author: CODY, Justice.

text:
    OAK PARK CEMETERY, Inc., v. DONALDSON et al.
    No. 11010.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1940.
    Rehearing Granted Feb. 27, 1941.
    Further Rehearing Denied March 20, 1941.

      Edgar Monteith and T. J. O’Brien, both of Houston, for appellant.
    Lewis Fogle, of Houston, for J. I. Donaldson and others.
    Lawler, Wood & Childress and Virgil Childress, all of Houston, for Golden Gate Cemetery.
   CODY, Justice.

This is. the second appeal of this case. Tex.Civ.App., 110 S.W.2d 119.

Suit was filed by J. I. Donaldson and others for themselves “and all others similarly situated”, and on behalf of owners of lots in Oak Park Cemetery, against Oak Park Cemetery, Inc., appellant, and against W. R. Britton, one of the appellees, seeking an injunction to prevent appellant and said appellee from platting into burial lots a part of the cemetery which the petition alleged had been irrevocably dedicated as a “Park” and “Flower Garden” and as a “Caretaker’s Home”, by the sale of lots to the plaintiffs in the petition with reference to a map upon which said park and flower garden was shown, etc. There were also allegations in the petition of a failure to set aside money realized from the sale of lots in the cemetery for the perpetual care of the lots, etc., but these allegations were not made out, and on appeal have been abandoned, and require no further notice. The allegations made against appellee Britton need not be set forth, for he answered admitting all the allegations in plaintiffs’ petition except “in so far as they allege the participation of Britton in the unlawful acts of Oak Park sought to be restrained * * * ”, and he adopted plaintiffs’ pleadings, and their prayer for relief against appellant. Thus, though in form a defendant, Britton by his pleadings made common cause with plaintiffs against appellant. And Golden Gate Cemetery, which was owned and represented by W. R. Britton, intervened in the suit to enjoin appellant from maintaining walls or fences between the 27-acre cemetery tract of intervenor and the 13-acre cemetery tract of appellant, which adjoined. Intervenor alleged that its 27-acre cemetery tract and appellant’s 13-acre cemetery tract were part and parcel of one and the same general cemetery project.

. Appellant, defendant below, answered that Donaldson and the other colored plaintiffs were not in good faith bringing suit for themselves but were really suing on behalf of W. R. Britton; that Britton operated Golden Gate Cemetery, which joined Oak Park Cemetery on its rear; that the entrance to both cemeteries was effected through the same gateway. Appellant further answered: That the jnap or plat referred to in plaintiffs’ petition (as being the map with reference to which cemetery lots were sold), was prepared by Britton, but was never recorded, and was never intended to be recorded. That said plat was circularized by Britton as an advertising scheme under the label of “An Artist’s Conception of Oak Park Cemetery.” That plaintiffs acquired no vested rights under said plat. That the “Applications to Purchase”, which were used by prospective purchasers, expressly provided that Britton should not be required to file the aforesaid plat of the cemetery for record or execute deeds until 400 lots had been sold and paid for. That 400 lots were never sold, and 400 applications for purchasing lots were never received during Britton’s ownership. That in order to meet the expenses of operating and maintaining Oak Park Cemetery in proper condition it was necessary to plat into burial lots the area shown on Britton’s unrecorded map as the “Park” and “Flower Garden” and “Caretaker’s Home”. That appellant acted in good faith and for the best interest of said cemetery and the lot owners therein by so doing. That such re-platting did not interfere with the rights of any lot owner, or with the free and unobstructed access to his lot, rlor did it impair the value of any lot, but, on the contrary, enhanced it. Appellant further pled that any so-called agreements made by Britton to establish the park and flower garden were not binding on appellant, and if in fact made, were only oral; and because oral, could confer no interest in real estate because contrary to the Statute of Frauds. That Britton during his ownership made no irrevocable dedication of the 13-acre tract in conformity with his aforesaid unrecorded map; but that appellant made a formal dedication by filing a map for record in the Map Records of Harris County. That plaintiffs took title to their lots only after the so-called “Park” and “Flower Garden” had been re-platted into burial lots and after such re-plat had been filed for record, and acquired title subject to such re-plat.

At the conclusion of the case, appellant moved for an instructed verdict, which the court refused. The case was submitted to the jury on special issues, which special issues, and the answers thereto, were as follows:

“Special Issue No. 1..
“Do you find from a preponderance of the evidence that before May 4, 1929, W. R. Britton dedicated those portions of Oak Park Cemetery lying west of Elias Dibble Lane and designated on his map as ‘Oak Park and Flower Garden’ as a park for the use of the lot owners in said cemetery and for their friends and relatives as a place of resort and for the purpose of location.of a florist and flower garden and not to be subdivided into lots and blocks for burial purposes?”

Jury’s answer: “He did so dedicate the same.”

“By the word ‘dedication’, as hereinbe-fore used, is meant a clear and unmistakable manifestation by the owner that land belonging to him has been irrevocably set apart by him for the use of a particular group of persons intended to be benefitted thereby.”
“By ‘irrevocably’, as herein used, is meant that the same shall be beyond the recall of the dedicator.”
“Special Issue No. 2.
“Do you find from a preponderance of the evidence that the plaintiff, J. I. Donaldson, relied upon such dedication (if you have found that' W. R. Britton did so dedicate) in purchasing a lot in Oak Park Cemetery from defendant, W. R. Britton?”

Jury’s answer: “He relied upon such dedication.”

After refusing appellant’s motion for judgment “non obstante veredicto”, the court granted the motion for judgment on the verdict for appellees, perpetually restraining appellant “from converting, using, preparing for use, selling or devoting in any way to the purpose of burial that portion of Oak Park Cemetery lying west of Elias Dibble Lane as shown by (appellant’s) plat of said cemetery of record in Vol. 10, pp. 9, 10, of the Harris County Map Records”. (That is to say, the court perpetually enjoined appellant from cutting up the part of the Oak Park Cemetery which was designated on Britton’s unrecorded map as “Park”, “Flower Garden”, and “Caretaker’s Home” into burial lots).

As early as October, 1928, Britton commenced the development of a tract of land near Houston as a cemetery for negroes, which he called “Oak Park Cemetery”. It was composed of three contiguous tracts; one of 27.3 acres, and two of 6% acres each, or a total of 40 and a fraction acres. Britton had such tract surveyed and a plat made of the projected cemetery. According to this plat one of the 6% acres fronted on a county road, which adjoined and paralleled a railroad tract, and was designated thereon “Florist and Flower Garden”, and “Caretaker’s Home”, and “Oak Park”. There were no burial lots platted on the 6%-acre tract which, as stated, fronted on the county road. Adjoining the 6%-acre tract, which we have designated the front 6%-acre tract, and to its rear, was the other 6% acres: then to the rear of the second or rear 6%-acre tract was the 27.3-acre tract. Burial lots were platted in 13 blocks, which were situated on this rear 6%-acre tract and the adjoining 27.3-acre tract, with streets between such 13 blocks. Britton did not record this plat, but did use it in advertising his projected cemetery among the negroes of Houston. After he had contracted for the sale of some 75 or 100 lots, Britton negotiated a loan with the American Trust Company. He secured the loan with a lien upon the two 6%-acre tracts, and upon a 44-acre tract, which included the 27.3-acre tract aforesaid. The deeds of trust given to secure the loan contained this provision for partial releases: “W. R. Britton shall have the privilege of partial release upon individual' lots into which the above described property is to be subdivided for the purpose of being used as a cemetery, in accordance with the provisions of a written contract of even date * * *.”

The contract so referred to contained, among others, this language:

“ * * * it is understood and agreed that the above described real estate is to be subdivided by W. R. Britton and made into what is to be known as ‘Oak Park Cemetery’ in accordance with a plat hereto attached, marked ‘Exhibit A’ * * * and that the said W. R. Britton contemplates selling lots or plats, in said cemetery to be used for the purpose of sepulture.”
“ * * * that W. R. Britton is to use such money as is advanced to him by the American Trust Company for the purpose of developing said property into a cemetery and putting the same upon the market, and it shall be used for no other purpose.”
* * * It is further agreed and understood that all sums .advanced to W. R. Britton by said Trust Company shall be used either for the purpose of paying off and refunding outstanding vendor’s lien notes against said land and premises, or for the purpose of developing, advertising and placing on the market said property as a cemetery * *

The plat referred to in the aforesaid contract as “Exhibit A” was the unrecorded Britton plat, showing the front 6%-acre tract dedicated to ornamental purposes in the scheme of the proposed cemetery.

Thereafter, on June 19, 1930, American Trust Company released from the deed of trust 19 lots in Block 7, according to Britton’s map, using in part this language: “Whereas, the above described land and premises, the security for the payment of said notes, has been subdivided and platted by W. R. Britton into what is known as ‘Oak Park Cemetery’, reference to which plat is here made for all purposes of description.”

Subsequently 38 more lots were released from its liens by the Trust Company, and this language was employed: “Whereas, the above described three tracts of land, aggregating 40.62 acres, have been subdivided and platted by W. R. Britton into what is known as ‘Oak Park Cemetery’ reference to which plat is here made for all purposes of description.”

Thereafter, because of Britton’s default in paying his notes, the deed of trust was foreclosed, and by trustee’s deed dated September 2, 1930, the three tracts were conveyed to the American Trust Company, the purchaser at such foreclosure sale. Subsequently the American Trust Company conveyed said three tracts to three persons who took title in trust to thereafter convey, and who did thereafter convey, the same to Oak Park Cemetery, Inc., a corporation which was organized by the Trust Company to operate said cemetery property. All the stock was owned by the Trust Company.

After appellant acquired title to the aforesaid three tracts of land, less the lots it released as having been sold by Britton, it prepared a new map or plat of the cemetery which was approved by the City Planning Commission on December 9, 1930, and was then duly filed for record. This plat was identical with that prepared by Britton, except, as already indicated, it subdivided into burial lots that portion of the front 6%-tract, which is designated on the Brit-ton unrecorded map as “Oak Park” and “Caretaker’s Home” and “Flower Garden”, fronting on the county road.

Then, about a year subsequent to the date of the foreclosure against Britton, the Hon. Harry Holmes, who owned a second lien against the 27.3-acre tract, which was inferior to that of the Trust Company, redeemed it by paying to the Trust Company the amount of the first lien which it had foreclosed against Britton, and acquired title thereto. Holmes sold it to Golden Gate Cemetery Corporation, which is managed and controlled by Britton. And Britton has recorded a plat of Golden Gate Cemetery which, as to said 27.3-acre tract, is identical with the unrecorded Britton plat, aforesaid, and with that of appellant.

So, Golden Gate Cemetery, consisting of said 27.3-acre tract, is located immediately east of, and to the rear of, Oak Park Cemetery, with a connecting street through the two cemeteries. Both cemeteries have the same entrance, and one getting to Golden Gate Cemetery passes through the main entrance of, and passes through, from the front to rear, Oak Park Cemetery.

From the issues -submitted to the jury it appears that the case was tried on the theory that the sale of burial lots by the owner of a cemetery, with reference to an unrecorded plat of such cemetery, to purchasers who rely on such plat, will effect a dedication of the drives, parks, etc., shown on said plat, a's well as the lots and blocks shown thereon. This principle is well established, of course, as applied to the sale of lots with reference to the plat of a town-site or addition to a city by the owner; Lamar County v. Clements, 49 Tex. 347; Clement v. City of Paris, 107 Tex. 200, 175 S.W, 672.

While it is true that the grantee of a burial lot in a deed of conveyance does not acquire a fee-simple title, but only acquires the lot limited to its intended burial purposes (11 C.J. 60; 14 C.J.S., Cemeteries, § 25; Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413, 107 A.L.R. 1289; People v. Bloomington Cemetery Ass’n, 353 Ill. 534, 187 N.E. 455; Annotation, 67 L.R.A 118), it is clear that such grantee is not the ordinary owner of an easement, and that “his right to have the drives, walks, and approaches kept in repair does not depend upon the law of easements.” Houston Cemetery Co. v. Drew, 13 Tex.Civ.App. 536, 36 S.W. 802, 805. See Dunbar v. Oconomowoc Cemetery Ass’n, 189 Wis. 164, 207 N.W. 265; Sheean v. Carra, 145 La. 440, 82 So. 399. In any case, the interest passed by a deed to the purchaser of a burial lot is an interest in land, and we can perceive no valid reason why the same principle should not apply to one who purchases a burial lot in reliance on an unrecorded plat of a cemetery, which applies to the purchaser of a town lot with reference to an unrecorded plat of a town.

Appellant does not deny that the purchase of a burial lot in a cemetery constitutes an interest in land, but to the contrary, insists that because this is so there is no competent evidence in the record to support the findings of the jury. Appellant affirms, and ap-pellees do not deny, that the appellees who proved up deeds to their burial lots, proved up deeds which were executed by appellant, arid such deeds referred only to the plat recorded by appellant, which plat did not show the park, etc., here in question. The other appellees, such as Donaldson, held no deed to their lots. Indeed, during the time that Britton was owner of the cemetery, and negotiating sales of the lots, his method of procedure was to accept from a purchaser a printed form of application to purchase a lot, which was signed by the purchaser, and which specified the lot the applicant was purchasing, and the amount he was to pay for it, and the amount of the monthly installment. It also made provision for abandonment if as many as 400 lots were not sold. Now before Britton had sold 400 lots, the Trust Company which had made him the loan, foreclosed its lien, and bought in the cemetery, except the lots which it had theretofore released, and then caused appellant to be created, and transferred the property it had bought in at foreclosure sale. The appellant took over the applications which purchasers had executed to Britton, credited with the payments which had been made to Britton. Whether in so taking over such applications, with payments credited thereon, appellant was acting gratuitiously, it is unnecessary to determine. But neither appellant, nor its predecessor in interest, the Trust Company, acquired title to the burial lots .at the foreclosure sale which the Trust Company had, previously to such sale, released, under the release clause contained in the loan contract between it and Britton. Among these lots which were released to Britton before the foreclosure sale was the one belonging to appellee Donaldson. Britton by his -pleadings admitted that Donaldson owned it, and appellant does not question that Donaldson owns the burial rights in and to his lot. Appellant seeks, however, to drive a wedge, or make a distinction, between the burial rights which Donaldson acquired under the release executed by the Trust Company, and the rights he acquired appurtenant thereto to the use and enjoyment of the park, etc., shown on the Britton unrecorded plat. We do not believe that there is any sound basis for making such distinction. If Donaldson owns the burial rights in and to his lot, he owns the rights appurtenant thereto which he acquired under and by virtue of the release made of his lot by Britton. When Britton received the release from the Trust Company, since he admits that Donaldson paid for the lot and owns it, he received it in trust for Donaldson. In other words, if the legal title to his lot is not in Donaldson, it is in Britton in trust for Donaldson. And when the Trust Company foreclosed its lien, it did not foreclose it as against Donaldson, for it had been released as against Donaldson’s lot, and it had been released in reference to the Britton unrecorded plat. The release did not merely effect a release of the burial rights in the Donaldson lot, it released the rights contemplated by the Britton map, according to the evidence before the jury.

In this connection it will be borne in mind that lands once legally devoted to and used for burial purposes become appropriated to • a public purpose, and the power of the body in whom the title is vested to deal with it is very limited. Oakland Cemetery Co. v. People’s Cemetery Ass’n, 93 Tex. 569, 57 S.W. 27, 55 L.R.A. 503; Peterson v. Stolz, Tex.Civ.App., 269 S.W. 113. And there had been many burials in the cemetery before the Trust Company foreclosed its lien.

Believing' there was sufficient competent evidence to sustain the findings of the jury, the judgment should be affirmed, and it is so ordered.

Affirmed.

On Appellant’s Motion for Rehearing.

After careful consideration of appellant’s motion for rehearing we have concluded that we were in error in affirming the judgment of the trial court.

As appears from our original opinion, appellees relied upon establishing the dedication of the land for a park, etc., upon the sale of burial lots by the owner of the cemetery with reference to an unrecorded plat to purchasers who bought with reference to such unrecorded plat upon which such park was shown, and in reliance on such unrecorded plat. As appears from our original opinion, all deeds which were introduced in evidence were deeds executed by appellant, and such deeds referred to a plat ’recorded by appellant upon which the park, etc., was not shown, but the land embraced in such park, etc., was shown being subdivided into burial lots. As further appears from our original opinion, no deed of conveyance was ever executed and delivered to Donaldson conveying to him his burial lot. He signed an application to purchase his lot which contained a provision contemplating that the project might fail and have to be abandoned if as many as 400 lots were not sold by Britton. This very contingency did occur; and before Britton had sold as many as 100 lots he defaulted in payments which were due under the deed of trust securing the indebtedness on the property. Indeed it seems likely that the greatest threat to the success of the project lay in the danger that the holder of the lien against the property which he had subdivided might foreclose such lien for de- ' fault in payments before the lots were sold off.'

As further appears from our original opinion before the lien against the property was foreclosed against Britton, the Trust Company had released some sixty lots from the lien, and released the same with reference to the Britton plat, but we have concluded that we were in error in holding in effect that by releasing such lots with reference to the Britton plat, that such release became an adoption of the Britton plat so as to give the owner of a released lot rights in and to the park shown upon such plat, should the project thereafter become abandoned. Had some stranger to the lien bid in the property at the foreclosure sale, it would hardly be contended that such stranger would be bound, because of the releases aforesaid, to maintain the park shown on the Britton plat. The park and flower garden reflected on the map, if considered as touches of beautification or points of attractiveness, must be regarded in nature as no less tentative than the project of which the map was but part and parcel. The right of the owners of the burial lots which were released to have the project continued along its projected lines ceased when much less than 400 lots were sold. It ceased because it was provided that the same should be tentative until 400 of the lots were sold. It is quite possible that if Britton could have sold 400 lots before defaulting and suffering the unsold property to be foreclosed on 'that he could have succeeded in promoting the project. But his tentative plan, because it failed during the period that it was provided that it should be tentative, cannot be held to have become permanent merely because the lienholder acted thereunder and made releases thereunder. Certainly the purchasers whose applications placed them on notice that the project would remain tentative until 400 lots were sold cannot claim that the sale of 60 lots satisfied the provision that 400 lots be sold. We erred in holding that the release executed by the Trust Company released all the rights which the Britton map contemplated, because the Britton map contemplated, of course, that the project would be successful, and not fail — though, as stated, possible failure had been foreseen, and provided for, if it occurred before 400 lots had been sold.

We have carefully re-examined the record and must agree with appellant that the evidence fails to warrant the. submission of the special issues to the jury. Indeed appellant did not execute any releases for more than a year after May 4, 1929. And none of the purchasers of burial lots acquired an interest in land in such lots prior .to the date of these releases. And since Donaldson frankly stated that he knew about the provisions for abandonment if 400 lots were not sold, above extensively mentioned, any reliance which he placed in the “dedication” is thus obviously speculative — not the kind that supports es-toppel. The court should have instructed a verdict for appellant.

In accordance with these conclusions, appellant’s motion for rehearing- will be granted, the former judgment of this court set -aside, and judgment now rendered reversing the judgment of the trial court and rendering judgment in favor of the appellant. It is so ordered.

Appellant’s motion for rehearing granted, former judgment set aside, and cause reversed and rendered.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    HORNE MOTORS, Inc., et al. v. LATIMER.
    No. 12946.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1941.
    Rehearing Denied March 8, 1941.

      Strasburger, Price, Holland, Kelton & Miller, of Dallas, for plaintiffs in error.
    Chrestman, Brundidge, Fountain, Elliott & Bateman and J. A. Blakeley, all of Dallas, for defendant in error.
   YOUNG, Justice.

Defendant in error, Russell O. Latimer, recovered judgment for $11,654.50 in a damage action, wherein Horne Motors, Inc., and D. C. Berry (plaintiffs in error) were defendants, and the latter parties have brought up the rather voluminous trial proceedings for review. To obviate an analysis of lengthy pleading, we will briefly outline certain material facts; issues being apparent from jury questions and answers, and the complaints of plaintiffs in error concretely stated in eighteen ' several propositions. Referring to the parties as they were originally styled, or by name, we find the following: Horne Motors, Inc., was a corporation doing business at Longview, Gregg County, and dealing in Packard automobiles, with J. R. Horne, Vice-President and General Manager, O. H. Grissom, President, and plaintiff Russel O. Latimer, Secretary-Treasurer. On and prior to January 1, 1937, D. C. Berry, a company salesman, had interested a Mr. Sullivan in the purchase of a certain type Packard car, to the extent that a sale could be consummated on inspection. The particular model was not in stock at Long-view, and on the afternoon of said day (plaintiff contends), he was instructed by Mr. Horne to accompany Berry and Sullivan to the Dallas agency, where delivery of the contemplated model could be made. Plaintiff's mission in making' the trip, he alleged, was as an officer of the Corporation, and for the purpose of executing necessary instruments to the distributor in the transaction. The three, plaintiff, Berry and Sullivan, began the trip on the afternoon in question, each taking a turn at driving the company car. While traveling along the highway after nightfall, with misting rain and wet pavement, and just within the city limits of Edgewood, Van Zandt County, a Ford truck, driven in the same direction- by W. D. Copeland, was encountered, resulting in a collision and sérious injuries to Russell O. Latimer. At the time of the accident, Berry was at the wheel of the Horne Motors car, Sullivan sitting in the middle of the front seat, and plaintiff on the right-hand, the force of the impact hurling him bodily through the windshield and out onto the roadside. The suit brought by this injured party was against Horne Motors, Inc., and Berry, its salesman, under allegations of negligence, which are concisely reflected in the jury issues hereinafter to be detailed. However, the gist of both defendants’ allegations and defenses should here be summarized: (1) Horne, General Manager of the company, denied that the Dallas journey had been authorized, but, on the other hand, expressly forbidden, as plaintiff and Berry had been drinking, and the trip was undertaken of their own accord; (2) the collision resulted, not from any negligence of Berry, but from the effect of blinding headlights of two approaching automobiles, whereby Berry could not see the Copeland truck until right upon it, which constituted sole proximate cause, or new independent cause thereof; (3) sundry acts of-negligence on the part of Copeland were interposed, such as not operating his truck with visible taillights; (4) that Berry and Lati-mer were on a joint mission for Horne Motors, Inc., whereby any negligent handling of the car would be imputed to plaintiff; (5) that plaintiff’s presence on the trip was either as an officer and “alter ego” of the Corporation, performing corporate duties, or as a fellow servant to assist Berry in a transaction for the benefit of their employer, and suit was not maintainable against defendants in either-capacity; (6) in the alternative, contributory negligence of plaintiff was alleged. D. C. Berry urged defenses similar to those of Horne Motors, Inc., and motions for peremptory instruction of both the defendants were presented and refused at the close of the testimony.

The jury issues and answers were, in substance, that D. C. Berry was driving the Packard car at the' time, in furtherance of the business of Horne Motors, Inc.; that plaintiff Latimer was directed by J. R. Horne, Manager of ITorne Motors, Inc., to accompany said Berry on the trip to Dallas; that Berry was driving at a greater rate of speed than 20 miles per hour on the occasion, which was negligence and a proximate cause of the collision; Berry was also driving the car in excess of 45 miles per hour at the time, which was negligence and a proximate cause. Berry also failed to keep a proper lookout for trucks driving in the same direction on the highway at the time, which was negligence and a proximate cause of the collision; that plaintiff’s injuries were not the result of an unavoidable accident; that plaintiff did not fail to keep a proper lookout for Copeland’s truck; that defendant Berry was not driving to Dallas for the sole purpose of visiting his family; that plaintiff Latimer failed to protest against the speed at which the Packard car was being driven immediately prior to the collision, but such was not negligence nor did it proximately contribute to cause the collision; that just before the accident, the headlights of an eastbound automobile did not obscure the vision of the Packard car driver to the extent that he could not see the Copeland truck; that the burning headlights of such approaching car were not a new and independent cause of the collision; plaintiff was not intoxicated, at and prior to the time of his injuries; the failure of plaintiff to keep a proper lookout was not negligence, or proximately contribute to cause the collision; that neither plaintiff nor D. C. Berry was making said trip for his own individual pleasure, nor was Latimer riding in the car as a guest of defendant Berry; that J. R. Horne, Vice-President and General Manager of defendant Corporation, did not refuse permission to either Latimer or Berry to undertake the Dallas trip on said date of January 1, 1937.

Defendants first argue that they were clearly entitled to peremptory instructions at the close of the testimony, in that, the participation of Russell O. Latimer in the unfortunate journey was as an officer of defendant Corporation, charged with essential corporate duties touching the sale of the car through the Dallas agency; and was the company’s vice-principal or “alter ego”; wherefore, his suit, in effect, was one by the Corporation against itself for the wrongful acts of its own servant Berry, and not maintainable; or, on the other hand, the relationship between plaintiff and Berry at the time was as fellow servants, each engaged in an authorized duty for the benefit of their common employer, i. e., the consummation of an automobile sale; and, being fellow servants, the negligence of one was imputed to the other, precluding a recovery.

Either phase of the propositions just mentioned raises interesting questions of law which can be more readily solved by stating our conclusions of fact concerning — principally—the status of Latimer on the particular occasion, as reflected by the record. This plaintiff was secretary-treasurer of defendant Corporation, being paid $20 per week for the following duties, as testified by him: “I had access to all the cash — that is, of the office. I also countersigned the checks for Mr. Horne. I looked after the office. I had the keys to the office/the keys to the filing cabinet and all of our lockboxes * * *. I kept the books of the Corporation. Q. Any other duties ? A. No.” It can also be concluded from the jury answers that the instructions of Mr. Horne, General Manager, to Berry, the salesman, were to take the prospective purchaser to Dallas and effect a sale; plaintiff’s responsibility on the trip, as an officer of the Corporation, being to sign a so-called trust receipt and receive the purchase-money notes. It cannot be contended under the testimony that Latimer possessed right of supervision over Berry in the latter’s operation of the company car; and, except as just stated, he had no duty touching the ultimate sale. In the contemplated transaction, both of these parties were but serving the Corporation in their different capacities, as instructed by their general manager, Mr. Horne; who, and not Latimer, was the vice-principal. Plaintiff’s errand on the occasion contemplated no nondelegable duty of his employer, but one simply appertaining to him as an officer of Horne Motors, Inc.; and a corporation is a juristic person, having a legal entity, separate and apart from its officers and members; Fletcher Cyc. Corps. (Per.Ed.) Vol. 1, Sec. 25, pp. 84, 87. Neither can it be said (from facts already stated) that plaintiff was the fellow servant of defendant Berry at the time; Lati-mer’s presence in the car being indisputably not relating to his regular employment as a bookkeeper, but as an officer of the concern; 39 C.J., Master and Servant, Sec. 1354, pp. 1173-1175. In this connection, it should be noted that, after his injury, plaintiff first made claim to the Industrial Accident Board, as Horne Motors, Inc., was a subscriber to workman’s compensation, which application was later withdrawn because of his official status as secretary-treasurer; R.S. art. 8309, § la. The four propositions arising on points just under discussion will be overruled.

It is next argued that the relationship of master and servant existed between Berry and his employer while on the particular drive, and no liability resulted from a negligent operation of the car, absent proof that the master specifically, directed the manner of driving, speed, etc., which is alleged to have caused the collision. It is sufficient that Berry’s principal instructed him to make the trip, in the course of which, plaintiff’s injuries were sustained; 29 T.J., Master and Servant, Sec. 74, • p. 132.

It is well settled that when the issue of new and independent cause is raised by the evidence, it is error for the trial court not to include such terms and a definition thereof in the standard instruction on proximate cause. This was not done in the instant case, the term being separately defined in the charge as a predicate for issues 21 and 22, inquiring whether the headlights of an eastbound car obscured the vision of defendant Berry to the extent that he could not see the Copeland truck, thus constituting a new and independent cause of the collision. Though both of the last-mentioned issues were answered in the negative, defendants insist that the issue of “blinding lights” being in evidence, the court erred in failing to embody the element of intervening cause in all preceding issues on defendants’ negligence and proximate causation, concerning which plaintiff had the burden of proof. The term or element contended for by defendants means, “the act or omission of a separate and independent agency, which destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes, in itself, the immediate cause of such injury”. Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61. Bearing in mind the above definition, we do not think “separate and independent agency” is raised by the record; as a careful examination of all relevant testimony and the physical facts surrounding the occurrence will demonstrate. The collision is envisaged at a point near Tennison’s Filling Station, well within the city limits of Edgewood, where the constantly traveled highway extended straight west several hundred yards, and similarly for 3 miles back to the east. It was early nighttime, with weather conditions already described. Immediately prior to the mishap, Berry was driving the company automobile between 45 and 50 miles per hour, when a car approached with blinding headlights, going east. After passing that car, he saw the Copeland truck about 50 to 60 feet ahead, on the right-hand side of the road, also proceeding westwardly. Berry then swerved to the left-hand side of the highway to pass the truck, when he met the headlights of a second eastbound car; and in turning again to the right-hand, this ■witness testified: “I was applying my brakes; I was on top of the truck — it was only a short distance away.

“Q. How fast was the truck going? A. It was driving very slow. * * *
“q * * * did you have room there to swing around that Ford pickup truck without hitting it? A. I had room to have swung around it if I had had time; I was too close, though.
“Q. In other words, now, in the time intervening there you could not swing around and miss it? A. No, sir.”

Mr. Berry, on cross-examination, further limited blinding headlights to the first approaching car, and upon'applying his own dimmers, the on-coming car driver failed to respond. Again referring to the record, he said:

“Q. You knew as you were approaching him that he had powerful lights? A. Yes sir, that is the reason I checked down on my speed.
“Q. You could reasonably anticipate that he had powerful lights and that if he didn’t dim them, you would be blinded? A. Yes sir.
“Q. That is the reason you kicked on your dimmer switch? A. Yes sir.”

Berry further stated that, from his experience in driving at night, one is often blinded by opposing headlights and that if .dimmers are not applied by the passing car, he would expect to be blinded; in which case, he always pulled to the fright side of the road and checked down; but that he did not have time on the night in question to slow down to any appreciable extent. He said that if the taillight of the Ford truck was burning at the time of the collision, same was very dim, but according to Mr. Copeland, it was on when he turned into the highway about fifteen minutes before.

This witness (Berry) was driving his employers’ automobile on the particular occasion, at an unlawful and, therefore, negligent speed. Vernon’s Ann.P.C. art. 827a, Sec. 8; which negligence continued to the point of impact. The influence of the first car’s powerful headlights had ceased when he was 50 or 60 feet to the rear of the Copeland truck, hence they could not be said to have destroyed the causal connection between the driver’s negligent speed and the ensuing consequences; therefore becoming “in itself, the immediate cause of such injury.” Burning headlights of car No. 1 were thus not the intervening cause of the collision. At most, they were but a concurring or contributing cause. Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294, writ refused; Gulf, C. & S. F. Ry. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659. Again, a new and independent cause must be one incapable of being foreseen by the original wrongdoer, in the exercise of ordinary care. Under the present facts, at the speed he was maintaining, and in the interval after passing car No. 1, Mr. Berry could have avoided the collision, but for the approach of car No. 2 (not shown as having blinding lights). The latter vehicle was properly on the road; it was a common hazard of nighttime driving, and a factor which Berry frankly admitted he should reasonably have anticipated. “The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.” Mexican Nat. R. Co. v. Mussette, 86 Tex. 708, 26 S.W. 1075, 1080, 24 L.R.A. 642; Missouri-Kansas-Texas R. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474; Johnson v. Smither, Tex.Civ.App., Ft. Worth, 116 S.W.2d 812; Reeves v. Tittle, Tex.Civ.App., 129 S.W.2d 364, writ refused; and in Restatement, Torts, Sec. 449, p. 1202, is stated: “If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.”

Defendants attack the court’s definition of “unavoidable accident” as imposing upon them an undue burden of proof, citing Dallas Ry. & Terminal Co. v. Redman, Tex.Civ.App., 113 S.W.2d 262, where Judge Brown, of the Fort Worth Court, condemned a- similar instruction; and Dallas Ry. & Terminal Co. v. Price, 131 Tex. 319, 114 S.W.2d 859, where the Supreme Court discusses an approved definition of the term. Conceding such instruction to be too comprehensive and therefore prejudicial, only harmless error was involved, as clearly the issue of unavoidable accident was not raised. Wbmay disregard the jury’s findings on speed of defendants’ Packard car at the time, and yet be forced to conclude as a matter of law that the employee Berry was negligent in such regard. The accident happened inside the corporate limits of Edgewood. With respect to the movements of his car, Mr. Berry testified:

“Q. What rate of speed did you say you were going at the time you hit the truck?

A. Between forty-five and fifty.

“Q. You wouldn’t say you were driving under forty-five, would you? A. No sir.”

The Copeland truck was '50 or 60 feet in front of Berry, when the latter regained his normal vision, traveling between 20 and 25 miles per hour in the same direction. In Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777, 779, the rule is announced concerning unavoidable accident vel non, as an issue: “In order to determine whether such issue is involved, the facts of each particular case must be examined with the view of ascertaining whether there is presented a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.” It thus appears that when defendant’s car struck the Copeland truck, it was being propelled at a speed in excess of 20 miles per hour within the corporate limits of a town, and beyond the general statutory speed limit of 45 miles per hour elsewhere; constituting negligence in either event as a matter of law. Vernon’s Ann. P.C. art. 827a(8). If Berry had been proceeding at a lawful speed of 20 miles per hour within said city limits when he discovered the Copeland truck, obviously, the collision would not have occurred; thereby dispelling any theory under which the accident might have happened had both plaintiff and defendants exercised due care.

Defendants also complain that issue 8, involving the speed of Berry’s car in excess, of 45 miles per hour as being a proximate cause, was obnoxious, as assuming a controverted fact. Primary issue No. 6, fixing such speed, was in proper form, even if necessary under our conclusions already reached that the particular fact was undisputed. Aside from this, however, the issue complained of is not essential to the judgment, since the jury found negligence in other respects.

Defendants predicate further error in the trial court’s refusal of various defensive issues: First, whether plaintiff Russell O. Latimer was an employee of Horne Motors, Inc. In disposing of earlier propositions, we have held that plaintiff, on the Dallas trip, was merely undertaking duties devolving upon him as secretary-treasurer of his Corporation ; and although he kept the company books, his part of the trip contemplated nothing relative to his employment as bookkeeper. The common-law rule of fellow servant is now in a state of practical obsolescence, perforce of state and federal legislation; but, assuming plaintiff’s status at the material moment was not indisputably that of a corporate officer, yet the fact question tendered by defendants was incomplete and could not, alone, form the basis of a defense, absent a further issue and finding that plaintiff, at the time, was engaged in regular bookkeeping duties for his employer. 39 C.J., Master and Servant, Sec. 1354, p. 1173, citing Texas cases.

Neither was the defense of joint enterprise raised by the testimony. The trip was not personal to either plaintiff or Berry, but both were acting in furtherance of a third person’s business — Horne Motors, Inc.- — and not on their own joint affairs. Moreover, joint mission is no defense as between the enterprisers. It is a doctrine operating only in favor of a third party defendant. Restatement, Torts, Sec. 491, pp. 1274, 1275; Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A.L.R. 626; O’Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A.L.R. 436; Archer v. Chicago, etc., Ry. Co., 215 Wis. 509, 255 N.W. 67, 95 A.L.R. 851.

No evidence is pointed out in the record raising issues on absence of a rear light to the Copeland truck; or that car No. 2, heretofore mentioned, was approaching at high speed, had bright headlights, or failed to dim them; hence no error resulted in their refusal. Our careful study of this record does not reveal grounds for reversal of the judgment under review, and an af-firmance thereof must follow.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    MASSACHUSETTS BONDING & INS. CO. et al. v. CITY OF GRAPELAND et al.
    No. 11122.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1941.
    Rehearings Denied March 20, 1941.

      Chrestman, Brundidge, Fountain, Elliott & Bateman and L. E. Elliott, all of Dallas, for appellant Massachusetts Bonding & Ins. Co.
    C. W. Kennedy, Jr., of Crockett, for ap-pellee and cross-appellant Grapeland State Bank of Grapeland.
    F. P. Granberry,'of Crockett, for appel-lee and cross-appellant Farmers & Merchants State Bank of Grapeland.
    Adams & Morgan, of Crockett, and J. E. Wheat, óf Woodville, for appellee Citizens State Bank of Corrigan.

    Wheeler, Atchley & Vance, of Texar-kana, for appellee W. S. Dickey Clay Mfg. Co.
   MONTEITH, Chief Justice.

This action was brought by appellant, Massachusetts Bonding & Insurance Company, against appellees, H. M. Lowe, trading as Lowe 'Construction Company, the City of Grapeland, the Citizens State Bank of Corrigan, appellees and cross-appellants, Grapeland State Bank of Grapeland, Farmers and Merchants State Bank of Grape-land, and a number of materialmen, laborers and claimants, for compensation and damages growing out of the construction of a sewer system for the City of Grape-land, under a contract between the City and said Construction Company, dated December 5, 1938.

On December 6, 1938, appellant Massachusetts Bonding & Insurance Company, herein called “Surety Company”, executed a bond for the contractor required under R.S. Article S160, Vernon’s Ann.Civ.St. art. 5160, and obtained from him an assignment of the funds to become due him under said contract as security for its undertaking.

The three banks above referred to, herein called “Corrigan Bank”, “Grapeland Bank” and “Farmers & Merchants Bank”, had loaned the contractor certain funds to be used by him in the construction of said sewer system. A portion of these funds had been repaid under contractor’s assignments. The amount due- the Corrigan Bank, $6,000, had been repaid in full. A balance was still due both the Grapeland Bank and the Farmers & Merchants Bank due to the failure of the' contractor to pay his bills for material and labor furnished. The surety company advanced the necessary funds for the completion of the job and took assignments of the rights of the various laborers and materialmen for the funds so advanced.

When the job was accepted by the city in June, 1939, there was a balance due the contractor of $7,625.29, which included the amount of $4,241 which had been retained out of payments due him by the city under the terms of said contract. Claims of materialmen ‘ and laborers who had established their liens against the funds in the hands of the city under Vernon’s Ann. Civ. St., Article 5472a, but who had not complied with the provisions of R.S., Article 5160, aggregating the amount of $11,834.50, were proved upon the trial of the case. Claims of materialmen and laborers who had complied with the terms of R.S., Article 5160, in the amount of $2,812.16, were also proved upon the trial as claims against appellant surety company, on its bond:

The trial court accepted the city’s tender into the registry of the court of the funds due the contractor in its possession and allowed it a fee as stakeholder.

In a trial before the court without a jury the court rendered the following judgment:

“1. All materialmen whose claims were not otherwise specifically disposed of by the judgment were dismissed.
“2. The City was discharged on its tender of $7,625.29 into the registry of the Court and allowed a fee as stakeholder.
“3. Eight materialmen were allowed recoveries against the Surety on its bond for an aggregate of $2,812.16, but denied participation in the funds in the registry of the Court.
“4. Sixteen other claims aggregating $9,022.43 were allowed participation in the fund in the registry of the Court.
“5. The Surety was denied relief against the Banks.
“6. The claim of Federal Underwriters for insurance premiums, the Grapeland Banks for money loaned, the Railway Company for Freight, the United States for Social Security Taxes, and Texas Power and Light Company for property damage were denied, both as against the fund and the Surety.
“7. All parties had judgment against Contractor for their respective claims, or the balance thereof, after application of their respective recoveries against the fund in court.”

No findings of fact were requested by any of the parties to the suit and none were filed by the trial court.

This appeal involves the construction of Vernon’s Ann.Civ.St. arts. 5160, 5472a, 5472b. The controlling questions presented are: (1) Whether the materialmen and laborers who had, prior to the trial, established their claims against the contractor under the surety company’s bond in accordance with said Article 5160 and who were awarded judgment against the surety com■pany for the full amount of their claims, should have been required, instead, to participate proportionally in the funds in the registry of the court with those material-men and laborers who had not complied with said Article 5160, but who had established their liens against said funds by complying with said Article 5472a and who were awarded judgment for only their proportional part of said fund; and (2) whether judgment should have been rendered against said three banks for the restoration of funds paid them on contractor’s assignments in an amount sufficient to pay all claims due materialmen and laborers under said contract.

Article 5160, R.S.1925, provides that a contractor before commencing the construction of any public work for the state or a subdivision thereof or for a municipality shall execute the usual penal bond with the additional obligation that the contractor shall promptly make payments to all ■ persons supplying him with labor and material in the prosecution of the work. It further provides that all claims for labor and material furnished to any contractor shall be itemized and sworn to and shall be filed with the county clerk of the county in which the work is being prosecuted, within ninety days after the delivery of the material and the performance of the work, and further, “that after completion and acceptance of completed project all moneys due contractor under said contract shall be held by the State * * * or any municipality until such a time that satisfactory evidence is submitted and affidavits made by the contractor that all just bills for labor and material under this contract has [have] been paid in full by the contractor.”

Article 5472a, R.S.1925, provides that any person furnishing material or labor to any contractor for any public improvement shall have a lien on the moneys due or to become due to said contractor for such improvement, provided: “Such person, firm, corporation, or stock association, shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay such contractor of his claim.”

Article 5472b, R.S.1925, provides: “That no public official, when so notified in writing, shall pay all of said moneys, bonds or warrants, due to said contractor, but shall retain enough of said moneys, bonds or warrants to pay said claim, in case it is established by judgment in a court of proper jurisdiction.”

The terms and provisions of said Articles 5160, 5472a and 5472b are plain and unequivocal. They indicate a legislative intent to protect all persons supplying a contractor for public improvements with labor and material in the payment of their claims.

Said Article 5160 provides for the procuring of a bond by the contractor and limits the obligation of the surety therein to the payment of claims for material and labor used in the construction to the claims of such laborers and materialmen who have filed their itemized and verified claims with the county clerk within ninety days after the labor is performed or the material furnished. Aetna Casualty & Surety Company v. Woodward, Tex.Com.App., 36 S.W.2d 721; Aetna Casualty & Surety Co. v. Hawn Lumber Co. et al., 128 Tex. 296, 97 S.W.2d 460.

Said Articles 5472a and 5472b provide for a lien on funds due or to become due a contractor for labor and material furnished where prior written notice of such claims has been given the proper officials in accordance with the provisions of said statutes. Metropolitan Casualty Ins. Co. v. Cheaney, Tex.Com.App., 55 S.W.2d 554; Aetna Casualty & Surety Co. v. Woodward, Tex.Com.App., 36 S.W.2d 721; Aetna Casualty & Surety Co. v. Hawn Lumber Co. et al., 128 Tex. 296, 97 S.W.2d 460.

Under his contract with the city the contractor ■ obligated himself to pay all costs, charges, rentals and expenses for labor, material, supplies and equipment furnished him in the construction of said sewer system.

The performance bond executed by appellant surety company was in the penal sum of $41,852.88. It provided that if the contractor “shall fail to duly pay for any labor, material, team hire, sustenance, provisions, provender or any other material or supplies used or consumed by such contractor * * * in performance of the work contracted to be done, the surety will pay the same in any amount not exceeding the sum specified in the bond together with interest as provided by law.”

The provisions of above statutes, while not embodied in the contract between the City of Grapeland and the Lowe Construction Company in express terms, are read into said contract the same as if they were expressly referred to or incorporated in its terms. Metropolitan Casualty Co. v. Cheaney, Tex.Com.App., 55 S.W.2d 554; Winder Bros. v. Sterling, 118 Tex. 268, 12 S.W.2d 127, 14 S.W.2d 802.

As stated in the case of Metropolitan Casualty Co. v. Cheaney, supra, [55 S.W.2d 556], “With reference to the moneys, etc., due or to become due the construction company under each building contract, the company impliedly consented to the terms of the statutes, as constituting terms of the building contract, and thereby agreed, in effect, to subordinate the company’s claim to the claims of those furnishing labor or material in furtherance of the work called' for in said contract, and who complied with the terms of the statute first quoted above.” It follows that appellant surety company impliedly consented and agreed tO' pay in full the claims of those furnishing labor and material in furtherance of the work called for in said contract who had complied with the terms of said Article 5160 by filing their itemized claims with the county clerk within ninety days after said labor and material had been furnished.

The court found on sufficient evidence that eight materialmen who were allowed recovery against appellant surety company on its bond for an aggregate of $2,812.16 had proved up their claims, as secured liens, in accordance with said Article 5160, and that sixteen other claimants whose claims aggregated $9,022.43 and who were allowed to participate in the fund in the registry of the court had furnished labor or material actually used in the construction of the work involved and had notified the officials of the City of Grape-land, in compliance with Article 5472a, and that each of said claimants had a lien on the funds in -the registry of the court. Under the above authorities the judgment of the trial court in these respects must be sustained.

Appellant, surety company, assigns error in the action of the trial court in denying it recovery against the Citizens State Bank of Corrigan, the Grapeland State Bank, and the Farmers and Merchants State Bank of Grapeland, for the restoration of funds paid them on contractor’s assignments in an amount sufficient to pay all claims due materialmen and laborers under said contract.

The contract between the City of Grape-land and the contractor of December 5, 1938, contained the following provision: “The contractor shall not assign this contract or any part thereof, or any moneys due or to become due thereunder, without the approval of the owner, nor without the consent of the surety unless the surety has waived its right to notice of assignment.”

The application for the bond which was signed by the contractor contained an agreement “to assign, transfer, set-over, and does or do hereby assign, transfer, set-over to the company as collateral to secure the obligations herein. * * * Such assignment to become effective as of the date of said contract-bond but only in the event of * * * (2) any breach of the agreement herein contained; or (3) of a default in discharging such other indebtedness or liabilities when due * * * (d) any and all sums that may be due under said contract at the time of such abandonment, forfeiture or breach, or that thereafter may become due.”

The record shows that the following payments were made by the City of Grape-land to said three banks, under assignments from the contractor: To the Citizens State Bank of Corrigan, the sum of $6,000, on March 18, 1939; to the Farmers & Merchants State Bank, the sum of $1,581.90, on May 16, 1939, and to the Grapeland State Bank, the sum of $3,903.45, on May 17, 1939. These payments were made by the city out of funds due the contractor for work done, under approved estimates, and did not include any part of the percentages which were due the contractor and retained under the terms of said contract.

On the dates the above payments were made, neither the city nor said banks had any notice of the assignment by the contractor to the surety company or of a breach or forfeiture on the part of the contractor to perform under the contract. Further, the record shows that each of said assignments were made to the respective banks to secure and repay funds that had been used in the construction of said sewerage system under said contract.

The question as to whether recovery may be had under an assignment given under a similar state of facts was decided by the Supreme Court of this state in the case of Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210, 211. The court in its opinion says: “The precise question we are called on to decide is whether or not the parties to a contract may, by agreement, render unassignable a money claim arising under the contract. Of course the parties cannot, by such an agreement, remove the debt beyond the reach of our garnishment statutes or any other applicable statute; but no reason occurs for denying to the parties the right, so long as no statute is infringed, to bind themselves to each other as they see fit, with respect to obligations imposed by the contract. In such a case a money claim growing out of the contract, which comes to the hands of a third person, remains subject to the terms of the contract. When the debtor has the contract right to ignore a voluntary transfer of the claim, as in the instant case, no effective transfer can be made without his consent. His contract right must be respected by third persons. In other jurisdictions where the precise question .has arisen, the contract right of the debtor in this respect has been enforced, and no decision to the contrary has been found. Tabler v. Sheffield Land, etc., Co., 79 Ala. 377, 58 Am.Rep. 593; Barringer v. Bes Line Const. Co., 23 Okl. 131, 99 P. 775, 21 L.R.A.(N.S.), 597. 2 R.C.L. p. 604. The argument that public policy forbids such a contract right is without support in reason or authority. The right concerns the performance of the debtor’s obligation to pay. The public is in nowise affected.”

Since the contract in question expressly provides that no assignments could be made without the approval of the owner and no such approval was given, said assignment under above authority was ineffective.

Appellants Grapeland State Bank and Farmers & Merchants State Bank contend that the contractor, being indebted to them for funds advanced and used in the performance of said contract, having given assignments of the funds due and to become due him by the city and they and the city having accepted said assignments, they had a superior right to all funds in the registry of the court except the percentages retained by the city under said contract. This contention cannot be sustained.

Vernon’s Ann.Civ.St., Article 5472a, provides, in plain and positive terms that “any person, firm or corporation * * * furnishing any material * * * or labor to any contractor for any public improvements in this State, shall have a lien on the moneys * * * due or to become due to such contractors for such improvements.

Our courts have uniformly held that assigned claims to funds due or to become due for the construction of any public work are subject to the terms of the contract on which they are based and the statutes in force at the time of the execution of the contract, and that laborers and materialmen have a lien on and a potential right to appropriate to the payment of their claims all retained funds due under said contract. Metropolitan Casualty Ins. Co. v. Cheaney, Tex.Com.App., 55 S.W.2d 554. In the instant case the retained funds in the registry of the court were not sufficient to meet the claims for the labor and material furnished which were proven up on the trial of the case.

Further, it is the established law in this state that an assignee of funds due or to become due for the construction of any public work acquires title to said funds only on the condition that no mechanic, artisan or materialman has performed labor or furnished material under circumstances or conditions which would entitle him or them to a lien against said funds. B. F. Brooks Construction Co. v. First State Bank of Marquez, Tex.Civ.App., 39 S.W.2d 83; Modern Plumbing Co. v. Armstrong Bros., Tex.Com.App;, 36 S.W.2d 1011; American Employers’ Ins. Co. v. Roddy, Tex.Com.App., 51 S.W.2d 280.

It follows that, under above authorities, the judgment of the trial court must be in all things affirmed. It is so ordered.

Affirmed.


author: FUNDERBURK, Justice.

text:
    HAMILTON et al. v. KELLER et al.
    No. 2105.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 21, 1941.
    Rehearing Denied March 21, 1941.

      G. E. Lockhart and W. R. Porter, both of Lubbock, and W. W. Price, of Brownfield, for appellants.
    Whitaker, Perkins & Turpin, of Midland, Morrison & Morrison, of Big Spring, Stubbeman, McRae & Sealy, of Midland, and Brooks & Little, of,Big Spring, for ap-pellees.
   FUNDERBURK, Justice.

By the will of Barbara Hamilton, subject to prior payment of debts and two $5,000 legacies, one-third of her property was devised to Harvey Hamilton and one-third to Eva Burleson (Eva Pike). The remaining one-third was devised to Eva Burleson (Eva Pike) during the life of Tom Hamilton in trust for the use and benefit of the latter, the income of the said one-third being specifically devised to said Tom Hamilton. ■ The remainder, or reversion, of the one-third so devised in trust for Tom Hamilton was devised to the sons of the latter, Louie Hamilton and Stanley Hamilton. The term of the trust was limited to the life of Tom Hamilton, unless at his death said remaindermen, Louie and Stanley Hamilton, were under 21 years of age, in which event the trust was to continue as before until they became 21 years of age.

Tom Hamilton died May 15, 1935, at which time both Louie and Stanley Hamilton w'ere over 21 years of age. (Hence, the trust created by the will ended upon the death of Tom Hamilton.)

Following the death of Barbara Hamilton on April 16, 1923, and the subsequent due probate of her will, Eva Pike qualified as independent executrix and trustee under her said will. By written agreement dated March 31, 1928', Harvey Hamilton, Tom Hamilton and Eva Pike partitioned between themselves the lands belonging to the estate of Barbara Hamilton. In such partition the lands were awarded in sev-eralty as follows:

To Eva Pike Surveys (Sections) 341 and 476 Block D, John H. Gibson Survey. Also Block 146 in town of Plains.

To Tom Hamilton Surveys (Sections) ' S/2 of 364; all of 339; W ⅞⅛ of 541, Block D, John H. Gibson Survey. Also Block 44 in town of Plains.

To Harvey Hamilton Surveys (Section) N ½ of 364, all of 365, and E ½ of 541, Block D, John H. Gibson Survey. Also Lots 5 and 6 Block 67, and Lots 5 and 6, Block 99, in town of Plains.’

By deed dated August 30, 1928, Tom Hamilton conveyed to Eva Pike the same lands awarded to him in said partition agreement. By deed dated July 4, 1928, Louie Hamilton, for a consideration of $250, conveyed to G. T. Hall all his right, title and interest in said Surveys (Sections) 339, 341, 364, 365, 476 and 541. Likewise by deed dated September 6, 1928, Stanley Hamilton, for a consideration of $25o, conveyed to G. T. Hall all his right, title and interest in said Surveys (Sections) 339, 341, 364, 365, 476 and 541. By deed dated January 20, 1931, G. T. Hall, for a consideration of $500, recited to have been paid by grantee “out of her separate and individual funds”, conveyed to Eva Pike all his right, title and interest in said Surveys (Sections) 339, 341, 364, 365, 476 and 541. By deed dated March 5, 1936, Eva Pike, for a consideration of $4,560, conveyed, or quitclaimed, to J. C. Keller said Surveys (Sections) 339, W ½ of 541 and S ½ of 364; or, in other words, the same land, except Block 44 in town of Plains, awarded to Tom Plamilton in said partition agreement. By mineral deed dated March 12, 1936, J. C. Keller, for a nominal consideration, reconveyed to Eva Pike, a ¾8 interest in the minerals in the same land.

By two deeds dated respectively March 28, 1936, and December 24, 1936, Louie Hamilton and Stanley Hamilton, for a consideration of $1,500 paid to each, quitclaim-ed to Eva Pike, as declared in said deeds, “all their right, title, interest, claim and demand of every kind and character whatsoever in and to all the property of the said [before mentioned] Barbara Hamilton in which we had interest under the provisions of said will.” Each of said deeds further declared that the grantors “do hereby release the said Eva Pike, her heirs and- assigns, from every claim and demand whatsoever in matter of said property so that hereafter neither we * * * nor our heirs, nor the heirs of either of us, shall have claim or demand any right, title or interest in and to said property, or have any claim or demand against the said Eva Pike, her heirs and assigns, by reason of, or growing out of our interest in said property or any part thereof.” Each of said deeds recited the trust provisions of the will of Barbara Hamilton; the devise of the remainder or reversion to Louie and Stanley Plamilton; named all the property, of which said estate consisted; recited the fact of the partition agreement, and named the lands thereby awarded to each of the participants in such agreement. Each deed also recited that Mrs. Eva Pike had sold to J. C. Keller land described as the same land awarded to Tom Hamilton in said partition agreement. A particular recitation in each of said deeds was as follows: “While the said Stanley and Louie Hamilton have heretofore conveyed all of their right, title and interest in and to all of the aforesaid property in which they has [have] an interest, the said Mrs. Eva Pike has realized a profit over and above the amormt she paid for said property together with the cost and expenses paid by her in connection with the handling by her of said property, which profit amounts to $3,000, and which sum she is willing to divide equally between the said Stanley Hamilton and Louie Hamilton.”

This suit was brought by Louie and Stanley Hamilton, being joined by their two brothers, Millard and Leroy Hamilton, as plaintiffs, naming as defendants J. C. Keller, and others to whom he had conveyed interests in the lands. Also, named as defendants were Harvey Hamilton, Rowland Plamilton, Mrs. Eva Pike and husband, Walter Pike, Mrs. Ethel Cren-shaw and husband, W. W. Crenshaw.

The first three paragraphs of plaintiffs’ third amended original petition (trial pleading) contained the formal allegations of a statutory action of trespass to try title, wherein the land sued for was all the land of the Barbara Hamilton estate. By subsequent averments of said pleading, however, the true nature of the action is shown to be one to have decreed a trust in lands and to cancel certain conveyances, or, at any rate, the allegations show that the plaintiffs have no title or interest in the land, unless certain conveyances be canceled.

The trial was by jury. At the conclusion of the introduction of evidence, the court peremptorily instructed a verdict in favor of the defendants, and from the judgment rendered in accordance therewith, the plaintiffs have appealed.

The case, as it is presented to this court, is complicated by many matters which we deem to be irrelevant. For example, plaintiffs’ pleadings contained allegations of fraud claimed to have induced the conveyances by Louie and Stanley Hamilton to G. T. Hall of their re-versionary interests in land as devised to them by the will of Barbara Hamilton. Later allegations showed no cause of action was based upon such fraud, if any, since it was further averred that the later conveyance by Hall to Eva Pike was in trust for the plaintiffs, thereby rendering immaterial, except, perhaps, as mere matter of argument; and therefore having no proper place in pleadings whether the conveyances by plaintiffs to Hall were fraudulent or not. Further, it was alleged that the partition of the lands constituting the estate of Barbara Hamilton as between Eva Pike, Harvey Hamilton and Tom Hamilton was void, in violation of the trust, etc., yet it was agreed upon the trial that the partition was fair and equitable thereby demonstrating, as we think, that the plaintiffs had no reason to contend, in any event, that they were entitled to have their interest as remaindermen or rever-sioners in any other land than that awarded to their father, Tom Hamilton, by the partition agreement. The chief objection, it would appear, to the partition was that one-third of the land was awarded to Tom Hamilton without mention of the trust, and, therefore, as contended, in violation of the trust. This contention, it is believed, is shown to be of no importance, since that defect, if it was such, was remedied by the conveyance of said land shortly thereafter, on August 30, 1928, by Tom Hamilton to Eva Pike. Taken altogether, the terms of the will, the partition agreement and the conveyance from Tom Hamilton to Eva Pike, leave no escape from the conclusion, we think, that Eva Pike continued all along to hold the lands awarded to Tom Hamilton in the partition agreement in trust for Tom Hamilton, as provided in the will, up to the date of his death.

Harvey Hamilton and Eva Pike, to whom each, subject to debts and a legacy of $5,000 to Eva Pike and $5,000 to Ethel Crenshaw, was devised a one-third of testator’s estate were entitled to have the land partitioned. Tieman v. Baker, 63 Tex. 641. As to joint owners of one-third each of the lands of the estate, and subject to no disability, they were entitled to have their interests set apart to them in severalty. Resort to court to effect such partition was unnecessary, provided they could and did make a partition fair to the owners of the other interests. Louie and Stanley Hamilton, having an interest as remaindermen or reversioners after termination of the estate or interest of Tom Hamilton, not being parties to the agreement were not bound thereby, provided they could show that as to 'themselves it was not fair and equitable. However, an agreement in the case shows that it was fair and equitable, and we think, by their suit they show no right to have their re-versionary interests, even if they had not parted with such interests, attached to any other lands than the lands awarded to Tom Hamilton in said partition agreement. The attack upon the validity of the partition seems to overlook one or more important principles or rules of law. The contention that the partition was without consideration to support it is untenable, since the result of a partition, between tenants in common of lands, is itself a sufficient consideration. The resultant holding of each, in severalty, is a benefit accruing to each, and alone constitutes sufficient consideration.

The contention that the partition was void because one of the parties, Tom Hamilton, had no title or interest in the land, is equally without merit. A partition involves no transfer of title. Walling v. Harendt, Tex.Civ.App., 37 S.W.2d 280, and authorities there cited. Therefore, the title or interest which by the partition was awarded to Tom Hamilton was the same that was devised to him by his mother’s will. Its trust nature was in law wholly unaffected.

Stripped of all irrelevancies and superfluities, the action brought by the plaintiffs may properly be said to be one (1) to have the conveyance of January 20, 1931, from G. T. Hall to Eva Pike, insofar as it affected the S% of section 364, all of 339, and W½ of 541, Block D, John H. Gibson Survey, decreed to have been made in trust for the plaintiffs Louie and Stanley Hamilton; and (2) to cancel, because of fraud, the subsequent quitclaim deeds and releases of Louie and Stanley Hamilton to Eva Pike.

We are inclined to the view that, • under the undisputed evidence, no issue of fact was raised requiring determination by the jury, to the effect that the conveyance from G. T. Hall to Eva Pike was impressed with a trust in favor of Louie and Stanley Hamilton. No trust relation existed based upon the terms of the will of Barbara Plamilton. The contingencies upon which such a trust was provided never happened. Did a trust arise because of Eva Pike’s unnecessary and unauthorized suit against G. T. Hall to cancel the conveyances to him of their reversionary interests by Louie and Stanley Hamilton?Under the undisputed facts Eva Pike had no right to maintain such an action, and, therefore, we think had the undoubted right to dismiss it as she did. The evidence failed to show that the conveyance from Hall was taken by Eva Pike in consideration of the dismissal of the suit. The latter paid a consideration of $500 for such conveyance and if the dismissal of the suit furnished a further consideration, the evidence raised no more than a mere surmise or suspicion of such fact. All the evidence, as it appears to us, was just as consistent with the view that, after the suit was filed,, the obvious fact was recognized that the conveyances sought to be canceled could not injuriously affect the Barbara Hamilton estate, or any interest •of the devisees of such estate, other than the reversionary interests of said Louie and Stanley Hamilton, and that because Eva Pike had no authority to maintain the suit for Louie and Stanley Hamilton, the suit was dismissed, as that Hall recognized merit in the suit and conveyed his interest to Eva Pike as part consideration for the dismissal of the suit. The fact that Louie Hamilton and Stanley Hamilton knew nothing of the suit and did not authorize Eva Pike to bring it for them, instead of favoring their contention, seems to us to militate against it. It shows that they did not fail to take any action against Hall because of anything that Eva Pike did. If their conveyances of their rever-sionary interest to Hall were induced by fraud, as they charge in their petition in the present suit, only they, or someone claiming directly under them, could assert such fraud to avoid such conveyances. By their inaction they waived the fraud, if any, and in this suit were relegated to the necessity of showing that Eva Pike, although unauthorized to bring a suit for them, or to assert the fraud, if any, did so without their knowledge, and took the conveyance from Hall of their former interests as trustee for them. Eva Pike was under no disqualification to deal with ITall and purchase for herself the interests he had acquired from Louie and Stanley Hamilton. It is not a question, as we see it, of whether there was evidence to show fraud of a trustee, but rather was there evidence to raise an issue of the existence of an equitable trust? As said, we are inclined to think that if this ground was the sole support of the judgment no error would be shown.

But, if the evidence raised issues regarding such equitable trust, we think as a matter of law Louie and Stanley Hamilton were shown to have been barred of any right of recovery against any of the parties because of their several quitclaim deeds and releases to Eva Pike. The grounds set up for the cancellation of said instruments consisted not in any affirmative false representations, or representations of any kind, but rather in the failure of the alleged trustee to affirmatively disclose material facts. We think the instruments themselves affirmatively recited all the material facts. By the terms of said instruments, said plaintiffs were advised as to the pertinent provisions of the will of Barbara Hamilton; as to the property which passed by her will; as to the partition agreement by which certain property was set aside, in severalty, for, or for the use of, Tom Hamilton, as also that set aside, in severalty, to Harvey Hamilton and Eva Pike. Particularly important is the fact that they were advised by the terms of said instruments that Eva Pike had sold the lands to J. C. Keller. They were charged with knowledge of the law that she could not make an effective sale of said land without some character of title thereto, or right to do so. Further, they were advised by the very terms of the releases that the money she was paying them as consideration was part of the proceeds of such sale.

Under these circumstances the evidence showed no right of recovery against J. C. Keller, or any of the parties claiming under him, because there was no offer to repay the $1,500 consideration received by each of them. Their claims were addressed to the equity powers of the court and they were under the duty to do equity as a condition precedent to any relief sought. They sought to excuse themselves by contending that the $1,500 paid them was their own money, but there was no evidence to establish such contention.

It is immaterial what profits may have been made by J. C. Keller after his purchase of the land. His rights are to be determined as of the time of such purchase and there was no evidence to show that the $1,500 each paid to Louie and Stanley Hamilton was paid from the proceeds of oil leases or profits out of the land made after the deed under which he acquired his title.

No right of recovery was shown against Eva Pike for one reason because she paid $500 of her own money for the conveyance from Hall and there was no offer to reimburse her for said sum. According to the allegations of their petition, Louie and Stanley Hamilton had each received $250’ ' as consideration for their conveyances to Hall. Certainly we think equity required them to account for this if they were to-hold Eva Pike as trustee of a title for which she had paid $500 of her own money.

Further, we think the evidence showed no right of recovery against any of the parties because of its failure to show essential elements of fraud entitling them to-a cancellation of the quitclaim deeds and releases to Eva Pike.

It is, therefore, our conclusion that the trial court did not err in instructing a verdict for the defendants, and that the judgment should be affirmed, which is accordingly so ordered.


author: CRITZ, Justice.

text:
    NATIONAL MUT. CASUALTY CO. v. LOWERY.
    No. 7721.
    Supreme Court of Texas.
    March 27, 1940.
    Motion for Rehearing Overruled March 26, 1941.
    Wagstaff, Harwell, Douthit & Alvis, of Abilene, for plaintiff in error.
    J. D. Barker, of Sweetwater, Herman E. Charles, of Encino, N. M., and Armstrong, Cranford, Barker & Bedford and Owen D. Barker, all of Galveston, for defendant in error.
   CRITZ, Justice.

This is a Workmen’s Compensation case. It was filed'in the District Court of Fisher County, Texas, by defendant in error, Thomas Jefferson Lowery, against the plaintiff in error, National Mutual, Casualty Company, hereinafter referred to as the Casualty Company. Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Lowery. This judgment was affirmed by the Eastland Court of Civil Appeals. 135 S.W.2d 1044.

This record, interpreted in the light of the verdict of the jury, shows that Lowery on the 9th day of September, 1937, received an injury; that such injury was received while working in the course of employment for National Tank Company; that National Tank Company was subject to and insured under our Workmen’s Compensation Laws; that National Mutual Casualty Company was National Tank Company’s compensation insurance carrier; that Lowery’s injury consisted of or resulted in a hernia, under circumstances which may have rendered it compensable as a specific injury; that Lowery filed claim for compensation with the Industrial Accident Board; that the Casualty Company was named as National Tank Company’s compensation insurance carrier in the proceeding's before the Board; that neither before nor during the proceedings before the Board did such insurance carrier acknowledge any liability to Lowery, or tender him a surgical operation for his hernia; that the Board heard and considered Lowery’s application or claim; that the Board refused Lowery any relief whatever, thereby refusing to order this insurance carrier to furnish a surgical operation; that Lowery duly appealed to the district court; that in the trial in the district court Lowery claimed that his hernia injury had resulted in permanent total incapacity; that the district court so determined, and awarded compensation as for a general, and not a specific, injury. We here pause to note that Lowery alleged in his petition in the district court that he had been willing to undergo an operation, unless it was more than ordinarily unsafe for him to do so. Also the jury found that Lowery was willing to submit to an operation, and that the Casualty Company had refused to furnish it.

By various assignments of error the Casualty Company contends that under the above record the Court of Civil Appeals erred in affirming the judgment of the district court, because in doing so the Court of Civil Appeals erroneously ruled that the Casualty Company was, and is, obligated or liable to compensate Lowery as for a general, and not a specific, injury.

A reading of Article 8306 of our Workmen’s Compensation Laws will disclose that it divides compensable injuries into two main classes: (a) General injuries, and (b) specific injuries. As we interpret the pertinent provisions of Article 8306, all compensable injuries must be compensated as general injuries unless such statutes specially classify same as the subject of specific compensation. It follows that in the case at bar, Lowery must be compensated as for a general injury unless we can find some statutory authority to compensate him for a specific injury. If such authority exists, it must be found in that part of Article 8306, § 12b, which we shall here quote.

“⅛ all such cases where liability for compensation exists, the association shall provide competent surgical treatment by radical operation. In case the injured employe refuses to submit to the operation, the board shall immediately order a medical examination of such employe by a physician or physicians of its own selection at a time and place to be by them named, at which examination the employe and the association, or either of them,, shall have the right to have his or their physician present. The physician or physicians so selected shall make to the board a written report, signed and sworn to, setting forth the facts developed at such examination and giving his or their opinion as to the advisability or non-advisability of an operation. If it be shown to the board by such examination and such report thei^eof and the expert opinions thereon that the employe has aqy chronic disease or is otherwise in such physical condition as to render it more than ordinarily unsafe to submit to such operation he shall, if unwilling to sub-' mit to the operation, be entitled to compensation for incapacity under the general provisions of this law. If the examination and the written report thereof and the expert opinions thereon then on file before the board do not show to the board the existence of disease or other physical condition rendering the operation more than oi-dinarily unsafe and the board shall unanimously so find and so reduce its findings to writing and file the same in the case and furnish the employe and the association with a copy of its findings, then if the employe with the knowledge of the result of such examination, such report, such opinions and such findings, thereafter refuses to submit within a reasonable time, which time shall be fixed in the findings of the board, to such operation, he shall be entitled to compensation for incapacity under the general provisions of this law for a period not exceeding one year.

“If the employe submits to the operation and the same is successful, which shall be determined by the board, he shall in addition to the surgical benefits herein provided for be entitled to compensation for twenty-six weeks from the date of the operation. If such operation is not successful and does not result in death, he shall be paid compensation under the general provisions of this law the same as if such operation had not been had; other than in determining the compensation to be paid to the employe, the board may take into consideration any minor benefits that accrued to the employe by reason thereof or any aggravation or increased injury which accrued to him by reason thereof.

“If the hernia results in death within one year after it is sustained, or the operation results in death, such death shall be held a result of the injury causing such hernia and compensated accordingly under this law. This paragraph shall not apply where the employe has wilfully refused to submit to an operation which has been found by the examination herein provided for not to be more than ordinarily unsafe.”

A reading of the above-quoted statute will disclose that, generally speaking, it provides:

(1) In all hernia cases where liability for compensation exists, the insurance carrier shall provide surgical treatment by radical operation.

(2) If the injured employee refuses the operation, the Board must order a medical examination. The manner in which this examination shall be conducted is set out in the statute. If it is shown that an operation should not be performed, the injured employee is entitled to be compensated as for a general injury. If it is shown that the operation should be performed, and the Board shall unanimously so find, etc., then if the injured employee refuses to submit to such operation, he shall be entitled to compensation under the general provisions of our Compensation Laws for a period not exceeding one year.

(3) If the injured employee submits to a hernia operation, and same is successful, he is entitled to compensation for twenty-six weeks. Compensation for twenty-six weeks is absolutely fixed regardless of the> time of actual disability. Also this is in addition to surgical benefits.

(4) If the operation is had, and is not successful, and does not result in death, the injured employee must be compensated as for a general injury just as though no operation had been had, except in determining compensation for operated hernia cases, benefits or aggravation growing out of such operation should be considered.

(5) Provision is made where the hernia results in death within one year after it is sustained, or the operation results in death.

As demonstrated by our analysis of the above-quoted statute, none of its provisions can be applied in this case. The district court could not act as an administrative board, and therefore could not order or supervise a hernia operation. Tally v. Texas Employers’ Insurance Ass’n, 129 Tex. 134, 135, 102 S.W.2d 180, 182. The insurance carrier never tendered Lowery an operation, and the Board never ordered one. Lowery was never called upon to either accept or reject an operation. It follows that none of the above-quoted provisions of Article 8306 can be applied in this case, and this being true, Lowery, if compensated at all, must be compensated as for a general Injury. Tally v. Texas Employers’ Insurance Ass’n, supra.

In the Tally case, supra, this Court 'held: “If the injured employee in a hernia case is willing to submit to a hernia operation after the same has been ordered by the board, and the insurance carrier liable therefor refuses to furnish it, such employee is entitled to compensation under the general provisions of our Compensation Law.” From the holding just quoted it is shown that the Tally case deals with an instance where the injured employee was willing to submit to an operation, and the Board so ordered, but the insurance carrier refused to furnish same. The case at bar differs from the Tally case only to the extent that in that case the Board ordered the operation, while in the case at bar the Board erroneously adjudged that the injured employee was entitled to no relief. In both cases the insurance carrier wrongfully refused to furnish an operation. We held the insurance carrier liable as for a general injury in the Tally case. We think that the general underlying principle which governed the Tally case leads to the same conclusion here.

The Casualty Company earnestly insists that the above holding leads to great injustice to compensation insurance carriers because it compels them to admit liability in all hernia cases, or run the risk of being held liable for general injuries if the case goes to court. We freely admit that our construction of the statute leads to just such conclusion. In spite of this, no injustice is done. The statute defines the rights and liabilities of all parties to the insurance contract. The statute is therefore an integral part of such contract, and the insurance carrier is done no injustice if its rights are determined thereunder.

The trial court submitted to the jury an issue which, in effect, called for a finding as to whether Lowery had been willing to submit to a surgical operation. The jury answered in the affirmative. The Casualty Company excepted to such issue on various grounds. To our minds, under the facts of this record, the above issue was utterly superfluous. Lowery was never called upon to either accept or reject a surgical operation. In spite of this, we are unable to see how the submission of this issue could have injured the Casualty Company.

The trial court also submitted an issue to the jury calling for a finding as to whether the Casualty Company had refused to provide a surgical operation for the plaintiff, and the jury answered in the affirmative. We are unable to see how this issue could have injured the Casualty Company. The evidence is conclusive that the Casualty Company denied liability. It is therefore conclusive that it refused a surgical operation.

The judgments of the district court and the Court of Civil Appeals are both affirmed.


text:
    FEDERAL UNDERWRITERS EXCHANGE v. THOMPSON.
    No. 7722.
    Supreme Court of Texas.
    March 27, 1940.
    Motion for Rehearing Dismissed March 26, 1941.
    James F. Parker, of Kountze, and Gordon, Sharfstein, Bell & Weinert and John L. Bell, all of Beaumont, for plaintiff in error.
    R. A. Richardson, of Kountze, and D. F. Sanders and John A. Veillon, both of Beaumont, for defendant in error.
   CRITZ, Justice.

This is a Workmen’s Compensation case. It was filed in the District Court of Hardin County, Texas, by D. A. Thompson against Federal Underwriters Exchange to recover compensation for injuries resulting from a hernia alleged to have been received by Thompson while working in the course of his employment for Peavy-Moore Lumber Company. Federal Underwriters Exchange was the Lumber Company’s compensation insurance carrier. The Industrial Accident Board rendered a final award adverse to Thompson in toto, thereby refusing him any compensation whatever. Thompson appealed to the district court, where he contended for and was awarded a judgment against the above-named insurance carrier as for a general injury. On appeal this judgment was affirmed by the Beaumont Court of Civil Appeals. 137 S.W.2d 106. The opinion of the Court of Civil Appeals makes a correct and comprehensive statement of the facts and issues involved. In the interest of brevity we refer to that opinion for a further statement.

A reading of the opinion of the Court of Civil Appeals in connection with our opinion in National Mutual Casualty Company v. Thomas. Jefferson Lowery, 148 S.W.2d 1089, this day decided by this Court, will disclose that the question as to whether Thompson should be compensated as for general injuries, is decided in favor of Thompson by our opinion in the Lowery case just mentioned. The ruling of the Court of Civil Appeals in this case is in harmony with our ruling in the Lowery case, supra.

We are in accord with the Court of Civil Appeals on the other question discussed by it.

The judgments of the district court and the Court of Civil Appeals are both affirmed.