author: BAUGH, J.

text:
    AMERICAN NAT. INS. CO. v. PARK.
    No. 7790.
    Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1932.
    Rehearing Overruled Jan. 4, 1933.

      Prank S. Anderson, of Galveston, and Hart, Patterson & Hart and Hardy Hollers, all of Austin, for appellant.
    Henry Brooks and Polk Shelton, both of Austin, for appellee.
   BAUGH, J.

Appeal is from a judgment in favor of ap-pellee for the principal amount of a policy, statutory penalty, and attorney’s fee, on a life insurance policy for $1,500, issued by appellant to appellee’s husband, Robert Pred Park, on December 18, 1928. The annual premium was paid in advance, and the insured died on September 2, 1929. Appellant declined payment on the ground that certain statements made by the. insured in his application were false, and that he was not in good health at the time the policy was delivered; and by cross-action tendered the premium paid and sought a cancellation of the policy.

The application for the policy was made on December 10, 1928. The evidence shows that the insured could not read nor write. The agent of the appellant went to the insured’s home in Austin, Tex., where he wrote in the answers to the questions on the application, and when he had completed same, ap-pellee signed her husband’s name to the application at the request of the agent, and without reading it. The answers particularly complained of as being false were to questions 5, 6, and 8, as follows:

5. “Do you use spirituous liquor, opium or any narcotic?”

To which was written by the agent the answer, “No.”

6. “Are you now in good health so far as you know and believe?”

The answer written was, “Yes.”

8. “From what illness or disease have you suffered during the past ten years ?”

■ To which the agent wrote the answer, “None.”

The uncontroverted evidence disclosed that in November, 1927, Dr. H. A. Scott had treated Pred Bark about two weeks for a rattle snake bite, for which he had been using whisky; that he kept whisky in his home and took a drink occasionally, but did not use it to excess; that Dr. Scott again treated him at intervals from May 9, to September 3, 1928, for pellagra, at which latter date he discharged him as free from symptoms and apparently well. In 1929, Dr. G. H. Matthews treated the insured for pellagra from May 24th to August 24th, or or about which latter date he became insane from its ravages, was placed in the state hospital for the insane, where he died on September 2d.

Mrs. Park, appellee, testified that she was present in the room' with her husband and the agent when the application was being filled out; that her husband told the agent of the rattle snake bite, his use of whisky, and his treatment by Dr. Scott for pellagra in 1928, and that he had been discharged as cured; that’if false and improper answers appeared on the application, they were written there by the agent with knowledge of the facts as to insured’s habits and health.

The jury found in response to special issues that Pred Park did tell the agent of these facts; that Mrs. Park did not know that the agent had written down untrue answers to these questions when she signed her husband’s name to the application; that she did not discover such false answers prior to the death of Park; and that he was in good health both at the time of the application and at the time the policy was delivered.

The application contained provisions that the answers to said questions were warranted to be complete, correct, and true to the best of applicant’s knowledge and belief; that such answers were to be the basis for the insurance contract, and the application was to be a part thereof; and that the contract should not be binding on the company unless insured be in good health when same was delivered.

Appellant contends that, notwithstanding that true answers were given the agent and false ones written down by him, because the insured had the means of discovering such fraud or neglect of the agent in writing them down, they being material to the risk, the company can avoid the policy because of the failure of the applicant to discover the misconduct of the agent, citing particularly Texas State Mut. Fire Ins. Co. v. Richbourg (Tex. Com. App.) 257 S. W. 1089, and Sovereign Camp W. O. W. v. Lillard (Tex. Civ. App.) 174 S. W. 619. These cases, however, do not apply here. The rule in this state in such cases is well stated in appellee’s counter-proposition, as follows: “Where the insured in good faith makes truthful answers to the questions. contained in the application, but his answers owing to the fraud", mistake or negligence of the agent in filling out the application are incorrectly transcribed, the company is estopped to assert their falsity as a defense to the policy, for the solicitor of the insurance is the agent of the company, and all statements of assured in the absence of fraud must be deemed representations and not warranties.”

This rule is sustained by numerous authorities beginning with Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893; see, also, Supreme Lodge v. Jones (Tex. Civ. App.) 143 S. W. 247, 249; Schumann v. Brownwood Mutual Life Ins. Ass’n (Tex. Com. App.) 286 S. W. 200; American Nat. Ins. Co. v. Bailey (Tex. Civ. App.) 3 S.W.(2d) 539; Inter-Ocean Casualty Co. v. Brown (Tex. Civ. App.) 31 S.W.(2d) 333; 14 R. C. L. 1174.

Appellant also contends that the evidence showed conclusively that insured was not in good health at the time the policy was delivered; that it therefore neyer became effective as a binding obligation on the company; and that the trial court should have instructed a verdict for the appellant.

It is not controverted that the condition of Park’s health was the same at the time the policy was delivered as it was when the application was executed. The issue as to his health on the date of delivery of the policy was one of fact for the jury, and they found that it was good. In support of that finding the following evidence appears: Testimony of Mrs. Park that he was physically well, weighed 187 pounds, was eating and sleeping well, and doing his usual and customary labors, sawing stove wood and cutting and hauling posts for a living; that he had been treated for pellagra by Dr. Scott, but had been pronounced well by him. The testimony of Dr. Scott on cross-examination that he had in September, 1928, discharged Bark, after treatments, as apparently well. There was also in evidence the company’s instructions to agents enjoining upon them the duty of making inquiries as to the moral and financial risk involved, family history as to certain diseases, if applicant’s weight be abnormal, and that the policy be not delivered if there be apparent change in the health of the applicant since application was made. The policy in question was issued without a medical examination of Park, which necessitated a more thorough investigation in this regard by the agent on behalf of the company than would have been required had he submitted to a medical examination at the time. At the time of forwarding the application the agent in his report stated to the company that he had personally known the applicant for five months, and that he unreservedly recommended him as a fit and desirable risk. Appellant’s assistant superintendent at Austin also reported in writing on December 11, 1928, that he had personally interviewed the applicant; that he knew of no facts that would affect the risk either physically, morally, or otherwise; that he recommended the applicant and assumed the responsibility for the delivery of the policy.

Three physicians testified, Dr. Scott, who treated Park for pellagra in the summer of 1928; Dr. Matthews, who treated him for the same disease in the summer of 1929; and the medical examiner of appellant, who had never seen the applicant. All of these testified that, because Park had pellagra from May to September, 1928, and again in the summer of 1929, he must have had it in December, 1928, and was not therefore in good health at that time. The jury had the right to discard the testimony of appellant’s medical examiner as an interested witness. Dr. Matthews, who heard the testimony of Dr. Scott, merely stated that he agreed with his testimony. While Dr. Scott did testify that pellagra was a chronic disease, which has a tendency to recur at different seasons of the year, he also testified that doctors differed as to the cause of it; that he did not know if anybody was ever cured of it, and stated, “I don’t think you can ever cure them entirely of pellagra.”

We think the foregoing raised a jury issue as to the good health of Park at the time the policy was delivered, and the jury having resolved it in favor of appellee, we are not at liberty to disturb their finding. The evidence as to his good health, both direct and circumstantial, was competent. While the opinion of experts in medical science may be strongly persuasive, where it is shown that they as a class are not in agreement among themselves as to causes of disease, method of treatment, and whether same is curable, such testimony is not conclusive upon courts or juries. What this court said in National Life & Acc. Co. v. Muckelroy, 40 S.W.(2d) 1115, on this issue is applicable here, and we merely refer to it and to the cases there cited, without prolonging this opinion by a repetition of it here.

In any event, however, had Park not been in good health when the policy was delivered, we have reached the conclusion that under the authorities appellant must be held to have waived that provision of the policy. In issuing such policies without medical examination of the applicant, the company necessarily delegated to its agent the duty and authority to acquire information as to the applicant’s condition and health. In directing such agent not to deliver the policy, if there had been any change in applicant’s health, it necessarily imposed upon the agent a determination of that fact, which is binding upon the company. Pacts ascertained by the agent within the scope of his authority .are therefore imputable to the company whether transmitted to it by the agent or not; and his acts within the scope of the authority vested in him by the company become the acts of the company. Delivery of such policy to Park with full knowledge of his condition consequently amounted to a waiver of that provision of the policy. A full discussion of this particular issue, together with citation of numerous cases, to which we refer, is found in American Nat. Ins. Co. v. Bailey (Tex. Civ. App.) 3 S.W.(2d) 539, and Lee v. Mut. Protective Ass’n (Tex. Civ. App.) 47 S.W.(2d) 402. Further discussion of it here we think would merely be supererogatory.

The next question presented is that of the statutory penalty and reasonable attorney’s fee authorized under article 4736, R. S. 1925.' This provision of the statute has been repeatedly declared to be highly penal, and strict compliance with its provisions is a necessary prerequisite to recovery of the penalties therein provided. We find no competent evidence of a “demand” for payment within the purview of the statute. Plaintiff, appellee here, filed copies of her original and amended petitions, wherein demand for payment was alleged. These pleadings were not verified and constituted no proof of the facts alleged. Nor does the filing of a suit without such demand constitute a demand as contemplated in the statute. National Casualty Co. v. Mahoney (Tex. Civ. App.) 296 S. W. 335; First Tex. Prudential Ins. Co. v. Long (Tex. Com. App.) 46 S.W.(2d) 297. Appellee relies, however, on an instrument in evidence designated as “Claimant’s Certificate,” sent by the company to Mrs. Park, to be filled out by her, giving the amount of the policy, claimant’s name, relationship to deceased, whether she was beneficiary, legally entitled to' receive the insurance, etc., and also information as to birth, residence, and occupation of the deceased, length and duration of illness, cause of death, names of attending physicians and other matters not pertinent here. This, however, shows upon its face to be merely No. 2 of the four blanks for proof of death. No. 1 was to be filled out by the attending physician; No. 2 by the claimant; No. 3 by the undertaker; and No. 4 by a friend. On the top of this claimant’s certificate, which was printed on the reverse side of “Proof No. 1,” was printed “Proof No. 2” and the following: “Notice — The furnishing by this company of these blank proofs of death shall not be construed that there is any insurance in force upon the life, etc.,” of the deceased. And immediately over the signature of Mrs. Park was also printed, “I refer you to each of the attending physician’s certificate furnished by me herewith' which I have read, and ask that it be received as a part of the proof of death.” Following this was “Proof No. 3” and “Proof No. 4,” and applicable to all were printed instructions as to their execution designating all of them as “Proof of Death.” It conclusively appears, we think, that this instrument was but a part of the proofs of death and must be treated as such. So considered it did not constitute a demand within the terms of the statute. Neither filing of a suit, nor proofs of death, absent other demands, meet the requirements of the statute. Mutual Life Ins. Co. v. Ford, 103 Tex. 522, 131 S. W. 408; National Casualty Co. v. Mahoney, supra; Commonwealth Casualty Co. v. Thompson (Tex. Civ. App.) 38 S.W.(2d) 351.

It follows, therefore, that the court erred in rendering judgment for the penalty and attorney’s fee; that part of the trial court’s judgment on said policy in favor of appellee for $1,500, with interest thereon from October 2, 1929, is affirmed; that portion awarding the 12 per cent, penalty and $700 attorney’s fee is reversed, and the cause remanded for another trial upon that issue.

Affirmed in part and in part reversed and remanded.


source: Caselaw Access Project

author: HALL, C. J.

license: Public Domain

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. FRYE et al.
    No. 3935.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 4, 1933.
    Eckford & McMahon, of Dallas, for appellant.
    - Morrison & Morrison, of Big Spring, for ap-pellees.
   HALL, C. J.

This is a workman’s compensation case in which the Industrial Accident Board awarded Mrs. Frye and her minor daughter compensation on account of the death of N. 6. Frye, the husband of Mrs. Frye.

The appellant, the insurance carrier, filed this suit to set aside the award and the case was submitted to the jury-upon special issues.

The first special issue is as follows: “Were the injuries that N. 6. Frye received on the 12th day of May, 1931, sustained in the course of his employment with the Schermerhorn-Winton Co.?”

This was answered in the affirmative.

Following. this issue, the court instructed the jury as follows: “You are instructed that the term ‘injuries sustained in the course of his employment’ shall have the following meaning: Injuries of every kind and character having to do with or originating in the work, business, trade, or profession of an employer received by an employee while engaged in or about the furtherance of the affairs or business of an employer wbetber upon tbe premises of said employer or elsewhere.”

In response to further special issues the jury found that during the year preceding May 12,1931, Frye’s average weekly wage was $31.15 and that hardship and injury would result to Mrs. Frye and her daughter if the court did not decree a lump sum settlement.

The substance of the appellees’ answer and cross-action is that N. G. Frye had been in the employ of the Sehermerhorn Oil Company and the Schermerhorn-Winton Company, which were kindred and allied companies, for about two years prior to May 12, 1931, the date upon which he lost.his life; that said employers owned two oil and gas leases on the line of Howard and Glasscock counties in the state of Texas, which said leases were about seven miles apart; that Frye’s duties were as a pumper, and, when not so engaged, he was performing general work as a roustabout under the direction of George Campbell, the foreman of said employers; that on the date above mentioned, after the said Campbell had assigned to Frye work for that day to be done upon connecting lines of said company’s tank and while Frye and other employees were gathering tools at the headquarters of the particular lease upon which they were working, said tools to be used in the performance of their duties, and at about 8 o’clock, a. m., one W. A. Davidson, an employee of Black, Sivalls & Bryson, Inc. (a tank company which was working upon a tank for the owner, Schermerhorn-Winton Company), gave an alarm that indicated distress and need of assistance; that all of the employees of the Schermerhorn-Winton Company who were at the headquarters, including the foreman Campbell, saw the distress signal and heard the alarm and at the suggestion of, and under the direction of, the said Campbell, went in haste to the tank; that Frye went in his employer’s truck in which he had come to the headquarters and being one of the first to reach the tank and finding that Sam Davidson, an employee of the tank company, had gone into the tank to drive out some bolts and was lying upon the bottom of the tank helpless, hastily descended the ladder inside the tank to rescue Davidson, but was himself overcome and was unable to rescue Davidson or to save himself on account of the fact that gas had accumulated in the tank and both Davidson and Frye had been rendered unconscious by such gas; that, other workmen, going to the tank, finding the two men prostrate and helpless, the foreman Campbell hurriedly brought a gas mask from a point a few hundred yards away and another employee of the oil company, by using it, was able to fasten ropes to the two victims and they were drawn out of the tank, but both died a few hours later from the effect of the poison gas; that the victims were eared for and treated by physicians of the Big Spring Hospital where they had been hurriedly carried after being rescued.

It was alleged that as a pumper Frye received $150 per month, and, while engaged in doing general work, his wages were $135 per month.

By supplemental petition the appellant indemnity company alleged that, prior to .the 12th day of May, 1931, the Schermerhorn-Win-ton Company entered into an oral contract with Black, Sivalls & Bryson, a corporation engaged in constructing tanks, by the terms of which said Black, Sivalls & Bryson agreed to repair an oil stock tank belonging to Scher-merhorn-Winton Company for a stipulated price; that said Black, Sivalls & Bryson was a separate, distinct entity and was in no way connected with Schermerhorn-Winton Company ; that they were rebuilding said tank under an independent, separate contract; that Schermerhorn-Winton Company had no control or right of supervision over the work being performed or over the employees of Black, Sivalls & Bryson and that the indemnity company was the insurer for Schermerhorn-Win-ton Company and was not an insurance carrier for Black, Sivalls & Bryson; that about 8 o’clock on the morning in question while Frye, Campbell, and other employees of the Schermerhorn-Winton Company were at the headquarters of its leasehold waiting for instructions to proceed with the day’s work, W. A. Davidson, who with his brother Sam Davidson was employed by Black, Sivallg & Bry-son to work about a quarter of a mile distant from the headquarters of the Schermerhorn-Winton Company, gave a distress signal which was seen and heard by the employees of the Schermerhorn-Winton Company, and immediately the said Frye and other employees left the headquarters and hastened to the tank in response to the urgent call or alarm given by W. A. Davidson; that upon reaching the tank, Frye saw the position of danger and peril of Sam Davidson, who at that time was lying upon the bottom of the tank, and thereupon voluntarily descended into the tank for the purpose of rescuing said Sam Davidson; that as a direct and proximate result of said act Frye was overcome with gas; that the situation, danger, and peril of Sam Davidson created a clear and plain emergency demanding immediate remedial action on the part of W. A. Davidson and other employees of Black, Sivalls & Bryson; that in answering the call of W. A. Davidson, Frye, in leaving his company’s headquarters, became' the employee of Black, Sivalls & Bryson and his resulting injury did not have to do with and originate in the work of Schermer-horn-Winton Company, but did have to do with and originated in the work of Black, Sivalls & Bryson and were received while he was engaged in the furtherance of the busi,ness of Black, Sivalls & Bryson, whose employee he became at that time.

Based upon the verdict the trial court rendered a lump-sum judgment in favor of Mrs. Frye and her minor daughter for $6,728.40.

By its first, second, and fourth propositions the appellant insists that the court should have peremptorily instructed a verdict in its favor.

Under the issues made by the pleading and evidence, we think the court would have erred in directing a verdict for appellant and these propositions are overruled.

By the third proposition the appellant contends that the injuries received by Erye, while attempting to rescue a person who was not a fellow employee when the peril of such person became apparent, did not have to do with and originate in the work, business, trade, or profession of Frye’s employer nor was Frye injured while engaged in or about the furtherance of the affairs or business of his employer.

We find that the statements following most of the propositions urged by appellant do not fairly and correctly reflect the record.

As bearing upon this proposition, the record shows: That the Schermerhorn-Winton Company and its allied corporation were engaged in the business of producing and storing oil and preserving petroleum products from their lease and that Frye was their employee. That in order to preserve their products, it was necessary to provide storage tanks upon their leases and to meet this requirement in particular employed Black, Siv-alls & Bryson to construct or reconstruct the tank in which Frye was injured. It further appears that there was work to be done on and about the tanks by Frye and other oil field workers in order to equip them as reservoirs for preserving the company’s products. That Frye and other employees, under the direction of foreman Campbell, had worked on ■ this same tank the day before May 12th, and were, under the direction of Campbell, to return to the tank and continue the unfinished work on the morning on which the injury occurred and in pursuance of such directions' they came to the lease, had gathered their tools for use in prosecuting their work, ánd were tarrying for further instructions from Campbell as to the manner of the work and details concerning it when they heard W. A. Davidson’s cry of distress and thereupon Frye and the other Schermerhorn-Winton employees, including the foreman and at the bidding of the foreman, rushed to the tank where they found Sam Davidson asphyxiated and prostrate upon the bottom of the tank. Campbell testified that at the time and just before the accident Black, Sivalls & Bryson had torn this particular tank down and was engaged in rebuilding it and that on May 11th preceding his death, Frye, as an employee of the Schermerhorn-Winton Company, was putting connections on this particular tank and in doing so Frye was working under his, Campbell’s, direction. That on the evening of the 11th of May, he, Campbell, had instructed Frye and three other employees as to where they were to work the next morning. That Frye and the other employees had been engaged the evening before in putting connections in the tank in question and had not completed the work and his instructions were for them to proceed with the same duties on the 12th and that he was giving them specific directions on the morning of the 12th about 8 o’clock when they saw and heard W. A. Davidson’s distress signals and shouting for help. Campbell testified: “I heard W. A. Davidson holler. I don’t know what he said. I just heard him holler. I knew there was something wrong. I told the boys, ‘Let’s go to the tank.’ ” “Q. That included Frye? A. That included Frye, Alton, Williams and McHenry.” That work usually commenced about 8 o’clock. That Frye came to the headquarters that morning in one of the company’s trucks. That when they saw the distress signals, all five of them hurried to the tank, which was about 250 or 300 yards distant. That witness went in his car and Frye and the other three employees in the truck. That when witness reached the tank he found all of the other employees on the top of it and Frye and Davidson inside, lying on the bottom. Witness said that he then went about half a mile and got a gas mask, returned with it to the tank, and gave it to another employee, Gus Oppegard, who put the mask on, went down into the tank and tied ropes around Frye and Davidson, who were then pulled out of the tank and carried to the hospital where they both died several hours later. He further said that, if Davidson had not shouted for help, “we would have taken our tools and gone to work on the tank where the accident occurred.”

This testimony is not contradicted, and, in the light of the facts disclosed, we must conclude that practically all of appellant’s propositions are based upon a misunderstanding of the record.

The principal contention is raised by the twelfth and thirteenth propositions.

It is insisted in the twelfth proposition that the court erred in overruling and in not sustaining appellant’s objection and exception No. 1 to special issue No. 1, because said issue, considered in connection with the definition of the court which followed it, requested the jury to answer three sepai-ate and distinct issues in one, and the appellant insists by the thirteenth proposition that the court erred in not sustaining its objection and exception No. 2 to the instruction following the court’s special issue No. 1, because the jury is told by the court that injuries sustained in the course of Frye’s employment meant injuries having to do with or originating in the work of his employer, when the Workmen’s Compensation Law provides tliat said term shall mean injuries having to do with and originating in the work of his employer, etc.

Reference to the definition given by the court and comparison with second subdivision 4 of section 1 of art. S309 (Rev. St.), shows that the statute uses the conjunctive and while the court used the disjunctive or in defining Injuries sustained in the course of employment.

We overrule these propositions. First, because the objections to the charge are not specific and do not point out the defect as is required by the statute (Rev. St. 1925, art. 2184 et seq.).

The first objection is as follows: “Plaintiff objects and excepts to special issue No. One because said issue, considered in connection with the special instructions of the Court immediately below, requests the jury to answer three separate issues in one and the same, issue and such instructions framed as they are will result in confusion in the minds of the jury.”

This is more of an objection to the issue than to the definition given by the court.

In G., T. & W. Ry. Co. v. Dickey, 108 Tex. 126, 134, 187 S. W. 184, 187, Judge Phillips, in discussing the form and substance of objections to the charge of the court, said that “an objection to the charge in the particular complained of must be presented to the trial judge,” and, in Walker v. Haley, 110 Tex. 50, 214 S. W. 295, he said: “The purpose of the act [providing for objections to charges] is plain. It is to provide the court, in advance, with the objections to which the charge is deemed subject, so as to afford opportunity for its correction in the particulars urged. It is, in a word, to secure, as far as possible, the preparation and submission of a correct charge to the jury.”

A proper objection in this case would have been that the court in his definition used the disjunctive or when the statute uses the conjunction and preceding the words originating in the work. It is held that an objection couched in veiled language which does not clearly and specifically point out the error in the charge or the issue is no objection at all. G., C. & S. F. Ry. Co. v. Hines (Tex. Civ. App.) 4 S.W.(2d) 641, 648.

In Colvard v. Goodwin (Tex. Civ. App.) 24 S.W.(2d) 786, 787, 794, objection was made to the court’s definition of undue influence, as follows: “Because same is ambiguous and confusing, and does not clearly define to the jury what would or would not constitute undue influence.”

The court held that this objection was clearly too general to point out specifically any defect in the definition.

In Chase Bag Co. v. Longoria (Tex. Civ. App.) 45 S.W.(2d) 242, 243, appellant objected to the court’s issue in regard to the measure of damages because it presented an improper measure of damage. Judge Gallagher said the purpose of the statute was that the court and counsel should join in a frank and sincere effort to secure a proper submission of the case and to effect such purpose counsel’s objections to the charge should be specific, constructive, and helpful.

We are convinced that, on account of the insufficiency of the objections to the charge, appellant is in no position to insist upon the error, if any, committed by the court in the definition.

However, if we are mistaken in this and if it be admitted that the use of the word or instead of the word and is material error, nevertheless, the error is harmless for the reason that, as hereinbefore stated, all of the testimony bearing upon the issue of whether Frye was injured in the course of his employment being uncontradicted, an issue of law is presented rather than an issue of fact and the finding of the jury upon special issue No. 1 becomes immaterial.

In Georgia Casualty Co. v. Hill (Tex. Civ. App.) 30 S.W.(2d) 1055, 1056, where the issue was whether the injured party was engaged in work which was included within the Workmen’s Compensation Act and where the testimony upon that issue was uncontra-dicted, Judge Leslie said that “the facts are undisputed, and the appellee’s right of recovery therefore becomes a question of law.”

In Cherry v. Magnolia Petroleum Co. (Tex. Civ. App.) 24 S.W.(2d) 549, 552, where the evidence was uncontradicted showing that an employee had been assaulted by the foreman of his employer and wounded with a knife, Judge Walker said: “It is our conclusion that the only inference to be drawn from these facts is that Cherry went outside the scope of his employment and entered upon a private quarrel of his own for reasons of his own. This is our construction of the legal effect of the facts, but that conclusion is not necessary for an affirmance of the judgment of the lower court.”

It appears that the trial court had reached the same conclusion and the judgment was affirmed upon an approval of the trial court’s conclusions of law.

In Norwich Union Indemnity Co. v. Maynard (Tex. Civ. App.) 300 S. W. 196, where the issue was whether certain injuries to the right arm of the claimant which had been shown by uncontradicted testimony, resulted in a loss of claimant’s entire arm, the court, speaking through Judge Levy, concluded as a matter of law that such incapacity did exist and held accordingly.

“In those cases where an issue of fact material to the cause of action or defense is presented in the pleadings and where the evi-deuce thereon is undisputed one way or the other and where the evidence is of such nature that the Court may say, as a matter of law, that reasonable minds could not differ in the conclusions to be drawn therefrom, the question then becomes one of law and whatever the nature of the issue, the Trial Court should not submit the matter to the jury for a finding but he himself assume the truth of the undisputed evidence as though it had been admitted in the pleadings or established by the verdict and proceed to' apply the law to the facts thus indisputably established. -It is not accurate to say such undisputed facts become law, for that would be a misnomer; it is accurate, however, to say that as a matter of law the facts are true and this is sufficient to call forth the sentence of the law upon their effect.” Speer’s Law of Special Issues, § 35.

In Indemnity Ins. Co. of North America v. Harris (Tex. Civ. App.) 53 S.W.(2d) 631, 634, it is said: “Appellant complains that the following issue was duplicitous: ‘Do you find that such injury, if any, of plaintiff was sustained in the course of his employment as an employee of the Gulf Refining Company?’ This point we do not determine. Every element of this question appeared as a matter of law in favor of appellee and, therefore, appellant could not have been injured by its duplicity.”

So it may be said that every element tending to show that Frye was injured in the course of his employment was shown by un-contradicted testimony, and, if the court erred in using or instead of and, the error is harmless, because the finding of the jury was, under the record, in effect a finding upon an issue of law.

Moreover, according to the weight of authority in Texas, as well as in other jurisdictions, it is our opinion that Frye was injured in the course of his employment as that term is generally interpreted by the courts.

Campbell was production foreman for the two companies which owned the leases. He stated that his authority extended to employing men, directing them what to do, keeping time, and paying them their wages; that, he had authority to both hire and fire employees; that the companies maintained tanks on their leases in which to store the oil produced from the leasehold; that they had stock tanks in which oil was stored; that his office as foreman was located on the headquarters of the Kloh lease where his books were kept and from which he operated; that there were four stock tanks near his office, within a radius of three hundred yards; that on May 11, 1931, the day before Frye was injured, the latter was engaged in putting connections on one of these stock tanks, which was being rebuilt by Black, Sivalls & Bryson, for which last-named company Sam Davidson was working at the time he was asphyxiated.

I^e find an excellent review in appellees’ brief of the decisions bearing on the question whether Frye was injured in the course of his employment and can do no better than quote, in part, the excerpts set out therein.

In the Behnken Case (Tex. Civ. App.) 226 S. W. 154, 156, Judge Graves said: “These compensation acts are remedial measures, ours especially so in that one of its objectives was to give relief to all employees injured in industrial pursuits in this state as against probably less than 20 per cent, who were before provided for under the old common-law actions founded upon negligence. * ⅜ ⅜ Such laws — indeed, the two specific clauses mow under consideration when used therein —are accordingly given a broad and liberal construction by the courts in order that the humane purpose of their enactment may be realized. * ⅝ * As we understand the current of decision touching the spirit of such laws as this, the employee does not have to 'be actually performing some specific duty of his employment at the precise time of the injury before it can be said to have been received ‘in the course of his employment,’ but it is quite generally held that, if he is doing something incidental to his service while on the premises of the master, the injury under such circumstances meets the requirements and is compensable.”

It is shown in Southern Surety Co. v. Stubbs (Tex. Civ. App.) 199 S. W. 343, 346, that Stubbs lost his life while employed on a dredgeboat being operated in the Texas city channel in the storm which raged on the Texas coast in August, 1915. In awarding his widow and children compensation, the court said:

“In Bischoff v. American Car [& Foundry) Co., 190 Mich. 229, 233, 157 N. W. 34, 36, it is said:
“ ‘Of course, the scope of such particular employment may be enlarged for the time being by the direction of some superior who has authority; and in the case of an actual emergency it may he held that any reasonable attempt to preserve the employer’s property is within the general lines of an employee’s duty.’
“The rules stated in the cases quoted from, we think, relieve the case at bar from any difficulty in this respect. Stubbs was living upon the dredgeboat, and at all times under and subject to the orders of its captain, and the storm had not only created an emergency which required the efforts of all employees to keep it afloat, but had produced a situation permitting of nothing else. * * * Since it was only necessary under the statute te find that the accident occurred ‘in the course of the employment,’ it may be that the court’s further finding that the fatal accident ‘arose out of the employment’ was unnecessary, but under the detailed facts shown here it certainly was not error.”

In Cassell v. United States Fidelity & Guaranty Co., 115 Tex. 371, 283 S. W. 127, 46 A. D. R. 1137, the court says: “ ‘If there is under •particular circumstances in a particular vocation something appreciably and substantially beyond the ordinary normal risk which ordinary people run, and which is a necessary concomitant of the occupation the man is engaged in, then I am entitled to say that that extra danger to which the man is exposed is something arising out of the employment ; and, if in consequence of that extra danger a fatality occurs, I am entitled to say that the section applies and the applicant is entitled to' l’ecover.’ ⅜ * * ‘The question is whether the accident was one “arising out of and in the course of employment,” within the meaning of the statute. * * * That it arose “in the course of employment” is unquestioned. That it arose “out of” employment, we now hold. The claimant’s presence in a factory in association with other workmen involved exposure to the risk of injury from the careless acts of those about him. He was brought by the conditions of his work “within the zone of special danger.” ’ ”

In Federal Surety Co. v. Ragle (Tex. Civ. App.) 25 S.W. (2d) 898, 901, it appears that Ragle was an employee of a firm engaged in producing oil and gas. He laid off his work clothes and went a little way aside to crank a car in use by an employee who reported he could not crank it. This was one of the cars in which employees rode to the place of work. In cranking it a spark plug blew out and struck Ragle in the eye, resulting in the loss of sight in that eye. In holding that Ragle was entitled to compensation, the court said: “It is not necessary that an employee should have been at the time discharging some specific duty required by his employment, but it is sufficient that he was at the time of his injury engaged in doing something incidental to his employment. * * * The statute does not require that the injury be inflicted during laboring hours or within the zone of the labor to be performed. It is only required that the injury occur during the laborer’s ‘course of employment,’ and that it be ‘incident thereto’ or growing out of the laborer’s employment. In the case before us, the appel-lee’s injury was sustained on the premises of his employer and in the immediate vicinity of appellee’s work. While appellee’s employer had not assumed the obligation of transporting appellee and his colaborers to and from Bryson to the work, yet it knew of the arrangement followed, and plainly recognized the necessity of the method of transportation. Appellee at the time was engaged in the performance of an act necessary to transport him and others over the roadway across the lease to the main traveling way leading to Bryson, his home, thus, as we conclude, falling within the beneficial terms of the Workmen’s Compensation Act.”

In the case of United States Casualty Co. v. Hampton (Tex. Civ. App.) 293 S. W. 260, 262, it appears that appellee was a sack sewer in the employ of the Texas Refining Corporation which operated a cottonseed oil mill at Greenville, Tex. While performing his duties in the regular manner, Miller and Brown, other employees, had a personal difficulty in the press room and soon thereafter Blackburn, the foreman, called all the employees from their respective jobs to the engine room so as to assist in tightening a rope belt. While so engaged, subforeman Brown requested the foreman to give Miller his time, meaning to discharge him, stating as the reason 'that “June [Miller] fights-.” Hearing the statement Miller straightened up from where he was leaning over pulling on the belt and made some remark to Brown. Brown jumped at Miller, slipped his knife out of his sleeve and cut Miller in the back. They then clinched. Blackburn yelled “Stop that and come on here,” addressing his remark to no one in particular. When the fight started most of the employees quit pulling on the rope and appellee Hampton, thinking he had been asked to stop the fight, caught Wesley Brown’s hand, in which was the knife and attempted to separate the combatants and in so doing his right hand was cut. The appellant contended that the evidence failed to show the injury arose out of and in the course of ap-pellee’s employment. The court said: “The occurrence was wholly upon the premises of the employer. As appears, it occurred ‘in the engine room,’ at a time, within regular working hours, ‘while the men were engaged in tightening the main belt, which drove all the machinery^ qnd which was loose and slipping to such an extent as to interfere with the proper working of the machinery, and which required tightening.’ Therefore, the act in itself done by appellee, of suppressing an affray between two coemployees on the premises during working hours, must be regarded either (1) as a purely moral act, or (2) as an act that might reasonably be done in the service and business of the employer, within the Workmen’s Compensation Act. * * * ‘A servant does not cease to be in the course of his employment merely because he is not actually engaged in doing what is specially prescribed to him, if in the course of his employment an emergency arises, and, without deserting his employment, he does what he thinks necessary for the purpose of advancing the work in which he is engaged in the interest of his employer.’ * * * As appears in the present case, a causal relation was established between the injury and the employment, and the appellee did what he might reasonably do under his employment. The disagreement and the affray arose out of the employment; namely, the recommendation of discharge of June Miller.”

In Southern Surety Company v. Shook (Tex. Civ. App.) 44 S.W.(2d) 425, 427, Mrs. Shook and her children sued to set aside an order of the Industrial Accident Board denying them compensation on account of the death of Mrs. Shook’s son Lucian. Lucian Shook was in the employ of Braden Company as a pumper on an oil lease in Eastland county. He slept on the premises and kept some dogs with which he was accustomed to hunt on the premises and also maintained a croquet court near his shack. Clyde Thompson and the two Davis boys, living nearby, went at night to the shack, called ¡Shook and his brother out of bed and asked if they had a gun, saying there were some wolves nearby and thus lured them away from home and. killed both of the Shooks. Shook was not required to be at the pump but was required to keep it in order and he could hear it for something like a mile and knew whether it was running or not when he did not go away very far. The appellant contended that the injuries did not have to do with and originate in the work of the employer and were not received by Shook in and about the furtherance of the affairs of business of his employer. In quoting from Judge Greenwood in the Behnken Case, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402, the court said: “An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business. As tersely put by the Supreme Court of Iowa [Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 916, 918]: ‘What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.’ ”

General Accident, Fire & Life Assurance Corporation v. Evans (Tex. Civ. App.) 201 S. W. 705, it seems was a suit brought by the wife and children of Russell Engledove who lost his life while in the employ of a vinegar company in an effort to save the life of Thomas Nelson, another employee of the same company, who had been poisoned in one of the company’s vinegar tanks. Engledove was not at the time working about the tank, but was eating his dinner when it was announced that Nelson was in a perilous situation and a call was made for help to rescue him. Engledove came in a run and knowing there was poison to be encountered, placed a gunny sack over his .face and descended into the tank for the purpose of rescuing Nelson and bringing him out. Several persons, including the superintendent and foreman, cautioned him about going into the tank ¿nd told him not to go in. It was contended that he violated positive commands of his superiors, thus leaving his employment, and became a volunteer in so doing and forfeited all rights to compensation. The court did not find he had disobeyed positive commands of his superiors and held that, because he had been-brought in contact with an emergency, he was justified in trying to save a man’s life and did not forfeit his rights as an employee.

Numerous other authorities are cited by appellees, but we think the foregoing excerptg are sufficient to state the rule which should obtain in this case and we quote them with approval.

The court did not err in overruling the appellant’s general demurrer to the plaintiff’s pleadings.

Propositions seven and eight advanced by appellant are mere abstractions and are not entitled to be considered, but the same contention is advanced by the ninth proposition which is that it was the duty of Black, Sivalls & Bryson, and their employees, to prevent injury to Sam Davidson, another of its employees, when it became apparent to Black, Sivalls & Bryson’s employees that Sam Davidson was in a position of peril. That the action of his coemployee W. A. Davidson, in calling for assistance was in the furtherance of his master’s business and when Erye, a third party, responded to such distress call, he became in law an employee of Black, Si-valls i% Bryson. Appellant does not make it clear by what course of reasoning it arrives at the extraordinary conclusion that Erye ever became an employee of Black, Sivalls & Bryson. No express contract was shown and under the circumstances no implied contract existed.

The seventh objection urged to the court’s charge is as follows: “Plaintiff requests the Court to submit appropriate issues inquiring of the jury whether the injuries sustained by Erye had to do with and originated in the work, business, trade or profession of Black, Sivalls & Bryson, and whether the said injuries were received while engaged in and about the furtherance of the affairs or ■business of said Black, Sivalls & Bryson.’’

This seems to be another attempt to call in question the court’s definition following the first issue. It certainly is not specific in pointing out any objection to the court’s charge and because no “appropriate issues” were prepared by appellant which, if submitted, would have corrected the error, the proposition is without merit.

By the eleventh proposition appellant insists that the court erred in not submitting to the jury an appropriate special issue inquiring whether the injuries sustained by Erye were received while he was engaged in or about the furtherance of the affairs or business of Black, Sivalls & Bryson.

The appellees were not trying to recover, nor were they entitled to recover, upon any such ground and the submission of such a special issue would have been frivolous. The contention of appellant that Frye was injured while engaged in the furtherance of the business of Black, ¡Sivalls & Bryson, has been disposed of by what we have- already said.

By the fourteenth and fifteenth propositions the appellant insists that the evidence does not show that Frye had been working at the time of his injury for substantially a year prior thereto.

Suffice it to say that the testimony is conclusive upon that point. Campbell, who kept the hooks and the. time worked by the several employees, said that Frye’s employment commenced in June, 1929, and he worked and was employed continuously from that date to May 12, 1931.

The evidence is sufficient to support the finding of the jury as to the rate of compensation and the judgment for a lump sum settlement.

We find no reversible error and the judgment is affirmed.


author: BLAIR, J.

text:
    HARDIN v. McCARTHY.
    No. 7814.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1932.
    Rehearing Denied Jan. 11, 1933.
    W. Marcus Weatherred, of Coleman, and Oxford & McMillan, of Stephensville, for appellant.
    Critz & Woodward, of Coleman, for appel-lee.
   BLAIR, J.

Appellant sued Joe McCarthy, as contractor, and Globe Indemnity Company, as surety on McCarthy’s bond, for a balance of $2,000 due on material furnished McCarthy in the prosecution of his contract ^with the city of Coleman to pave a part of Neches street; and sued the city of Coleman for alleged wrongful payment of the contract price of the pavement after appellant had' filed his affidavit and itemized account attempting to fix a lien upon or impound the funds due McCarthy on his contract. On the trial to the court without a jury appellant recovered judgment against McCarthy as prayed, but was denied judgment against the Globe Indemnity Company and the city of Coleman upon two grounds:

1. Because the suit on the bond was not commenced within one year after the performance and final settlement of - the contract in which the material was used as required by article 5162.

2. Because the affidavit and itemized account filed for record were either filed too late or were so defective as to be insufficient to fix a lien upon or impound the funds due McCarthy on his contract.

With respect to the limitation question, the record shows that McCarthy’s contract with the city of Coleman was evidenced by one written instrument which provided that the paving be done under four separate units or contracts, known and designated as unit or district Nos. 16, 17, 18, and 19. Each unit or district specifically defined or described its boundary, or the exact location on Neches street where the paving was to be done; and other pertinent portions of the written instrument read as follows:

“IV. The undertaking of the Contractor as to the making and construction of the improvements in each Unit is separate, independent, and distinct from its undertaking as to the making and construction of the improvements in the other Units, all to the same extent and as fully as if entirely separate contracts were made, executed and entered into for each District or Unit, and assessments for improvements in one Unit shall in no wise be affected by any matter or fact in anywise connected with any other Unit.”-
“VIII. The City agrees that it will, upon completion and acceptance of the said improvements in a particular Unit, cause to be issued to the Contractor assignable certificates evidencing the assessments levied against the property abutting upon such improvements, setting forth the amount to be paid by each parcel of abutting property.”
“X. Whenever the improvements in a particular unit or district have been completed and accepted by the City all retained percentages on estimates of the amount due.by the City for the improvements in such Unit shall be paid to the Contractor.”

The effect of these provisions was to make the undertaking between the city of Coleman and McCarthy four separate and independent contracts for the paving of the street in question. Each unit or contract was specifically described as to location of the paving,. and each unit or contract was complete in itself as to the plans and specifications for the paving; as to the assessment of the abutting property owners for their share of the paving costs; as to- the amount of the contract price; and as to the completion and final acceptance of the paving and the final settlement of the contract price. Each unit or contract could be fully and completely performed without reference to the other units or contracts, and the contracting parties so construed and .performed each unit of contract.

The agreed facts show that all materials furnished by appellant, except 60 sacks of cement valued at $51 and used in unit No.. 19, were used by McCarthy in the construction of the pavement in units Nos. 16, 17, and 18, That units Nos. Í6, 17, and 18 were completed and accepted and paid for in -full by the city of Coleman on or before January 2, 1930. That thereafter, on March 3, 1930, appellant filed his affidavit and itemized account, and on the same day mailed the city of Coleman a copy of his account, and gave notice of his claim. That no suit was filed on the bond by the city of Coleman within six months, as provided for in article 5161, and that appellant filed this suit November 30, 1931, nearly two years after the performance, acceptance, and final settlement of the contracts for paving units Nos. 16, 17, and 18. It is therefore manifest that this suit on the bond, executed in accordance with the requirements of article 5160, as amended by Acts 1929, c. 226, § 1 (Vernon’s Ann. Civ. St. art. 5160), was, except as to the $51 item -for cement, barred by article 5162, which provides that, when suit is brought by a creditor on such bond, it “shall be commenced within one year after the performance and final settlement of said contract, and not later.”

Appellant contends, however, that, since the bond only covered by reference the one written contract, and was for a sum aggregating the total percentage of all four units of the contract, the bond and contract were therefore one indivisible obligation which continued until the last unit, No. 19, was fully performed, accepted, and final settlement made on May 25, 1931; and that, since this suit was filed November 30, 1931, it was within the statutory period. We do not sustain this contention. It is true the bond is for the aggregate sum of all units, but that fact does not render it or the contract indivisible. Each unit or contract was complete within itself as to the amount of the contract price of the paving. It would therefore require only a simple mathematical calculation to apportion the bond obligation to each separate unit or contract for the paving. The parties took great care in making plain their intention to perform the undertaking as four separate and distinct contracts, and so executed them.

The contract and the statutory bond required by article 5160 must be construed together in determining the liability on the surety bond for material furnished. Appellant was therefore charged with notice that McCarthy’s agreement was to pave the street under four separate and independent contracts ; and he was also charged with the duty of informing himself as to what amount of his material was used in each contract, and as to when' each contract was completed, accepted, and the final settlement made. And since the agreed facts show that units or contracts 16, 17, and 18 were completed and the final settlement made more 'than one year before appellant filed this suit, it is barred by article 5162, supra, as to claims for material furnished in those contracts.

We have also reached the conclusion that the affidavit and itemized account attempted to be filed by appellant was filed too late as to most of the account, and were so defective in other respects as to be ineffective as fixing liability on the bond, or as impounding or fixing a lien upon any funds due by the city of Coleman to McCarthy on his contracts. Blany defects in the affidavit and account are shown by the record, but the following will suffice here:

1. As above pointed out, the contract and bond obligations to pave the street were performable in four separate contracts, and appellant should have shown in his affidavit and itemized account the character a.nd amount of material furnished in each of the contracts. This they did not do, and such failure to do so precludes a recovery of any item of the account. Metropolitan Casualty Ins. Co. v. Cheaney (Tex. Civ. App.) 32 S.W. (2d) 691; article 5160, as amended by Acts 41st Legislature (1929), p. 481, c, 226, § 1 (Vernon’s Ann: Civ. St. art. 5160); articles 5472a and 5472b, Vernon’s Ann. Civ. St.; and articles 5455 and 5456, it. S. 1925.

2. It appears from the itemized account that items aggregating $583.60 were furnished more than 90 days before the affidavit and account were filed for record. Article 5160, supra, provides that such affidavit and account shall be filed “within ninety days after date of delivery” of the material.

3. The agreed facts show that all the material furnished by appellant, except the $51 item of cement, was used in the construction of units Nos. 16, 17, and 18, but it was not shown the amount used in each unit; and that these three units were performed, accepted, and final settlement made in accordance with the terms of the contract on or before January 2, 1930. The affidavit and account of appellant, and notice thereof, were not filed or given until 60 days later, on March 3, 1930. It is therefore manifest that the affidavit and account as to these three units were filed too late, and the city of Coleman, having fully settled the contract price of these units before the affidavits were filed or notice given, did not wrongfully or unlawfully pay out same after notice of appellant’s claim as charged by him.

4. Article 5160 provides that the account shall be itemized as required by the mechanic’s lien statutes (articles 5455 .and 5456, R, S. 1925). The account is not sufficiently itemized as to the following:

12/3/20 (car cement #ATSP 43152 $732.50
12/3/29 (car cement #ATSP 42437 732.50
(car cement # ATSP 42737 732.50
12/5/29 (car cement #ATSP. 12378 & 1,000 cloth bags' 732.50

The following authorities hold similar itemization to be insufficient to fix and secure a statutory mechanic’s lien: Perguson v. Ashbell, 53 Tex. 245 ; Lee v. O’Brien, 54 Tex. 635; James v. St. Paul’s Sanitarium, 24 Tex. Civ. App. 664, 60 S. W. 322; Ball v. Davis, 118 Tex. 534, 18 S.W.(2d) 1063; McClellan v. Haley (Tex. Com. App.) 250 S. W. 413; 18 K. C. L. 926. These cases hold that the lien is wholly involuntary, and that, in order to fix and secure same, the requisites of the statute must be complied with in every essential par-'-tieular; and that such statutes are given the strictest construction.

Since no part of the account of appellant is recoverable for the reasons stated, we affirm the judgment of the trial court.

Affirmed.


author: LEVY, J.

text:
    TEXAS MILK PRODUCTS CO. v. CITY OF MT. PLEASANT.
    No. 4392.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 2, 1932.
    Rehearing Denied Dec. 15, 1932.

      J. A. Ward, of Mt. Pleasant, for appellant.
    Iiixam G. Brown and Seb F. Caldwell, both of Mt. Pleasant, for appellee.
   LEVY, J.

(after stating the case as above).

The appellee urges that a temporary injunction should be denied, as was decided by the court, because it conclusively appears “from the facts of the case that appellant’s sewage was seriously injuring its plant and would destroy its use altogether and cause the City to be guilty of creating a nuisance in contaminating and polluting the stream into which the sewage was being discharged.” The appellant, on the other hand, contends in effect that it has shown a right to a preliminary injunction preventive of a disconnection from the sewer system during the penden-cy of the suit in which the rights to it are to be finally decided.

It is not at all doubted that the right of a municipality to regulate and control the use of its sewers legally exists as a necessary incident of their ownership. The simple question here is that of whether or not it is clear that the complainant plaintiff does not have the right that it claims to a temporary injunction for the particular purpose for which it is sought. The trial judge expressly found as a fact that “there is no damage or destruction of the physical properties of the sewer system from the sewage waste of the plaintiff.” In substance, the finding means that there were not discharges from appellant’s plant into the sewers of “any corrosive liquids or other spent acids” in quantities to be detrimental to the sanitary sewer system. In view of the finding so made, it may not be said in this case that there was shown a violation by appellant of the provisions of the sanitary code, as same was pleaded, requiring the need of immediate disconnection of appellant from the use of the sewer. There would be wanting in this respect any physical injury to the property rights or the property itself of the city in disturbance of the exercise of the legal right of the city, of control and regulation or protection of the sewer system. And looking further info the evidence it may not properly be held, we conclude, that other very special circumstances so conclusively appear as may suffice to stop relief by temporary injunction against, the act of disconnection from any use of the, sewer system. Equity will not authorize a disconnection on the ground that the sewer is overloaded and with hurtful and deleterious matter affecting its proper and sanitary use where the evidence is not without a probability that appellant may finally maintain his right of use as against that of the appel-lee. At least an open issue of fact arises from all the evidence. The following quotation is made from 32 O. J. § 2, p. 20, as illustrative of the extent of the present ruling in this case, viz.: “An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits and its sole object is to preserve the subject in controversy in its then existing condition, and without determining any question of right, until a full and deliberate investigation o£ the ease is afforded by the party. This is so whether the injunction is prohibitory or mandatory. Distinguished characteristics of injunctions of this class are that they do not conclude the rights of the parties and that their issuance is not dependent on a hearing on the merits. But the court will interfere to preserve the property in status quo during the pendency of a suit in which the lights to it are to be decided; and that without expressing and often without having the means, of forming an opinion as to such rights.”

The order of the district court is therefore reversed, and the cause will be remanded, with instructions to continue the preliminary injunction during the pendency of the suit.

BLADOCK, O. J., has entered his disqualifications, and did not sit in the determination of the appeal.


author: McClendon, c. j.

text:
    GARDNER et al. v. WESNER et al.
    No. 7794.
    Court of Civil Appeals of Texas. Austin.
    Dec. 21, 1932.
    Rehearing Denied Jan. 11, 1933.

      Baker & Baker, of Coleman, and Paul Petty, of Ballinger, for appellants S. J. and I* J. Brendel.
    Kerr & Gayer, of San Angelo, for appellees.
   McClendon, c. j.

Wesner and Gruber (to whom we will refer as plaintiffs) sued Boyce, S. J., Erank, and L. J. Brendel, and others upon a contract to remove a bailer from and to clean an oil well; and to foreclose an asserted mechanic’s lien upon oil well casing. All of the defendants were served 'by publication, and only defendants S. J., Frank, and L. J. Brendel answered, the others being represented by attorney ad litem. Upon a directed verdict the plaintiffs recovered a personal judgment against S. 3. Brendel for $5,622.55, and against defendants Boyce, and S. J., and L. J. Brendel, foreclosing the mechanic’s lien. From this judgment S. J. and L. J. Brendel have appealed.

The contract was in writing and was executed by Boyce as first party and by Wesner and Gruber as second parties. It recited that Boyce was the owner of the oil léase and Wesner and Gruber agreed to do the work of removing the bailer and cleaning the well. The defendants, other than Boyce, were sought to be held liable on the ground that they were all mining partners in the drilling of the well.

Appellants’ contentions which appear to present questions of any substantial merit are disposed of by the following conclusions, which we have reached:

1. The evidence does not support a finding that S. J. Brendel was a partner (mining or otherwise) with Boyce in the drilling of the well.

2. The evidence shows conclusively that the casing upon which the mechanic’s lien was foreclosed was the property of S. J. Brendel; that it was loaned to Boyce in connection with drilling the well; that plaintiffs knew of such ownership and contracted with reference thereto, and therefore there could be no mechanic’s lien created thereon in favor of plaintiffs.

3. The evidence was not of such conclusive character as to warrant a directed verdict upon the amount of recovery.

Upon the issues of partnership and mechanic’s lien the evidence showed: Boyce was the assignee of the lessee of an oil and gas lease containing .the usual provisions of what is commonly known as an 88 form lease. Some time prior to December 12, 1929, a well had been drilled to a depth of 1,365 feet on the lease under a drilling contract between Boyce on the one hand and plaintiffs (as drillers) on the other.

On November 12, 1929, Boyce assigned to S. J. Brendel an undivided %2 interest in the lease, the assignment providing: “It being the intention of this assignment of interest to convey to the holder hereof, an undivided ⅛ interest in and to a well to be drilled on the above mentioned lease. This well to be drilled to a total depth of thirty-five hundred (3500) feet unless oil or gas is found in paying quantities at a lesser depth.”

On December 12, 1929, plaintiffs and Boyce executed the contract in question, and another contract whereby the plaintiffs agreed to drill the well to an additional depth.

This latter contract contained the following stipulation: “That the party of the first part (Boyce) shall furnish the casing necessary to deepen said well, as herein set out. It is understood, however, by the parties hereto that said pipe belongs to and is the property of S. J. Brendel; that said casing is to remain the property of the said S. J. Brendel and is to be returned to him after its use on this well is no longer necessary, and it is further agreed that no attachment or lien of any kind shall be fixed upon said casing.”

On May 14, 1930, S. J. Brendel assigned his interest in the lease to L. J. Brendel. On August 28, 1930, Boyce and Wesner executed a contract under which Wesner agreed to pull the casing from the well, the consideration being $700 cash. The evidence showed conclusively that S. J. Brendel, with Wes-ner’s full knowledge, furnished the money which Wesner received under this contract. ■The contract contained the following recital: “Whereas he (Boyce) is desirous of having the casing pulled and placed upon a rack at the well, said casing belonging to S. J. Brend-el when the same is pulled and placed upon a rack.”

The partnership between Boyce and S. J. Brendel is predicated upon the above assignment of November 12, 1929, and the following testimony, taken from a deposition of S. J. Brendel:

“(b) What is your association with the said Geo. W. Boyce in drilling said well on the Lange farm in Runnels County, Texas? Explain fully.
.“(c) What agreement, if any, have you with Geo. W. Boyce about sharing in the profits and losses in connection with the drilling of said well? Explain fully.”
“(b) Association with Geo. W. Boyce was merely in the loan of certain casing for the well drilled by said Boyce and others.
“(c) I agreed to loan casing, not to exceed $15,000.00 in value, to the said Geo. W. Boyce, said casing to be used in the drilling of said well. If the well proved productive, I was to receive in easli whatever money I paid for casing. If the well proved unproductive, I was to secure the casing pulled from the well, as it was my personal property. In consideration of my loaning the casing, Boyce assigned to me an interest of ⅛ of the net profits derived from said well; hut all obligations for drilling and operating were for his account, and my sole interest was to be derived from the net profits resulting from his operation.”

The evidence negatives any 'holding out of S. J. Brendel as a partner. The contract was made with Boyce alone, in his individual name, and solely upon his individual responsibility. To hold S. J. Brendel as a partner, therefore, the relatiofn of the parties inter sese must alone 'be looked to.

In order to constitute a mining partnership (sometimes called a joint venture) there must be not only a joint ownership of the mining property (which of itself creates only the relation of co-tenancy), but also a joint operation. “The actual working of the mine by the joint owners is essential to a mining partnership.” 22 A. & E. Ency. of Law, p. 228. This rule is so well established as to be now regarded as elementary (40 O. J., p. 1145; 18 R. O. L. p. 1200, § 106; 2 Thornton’s Oil & Gas (5 th Ed.) §§ 658-667; Summer’s Oil & Gas, § 235), and has been followed in this state whenever the question has been presented. Bolding v. Camp (Tex. Com. App.) 6 S.W.(2d) 94; Leath v. Benton Abstract & Title Co. (Tex. Civ. App.) 9 S.W.(2d) 501; Lowry Oil Corp. v. Bennett (Tex. Civ. App.) 16 S.W.(2d) 947; Eerguson v. Rhoades Drilling Co. (Tex. Civ. App.) 271 S. W. 155; Adams v. Texhoma O. & R. Co. (Tex. Civ. App.) 262 S. W. 139.

The Texas cases in which it has been held that a mining partnership existed presented the elements “not only a joint ownership of the lease ⅜ ⅜ ⅜ but joint operation, sharing of profits, community of interests, and the mutual agency ⅜ * ⅜ ’ in the management of the lease and exploration for oil.” Wagner Supply Co. v. Bateman, 118 Tex. 499, 18 S.W.(2d) 1052, 1055; Munsey v. Mills & Garitty, 115 Tex. 469, 283 S. W. 754; Mayfield v. Key (Tex. Civ. App.) 260 S. W. 926; Indiahoma Ref. Co. v. Wood (Tex. Civ. App.) 255 S. W. 212.

That sharing in the net profits of a mining venture does not create the relation of mining partner, was held in the early Colorado case of Le Fevre v. Oastagnio, 5 Colo. 564. The facts in that case, which present a close analogy to those at bar, are briefly summarized in the opinion as follows: “For the purpose of enabling Moffett to work his mine, the appellant agreed (upon the terms set forth) to furnish him with money or supplies to the amount of twenty-two hundred dollars. In consideration of these advances, Moffett agreed to pay Le Fevre one-fifth of all the profits derived from working the mine during the term of the lease. To secure Le Fevre in. his advances, Moffett further agreed to deliver to him all ores taken out of the min'e on the dump, until Le Fevre should be repaid all his advances.” The court’s holding is embodied in the following quotation: “The agreement in question, while it stipulates that the appellant is to be paid one-fifth of the profits, falls clearly within the exceptions to ’ the rule, that interest in profits involves liability as a partner. Its leading recitals and terms show its true character to be a mere contract to advance money or supplies, not as an owner, but as a creditor, relying on the ores to repay his advances, and on the profits as a fund for a compensation in lieu of interest.”

The holding in that case has been uniformly followed in mining partnership cases, so far as we have been able to discover. The following Texas cases are directly in point: Lowry Oil Corp. v. Bennett (Tex. Civ. App.) 16 S.W.(2d) 947; Leath v. Benton Abstract & Title Co. (Tex. Civ. App.) 9 S.W.(2d) 501 (error dis.).

In the law of partnership generally, the net profits rule, which at one time prevailed in England, has never been adopted in this state; although some expressions in Cochran v. Marmaduke, 60 Tex. 370, led to some confusion for a while, as to what exceptions to the rule should be applied. Fouke v. Brengle (Tex. Civ. App.) 51 S. W. 519; Rahl v. Parlin & Orendorff Co., 27 Tex. Civ. App. 72, 64 S. W. 1007. The decision in that case has been clarified by subsequent holdings of the Supreme Court, and it is now generally recognized in this state that to constitute a partnership there must be: “A community of interests, the common enterprise, its operation for the joint account, and a right in the owner of each interest to share as a principal in its profits as such, which under the established rule in this state is a recognized test of the relation.” Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S. W. 122, 125, Ann. Cas. 1916E, 446.

Specifically, it has been ‘held that the partnership relation does not exist where the interest in net profits is by way of compensation or remuneration for: (1) services as clerk or other employee (Goode v. McCartney, 10 Tex. 193); (2) commission as agent or broker (Buzard v. Bank, 67 Tex. 83, 2 S. W. 54, 60 Am. Rep. 7); (3) rental for property, real or personal (Fink v. Brown [Tex. Com. App.] 215 S. W. 846); (4) interest oh money loaned (Kelley Island Lime & Transport Co. v. Masterson, 100 Tex. 38, 93 S. W. 427, 430).

There is á very extensive case note upon the “effect of agreement to share profits to create a partnership” in 18 L. R. A. (N. S.) pages 963-1106. We quote from the, author of the note at page 1019 of IS L. R. A. (N. S.): “The dissatisfaction with the net-profit rule of partnership liability, and the criticism to which it was subject, led the courts, not long after it was promulgated, to recognize a large class of cases to which it could not be applied without manifest injustice. The rule worked no hardship, in cases where there were actual partnerships, by joining capital with service in a common business for mutual profit; and these are many.”

Under the heading, “The established exception to the net-profit rule — taking profits as compensation,” the author lists the various excepted relations, with full citation of authorities.

Conclusions from the authorities are' summarized on pages 1105, 1106 of 18 L. R. A. (N. S.), one of which we quote: “When the profit sharer is simply an agent or servant, one who furnishes property, a lender of money, or a mere creditor, who receives the profits as compensation for his services, or the use of his property or money, or in order to collect his debt, without more, he is not liable as a partner, and the presumption is overthrown.”

, As regards lending money there .is perhaps the greatest diversity of view; especially so when the situation is complicated by the question of usury. It was with reference to a loan of money that the confusion arose over the holding in Cochran v. Marmaduke. But in Kelley Island Lime & Transport Co. v. Mas-terson the subject appears to have been clarified .by the distinction pointed out in the following quotation (italics ours): “Masterson was not to receive his share of the profits as compensation for the use of his money, nor were Downey and Kelley to receive their share as payment for services; but each received the profits as fruits of the joint enterprise — that is, as profits — which made them partners.”

We are not here concerned, however, with the rule as it applies to one who furnishes or loans money. The transaction here, in so far as the evidence shows, was a loan of the casing, which was to be returned if the well was unproductive, and to be paid for if productive — clearly nothing more than the loan of a chattel with provision for sale upon a given contingency. The share in the net profits was by way of compensation for the use of the chattel. There was no joint venture, no community of interest, no sharing of profits as such. ■

We attach no importance to the .fact that the contract in suit did not contain the recitation of ownership of the casing, which was embodied in the drilling contract. Both contracts were executed upon the same day by the same parties. That recitation conclusively shows knowledge of plaintiffs of the recited facts; which facts, if true (and the evidence conclusively shows them to be true), established the individual ownership of S. J. Brendel in the casing, and eliminated it as a partnership asset, independently of any contractual stipulation to that effect. This holding disposes of plaintiffs’ asserted claim of a mechanic’s lien on the easing. Additionally, we think plaintiffs were clearly estopped from asserting such lien by the recitation in the contract of August 28, 1930, under which Wesner accepted $700 furnished by S. J. Brendel to pull the casing so that it might be put in condition to redeliver to Brendel as his individual property.

Upon the issue of the amount of recovery, the compensation provided in the contract was “the actual and necessary expenses incurred in removing the bailer and in cleaning the well, such actual expenses to be figured and estimated according to reasonable cost of the materials used and required, and according to what is a reasonable Compensation for the labor and services performed.”

Manifestly the burden rested upon plaintiffs to prove that each item in their claim met the test furnished in this quotation. Luling O. & G. Co. v. Edwards (Tex. Civ. App.) 32 S.W.(2d) 921.

Plaintiffs offered a number of bills from various concerns, the items and dates of which are not shown by the record, also a large number of checks made payable to various parties covering the period from December 13, 1929, to September 11, 1930. Wesner testified that all of these items were incurred under the contract; that they were necessary and reasonable. His testimony and the checks and bills were the only evidence offered in support of plaintiffs’ claim. He also testified that the work of cleaning the well was finished about the middle of January, 1930. Two affidavits were filed to fix the mechanic’s lien, one April 8, 1930, and the other July 21, 1930. The former showed $3,183.77 to be due, the latter recited that “since that date (April 8, 1930) and under the terms of the contract mentioned and extensions thereof and oral renewals thereof there has accrued a total of $2404.29 in addition to the sum hereinabove mentioned” ($3,183.77). Boyce testified that “they (plaintiffs) told me it might cost $500.00 maybe $750.00, but not over $1000.00 at the outside to remove the bailer.”

The rule that the uncorroborated testimony of an interested witness, although not controverted, does not conclusively establish a fact, is applicable, except when the nature of the testimony is such that it might readily be-discredited, if not true, and there are no circumstances in evidence w-hidh would throw doubt or suspicion upon it. The circumstances above detailed do not bring the evidence within the exception to this rule.

Upon the issue of the relation between Boyce and S. J. Brendel, a number of letters written by Boyce to third parties were introduced. These letters were clearly not admissible against S. J. Brendel as tending to show his relation with Boyce, or for any other purpose, until such relationship was shown by evidence aliunde as would authorize Boyce to bind S. J. Brendel by his declarations.

The trial court’s judgment: (1) In so far as it establishes and forecloses as against appellants a mechanic’s lien upon the casing is reversed, and judgment is here rendered in favor of appellants; (2) in so far as it awards personal recovery against S. J. Brendel is reversed and the cause remanded; (3) in all other respects is undisturbed.

In part reversed and rendered; in part reversed and remanded; in part undisturbed.


author: LESLIE, J.

text:
    PETERMAN v. PETERMAN.
    No. 1036.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 6, 1933.
    Rehearing Denied Jan. 20, 1933.
    Dyndsay D. Hawkins, of Breckenridge, for appellant.
   LESLIE, J.

This is an appeal by H. L. Peterman, defendant below, from a judgment against him in favor of his former wife, Chloeris Peter-man, on seven promissory notes. The parties will be referred to as in the trial court.

The primary defense in the lower court was failure of consideration, and the numerous errors assigned relate directly or indirectly to the trial court’s rulings which pertained to that defense.

The parties were married in 1918. They accumulated some community property. A daughter was born to them. September, 1929, Mrs. Peterman procured a divorce and was awarded the custody of the child, then eight years of age.

While the divorce suit was pending, and prior to the decree, the parties entered into a written separation agreement, adjusting property rights. This was filed with the record in the case and confirmed by the court’s carrying such arrangement into the judgment; the suit being one for division of community property, as well as divorce and custody of child. The agreement made an equitable adjustment of property rights and contained the following provisions:

“Now therefore, for the purpose of settling, disposing of and eliminating from the said suit all controversy between the said parties as to the ownership and as to a division of the property of every kind owned, held or claimed by them or either of them, it has been and is hereby agreed by and between the said parties as follows:
“First: H. L. Peterman, defendant in the said cause, has agreed and does hereby agree and promise to pay to the said Chloeris Peter-man, plaintiff in said cause, or to her order, the full sum and amount of two thousand six hundred eighty-three and 90/100 ($2683.-90) which shall become payable and be paid in installments as follows: The sum of two hundred ($200.00) dollars on the 15th day of August, 1929, and a like sum of two hundred ($200.00) dollars on the 15th day of each and every month thereafter until the full sum of $2683.90 shall have been paid, without interest.
“Second: The said H. L. Peterman hereby further agrees that he will pay to the said Ohloeris Peterman the sum of Sixty ($60.00) per month for the support, maintenance and education of their little daughter Kathryne Peterman, until the said Ohloeris Peterman shall remarry, in the event of the granting of a divorce in the above mentioned cause, conditioned however, that the said Ohloeris Pe-terman shall give to the said child that kind and loving care and attention to which she is rightfully entitled from her parents. It being fully understood that the said Ohloeris Peterman shall have and is hereby given the right to the care and custody of the said Kathryne Peterman so long as she may give to her such care and attention as hereinabove mentioned, and that the said H. L. Peterman shall have the right to visit the said child as often as he may see fit.”

The stipulations as to property rights became almost literally the terms of the judgment, which decreed that the defendant pay plaintiff “as her part of the community property,” $2,683.90 in thirteen monthly installments each for $200, except the last, for $283.-90. The custody of the child was awarded thé mother “so long as the said Ohloeris Peter-man shall give to said child the proper mother love, care and treatment,” and she was given a further judgment against the defendant “for the sum of $60.00 per month for the education, care, support and maintenance of said child.” The judgment awarded the defendant, Harry Peterman, “title in fee simple to lots 9 and 10, Blk. P ⅜ * ⅜ city of Breckenridge,” and “all household goods, kitchen furniture, automobile, stocks, bonds or other personal property owned by the plaintiff and the defendant at the time of said separation.” The judgment granted the right to the plaintiff to mature all unpaid installments upon defendant’s default in the payment of any one of them, and she was adjudged a lien on said lots to secure payment of the installments, but the lien was subject to a prior vendor’s lien against the property.

The defendant complied with the terms of the judgment for a time, and then defaulted, in part at least, in the payment of several of the installments. The unpaid portion of each such installment was reduced to the notes in suit and delivered to plaintiff in lieu of such obligation and extension of time.

The defendant answers plaintiff’s suit with plea of failure of consideration. He alleges the execution of the original agreement and the judgment based thereon, and incorporates in his answer the portions of the agreement and judgment above set out. The failure of consideration is alleged to lie in the facts (1) that at the time of the written agreement and the entry of the judgment, and at the execution of the notes sued on, “it was mutually understood and agreed by and between plaintiff and defendant that the love, care, treatment, support, maintenance, and education of said child mentioned in said decree and ⅜ * * in said agreement meant and should include instructions in music * * * and the placing of said child under * * ⅜ a competent music teacher” ; (2) that plaintiff had received and misapplied the $60 installment payments without defendant’s knowledge or consent; and (3) that the plaintiff had failed to comply with the above agreement and understanding, and that such payments would not have been made by defendant but for his reliance upon such agreement as to music, etc.

The defendant then sets up that, in compliance with the agreement and the terms of the judgment, he paid $1,020 for the maintenance and education of the daughter, and $1,854.50 on the $200 installments. That these sums amounted to $2,874.50, an amount in excess of $2,683.90, which the judgment required that he should pay plaintiff for her interest in community property.

The defendant then seeks to offset the judgment for $2,683.90 with said payments, by alleging that he did not know until June 15, 1930, that the plaintiff had- not given the child music instructions and that she had failed to use the $60 payments for the benefit of said child; and he alleges that the first four of said notes were delivered prior to said date and information, and that the last three were executed and delivered after receiving such information, but not until “he reproached her for having failed” to give the child instruction in music, and she “orally again promised .and agreed with the defendant that she would thereafter give or cause to be given such music lessons,” etc. That all the notes were given by defendant in his reliance on such material promises and considerations as to music, etc., which promises were in terms violated and disregarded by plaintiff.

The defendant therefore contends, in the alternative, that, since the $1,020 so paid by him, or at least $690 thereof, had been “diverted and misapplied” by plaintiff, she has therefore become indebted to him for such an amount, which he is entitled to have applied in satisfaction of the judgment of $2,-683.90 awarded her for her -interest in the community property. .This amount, plus $1,-854.50 paid on that judgment, would practically satisfy the same.

We now pass from the statement of the case to a consideration of the propositions upon which the appeal is predicated. The trial was before the court without a jury, and all material issues of fact have been resolved by the court in favor of the plaintiff and against the contentions of the defendant. We are of opinion that the testimony amply supports the judgment, and the disposition of this appeal might well rest here. But particular consideration will be given the more material propositions.

The trial court found on sufficient testimony that the notes in suit were given by the defendant in “consideration of extending and granting further time for the payment of the balance due under the contract and agreement * ⅜ * between plaintiff and defendant * ⅜ * covering ⅜ ⅜ * settlement of property rights.” This alone'was a sufficient consideration for the execution and delivery of the notes, especially when considered in connection with the additional fact, conclusively shown by the record, that the original agreement became the actual judgment itself, payable in installments of $200 a month. The notes in suit are admittedly for the unpaid portions of the installment judgment. That judgment granting divorce, adjusting property rights, etc., became a binding obligation against the defendant, and this fact alone, taken in connection with the extension of time granted defendant in which to pay same with different interest terms, attorneys’ fees, etc., was a sufficient consideration for the notes in suit and each of them.

If the judgment as respects the fixing of property rights, the contribution, etc., for the support of the child be regarded, as apparently it should be, as a judgment by consent, nevertheless, as said in 34 O. J., p. 133, § 337: “ * * * it has the same force and effect as any other judgment, and in the absence of fraud or mistake is valid and binding, as such, as between the parties thereto and their privies, and is not invalidated by a subsequent failure to perform a condition on which the consent was based, * * ⅜ and unless it is vacated or set aside in the manner provided for by law, it stands as a final disposition of the rights of the parties thereto. In the absence of fraud after the agreement has been made and a judgment entered thereon, the consent of one of the parties cannot be withdrawn. ⅜ , * * ”

Certainly the defendant in this suit is making no direct attack to relieve himself from the effect of said judgment, and many of his contentions, as will be noted, amount to nothing more than a collateral attack on that judgment.

In this connection the trial court makes the further significant finding that the payment of $60 per month for the maintenance, etc., of the child had' no bearing on, or connection with, the giving of the notes in suit, and constituted no consideration therefor. The testimony warranting such conclusion, this court will not disturb the same.

The same may be said of the further findings and conclusions to the effect (1) that the $60 installments paid were not intended to be and should not be credited on the notes given in settlement of community property rights; (2) that the defendant was not induced by any promises of the plaintiff to execute said notes in suit, 'except the promise for extension of time for payment of the obligation ; and (5) that plaintiff in no way diverted or misapplied the contributions for maintenance, etc., of the child.

It follows that the defendant’s plea of failure of consideration was not established, and the trial court did not err in so holding. Propositions 1 to 8, both inclusive, are overruled.

The court did not err in excluding defendant’s testimony to the effect that he, in signing the settlement agreement, relied on plaintiff’s promises to give the daughter music lessons. (Ninth proposition.) As noted, these matters passed into and became a part of the court’s judgment, adjusting community property rights, minor’s support, etc. Besides, the unpaid portion of the $200 installments, plus extension of time, etc., conclusively appear to be the consideration for the notes, which in fact represent the plaintiff’s community property rights, fully recognized by the court’s decree. That judgment resting in a court of record and being plain and unambiguous in its terms, parol testimony was inadmissible to vary or contradict it. 17 Tex. Jur., p. 814, § 364; 34 O. J. p. 133, § 337.

The terms of neither the judgment nor the agreement, each being plain and unambiguous, may be thus extended beyond their clear import.

The tenth and sixteenth propositions present no error in the court’s refusing to permit the defendant to testify that, but-for his wife’s promise to educate the child in music, he would have contested the divorce, etc. The defendant’s obligations, now under consideration, were definitely fixed by the judgment and perpetuated and extended by the notes. This testimony was immaterial, and suggests at least an agreement or understanding of a collusive nature. For these and other reasons above set forth, propositions 11, 12,13,14,15, 17, 18, and 19 likewise are overruled. They all proceed from a false premise, in that they ignore the binding effect of the judgment granting the divorce and adjusting the wife’s community property rights. .These propositions and the arguments in support of them pass over said judgment and attempt to challenge the original agreement on an alleged insufficiency or failure of consideration, having no connection with the notes in suit, and which, as a fact issue, have been, in any event, resolved by the court in favor of the plaintiff and against the defendant.

Further, propositions 14, 18, and 19 are overruled, since it conclusively appears that the last three notes sued on were executed in consideration of the extension of time on a judgment obligation representing the value of community property acknowledged to be owned by tbe wife.

Contentions 15 and 16, that tbe court erred in excluding defendant’s testimony to tbe effect that he would not have signed tbe original settlement agreement if the plaintiff bad not promised to give tbe child music lessons, are overruled. As presented, the proffered testimony was in the nature of a collateral attack on a judgment which adjudicated the property rights of the litigants when the divorce was granted.

By proposition twenty complaint is made of the admission of irrelevant testimony, and in thé twenty-first, that the testimony was both irrelevant and a conclusion of the witness. We are not inclined to the view that the testimony was inadmissible, but in any event, considering the record as a whole, the testimony was evidently harmless. Further, the trial was before the court, and there is no indication that he gave any effect to it. The presumption is that the court considered admissible testimony only. Ferguson v. Ferguson (Tex. Civ. App.) 11 S.W.(2d) 214.

These propositions are overruled.

For the reasons assigned, the judgment of the trial court is affirmed.