity’ began on 15 March, 1960.

3) Plaintiff’s total incapacity is permanent.

5) Plaintiff’s injury resulted in total loss of use of his foot.

10) Such total loss of use of plaintiff’s foot is permanent.

12) Plaintiff’s injury did not result in partial loss of use of foot.

15) Plaintiff’s injury to his foot extended to and affected other parts of his body, thereby causing incapacity.

16) Plaintiff’s injury to his hand resulted in total loss of use of his hand.

17) Loss of use of plaintiff’s hand is permanent.

19) Loss of usé of plaintiff’s hand is not partial.

22) and 24) An employee of the same class as plaintiff did not work at least 210 days o'f the year' immédiately preceding 15 March 1960, in the same or similar employment, in the. same or a neighboring place.

23) The average weekly wage of plaintiff, computed in a manner just and fair to both parties, as of the date of injury, is $57.75.

26) Plaintiff’s injury to other parts of his body was not caused solely by his use or attempted use of his injured foot.

27) Plaintiff’s injury to his back was not caused solely by his use or attempted use of his injured foot.

28) Plaintiff’s injuries are not confined to his right hand and arm below the elbow and his left foot and leg below the knee.

29) Plaintiff’s incapacity to work is not caused solely by the loss of use of his right hand and arm and his left foot and leg.

30) Plaintiff’s incapacity to work is not caused solely by a prior injury to his back.

31) Plaintiff’s incapacity is not caused solely by the incapacity to his right arm and hand and left leg and foot.

32) Plaintiff’s prior injury to his back has not contributed in whole or in part to his present incapacity.

The Trial Court entered judgment on the verdict for plaintiff for $11,307.51.

Defendant insurance carrier appeals on 14 points, contending:

1) The Trial Court erred in entering judgment upon Issues 22 and 24, which found that there was not an employee of the same class as the plaintiff who worked 210 days of the year immediately preceding the date of the accident in the same or similar employment in the same or neighboring place, because there 'is no evidence, or insufficient evidence, to support such findings.

2) There is no evidence, or insufficient evidence, to support the jury’s answer to Issue 16, (that plaintiff suffered total loss of use of his hand).

. 3) There is .no evidence, or insufficient ■evidence, to support the jury’s answer to Issue 15, (that the injury to plaintiff’s left foot extended to and affected other parts of his body, thereby causing incapacity).

4) The Trial Court erred in not submitting an issue as to whether or not there had been an injury to plaintiff’s back on 15 March 1960.

5) There is no evidence, or insufficient evidence, to support the jury’s answers to Issues 1 and 3.

6) Issue 16 as submitted by the Trial Court is duplicitous.

We revert to defendant’s contention 1, that there is no evidence, or insufficient evidence, to sustain the jury’s answers to Issues 22 and 24. In such issues the jury found that there was not an employee of the same class as plaintiff who worked 210 days of the year preceding 15 March 1960 in the same or similar employment.

Plaintiff was employed as a furniture loader and a furniture stacker. He went out with the moving trucks and assisted in loading and unloading furniture; he likewise • stacked furniture in his employer’s storage warehouse. He had no authority to drive his employer’s trucks and had no managerial duties. Plaintiff testified that his job was a seasonal job, as there was more moving through the summer than in the fall and winter; that he had investigated and had found that the type job he held was not open for as long as 210 days during the year next preceding his injury. The office manager of Central Forwarding Company (engaged in like business of plaintiff’s employer) testified to the same effect; as did the witness Dunnam. The witness Davis testified that he was an employee of plaintiff’s employer, and that there were other employees of the same category as plaintiff. While a conflict of testimony is presented, we think that the record contains ample evidence to support the jury’s findings to Issues 22 and 24. Proof of the nonexistence of another employee of the same class working 210 days may he made of testimony based solely on general investigation. Texas Employers’ Insurance Ass’n v. Locke, Tex.Civ.App., n. r. .e., 224 S.W.2d 755. Contention 1 is overruled.

Defendant’s 2nd contention is that there is no evidence, or insufficient evidence, to support the .jury’s finding- to Issue -16, that plaintiff had suffered.total loss of the use of his hand. Plaintiff testified that he could not use his hand to pick up or lift, and could not. use" his hand for the usual tasks of a workman; and that he had no grip in it. The record reflects that the wrist was broken and failed to mend as before. The defendant’s medical witness; Dr. Woodward, testified that plaintiff could not grip satisfactorily to handle a shovel or tool of that type. Dr. Wilson testified that plaintiff was not able to perform the tasks of a Workman that would be required with the right hand. We think there is evidence to sustain the jury’s finding to Issue 16, and that such is ample under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Contention 2 is overruled.

Defendant’s 3rd contention is that there is no evidence, or insufficient evidence, to sustain the jury’s answer to Issue 15 (that the injury to plaintiff’s left foot extended to and affected other parts of his body, thereby caúsing incapacity).

The plaintiff testified unequivocally to this fact. The issue as to disability may be established by the plaintiff alone.. See I. C. T. v. Anderson, Tex.Civ.App., n. r. e., 272 S.W.2d 772 and cases there collated. We think there is evidence to sustain the finding and that such evidence is sufficient under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Contention 3 is overruled.

Defendant’s 4th contention is that the Trial Court erred in not submitting an issue as to whether or not there had been an injury to plaintiff’s back on 15 March 1960. Issue 1 as submitted by the Trial Court is sufficient. Issued inquired whether injuries to plaintiff’s body resulted in total incapacity. The foregoing is sufficient without a finding as to a particular injury, to plaintiff’s back. Maston v. Texas Emp., Sup.Ct., 331 S.W.2d 907. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280. Moreover, the findings of total permanent loss of use of á foot at or above the ankle, and a hand a.t or. above the wrist constitutes total permanent disability as a matter of law. See Sec. 11a, Art. 8306 Vernon’s Ann. Civ.St.Tex.; Southern Underwriters v. Mowery, Tex.Civ.App., (no writ) 147 S.W.2d 834. Contention 4 is overruled. '

Defendant’s 5th contention is that there is no evidence, or insufficient evidence, to support the jury’s answers to Issues 1 and 3. In Issues 1 and 3, the jury found that plaintiff suffered injury to his body on 15 March 1960 which resulted ⅛ his total incapacity; and in Issue 3 the jury found that incapacity is permanent. The plaintiff testified unequivocally that he was unable to perform the usual tasks of a workman and that he felt that he could never do so. Dr. Wilson testified substantially likewise. The record reflected plaintiff had fallen from a -forklift onto concrete from a height of 12 feet; that he broke his arm, wrist, 2 ribs; crushed his heel; broke his ankle; and that his back has hurt since shortly after the accident. He was in the hospital 17 days; in á wheel chair 6 weeks; has had his foot operated on twice; and has gotten worse since the foregoing; that a bone was taken from his hip and grafted to his heel; that his leg is swollen to twice normal size; and that he hurts continually. There is evidence to sustain the jury’s findings 1 and 3, and samq is sufficient under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant’s 6th contention is that Issue 16 is duplicitous. We think such issue is not duplicitous. See Southern Underwriters v. Mowery, Tex.Civ.App., (no writ) 147 S.W.2d 834; Meyer v. Great Amer. Ind., 154 Tex. 408, 279 S.W.2d 575. In any event, the matter is harmless since the judgment can he and is sustained by other findings independent of such issue. Where a judgment is supported by findings not vulnerable to attack, any improper submission of other issues is harmless and will not require a reversal. G. H. & S. A. Ry. v. Wells, 121 Tex. 310, 50 S.W.2d 247. Contention 6 is overruled.

All of defendant’s points and the contentions thereunder made have been carefully considered and are overruled. T.he judgment of the Trial Court is Affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    COTTON BELT STATE BANK, TIMPSON, Texas, Appellant, v. ROY H. HATCHERIES, INC., Appellee.
    No. 3947.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Lawrence & Lawrence, Tyler, for appellant.
    McDaniel, Hunt & Fairchild, Center, for appellee.
   WILSON, Justice.

This is a non-jury action to recover the amount of a check. Stripped of complicated, but non-essential facts relating to legal issues on which the parties squarely meet, appellee summarizes the case as follows: It entered into a custom hatching contract with a feed company Under which the latter furnished eggs to appellee corporation. “The appellee would set said eggs in its machines and transform the eggs by hatching them in appellee’s machinery into baby chicks”, requiring services of trained operating personnel in the incubation process. Under its contract to pay 2‡ per chick for these services, the feed company issued the subject check to appellee, drawn on a Garrison bank. It was returned for insufficient funds. Various transactions not material here culminated, according to appellee’s pleadings, in appellant’s statement that it was liable on the check and the check would be paid by it. Shortly thereafter the drawer of the check was adjudged a bankrupt.

Appellee alleged that appellant was estopped to deny liability on the check because, except for reliance on the latter’s statement, it would have fixed an artisan’s or laborer’s lien against the chicks and sued for foreclosure before bankruptcy. Appellant’s exception to this pleading on the ground that the facts alleged could not give rise to an artisan’s or laborer’s lien was overruled, and this contention is the basis of its first point. Judgment was rendered for the amount of the check.

Appellee says it could have acquired a lien under Arts. 5483-5487, Vernon’s Ann. Civ.Stats., or Article 16, Section 37, Texas Constitution, Vernon’s Ann.St. Without respect to whether estoppel was available, an essential element required to be established thereunder was that appellee relied or acted on the pleaded representation “to his prejudice.” Gulbenkian v. Penn. 151 Tex. 412, 252 S.W.2d 929, 932. If it could not have acquired the lien pleaded in any event, this indispensable element of prejudice is lacking.

Appellee, in our opinion, is not in any of the categories named in Art. 5483 which include “servant”, “artisan”, “craftsman”, factory or mill operator, “mechanic” and “farm hand”. Even if its hatchery is considered as one of the places of labor or service named therein: office, store, hotel, boarding house, restaurant, shop, factory, mine or mill,-it is-uniformly held that the Statute relied on gives a lien only to those who labor for wages, and not to their employer who contracts- with another to render services under such a contract as is here pleaded. St. L. A. & T. Ry. Co. v. Matthews, 75 Tex. 92, 12 S.W. 976; Dunn v. Hankins, Tex.Civ.App., 127 S.W.2d 983, 985; Farmers’ Elev. Co. v. Advance Thresher Co., Tex.Civ.App., 189 S.W. 1018, 1021, writ ref.; Jackson v. Downs, Tex.Civ. App., 149 S.W. 286, 287; Sparks v. Crescent Lbr. Co., 40 Tex.Civ.App. 222, 89 S.W. 423, 424, writ ref.; Lindale Brick Co. v. Smith, 54 Tex.Civ.App. 297, 118 S.W. 568, 571, writ ref.; Barton v. Wichita River Oil Co., Tex.Civ.App., 187 S.W. 1043, 1045, writ ref.

Neither do we think appellee is a “mechanic”, “artisan” or “material man” who has “made or repaired” an article within the terms of the Constitutional lien. By its incubation services it has neither “made” a chicken, nor “repaired” an egg. Hence, it could not have perfected the lien it pleaded so as to be preferred over other creditors in bankruptcy, and was not prejudiced in the respects claimed.

Appellee states it relied on two causes of action; the first being upon failure of appellant to return the check within 24 hours. The court sustained a special exception which eliminated this cause of action, and no cross-point is presented. It says it tried the case, recovered judgment, and here relies on the second stated cause of action: the theory of estoppel. An es-toppel is defensive in character. “It does not create a cause of action. Its function is to preserve rights, and not to bring into being a cause of action.” Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660, 663; Massachusetts Bonding & Insurance Co. v. Dallas Steam Laundry, Tex.Civ. App., 85 S.W.2d 937, 940, writ ref. The judgment is not supportable on the only theory here urged, and is reversed. Judgment is rendered that appellee take nothing.


author: DIXON, Chief Justice.

text:
    Paul USERY et al., Appellants, v. Robert E. LACY, Appellee.
    No. 15953.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 6, 1961.
    Rehearing Denied Nov. 10, 1961.

      Harrington & Harrington, Longview, for appellants.
    Witts, Geary, Hamilton, Brice & Lewis and Jim K. Choate, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from an order granting a temporary injunction restraining appellants from proceeding with a sale of property under execution.

Appellant H. M. Harrington, Jr. is the holder and owner by transfer and assignment from Collis P. Irby, of a judgment against appellee Robert E. Lacy, on which judgment there is a balance due in the principal sum of $28,587.40 plus interest at 10% since 1952, making a total amount due in excess of $50,000. Appellants Paul Usery and J. M. Blalock are Sheriff and Deputy Sheriff respectively of Wood County, Texas.

A writ of execution was placed in the hands of the officers, levy was made on certain oil and gas properties alleged to belong to Lacy in Wood County, and a Sheriff’s sale was advertised for February 7, 1961. However, on February 6, 1961, the day before the sale was to be held, the court issued its ex parte restraining order, and on February 16, 1961 the court, after a hearing, issued its temporary injunction order, under the terms of which appellants were “enjoined from foreclosing or attempting to foreclose upon the real property or interest therein of Robert E. Lacy situated in Wood County, Texas, until this cause is finally determined, * * * It is from the above order of February 16, 1961 that this appeal has been taken.

Some of the persons, properties and transactions involved in this suit and appeal were involved also in an earlier suit and appeal in which Lacy was the losing litigant. See Lacy v. Carson Manor Hotel, Tex.Civ. App., 297 S.W.2d 367, writ ref. n. r. e.

On December 22, 1952, Texas Bank & Trust Company of Dallas was granted judgment against Robert E. Lacy and his wife Earlene G. Lacy and against Collis P. Irby and Carson Manor Hotel, a corporation, for $44,713.60 principal, with interest at the rate of 10% on $40,648.72 of said judgment and interest at the rate of 6% on $4,-064.88 of said judgment from date of judgment. The judgment also awarded foreclosure on three parcels of property, two of which were owned by Lacy and one by Collis P. Irby and Carson Manor Hotel, of which Irby was the principal stockholder.

Parcels Nos. 1 and 2, belonging to Lacy, consisted mainly of properties constituting Pleasure Pier located at Port Arthur, Texas. Pleasure Pier is a pleasure resort consisting of a roller coaster, miniature train and track, merry-go-round, ferris wheel, shooting gallery, swimming pool, etc. Included also is a leasehold interest in the real estate on which Pleasure Pier is located.

Parcel No. 3 in which Collis P. irby and Carson Manor Hotel held interests, is a promissory note in the principal sum of $79,000 payable to Carson Manor Hotel, secured by a lien on real estate and by a chattel mortgage on personal property.

The Bank’s suit and judgment were based on a note and mortgage, on which note Robert E. Lacy and wife were the principal makers and Collis P. Irby and Carson Manor Hotel were merely accommodation makers for the benefit of Lacy and wife. The court awarded judgment and foreclosure in favor of the Bank against all defendants and in favor of Collis P. Irby and Carson Manor Hotel over against Lacy for any sums of money which they or either of them might be required to pay to the Bank in satisfaction of the judgment.

The judgment recited that by reason of the position of Collis P. Irby and Carson Manor Hotel as accommodation makers, and their plea for marshalling of assets, Irby and Carson Manor Hotel were entitled to have the security of Robert E. Lacy and wife sold first, said security being parcels Nos. 1 and 2 of the property foreclosed on; and parcel No. 3, the security owned by Irby and Carson Manor Hotel, sold only in the event the proceeds of the sale of the parcels Nos. 1 and 2 were insufficient to pay off the judgment.

Some time after the above judgment was rendered an order of sale was issued in favor of Texas Bank & Trust Cpmpany and placed in the hands of the Sheriff of Jefferson County, Texas, for execution. On or about April 16, 1953 parcels Nos. 1 and 2 were sold pursuant to the order of sale, and were bid in at the Sheriff’s sale by Collis P. Irby, individually, for the sum of $15,626.20, which amount was duly credited on the judgment held by Texas Bank & Trust Company. Following this sale and the crediting of the proceeds thereof there was still due and unpaid on the judgment as of April 16, 1952 the approximate sum of $29,097.40.

To protect himself Collis P. Irby, whose credit was good at the Bank, negotiated a loan at the Texas Bank & Trust Company of about $51,300. This was a loan to Irby individually. It was out of the money obtained through this loan that Irby paid the $15,626.20 to the Sheriff for the purchase at the Sheriff’s sale of parcels Nos. 1 and 2, the Pleasure Pier.

But there was still a balance of about $30,000 due the Bank on the judgment of December 22, 1952, and according to Irby’s testimony the Bank was about to cause a second order of sale to issue directing'the sale of parcel No. 3, the property belonging to Irby and Carson Manor Hotel, the accommodation makers on Lacy’s note. Irby therefore paid the Bank the amount of the balance due on the judgment, approximately $30,451, in return for which the Bank sold, transferred and assigned to Irby: the remainder of the judgment against Lacy. This sum was also paid to thq Bank by Irby out of the $51,300 which Irby individually had borrowed earlier from the Bank.

The situation of Irby, originally an accommodation maker on Lacy’s note, at this point 'in the proceedings was as follows: at the Sheriff's sale, he had purchased and had become the owner of parcels Nos. 1 and 2, the Pleasure Pier for $15,626.20. Then he had averted foreclosure on his- interest in parcel No. 3 by purchasing from the Bank for 100 cents on the dollar the judgment against Lacy, that is the balance due against Lacy after crediting the $15,160.20. But to do this Irby had obligated himself personally and individually on his own note to the Bank for $51,300.

Irby is not a party to this suit and by the time of the hearing at which the temporary injunction was granted he had sold and transferred his judgment against Lacy to appellant H. M. Harrington, Jr. But he was a witness at the hearing.

Irby testified that after he purchased the Pleasure Pier on April 16, 1953 at the Sheriff’s sale he “had to go down and rehabilitate the place completely, * * * nothing had been done to the place and a place like that goes down awfully quick, particularly down on the coast where everything absorbs the atmosphere. It depreciates and deteriorates.”

Irby further testified that after he had rehabilitated Pleasure Pier he negotiated a sale of the property to a group of Port Arthur business men. Concerning this sale of the property Irby testified: “It took me quite a while to negotiate the sale, and I stayed down there and worked on it awfully hard, worked day and night trying to sell it, rehabilitating it, and it really ran into a proposition.” Irby did not remember how long it was after he purchased Pleasure Pier at the Sheriff’s sale that he sold it to the group of Port Arthur business men. However, Max Rosenfield, the attorney who represented Irby in both the purchase and sale of the property, testified that the sale to the Port Arthur business men took place two or three months after its acquisition by Irby at the Sheriff’s sale.

We have dwelt somewhat at length on the part of the transactions here involved because it is undisputed that Irby sold ■Pleasure Pier for enough money to pay off his $51,300 loan at the Bank, thus clearing his skirts of all liability incurred by him and his corporation, Carson Manor Hotel, as accommodation endorsers on Lacy’s note to the Bank, while leaving Lacy still liable for payment of the balance due on the judgments.

Thereafter for several years nothing further happened with reference to the Bank judgment against Lacy, which judgment was now owned by Irby. However Irby had recorded the judgment in counties other than Jefferson County and in December 1960 the sum of $500 was paid to Irby to clear title to a certain piece of property in which Lacy was interested. By 1960 the amount owed by Lacy on the judgment including interest, had amounted to more than $50,000.

On December 15, 1960 Irby sold, transferred and assigned to PI. M. Harrington, Jr. all his interest in the judgment against Lacy. This transfer and assignment was without recourse on Irby. Soon thereafter Plarrington caused an execution to issue and a levy was made on oil and gas properties in Wood County valued by Lacy at more than $2,000,000 in which Lacy claims an interest. It was to restrain sale under execution of Lacy’s interest in this property that the court issued the temporary injunction which is the subject of this appeal.

The above property is at present the subject of another suit in which Lacy as plaintiff has brought a trespass to try title suit. against numerous defendants, one of whom is H. M. Harrington, Jr.

Opinion

In his first, second, fourth and fifth points on appeal appellant H. M. Harrington, Jr. contends that (1) Lacy’s sworn petition is wholly insufficient to support the temporary injunction entered; (2) the trial court erred in admitting testimony dealing with prior executions and orders of sale, since these issues are not within the sworn pleadings of appellee Lacy; (4) where judgment debtor Lacy (a) did, not attack the final judgment against him, (b) did not seek to vacate or set it aside, (c) did not allege lack of jurisdiction over his person, (d) did not allege lack of jurisdiction of the court that entered the judgment against him, (e) did not allege error in rendition of the judgment, (f) did not allege that procurement of the judgment was by fraud, accident or mistake and (g) had not appealed therefrom, his request for injunction of execution sale thereunder was merely another means of obtaining an extension of delay in payment, and the trial court erred in granting him a temporary injunction against sale; and (5) where judgment debt- or Lacy did not tender payment of balance owed on the judgment, he was not in court with clean hands and was not offering to do equity; so the trial court erred in granting him a temporary injunction against sale of property under execution.

In our opinion appellant’s first, second, fourth and fifth points on appeal are well taken and must be sustained.

Art. 4646, Vernon’s Ann.Civ.St. expressly provides that no injunction to stay an execution upon any valid and subsisting judgment shall be granted after the expiration of one year from the rendition of such judgment, unless it be made to appear that an application for such injunction had been delayed in consequence of the fraud or false promises of the plaintiff in the judgment, practiced or made at the time, or after rendition of such judgment or unless for some equitable matter or defense arising after the rendition of the judgment.

Nowhere in Lacy’s petition does he allege that any fraud was practiced on him when the judgment was entered. The judgment itself recites that “defendants Robert E. Lacy and wife, Earlene Lacy, in open court advised the court that they had no defense to the cause of action of plaintiff or the cross-action of the defendants Collis P, Irby and Carson Manor Hotel, a corporation”.

In his petition Lacy admits that the judgment against him is valid and subsisting. We quote from Lacy’s petition for injunction: “* * * under the terms of such judgment, there was due and payable to the plaintiff Texas Bank & Trust Company of Dallas, principal, interest and attorney’s fees in the amount of $44,713.60, and such proceeds of the Sheriff’s sale, $15,626.20 were applied thereon, leaving an unpaid balance of $29,087.40. Thereafter defendant Collis P. Irby paid Texas Bank & Trust Company of Dallas the sum of $30,-451.98, and on April 17,1953 plaintiff Texas Bank & Tmst Company of Dallas for and in consideration of the said sum paid to it by Collis P. Irby sold, assigned and transferred unto the said Collis P. Irby the remainder of the hereinafter described judgment and the unpaid balance thereof against the said Robert B. Lacy. That on December 7, 1960 there was paid to Collis P. Irby the sum of $500.00, leaving a balance due thereon of $28,578.40, together with interest thereon.” (Emphasis ours.) .

We quote further from Lacy’s petition for injunction: “Plaintiff alleges that unless said sale be restrained- and enjoined for at least 90 days he will suffer irreparable injury and damage, * * *. Plaintiff believes and alleges that if granted sufficient reasonable time in which to do so he can pay the amount justly due and owing upon said judgment.”

Notwithstanding the above allegations and admissions appellee Lacy did not in his pleadings or his testimony tender or offer to tender payment of the amount he admits is justly due and owing on the judgment, nor did he name any day certain in the future when he would make payment. Lacy’s petition was filed February'6, 1961. The 90 days time he requested for payment has long since expired.

In our opinion the grounds upon which Lacy relies offer no proper equitable basis for staying execution of a judgment nearly eight years old, which Lacy admits is a valid and subsisting judgment, but concerning which he makes no tender of payment of the balance due. See Urbanec v. Jezik, Tex.Civ.App., 138 S.W.2d 1098; Refrigeration Discount Corp., v. Meador, Tex.Civ.App., 134 S.W.2d 329; Miller v. Burnet Mercantile Co., Tex.Civ.App., 65 S.W. 2d 505; Southern Sales Co. v. Parker, Tex. Civ.App., 54 S.W.2d 217; Texas Central Railroad Co. v. Hoffman, Tex.Civ.App., 193 S.W. 1140; Ripps v. Hermann, Tex.Civ. App., 163 S.W. 1023; Bullitt v. Jesse French Piano & Organ Co., Tex.Civ.App., 158 S.W. 782; Anderson v. Oldham, 82 Tex. 228, 18 S.W. 557; and Art. 4646 V.A.C.S. Appellant’s first, second, fourth and fifth points are sustained.

In his third point on appeal appellant objects to the admission of certain testimony of Collis P. Irby.

Irby was asked by appellee’s counsel whether at the time he bought Pleasure Pier at the Sheriff’s sale in 1953 he had any agreement with other parties to later purchase the property; whether he actually resold the property; and where he got the money to pay off the balance due on the judgment to the Bank. Appellant’s objections to these questions were at first sustained, but after hearing Irby testify in making out appellee’s bill of exceptions, the court reversed his decision and admitted the testimony.

Irby testified in effect that after he bought Pleasure Pier he spent a great deal of time at Port Arthur, Texas, rehabilitating the property which was in a run-down condition; that thereafter he sold the property to a group of business men in Port Arthur for enough to pay off a $51,300 note at the Bank; and that he had used the money so borrowed at the Bank to purchase Pleasure Pier at the Sheriff’s sale in 1953 and to pay the Bank the balance due on the judgment as consideration for the transfer of the judgment by the Bank to Irby.

We think the testimony was inadmissible in view of the pleadings and testimony of Lacy himself. As we have already pointed out Lacy does not attack the validity of the judgment. On the contrary he admits that as of December 1960 he owed more than $28,000 on the principal amount alone, not including interest. He does not charge Texas Bank & Trust Company or Irby with fraud in procuring the judgment or in transferring the judgment to Irby.

There is testimony that the Bank after obtaining judgment in September 1952 agreed to wait until March 1953 before causing an order of sale to issue, the delay being for the purpose of giving Lacy a chance to make arrangements to pay off the judgment. But Lacy did not do so.

Irby’s testimony is that he had to rehabilitate Pleasure Pier before selling it and that he sold it thereafter to a group of business men. Max Rosenfield testified that the sale to the group of business men took place two or three months after Irby acquired the property at the Sheriff’s sale. Certainly Irby had a right, as accommodation maker on Lacy’s note, to protect himself from the judgment against him incurred as a result of his signing Lacy’s note. That he had credit at the Bank and that he succeeded in selling Pleasure Pier for enough to work his way out of his financial difficulty, cannot now be raised by Lacy as a defense against the judgment as to Lacy. The Bank had a right to transfer the judgment against Lacy to Irby; and Irby had a right to transfer the judgment to appellant Harrington. It is not shown that Harrington, present owner of the judgment, was a party to previous transactions between the Bank, Irby and Lacy, or even that Harrington knew anything about the prior transactions. Appellant’s third point is sustained.

In his sixth, seventh and eighth points on appeal appellant complains of the court’s holding that execution sale against Lacy should be enjoined because of an alleged equitable title, or resulting trust,. held by John Erhard in the Wood County property on which levy was made by Plarrington.

In his pleadings Lacy makes no mention of John Erhard or any equitable title Erhard; may have to the property in question. Erhard is not a party to this injunction suit, nor is he a party so far as the record shows in the trespass to try title suit filed by Lacy in Wood County.

The only reference to John Erhard, or any equitable title is to be found in Lacy’s testimony. We quote relevant parts of his testimon)7:

“Q. Are those tracts and oil and gas leases which you claim you own, the subject of a lawsuit now pending * * ?
A. Yes * * *.
“O. You paid the Bank four hundred and fifty-three dollars for that lease, did you not? * * * A. No, sir, I did not * * * I didn’t pay the Bank anything.
“Q. Well, your attorney up in Dallas, Mr. Erhard actually issued the check for the four hundred and fifty-three dollars? A. Yes, it belongs to Mr. Erhard * * ⅜ its in my name * *
I have an interest.
"Q. You do have an interest? A. Yes * * *
“Q. What about the owners that you obtained the leases from, other than Quitman Bank? A. ■ Raymond Fannin, of a one hundred twenty acre tract, he owned 57.57 undivided interest * *
I took that as a lease.
“Q. What is your present percentage interest in the leasehold estate covering the one hundred ninety-two acresf A. I believe it is in excess of one half, a little bit in excess of one half, about 51. something percent.
“Q. And your attorney, Mr. Erhard, owns the other ? A. Mr. Erhard owns the whole thing. I will get an interest in it when it is all settled. Mr. Erhard has paid for all of it.
"Q. But as far as the zvhole status is concerned, as far as your title rights are concerned, you have at least a one half interest in those leasehold estates? A. Yes, one half or better.” (Emphasis ours.)

■ [4] ■ From Lacy’s pleadings and from his testimony as above set out it is inescapable that Lacy claims an interest in the Wood County properties. Whatever the interest of Erhard may be, his interest is not being adjudicated in this suit, for he is not a party, nor is he a party, so far as the record shows, in the Wood County suit in the trespass to try title filed by Lacy. His rights, whatever they may be, should not be allowed to interfere with Harrington’s execution of his judgment against Lacy and Lacy’s interest. We believe our holding in this regard is supported by these authorities: Lozano v. Guerra, Tex.Civ.App., 140 S.W. 2d 587; Rose v. Wylie, Tex.Civ.App., 95 S.W.2d 523; J. M. Radford Grocery Co. v. Owens, Tex.Civ.App., 161 S.W. 911; McCall Co. v. Page, Tex.Civ.App., 155 S.W. 655; Hahn v. P. J. Willis & Bro., 31 Tex. Civ.App., 643, 73 S.W. 1084; Modisette v. National Bank, 23 Tex.Civ.App. 589, 56 S. W. 1007; Corder v. Steiner, Tex.Civ.App., 54 S.W. 277; and Purinton v. Davis, 66 Tex. 455, 1 S.W. 343. Appellant’s sixth, seventh and eighth points' are sustained.

In his ninth point appellant says that the trial court erred in giving any effect to the fact that when Collis P. Irby bid in the Pleasure Pier properties at the execution sale in 1953 for $15,626.20, he did not actually pay the money until some time later:

The court in its order granting the temporary injunction found that the money was paid “at some uncertain date to the Sheriff”.

Again we must sustain appellant’s point. It is undisputed that the money was actually paid by Irby to the Sheriff. It is undisputed that Lacy was given the benefit of the sale by a credit in his favor on the judgment. Max Rosenfield, who was then acting as Irby’s attorney, testified that he believed the money was paid to the Sheriff a day or two after the sale. ’ Certainly Lacy is not entitled to hold up further execution on the judgment because the money was not paid to the Sheriff on the sale, of Pleasure Pier until a few days after the sale. First Federal Savings & Loan Ass’n v. Sharp, Tex.Civ.App., 347 S.W.2d 337; Cameron v. Saathoff, Tex.Civ.App., 342 S.W.2d 470; Warman v. Wurzbach, Tex.Civ.App., 51 S.W.2d 751.

Moreover, Lacy’s attempted collateral attack on the validity of the 1953 execution coming- as it does eight years after the sale, cannot be considered in this suit. Appellant’s ninth point is sustained.

Appellant’s tenth point is to the effect that the trial court erred in fixing the temporary injunction bond in an insufficient amount and in releasing the ex parte restraining order bondsmen from all possible liability.

The trial court fixed the temporary injunction bond at the sum of $28,000.' The judgment against Lacy including principal and interest due, amounted at that time to more than $50,000. It is obvious that the amount of the bond did not meet the requirements of Rule 684, Texas Rules of Civil Procedure, which states that the amount of the bond should be fixed in the amount of the judgment plus a reasonable amount to cover interest and costs.

The trial court also “released and discharged” the sureties on the $7,500 ex parte restraining order bond. We know of no grounds on which these sureties were entitled to he released and discharged. It was the restraining order, issued only one day before the execution sale was to be held, which actually prevented the holding of the sale. In our opinion neither the ex parte restraining order, nor the temporary injunction should have been issued. Appellant’s tenth point is sustained.

In his first counterpoint Lacy contends that the execution in question did not conform to the judgment as it was not issued in the manner and upon the specific prop-' erties as directed by the judgment. There is no merit to this contention.

Irby and Carson Manor Hotel, being only accommodation endorsers on Lacy’s note, requested the court to provide that execution of the order of sale in favor of the Bank should take place, first against the Pleasure Pier properties owned by Lacy, and second, against parcel No. 3, the property owned by Irby and Carson Manor Hotel, only in the event Pleasure Pier did not bring enough money at the Sheriff’s sale to pay off the entire judgment in favor of the Bank. The judgment so provided.

This provision was placed in the judgment for the benefit of Irby and Carson Manor Hotel at their request as accommodation signers on Lacy’s note. It was not for the benefit of Lacy, the principal maker. Yet Lacy complains that execution was never levied on parcel No. 3 owned by Irby and Carson Manor Hotel, the accommodation makers. The reason no levy was made on parcel No. 3 was that Irby paid the Bank the full amount due on the judgment in consideration of the sale and transfer of the judgment to Irby. It would be absurd to hold that an accommodation maker on a note after judgment cannot protect himself by proceeding against other property owned by the principal maker until he has foreclosed on his own property. Appellee’s first counterpoint is overruled.

Appellee Lacy in his brief argues that it would be unequitable to allow appellant Harrington to foreclose a judgment for which he paid only $2,500 against properties worth $2,000,000. Appellee’s argument is unsound. According to his own testimony only $473 was paid by Lacy for properties which he says are worth $2,000,-000. And this small sum was not actually paid by Lacy himself but was paid for him, according to Lacy, by John Erhard. Lacy is in no position to point the finger of accusation at Harrington, because Harrington paid only $2,500 for an eight year old judgment.

The judgment of the trial court is reversed and judgment is here rendered (1) setting aside the order releasing and discharging the sureties on the restraining order bond, and (2) denying a temporary injunction enjoining H. M. Harrington, Jr., Paul Usury and J. M. Blalock from foreclosing or attempting to foreclose by execution upon the interest of Robert E. Lacy in the real property situated in Wood County, Texas.


author: BELL, Chief Justice.

text:
    Frank A. LIDDELL et al., Appellants, v. T. M. SMITH et al., Appellees.
    No. 13689.
    Court of Civil Appeals of Texas. Houston.
    Oct. 19, 1961.
    Rehearing Denied Nov. 30, 1961.

      Liddell, Austin, Dawson & Huggins, Charles R. Vickery, Jr., Houston, for appellant.
    Davis, Kee & Thomas, Cleveland Davis, Leland B. Kee, Wiley Thomas, Angleton, for appellee T. M. Smith.
   BELL, Chief Justice.

Appellants are Frank A. Liddell and the National Bank of Commerce of Houston. Appellees are T. M. Smith and the Humble Oil and Refining Company. The Humble Company is really a stakeholder but is an appellee because judgment went against it. in favor of T. M. Smith as to certain accrued royalties and thus against appeL ■lañts as to such 'royalties. This case originated ■ in a trespass-to-try title suit filed June 19, 1956, by appellants'in which they sought to establish ownership to one-fourth of the .one-eighth royalty created in a lease to the Humble Company insofar as it covered approximately 71 acres of land in the McNeel Survey and the Gray and Moore Survey in Brazoria County. The lease covered a total of some 1,600 acres of land and an amendment added some 200 acres so that the lease as amended covered over 1,800 acres. The dispute, however, involves only 71 acres of the land, which, apart from the controversy here involved, was owned by T. M. Smith. T. M. Smith by way of answer and cross-action sought reformation of certain instruments contending the 71 acres had been included in the instruments sought to be reformed as a result of mutual mistake. Also appellee pled estoppel by deed against appellants.

The trial court, after trial to a jury, rendered judgment for appellee, T. M. Smith, partially on the jury verdict after disregarding certain answers of the jury, and partially on his holding of estoppel as a matter of law. The jury verdict found mutual mistake. The judgment also ran against the Humble Company in favor of appellee Smith for royalties which had accrued, which had been held in suspense pending a settlement of this controversy. . - - ■'

■ In 1933 appellee Smith was indebted to four banks. On August 30, 1933, he executed a mineral deed to H.' B. Finch, Trustee, by which he conveyed a one-fourth mineral interest in numerous tracts of land, including approximately 152 acres in the above-named surveys. Actually, at the time he owned 223 acres in these surveys but some acreage was omitted. The mineral deed reserved to the grantor the executive rights. It provided idle conveyance was subject to any existing oil and gas lease but included to the grantee one-fourth of the royalty of any existing lease. In fact there was no existing lease. It further provided that the grantee would be entitled to one-fourth of the bonus, delay rentals and royalty payable under any future lease and that in any such lease the grantor should reserve a royalty of at least one-eighth. Smith .reserved the-right for five years to repurchase the mineral interest.

The next day, August 31, 1933, H. B. Finch, Trustee, executed a Declaration of Trust,'by which he referred to the above mineral deed and declared he held the mineral interest as trustee for the four .banks named by him and agreed to use any money realized from the sale or lease of the minerals for the payment of the debts to the banks. This is the opening .paragraph of the Declaration of Trust:

“Whereas, by deed dated August 30, 1933, T. M. Smith conveyed to me as Trustee an undivided one-fourth mineral interest in 'certain .lands in Bra-zoria County, Texas; fully described and being that land set apart' as Suspense Azvard No. 1 and Suspense Award No~ 2 in Cause No. 26,331, in the District Court of Brazoria County, Texas, styled J. R. Smith et al vs. T. L. Smith, Jr., et al and awarded by the District Court of Brazoria County, Texas, in Cause No. 26,331 A to T. M. Smith and is briefly described as follows: * * (Emphasis supplied.)- ' ...

Then follows a list of surveys out of which the land conveyed is'taken' with thanumber of acres supposedly included in the mineral deed from those surveys. In this a total of 201.9 acres are stated to be in the McNeel and Gray and Moore Surveys. There is no further description of the land in the Declaration of Trust. However by referring to the judgment awarding Suspense Awards Nos. 1 and 2 to T. M. Smith (actually the decree awards it to T. L. Smith, Jr., who subsequently conveyed to T. M. Smith, in accordance with the will of the father, T. L. Smith,, which provided T. M. Smith’s bequest was for the benefit of his family until he freed himself from debt), we find the acreage set out in such awards in these surveys’ to be 223.S85. There were numerous other tracts from various other surveys included in the two suspense awards but they are not involved in this controversy.

On December 23, 1933, T. M. Smith and his brothers and sisters and other persons owning land in the two named surveys executed an oil and gas lease to the Humble Oil and Refining Company providing for the requisite royalty of one-eighth. Finch signed and acknowledged the lease, and-by the last paragraph thereof agreed to all of its terms and provisions. He is not named as a lessor as he had no executive rights. It was necessary' for him to sign because of the pooling of the-minerals: with those belonging to other owners. In the lease is this recital:

“Since, however, T. M. Smith, under date of August 30, 1933, conveyed to H. B. Finch, Trustee, one-fourth (¼) . of all minerals (emphasis ours) owned by him under the land covered by this - lease [said conveyance being of record in Volume 642 (should be 242) at pages 613, et seq. of the Deed Records of Brazoria County, Texas], lessee is hereby especially directed to pay to H. B. Finch, Trustee, one-fourth (⅛) of all royalties apportioned above herein - to T. M. Smith * *

This lease covered about 600 acres in the McNeel Survey and about 1,245 in the Gray and Moore Survey. It covered all land owned by T. M. Smith which amounted in the aggregate to 223 acres. (We use round figures in giving acreage and do not use a fraction of an acre.)

Thereafter,' on February 15, 1938, an amendment was executed to the lease so as to add the acreage of the minor, E. P. Womack, Jr. This amendment made reference to the original lease for all purposes. There were other provisions made not material to our purposes except the one now noticed. Numbered 'Paragraph 5 of the amendment provided:

“It is further agreed and specified that the royalties payable under said lease dated December 23, 1933 as amended by this instrument on all production from said pooled acreage shall be as follows, towit:
* * * * * *
“T." M. Smith 31304/422160 of ⅛ “P. C. Rehrauer, Trustee 15652/ 422160 of ⅛.”

We have left out the fractions specified for other parties to the amendment because' not material. Mr. Rehrauer had succeeded Mr. Finch as trustee on the latter’s death'. The fraction' thus set aside to Rehrauer amounts .not to one-fourth of Smith’s, royalty but to one-third, thereof. The amend? ment was 'signed by Smith, Rehrauer and others.

Apparently it was discovered that the fractional royalty set aside to Rehrauer in the amendment was more than a one-fourth of Smith’s royalty on his lands covered by said lease because on July 14, 1938, P. C. Rehrauer, Trustee, and Mrs. Pugsley, a sister of Mr. Smith’s who was getting one-fourth of his royalty to pay on his debt to her, executed a correction deed by which they conveyed to T. M. Smith the royalties set aside to them in the lease amendment over and above 11739/422160 of ⅛. This last fraction represents one-fourth of Smith’s royalty on the 223 acres owned by him covered by the lease, and amendment, to Humble Oil and Refining Company. The correction deed refers to the original léase and its record for all purposes. It refers to the amendment and then recites that through error the amendment provided for the royalties payable to Rehrauer and Smith in the fractions above shown in our quotation from the amendment. It is then expressly stated that it was intended that the royalties should be divided so as to give Smith 35217/422160 of ⅛ and to give Reh-rauer 11739/422160. Then followed the expression of a desire to correct the error. Then followed the conveyance by Rehrauer and Mrs. Pugsley to Smith of all above 11739/422160 which is kept by each.

This correction deed was apparently never personally delivered to Smith or his agent, but was delivered to the Humble Company, recorded by their representative in the Deed Records of Brazoria County, and then returned to the Humble Company. However, Smith thereafter received and accepted royalty payments on the basis last provided and signed division orders specifying such fractional division. Too, the jury found Smith accepted the deed and no attack is made on such finding.

Payments of royalties on the basis set up in the correction deed were made and accepted by all interested parties until January, 1955. The Humble Company in 1955 started paying Smith all of his one-eighth royalty on the 71 acres omitted from the Finch deed and continued until appellants filed this suit, at which time payments were suspended.

It should be especially noted that the mineral fee is not in controversy. The controversy involves one-fourth of the one-eighth royalty under 71 acres, the royalty being created by the Humble lease.

The rule is well established that a written instrument may be reformed on ground of mistake only if the mistake is mutual. It may not be reformed because of a unilateral mistake. Sun Oil Company v. Bennett, Tex.Com.App., 125 Tex. 540, 84 S.W.2d 447; Texas Company v. Cain, Tex.Civ.App., 177 S.W.2d 251, writ ref. The party seeking reformation has the- burden of proving that there was an agreement reached between him and the other parties to the subsequent written agreement and must show precisely what that agreement was and that a different agreement appearing in the written instrument was placed there through the mutual mistake of the parties. Too, that any such agreement continued to the time of the execution of the written contract.

There is an absence of evidence in this case to show that there was any agreement between the parties to the Humble lease and the correction deed of July 14, 1938, that Mr. Finch or Mr. Rehrauer, as Trustees, were to receive any royalty other than a one-fourth of one-eighth on all of Mr: Smith’s land covered by said lease, as provided therein, or 11739/422160 of ⅛ as provided in the correction deed. While mutual mistake may be shown by circumstances, we think the circumstances shown here raise no fact issue as to the existence of an agreement other than as evidenced by the lease and correction deed.

■ We have very carefully read the testimony of Mr. Smith and at no place in it does he state that he entered into an agreement with Mr. Finch, the original trustee, or anyone acting for him, that the trustee was to receive royalties on only 152 acres. In fact, he never had any conversation with Mr. Finch when the mineral deed was executed. The arrangement for the mineral deed, upon which Mr. Smith relies to establish a mistake in the lease and correction deed, was made between his attorney, Mr. Carlos Masterson, and the banks’ attorney, Mr. Joe Andrews. Mr. Andrews, Mr. Masterson and Mr. Finch are all deceased. Mr. Smith says he merely signed the deed. Actually, the only thing Mr. Smith relies on to show mistake is that the mineral deed covered only 152 acres, which he did not discover until many years after the Humble lease and the correction deed. We think it of great significance that nowhere does Mr. Smith testify that there was an agreement to convey the minerals under only 152 acres. Since we discuss this deed so much, we hasten to add that the appellants do not here’seek to claim the royalty in controversy under that deed, but claim under the correction royalty deed. However, the discussion of facts in connection with the deed is necessary because Mr. Smith seeks to establish mistake in the subsequent instruments. His position is that appellants’ only right to royalty is through the mineral deed and since it conveyed an interest in only 152 acres, when the subsequent Humble lease and correction deed provided a one-fourth of the royalty to the Trustee under 223 acres it was a mistake because the parties intend only to get royalty under the land described in the mineral deed as evidenced solely by the mineral deed.

On the issue of Mr. Finch’s intention, we have evidence given by the Declaration of Trust executed by Mr. Finch on August 31, 1933, the day after the mineral deed. In it he shows the intention to receive a oné-fourth interest under Suspense Awards Nos. 1 and 2 awarded to Mr. Smith in the District Court’s judgment, as above shown. While the brief statement of the specified acreage shows only 201.9 acres, this statement is shown by the instrument itself not to be controlling, but it was specifically stated the lands conveyed to and held by Mr. Finch as Trustee were said Suspense Awards Nos. 1 and 2. A reference to the judgment shows Suspense Awards Nos. 1 and 2 contain 223 acres in the McNeel and Gray and Moore Surveys. This simultaneous instrument repels the existence of a mutual agreement to receive an interest in only 152 acres. This is particularly true when Mr. Smith’s testimony shows he talked to no one about the matter and he testified to no particular agreement with Mr. Finch. Too, it appears that either Mr. Smith or his attorney had the Declaration of Trust in his possession. They later asked Mr. Reh-rauer to sign a declaration of the same nature. In addition to all of this, for some 16 years Mr. Smith received royalty payments made in pursuance of division orders executed by him on a basis of his receiving credit for three-fourths of the royalty under 223 acres and the Trustee receiving one-fourth of the royalty under 223 acres. All of this, we think, completely destroys any assertion that there was an agreement reached between the parties that the Trustee was-to receive an interest under only 152 acres.

We then reach the correction deed of July 14, 1938, which corrected the mistake made in the amended lease of February, 1938 by fixing the royalty in the Trustee in a fraction that amounted to one-third. In this correction deed the fraction of 11739/422160 was fixed in the Trustee and this represents one-fourth of the royalty under 223 acres. Mr. Smith and Mr. Reh-rauer both testified they had no discussion of the matter and no agreement. Mr. Andrews, attorney for the banks, presented the matter to Mr. Rehrauer for signature. On the face of the instrument, however, the intention is apparent to change the Trustee’s royalty from one-third to one-fourth under the 223 acres, not just under 152 acres. In any event, there is no evidence to show any agreement between the parties different from that expressed in the royalty deed. Mr. Rehrauer’s testimony does not, in our opinion, as contended by appellee, show any different agreement. It only reflects that Mr. Rehrauer in his dealings with the various instruments did not intend to get or convey more than he was entitled to or more than he had. He never made nor knew of any specific agreement contrary to that reflected by the correction deed. He intended what was shown in such deed.

We, therefore, hold there was no evidence supporting the jury answers in effect holding there was mutual mistake in the correction deed fixing appellants’ royalty at 11739/422160 of ⅛, and on appellants’ motion these answers should have been disregarded.

Alternatively, appellants asset t there is no clear and convincing evidenc-⅛ of mutual mistake in making the correction deed. Of Course the-rule is that mutual mistake must, be established by clear and convincing evidence. Where, however, there is some evidence of probative value, even though it be not clear and convincing, a jury issue is raised. The court must submit the issue to the jury and may not disregai'd the jury answers to the submitted issues. However, if the trial court, or the Court of Civil Appeals, concludes there is not clear and convincing evidence they may grant new trials based on the verdict in this respect being contrary to the overwhelming weight and preponderance of the evidence. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206.

In this case we do not recede from our conclusion that there was no evidence to support the jury’s finding of mutual mistake because there was no evidence of any agreement contrary to that expressed in the correction deed. If, however, we be mistaken in that conclusion, we hold that the answers of the jury finding such agreement are not supported by clear and convincing evidence and such answers are therefore so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Also supporting the judgment of the trial court is his holding that as a matter of law appellants are estopped to claim more than one-fourth of one-eighth royalty under the 152 acres covered by the deed from Mr. Smith to Mr. Finch. The basis of this contention is that in March, 1941, Rehraucr as Trustee conveyed what Mr. Finch got in the deed from Mr. Smith to appellants or those under whom they hold, and such deed contained recitals that the interest shown by said deed to be in the grantees was correct. The trust termination deed is the instrument by which the trustee conveyed the legal mineral estate to the beneficiaries. Mr. Smith had given up his right to repurchase the minerals. Too, though the Court’s judgment is not expressly based on estoppel because of the deed from the National Bank of Commerce, to Mr. Liddell and the deed from D. H. Austin to Mr. Liddell, appellees say that such a finding by the court would find support in the evidence and therefore it will be presumed that the court found such in a manner so as to support the judgment.

Appellants urge there is no estoppel because there is no inconsistency between the termination deed, which conveyed a mineral estate under 152 acres, and the royalty correction deed conveying 11739/422160 of i/g of 1800 + acres. Too, they say the deed to Finch is not in their chain of title insofar as the royalty 'involved in this suit is concerned.

We have reached the conclusion that the termination deed of March 14, 1941, from P. C. Rehrauer, Trustee, to the National Bank of Commerce, and to D. H. Austin, the predecessor in title to Frank A. Liddell, affords no basis for estoppel against appellants as to the royalty interest claimed in this suit.

The royalty interest here involved was not created by the deed from Smith to Finch. The deed from Smith to Finch conveyed a one-fourth interest in the minerals. The royalty interest involved was created in the Humble lease. It gave the Trustee a ¾ of l/g royalty under all the land covered by the lease. This included the 223 acres owned by Smith. When the Smith acreage was pooled, then all of the owners of land covered by the lease became owners of a royalty interest in all the lands in the proportion their acreage bore to the whole. This gave Finch 11739/422160 of l/g though in the lease the royalty interest was not expressed in this fraction. The deed from Smith could have created a royalty estate but it did not. A royalty of ¼. of the i/s that should be reserved in any lease would, as a legal result of the ownership of one-fourth of the minerals by Finch, go to him. However, no royalty estate, which is a different estate from the mineral estate, was created by the Finch deed. The royalty estate was created by the Humble lease and by agreement of the partiés was fixed at ¾ of ⅛ of all.of the lands of Mr. Smith covered by the lease. While normally the royalty interest will be in the proportion of the mineral ownership, there is nothing to prevent the parties from contracting for a mineral interest in one amount and a royalty interest in a different amount. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166. After the royalty estate was created by the lease, the amended lease incorrectly fixed the royalty at one-third by fixing a fraction that amounted to one-third of Smith’s interest. This was later corrected. Then the royalty fraction of 11739/422160 of ⅛ was finally fixed in the Trustee. This is the final act between the parties as to the royalty. This royalty deed, which the jury found Smith accepted, and which stands unreformed because, as we have held, there is no evidence to show mutual mistake, now stands effective. The deed from Rehrauer to the National Bank of Commerce and Mr. Liddell’s predecessor in title was not a royalty deed. It was purely a mineral deed. It is not in appellants’ chain of title to his royalty interest. As to his royalty interest appellants’ chain of title is the Humble lease, the correction royalty deed, transfer order from Rehrauer, Trustee, to National Bank of Commerce and D. H. Austin, dated May 1,1941, transfer order from D. H. Austin to F. A. Liddell dated September 1, 1942, transfer order from National Bank of Commerce to Frank A. Liddell dated September 1, 1942 and the royalty deed dated March 31, 1958 from Rehrauer, Trustee, to appellants. These instruments all dealt only with the royalty interest and estate. Appellants need go no other place or rely on any other instrument to establish their royalty interest.

Neither are there recitals in the trust termination deed which estop appellants.

Recitals in a deed to work an es-toppel must be inconsistent with the position being taken by a party. 31 C.J.S. Es-toppel § 38, p. 215. The trust termination deed, as we have noticed, dealt only with the distribution of the mineral estate created by the Finch deed. The agreement by appellants as grantees therein as to the correctness of the recitals therein, which included a recital of the percentage of ownership stated therein to be in the grantees, related to the mineral interest under the Finch deed under 152 acres. Appellants’ interest here involved is purely a royalty interest under some 1,800 acres of land which includes 223 acres of land belonging to Mr. Smith. See MacDonald v. Sanders, Tex.Civ.App., 207 S.W.2d 155, ref., n. r. e.

We find nothing in the deeds from Austin and the National Bank of Commerce to Mr. Liddell that is so materially different as to estop Mr. Liddell.

In the light of our holding, it is unnecessary to discuss the question of limitation.

We have read all authorities cited and where not here cited we deem them inapplicable factually to the case before us.

While a holding that an answer by the jury is contrary to the overwhelming weight and preponderance of the evidence would only require a reversal and remand of the case for retrial, since we are convinced there is no evidence of probative value on the issue of mutual mistake and also that there is no estoppel against appellants, we will reverse and remand the case, with directions to the Trial Court to render judgment for appellants.

The judgment of the Trial Court is reversed and remanded and the Trial Court is directed to render judgment for appellants giving them recovery of a royalty interest payable under the Humble lease as amended of 11739/422160 of ⅛, together with judgment against the Humble Oil and Refining Company for accrued royalties up to the date of judgment in the amount as calculated by the Trial Court, with interest thereon from the date of judgment until paid.

Reversed and remanded, with instructions.


text:
    Mrs. Verline HALL et vir, Individually and as Next Friend of Kathleen Butler and Richard Ray Butler, Minors, Appellants, v. BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND, TRUSTEES, OF HOUSTON, Texas, Appellees.
    No. 13504.
    Court of Civil Appeals of Texas. Houston.
    Nov. 2, 1961.
    Miller, McClure, Lucas & Wright, James H. Wright, Houston, for appellants.'
    R. H. Burks, City Atty., Homer T. Bouldin, Sr., Asst. City Atty., Houston, for appellees.
   BELL, Chief Justice.

Appellant, Mrs. Hall, was formerly Mrs. Butler. Her husband was Roger Butler, who is now deceased. He was at the time of his death a fireman employed in the Fire Department of the City of Houston. The two minors, Kathleen Butler and Richard Ray Butler, are the children of appellant and Roger Butler. We will hereafter use the term appellant to include Mrs. Butler, Individually and as next friend for the minors.

Roger Butler died December 4, 1955. Thereafter, his widow, acting for herself and on behalf of her two children, applied for benefits' from the Firemen’s Relief and Retirement Fund. On December 19, 1955, the Board of Trustees of the Fund, entered the following order:

“Form #625”
“Board of Trustees
Firemen’s Relief and Retirement Fund
Houston, Texas
“Granting of Benefits to Widow, Guardian of Children and/or Dependent Parent by Board
“To Whom It May Concern:
“The Board of Trustees of the Firemen’s Relief and Retirement Fund of Houston, Texas, held a meeting on the 19th day of December A. D. 1955 and granted the following benefits in accordance with the provisions of Sections 12, 14, and 15, of Article 6243-e, Vernons Revised Civil Statutes, as amended:
“To Mrs. Verline Butler_widow of fireman Roger Butler, deceased, the amount of one hundred fourteen dollars and ninety-seven cents ($114.97) per month.
“To Mr (or Mrs.) Butler_guardian of Kathleen Butler, and _Richard Ray Butler__ unmarried dependent children, under the age of eighteen (18) years of fireman Roger Butler_deceased, the amount of twenty-dollars and no cents ($20.00) each per month totaling forty dollars and no cents ($40.00) for the two children.
“To Mr. (or Mrs.)_dependent parent of fireman_ deceased, (in the event there be no widow) the amount of_ dollars and_cents ($ ) per month.
“The total to be paid to all beneficiaries is one hundred fifty dollars and no cents ($150.00) per month and is not to exceed the amount the deceased fireman would have received had he been retired. The amount . to be paid to the widow so long as she lives or until she remarries. The amount to be paid to the guardian of each of the dependent children until each shall reach the age of eighteen years. The amounts subject to the provisions of Section 25 of the Act.
“Granted and recorded in the Minutes of the Board of Trustees of 19th day of December A. D. 19 55,
“/s/ Roy Hofheinz__
“Chairman of Board of Trustees
“Attest: /s/ Francis R. Peering_
“Sec.-Treas. Board of Trustees
“(Seal of City)”

No payment of benefits was ever made, and on May 24, 1957, appellant sued ap-pellees to recover on said award. Appellant had married since Mr. Butler’s death and she sued to recover benefits only until the date of her remarriage. However, she sued to establish the award to the minors until they each reached their respective eighteenth birthdays. The theory of appellant was that the award by appellee Board was a final award and irrevocably established the rights of appellant and the minor children and the order could not be collaterally attacked..

Appellee answered denying that Mr. Butler died as a result of “physical infirmities contracted by him in connection with his duties as a fireman.” To the contrary appellee says Butler died from cancer. Appellee then alleges there was no substantial evidence to support the award. The award, it is alleged, was made by ap-pellee due to misunderstanding of law, the members of the Board believing appellant and the children were entitled to benefits if Mr. Butler died while a member of the Fire Department, even though the cause of death was not connected with the performance of his duties as a fireman. The Board, after making the award, determined it erred in making the award and therefore no payments were ever made. The award, says appellee, is void.

Trial was to the court without a jury. Judgment was rendered denying appellant any relief.

It seems to be conceded that under Article 6243e, Section 12, appellant and the minor children would be entitled to benefits only if the death of Mr. Butler resulted from some disability or injury received in the performance of his duties as a fireman. Board of Firemen’s Relief & Retirement Fund, Trustees, of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965. However, appellants’ position here is that the Board determined, as evidenced by the order above quoted, that Mr. Butler’s death was the result of injuries received in the. performance of his duties, and such order has become final and cannot be set aside, or in any event has not been set aside.

On trial it appears that appellee introduced in evidence, over appellants’ objection, the Civil Service Commission’s file apparently containing information relevant to appellants’ right to benefits. We do not know what the file showed as its contents have not been brought forward in the statement of facts. Actually it appears that the contents were not copied into the statement of facts because someone has lost the file.

We are of the view that the judgment of the trial court denying appellants any benefits must be affirmed.

Article 6243e, Section 12, Vernon’s Annotated Texas Statutes, provides that when a fireman dies from a cause growing out of or in consequence of the performance of his duties, and leaves surviving him a widow and/or a child or children under the age of 18 years; the Board shall order paid a prescribed monthly payment. No time is prescribed by the statute within which the claim must be made. No procedure for assertion of or allowance of the claim is prescribed. Article 6243e, Section, 3, does vest in the Board the authority to determine claims and to designate surviving beneficiaries. Nowhere does the statute attempt to fix finality to the Board’s decision. Too, while Section 18 of Article 6243e deals with an appeal in certain instances from the Board’s decision, it omits to require or authorize an appeal by surviving beneficiaries of a deceased fireman. It merely provides for an appeal to the Firemen’s Pension Commissioner from the Board’s decision and from his decision to a Travis County District court by a fireman who is not satisfied with the Board’s or Commissioner’s action denying his claim for retirement due to length of service or disability or, denying hjs claim for temporary disability, or, if such fireman is dissatisfied with the amount allowed.

The result is, we think, that if the Board denies a surviving beneficiary’s claim, the beneficiary can sue the Board of Trustees in any court of competent jurisdiction to establish his or her claim. In such case the Board’s decision would be presumptively correct, and the burden would be on the claimant to show there was no substantial evidence supporting the Board’s order. Here, we take it, the Board had never formally revoked its allowance of the claim because such revocation was not pled and no evidence before us shows such. We cannot of course presume that evidence supports a matter not made an issue by pleading. Appellee did plead the Board had not paid because it had discovered Mr. Butler’s death was due to cancer. It thus attacked the appellants’ right to recover.

We hold the Board had the right to contest appellants’ right to benefits even though its order allowing them had not been formally set aside. When the Board’s order allowing the benefits was introduced by appellants, a prima facie case was made out. The burden was then on the Board to show there was no substantial evidence to support the order.

We find ourselves unable to agree with appellants that the order should be given conclusive effect.

In the state of the record before us, there having been evidence introduced below that has not, for the reason that it has been lost, been brought forward, we must presume in support of the judgment for appellee that there was evidence which shows there was no substantial evidence to support the Board’s order.

The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    Lucille HOWARD, Appellant, v. William L. WILBURN, Appellee.
    No. 13828.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1961.
    Rehearing Denied Nov. 29, 1961.

      Charles R. Cunningham, Ward & Brown, Corpus Christi, for appellant.
    Keys, Russell, Keys & Watson, M. W. Meredith, Jr., Corpus Christi, for appellee.
   BARROW, Justice.

This is a suit for damages arising out of the death 'of John Hallie Howard, appellant’s 'husband, a pedestrian, who was struck by ah automobile driven by appellee on November 23, 19S9, and died as a result thereof on November 24, 1959. The case was tried to a jury, and upon the jury’s verdict upon special issues judgment was rendered for the appellee.

The jury made the following findings: Issue No. 1, that appellee did not fail to keep a proper lookout. Issue No. 3, that appellee was not operating his automobile at a negligent rate of speed under the circumstances. Issue No. 5, that appellee’s automobile was not traveling at a speed greater than thirty miles per hour. Issue No. 7, that the accident was not an unavoidable accident. Issue No. 8, that the deceased, John Hallie Howard, was not at the time of the accident intoxicated. Issue No. 11, that the deceased failed to keep a proper lookout immediately before and at the time of the accident. Issue No. 12, that such failure was a proximate cause of the accident. Issue No. 13, that immediately before and at the time of the accident the deceased, John Hallie Howard, was crossing Port Avenue at a point other than within a marked or unmarked crosswalk at an intersection. Issue No. 14, that such crossing was a proximate cause of the accident. The jury failed to answer the damage issue and no complaint is urged thereto.

The accident occurred about 6:45 in the evening' at the intersection of Port Avenue and Nueces Street In the City of Corptis Christi. It was -already dark or getting dark, except for artificial lighting. Appel-lee was driving from north- to south .on Port Avenue, a main thoroughfare in the City of Corpus Christi. The deceased was walking from east to west on Nueces, a narrow street, having only eighteen feet of paving in the center, with a ten foot strip on each side grown up with grass and weeds, except for trails where pedestrians walked. There were no paved sidewalká on either side of Nueces Street, but on the south side, immediately west of Port Avenue, there were some paving blocks between the curb and the houses. The four corners at the intersection were curbed with a rounded curb, having a radius of eight feet. There were stop signs on each side of Port Avenue, facing Nueces Street. The deceased in attempting to walk from the southeast corner of the intersection across Port Avenue, was struck by appellee’s au7 tomobile. The point of impact was located on Port Avenue, some three to five steps east of the west side of Port Avenue and sixteen feet south of the southwest corner of the intersection. There were six possible eye witnesses to the accident: Mrs; Bernice Kennison and Mrs. Evelyn Dennis, who were sitting in a car on Nueces Street on the east side of Port Avenue, facing west at the stop sign at the intersection; Fletus Johnson, who was standing on the south side of said car, in the street, talking to Mrs. Dennis; Ary Latchie, who was standing to the rear of Johnson; the appel-lee, and William Manak, who was riding in the car with Wilburn. Neither Johnson nor Mrs. Dennis testified. The record shows that Johnson died prior to the trial.

By her first point, appellant contends that the evidence conclusively shows that appel-lee was not keeping a proper lookout, or, in the- alternative, that the jury’s finding that he did not fail to keep a proper lookout is so contrary to the great weight and1 preponderance of the evidence as to be clearly wrong. By her second point, ap•pellant contends that there is no evidence in the record to support the jury’s finding that the deceased failed to keep a proper lookout, or, in the alternative, that the finding is so contrary to the overwhelming ■weight and preponderance of the evidence ■as to he manifestly unjust. We shall consider those two points jointly.

We have reviewed the evidence and find that these findings are supported by •evidence which we shall hereinafter dis•cuss. A consideration of appellant’s alternative contentions requires us to examine •the entire record and to weigh the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

On the whole, appellant based her ■case on the testimony of the witnesses Latchie and Mrs. Kennison. Mrs. Kenni-son testified that she saw appellee’s car some two blocks away, when deceased had •almost completed crossing the street; that deceased, before crossing, stopped and looked both to his right and left. She testified that deceased went straight across the street, and then continued: “I mean he wasn’t exactly where he was supposed to be, that’s what I was saying, I mean, he was kinda over because there were two in the car, * * She and Mrs. Dennis, however, did show officer Thompson, the •officer who investigated the accident, just where deceased was hit.

Latchie testified that he approached the scene walking down the south side of Nueces Street; that near the middle of the block, east of the intersection of Port Avenue and Nueces Street, he overtook deceased and walked part of the balance of the way with him, but before reaching Port Avenue he saw Johnson talking to the ladies, and “I wanted to talk to him”, so he went on ahead of deceased and turned •out into Nueces Street, where the Dennis ■car in which the ladies were sitting was stopped. He testified that he did not see deceased again until he reached the center line on Port Avenue; that he saw appel-lee’s car approaching, and fixed the distance at about a block away. He drew a straight line on the map, from the southeast corner across Port Avenue to the southwest corner, and said that was the way deceased had traveled.

Appellee testified that he had his car lights on and was watching ahead, but just immediately before the accident he glanced toward his companion in the car. At that moment Manak yelled "look out”, appellee saw an image, and then the accident happened. He had not seen deceased before that moment. His lights were on dim, and that caused them to shine slightly to the right.

Manak testified that prior to the accident appellee was driving his car in a normal manner, at about thirty miles per hour, and was watching where he was going. Man-ak did not realize that there would be an accident until just immediately before it happened. He then hollered, and instantly the brakes were on. Appellee must have seen the man about the same time he did. Before the impact he was able to distinguish that the object was a man, who seemed to be walking to their right, and “just at the moment of the impact he seemed to turn his head towards us as though he just realized something was there.”

Appellee further testified that Mrs. Ken-nison at the scene told him, in the presence of Manak, “you weren’t going very fast, he just walked out in front of you.” Man-ak testified, “I believe the young man (obviously meaning Latchie) said that Billy wasn’t going very fast. It looked like the man just walked out in front of the car, and I believe that the lady agreed with him.” Mrs. Kennison denied making the statement, but Latchie did not.

Officer Thompson, an experienced investigator of the police department, testified that he arrived shortly after the accident and made an investigation; that he talked to the witnesses and took their statements; that he examined the physical facts on the ground, such as the skid marks and other physical evidence; that he made measurements and recorded all these matters in notes which he kept. He testified that two eye witnesses showed him the exact spot of the impact, one of whom was Mrs. Ken-nison. She confirmed that she did so, by showing Officer Thompson where deceased was walking and where he got hit. Officer Thompson testified that the point of impact was sixteen feet south of Nueces Street.

J. B. Freeman, 'a witness for appellee, testified that he was a merchant patrolman or 'night "watchman who checked thirty-four places of business 'each night, including the C. P. & L. warehouse located on the north side, of Nueces'Street, just east of Port Avepue;. that just prior to the accident he was driving north on Port Avenue, intending to turn east on Nueces Street in ordep'to check the G. P. & L. warehouse; that he had to make a complete stop, because two cars were side by side, facing, west, on Nueces, blocking the street. The car on.its own right side of the street had some pol.ored folks'in and around it, talking. The-car on the left was going around the other and was waiting for traffic to clear, when the car moved on he turned right, or east on Nueces Street. His car was in low gear and he was just barely moving. He had his headlights on, and as soon as he rounded the corner he saw a colored man about twenty feet away staggering up the street. He saw that the man was going to walk right into his car, so he came to a complete stop. The man put his hand on the bumper of his car, then backed up and went around the car to Freeman’s left. Freeman then pulled across Nueces Street, stopped, and immediately heard the impact of an accident. He looked around and saw that someone had been hit on Port Avenue. He later saw that it was the same man who staggered into his car. He testified that from the man’s walk and other actions, the man was either drunk or sick. Appellant testified that deceased had had nothing to drink all day, but had been staying home, feeling bad, for six days. In that connection, Mrs. Kennisori and Latchie testified that they saw no other traffic except appellee’s car.

Mr. James C. Flanagan, a mechanical engineer and witness for appellant, prepared a plat of the intersection. His plat indicated a street light at the northeast corner. He took light meter readings. His -light meter readings indicated stronger light at the northeast corner than at the southeast corner. Pie took no reading at the point of the impact, some sixteen feet south of the southwest corner. Mrs. Kennison tes-¡ tified that she did not have any trouble seeing deceased. She was in the Dennis car facing west with the lights shining directly west into the intersection. Latchie testified as to the street light. It was dark, but on the intersection it was light from the cars, the street light and thé'C. P. & L. light. Appellee testified that the street light at the intersection put out more light across Port Avenue than from side to side; that the lighting conditions in the southeast corner were poor, and that it was pretty dark ten or fifteen feet south of the intersection, all across Port Avenue. All of the’ evidence showed that the deceased was. a small colored man and that he was wearing dark clothing.

Under the circumstances, we think the jury might logically and reasonably reach the conclusion that when appellee was approaching the point of the collision he had to pass through a brightly lighted area, with the lights shining directly across his line of travel, and then enter immediately into a darker area, and that it would be difficult for him to see this small dark object until deceased walked directly in front of the car and into the beam of the car light, even though keeping a proper lookout. These facts are entirely consistent with appellee’s failure to see the deceased until too late to avoid hitting him. On the other hand, the evidence as a whole shows that deceased could have seen appellee’s car, with its lights burning, when it was as much as from one to two blocks away, and, if he had looked, could have observed it as it approached on its own right side of the Street at a normal and careful rate of speed: There is no evidence that deceased hesitated, as though to let the car pass in front of him, or increased his speed in an attempt to dodge the approaching car — he “just. walked out in front of the car.” From these facts it might reasonably be inferred that deceased failed to keep a proper lookout. :

Having considered the entire record, we are of the opinion that the findings of the jury are not so contrary or against the overwhelming preponderance of the evidence as to be manifestly wrong or unjust.

By points three to twelve, inclusive, appellant complains of the action of the trial court in submitting Special Issues Nos. 13 and 14, and the instructions in connection therewith, on various grounds. We are of the opinion that the court did hot err in submitting the issues. Moreover, even if there was any error in the manner of such submission, under the findings of the jury it was harmless.

In connection with Special Issue No. 13, the court submitted a correct definition of a marked or unmarked crosswalk. In connection with Special Issue No. 14, the court instructed the jury in the exact language as Section 78(a), of Article 6701d, Vernon’s Tex.Civ.Stats., that “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the highway.” Appellant contends that there was no marked crosswalk at the intersection, and that there is no evidence to raise the issue of the existence of an unmarked crosswalk. The evidence shows that an area on the south side of Nueces Street, outside the edge of the traversable or paved portion thereof, although grown with turf, was used by pedestrians, and if the lines on each side 'of this area were extended across Port Avenue, they would in law constitute an’ unmarked crosswalk. See, Brabson v. City of San Antonio, Tex.Civ.App., 332 S.W.2d 387. Moreover, if appellant is correct in contending that there was neither a marked nor unmarked crosswalk at the place where deceased attempted' to cross Port Avenue, then, as a matter of law, it was his duty to yield the right-of-way to ap-pellee’s vehicle. Appellant contends that the court erred in failing to submit an issue inquiring if deceased failed to yield the right-of-way. We overrule the point. The court evidently held, from the undisputed evidence, that the deceased did so fail. In this the trial' court was correct. .We need not repeat the evidence, but it is not shown by' any evidence that the deceased made any effort to yield the right-of-way. Appellant contends that an issue of.negligence should have been submitted. We overrule that 'contention. 'If deceased was attempting to cross outside a crossway, marked or unmarked, and ' failed to yield the right-of-way, he was guilty of negligence per se. Finally, appellant contends that the instruction given in connection with Issue No. 14 is a general charge, and does not come within the purview of the Rules of Civil Procedure. Even if that be true, we think it was harmless, for the reason that it was a correct statement of the law. Issue No. 14 was submitted conditionally upon an affirmative answer to Issue No. 13, in which event the instructions correctly prescribed the duty of the deceased. Finally, we are of the opinion that if there were any error in the submission of Special Issues Nos. 13 and 14, such error could not have caused the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. Neither could the giving of such issues in any way influence the jury to have answered the other issues in the way they did. Under the other findings of the jury, ap-pellee was clearly entitled to judgment. Cloud v. Zellers, 158 Tex.253, 309 S.W.2d 806.

The júdgment is affirmed.


author: COLLINGS, Justice.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Joe B. SEABOLT, Appellee.
    No. 3649.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 3, 1961.
    Rehearing Denied Nov. 17, 1961.
    Turpin, Kerr, Smith & Dyer, Midland, for appellant.
    Warren Burnett, Odessa, for appellee.
   COLLINGS, Justice.

This is a Workmen’s Compensation case. Joe B. Seabolt brought suit to recover compensation from the Travelers Insurance Company for permanent loss of use of his hand. Issues in the case were the extent and duration of the loss of use of plaintiff’s right hand and the question of whether such injury was confined to the little finger of the right hand. The trial was before a jury and, based upon the verdict, judgment was entered awarding maximum benefits under the Workmen’s Compensation law for the permanent loss of use of plaintiff’s right hand. The Travelers Insurance Company has appealed.

Points of error complain of the action of the trial court in overruling and in not sustaining appellant’s objections to Special Issues Numbers 1 and 4 of the court’s charge. The complaints are directed at the use of the term “loss of use” rather than “total loss of use.” Special Issues Numbers 1 and 4 and the court’s instructions in connection therewith and the answers of the jury were as follows:

“Special Issue No. One.
“Do you find from a preponderance of the evidence that the injury to plaintiff’s right hand on the 6th day of October, 1959, if any, has resulted, or will result, in a ‘loss of use’ of said hand?
“Answer: Yes or No.
“Answer: Yes.
“By the term ‘loss of use’, as used in this charge is meant that the member is so affected as to substantially and materially impair the use thereof in the practical performance of its functions in the pursuit of a laboring man.” (Tr. 12.)
The jury found that such “loss of use” was permanent. In connection with the question as to whether or not any loss of use was partial, the court submitted the following issue and accompanying instruction:
“Special Issue No. Four.
“Do you find from a preponderance of the evidence that the plaintiff, Joe B. Seabolt, has or will suffer any partial loss of use of his right hand as a result of the injury to said hand, if any, on the 6th day of October 1959?
“Answer: Yes or No.
“Answer: No
“By the term ‘partial loss of use’ as used herein means any degree of loss less than ‘loss of use’ as that term is defined for you in this charge. In this connection, you are further instructed that a person cannot have ‘loss of use’ of his right hand and ‘partial loss of use’ of his right hand during the same period of time. That is, if the plaintiff suffered permanent ‘loss of use’ of his right hand, he could not suffer ‘partial loss of use’ of his right hand for any period of time, or, if the plaintiff has suffered ‘partial loss of use’ of his right hand for any period of time, he cannot have suffered ‘loss of use’ of his right hand for such period of time.”

Objections made by appellant to the special issues were as follows:

“Defendant objects to the submission of Special Issue No. 1 in the form submitted because the court asks whether or not the injury will result in ‘loss of use’ of his right hand during the same in doing so will confuse the jury and lead them to believe that any loss of use would be a total loss of use. And no judgment could be based upon an affirmative answer to this issue. The issue is prejudicial to the defendants inasmuch as by the use of the term ‘loss of use’ instead of ‘total loss of use’, the jury will be led to believe that any such loss of use will be total loss of use and the jury will believe that the court has so instructed them, when, in fact, loss of use could mean any degree of loss of use between Zero and a hundred per cent.”
“Defendant further excepts to the submission of Special Issue No. 4, add the instruction contained in such issue for the reason that the court incorrectly defines partial loss of use in stating that partial loss of use is any degree of loss less than ‘loss of use’. The way the court has instructed the jury on this term will lead the jury to believe that a person cannot have any degree of ‘loss of use’ and ‘partial loss of use’ of the right hand during the same period of time, when, in fact, any degree less than a hundred percent loss of use oc the hand is ‘partial' loss of use of the right hand’, and in fact the plaintiff could have suffered ‘loss of use’ of the right hand and at the same time suffered partial loss of use.”

Appellant contends that the court erred in overruling its objections and exceptions to the charge and that a new trial should be granted because the answers to such issues considered in connection with the instructions.do not constitute a finding) concerning- percent of loss of use of the hapd; that the jury has found only “loss of use”, that is, that appellee suffered a material and substantial impairment' of- the use of the hand and that no judgment could be written upon the findings; that the court did not inquire and the jury did not. find that there is or was a “total lo$? of use” of ap-pellee's hand; that the charge is therefore, confusing and the finding ambiguous; that appellant was particularly prejudiced by the action of the court in jnstructing the jury that they could no.t find, “partial loss of use”, if they found a “loss of use” defined as a substantial and material impairment; that the jury was led to believe that any “loss of use” was a “total loss of use” because any substantial percentage of loss of use. would be material and substantial. Appellant contends that the, court’s instruction was, in, effect, that if. they found impairment of appellee’s hand to a degree more than insubstantial and more than immaterial, then they could not find that there was a “partial loss of use” of the right hand; and that their answer to Special Issue No. 4 under such instructions could not have been otherwise than “No;” Appellant urges that it was therefore denied the right to a finding on the question of whether ap-pellee has or will suffer any material or substantial partial use'of his hand.

The jury found that "appellee sustained or will sustain a “loss of use” of his hand, and found-such “loss of use” to be permanent. Art. 8306, Sec. 12, Vernon’s Ann.Tex.Civ.St., provides .that “permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.” The word “total” is not used by the statute in connection with specific injuries. The term “loss of use” as used' in the statute, when .unqualified, apparently has substantially the same meaning, as .“total loss of use.” This as we understand,.’ is in accord with ap-pelipe’s- cqntentjon. . The term “total loss _9| use” .has in specific injury, cases been used with approval of our appellate courts. Texas Employers Insurance Company v. Lane, Tex.Civ.App., 251 S.W.2d 181, Supreme Court; .The Travelers Insurance Company v. Calcote, Tex.Civ.App., 205 S. W.2d 56, 59, (N.R.E.) ; Traders & General Insurance Company v. Maxwell, Tex.Civ.App., 142 S.W.2d 685, dismissed judgment correct. This would appear to be the more desirable way to submit specific injury loss of use cases, because it more clearly presents the question involved with less possibility of misinterpretation or misunderstanding.

However, in the case of American General Insurance Co. v. Florez, Tex.Civ.App., 327 S.W.2d 643, 650, the court inquired of the jury whether the claimant suffered “loss of use” of his arm rather than “total loss of use”. The Court of Civil Appeals in passing upon the complaint to such a submission stated that if a proper definition of the phrase “loss of use” was given, the jury would be guided by the definition and that the omission of the word “total” would not change the result. This statement is technically correct. The case of Traders & General Insurance Company v. Porter, Tex.Civ.App., 124 S.W.2d 900, (Writ Ref.) was cited in the Florez case as controlling. In that case substantially the same definition used by the court in the instant case was held proper by the Court of Civil Appeals and a Writ of Error was refused. We follow the holding in those cases and overrule appellant’s points complaining of the manner of submission of Special Issues Numbers 1 and 4.

We also overrule appellant’s points contending in effect that there was no evidence or insufficient evidence to support the submission to the jury of Special Issues Numbers 1 and 4. . There was evidence to the effect that appellee Seabolt did not have the strength in his hand that he had prior to the injury, that after the injury he did not regain, the, full use, of his right hand, that the condition of his hand interfered with his. ability to climb, .to carry tools, to úse wrenches,, or to use a hammer and that the injury substantially and materially áffected the use of his hand in the performance of his work; that although appellee has obtained employment and has been working since his injury, he was put on different jobs where he could get along easier; that he has pain in his hand when he attempts to use it for work, that he can work but cannot do it as well as he could before, and that to do it at all causes pain. This evidence in our opinion supported the submission to the jury of Special Issues Numbers 1 and 4.

The judgment is affirmed.