text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. SPARRA et al.
    No. 1010.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 23, 1932.
    Rehearing Denied March 3, 1933.

      Barnes & Barnes, of Beaumont, for appellant.
    Cox & Hayden, of Abilene, for appellees.
   LESLIE, Justice.

This appeal is from a judgment of the trial court disposing of two cases which were consolidated in that court. They grew out of the same controversy. The first suit was filed May 2, 1931, by L. H. Sparra et al. v. Indemnity Insurance Company of North America to mature a claim awarded him by the Industrial Accident Board on March 25, 1931, and which he alleged the company, without justifiable cause, refused to perform. The second suit was filed May 22, 1931, by the Indemnity Insurance Company against Spar-ra et al., as an appeal from an order of the Industrial Accident Board entered May 6, 1931, in response to the company’s motion to reopen the claim on the alleged ground of fraud, mistake, and changed condition, etc. Each plaintiff in the lower court filed a plea in abatement to the other’s suit. The trial court sustained the plea of L. H. Sparra et al., and overruled the one presented by the Indemnity Insurance Company. The facts of the case will be sufficiently reflected in the discussion of the nine propositions of law upon which the appeal is predicated. The parties will be referred .to as in the trial court and in the Sparra suit.

The trial was before the court and jury, and submitted to the jury upon the following special issues:

“No. 1. What do you find would be a reasonable attorneys’ fee for plaintiff’s attorneys for representing the plaintiff in this controversy, before the State Industrial Accident Board and in court?” To which the jury answered “$1,250.00.”
“No. 2. Did the defendant, the Insurance Company, receive notice within twenty days after March 25th, 1921, that the Industrial Accident Board made an award in this proceeding on March 25th, 1931?” To which the jury answered “Yes.”

Based upon this verdict and certain undisputed elements in the testimony, the court rendered a judgment for the plaintiff Sparra et al., for $8,020, representing 401 weeks at $20 per week, plus 12 per cent, penalty, certain interest at 6 per cent, per annum, and attorneys’ fee of $1,250.

The first proposition presents a jurisdictional question. By it the defendant contends that, since the plaintiffs failed to allege in their petition that the plaintiff Sparra resided in or sustained his injuries in Nolan county, Tex., they failed under the Workmen’s Compensation Law (Rev. St. 1925, art. 8306 et seq., as amended) to show jurisdiction in the district court of that county to hear and determine the case. The defendant contends that, in such cases, the district court is a court of special jurisdiction under the Compensation Law, as construed in Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, and that, to state a cause of action, it was essential that the petition contain the jurisdictional allegations as to venue.

We have examined the point, and conclude that it should be overruled. The defendant urged no general demurrer or special exception to the amended petition on which trial was had. The testimony discloses without doubt that the suit was filed in the county where the accident occurred, as well as where plaintiff resided, and in the only court otherwise having jurisdiction of the case. These facts are emphasized by the Indemnity Company’s pleadings, wherein it is alleged that it appealed from a certain order- of the Industrial Accident Board involving the identical claim. After alleging it gave notice of dissatisfaction with the board’s ruling of May 6, 1931, and its intention to appeal, it alleged further: “ * * * That upon the overruling of said motion for rehearing by said Board,’ this defendant, within less than twenty days after said motion for rehearing was overruled, gave notice as required by law that it would not abide by said award of the said Board, and that within less than twenty days after the giving of said notice it would file suit in. the District Court of Nolan County, Texas, a court of competent jurisdiction, to set aside said award, and here and now pleads ■ the pendency of said suit in the District Court of Nolan County, Texas,’said court having full jurisdiction to determine the merits of said award.”

The two suits were consolidated and actually under consideration at the same time. More than once defendant’s pleadings affirmatively allege and designate the district court of Nolan county as the court of competent jurisdiction to hear the ease, and such alleged facts occur both in the defendant’s plea in abatement and by adoption in its answer on the merits. In view of the record in this respect, it occurs to us that the situation calls for an- application of the common sense rule stated in 49 C. J. p. 864, § 1274, as follows: “A plea, answer, or other pleading of defendant may aid the petition, declaration, or complaint, and supply, cure or remedy an omission, defect or infirmity therein, as by affirmatively alleging or admitting a material fact not alleged, or defectively alleged, by plaintiff.”

A multitude of Texas cases are cited by the text in support of the rule. The case of Georgia Casualty Co. v. Darnell (Tex. Civ. App.) 243 S. W. 579, so decides the point. See, also, Lafield v. Maryland Casualty Co., 119 Tex. 466, 33 S.W.(2d) 187.

As far back as Hill v. George, 5 Tex. 87, our Supreme Court quoted with approval from the Supreme Court of New York the following statement of the rule: “If one party expressly avers or confesses a material fact omitted on the other side, the omission is cured. It may thus be made to appear, from the pleadings on both sides, that the plaintiff is entitled to the judgment, although his own pleading, taken by itself, is insufficient.”

The point should be overruled for other reasons. We do not consider Mingus v. Wad-ley and that line of authorities in point. In that case the suit was filed in the wrong county, whereas in the instant case the suit is in the county of the injury and the plaintiff’s residence, and in the only court having jurisdiction to hear it. No exception of any character was addressed to the plaintiff’s trial pleading. No plea in abatement was urged on that specific ground. Hence it is believed the point should be overruled on the authority of Tex. Emp. Ins. Ass’n v. Evans, 117 Tex. 113, 298 S. W. 516, 518, and Associated Indemnity Corp. v. Poteet (Tex. Civ. App.) 48 S.W.(2d) 663. In the Evans Case, certified to the Supreme. Court by this court, the injury occurred in Palo Pinto county. The suit was filed there. The original petition alleged the injury occurred in Stephens county, and did not allege that it occurred in Palo Pinto county. Suit was filed within twenty days after notice of dissatisfaction, etc., but long after the expiration of that twenty days an amended petition was filed, for the first time alleging Palo Pinto county as the place of the injury. In answering certified question as to whether such amendment would be made after the expiration of twenty days, etc., the Supreme Court, in its opinion, used this language: “Had no objection been raised by demurrer to the sufficiency of the pleading in this respect, and the proof had been that the injury did occur near Caddo in Stephens county, but that, in fact, the place where it occurred was in Palo Pinto county, and a judgment had been rendered for the defendant in error under proceedings otherwise correct, no objection would have been valid to the judgment based upon the proposition that the county court of Palo Pinto county did -not have any jurisdiction of the suit.” To the same effect is the opinion in the Poteet Case.

Therefore, if we interpret these opinions correctly, in the absence of exceptions to such a pleading as the plaintiff’s in this ease, or a plea in abatement, as suggested in the Poteet Case, a judgment rendered on such pleading would be warranted. See, also, Texas Employers’ Ins. Ass’n v. Ezell (Tex. Com. App.) 14 S.W.(2d) 1018; Spence v. State National Bank (Tex. Com. App.) 5 S.W.(2d) 754.

By the second proposition, the defendant contends that plaintiff’s suit to mature the board’s award is not permissible under the law, since the board did not award compensation for any definite amount or period of time, or for total or permanent disability, etc., as evidenced by tbe award. This contention is overruled on the authority of Vestal v. Texas Emp. Ins. Ass’n (Tex. Com. App.) 285 S. W. 1041, 1044; Texas Employers’ Ins. Ass’n v. Ezell (Tex. Com. App.) 14 S.W.(2d) 1018; Dixon v. U. S. F. & G. Co. (Tex. Civ. App.) 293 S. W. 291; Minor v. London G. & A. Co. (Tex. Com. App.) 280 S. W. 163; Franco v. Texas Employers’ Ins. Ass’n (Tex. Civ. App.) 29 S.W.(2d) 902, 905; article 8307, § 5a, R. S. 1925.

Plaintiff’s suit was but the pursuit of an effective statutory method of forcing compliance by the insurance company with the order of the Industrial Accident Board.

By the third proposition the defendant challenges the power of the court to render a judgment maturing the claim, etc., because it had duly filed its suit in the district court of Nolan county to set aside the ruling of the board entered May 6,1931, in response to its motion to reopen the claim. The original award, favoraBle to plaintiff Sparra, was made March 25, 1931. No notice of dissatisfaction with the award and intention to appeal was given by the defendant. Hence it filed no suit to avoid the effect of that award. Time passed, and, the defendant failing to meet the matured weekly payments authorized by the board’s award, the attorneys for plaintiff Sparra sent a telegram to the company April 26, 1931, calling on it to pay the matured installments. The company refused to do so, and through its attorneys immediately filed with the board on April 28, 1931, a motion seeking a rehearing on the claim getting up fraud, mistake, change of condition, etc., as grounds therefor. The board set the same for hearing May 5, 1931, “on the question of review, and if it is decided to go behind previous award and re-open the case, then on its merits to hear evidence to determine liability of the insurance company, degree of incapacity to claimant, and all questions incident to the main issues on which the case is set, including reduction of the period with corresponding increase in rate.” Notice of such hearing was given the plaintiff Sparra, and May 6th the board determined that no grounds existed for reopening the case and entered an order reaffirming the original award of Blarch 25th. It is from this order of the board that the defendant gave notice of dissatisfaction and intention to appeal, and upon that order (June 6th) predicates its suit of May 22, 1931, in the district court of Nolan county.

Apparently, to meet the foregoing situation, and to counter the method of procedure adopted by the defendant company after it received the aforesaid telegram and refused to pay the matured installments, the plaintiff Sparra, on May 2, 1931, filed the instant suit in the district court of Nolan county to mature the whole claim aforesaid, and gave notice of the filing of such suit to the Industrial Accident Board, who, after receiving the same, entered the order of May 6, 1931, refusing the rehearing on the ground that there was no evidence of fraud, mistake, or change of condition, etc., as alleged by defendant in its motion.

In response to the proposition now under consideration, it is the plaintiff’s contention that the award of March 25, 1931, became final and binding on the defendant by virtue of the fact that no appeal was prosecuted from same, and that the board had lost jurisdiction of the proceedings by virtue of the fact that, on May 2, 1931, the plaintiff filed the instant suit in the district court of Nolan county, Tex., to mature the entire claim on the ground that the defendant, without justifiable cause, had failed to make payments promptly of the matured installments. As a part of this contention it is the further view of the plaintiff that, since the award of March 25th became final, and he filed his suit as aforesaid, the order of the board in response-to the plaintiff’s motion to reopen, etc., was a nullity and furnished no basis for an appeal.

Without regard to the reasons therefor, clearly there was a default on the part of the insurance company in the payment of the matured installments under the award of March 25th. Theoretically, at least, this justified the plaintiff’s suit of May 2, 1931, to mature the claim. The plaintiff, by virtue of that default, had a prima facie ground for the suit. The effect of the suit was to deprive the Industrial Accident Board of further jurisdiction in the matter, at least until the determination of the issues therein involved. The whole matter was thus carried to the district court. Considering the jurisdiction of the board in such cases, it is said in the Vestal Case: “Evidently, however, such power to review can only be exercised by the board while its jurisdiction continues. Where there has been an appeal, undoubtedly it has lost such power of review, and we are also of the opinion it has as clearly lost such juris-, diction and power where by reason of default in the matter of appeal and performance a suit has been filed in the proper court having jurisdiction to enforce the award.”

The fourth proposition is to the effect' that the court erred in sustaining Sparra’s plea in abatement to defendant’s suit, since it had given notice and prosecuted appeal from the board’s order of May 6, 1931, by filing its suit in the district court of Nolan county. For reasons already apparent, this proposition must be overruled. At the time of the hearing (May 6th), the board was without jurisdiction to consider defendant’s motion and to enter any order in response thereto, since the plaintiff’s suit of May 2d deprived the board of jurisdiction in the matter. Hence its order, though adverse to the defendant, was a nullity and afforded no, basis for the defendant’s suit of May 22,1931. Such is the necessary effect of the opinion in the Vestal Case.

The defendant’s fifth and sixth propositions are presented together. They are, in substance, that, since the defendant had no notice of the award of March 25th, and was without fault in failing to appeal therefrom, and since it filed its motion of April 28th for rehearing and followed the order of the board (May 6th) in response thereto with due notice and appeal and properly filed its suit of May 22, 1931, in the district court of Nolan county to reverse said action of the board, the trial court erred in overruling its plea in abatement (fifth proposition), and that it likewise, for the same reason, erred in sustaining Spar-ra’s plea in abatement to its suit of May 22d (sixth proposition). From what has been previously held, it follows that each of these propositions must be overruled. Sparra’s suit of May 2d as noted took from the board jurisdiction to further consider the claim as it attempted to do on May 6th. Therefore the board’s order of May 6th furnished no basis in law for the defendant’s suit in the nature of an appeal filed of date May 22d. Therefore these propositions are overruled.

Incidental to the questions here considered, it will be observed that the Workmen’s Compensation Raw contains no provision requiring the board to give notice of its award to interested parties. Dixon v. U. S. F. & G. Co. (Tex. Civ. App.) 293 S. W. 291, 294. However, in the present case the record discloses that, in response to a proper issue, the jury found upon sufficient testimony that the notice of the award of March 25th was given by the board to the defendant, the Indemnity Insurance Company.

The seventh proposition is to the effect that, since the pleadings and the evidence fully raised an issue as to whether the insurance company had justifiable cause for failing to comply with the decision of the Accident Board, rendered March 25,1931, the court erred in not submitting the following special issue requested by the defendant: “From the preponderance of the evidence da you find that the defendant in this cause had justifiable cause for failing to comply with the decision of the Industrial Accident Board rendered * * * on March 25th, 1931?”

As we interpret the pleading, the only justifiable cause asserted by the Indemnity Company for its failure to comply with the award was jits lack of any notice of the board’s having made the award of March 25th. That issue having been submitted to and determined by the jury against the company, it is believed that the court did not err in rejecting the issue' tendered. The issue submitted by the court covered the ground. The proposition is overruled.

The eighth proposition challenges the sufficiency of the evidence to support the finding of the jury on the issue of whether or not the Indemnity Company in fact received notice of the board’s award of March 25th. Believing that there is sufficient testimony to support the jury’s affirmative verdict, this proposition is overruled.

The ninth proposition complains that the court erred in entering a judgment upon the jury’s verdict in response to the issue of what would be a reasonable attorneys’ fee for representing the plaintiff Sparra in the court and before the Industrial Accident Board. The complaint is that no amount for services “before the Industrial Accident Board” is authorized by law in determining the proper fee for instituting and prosecuting a suit to mature the board’s original award. The statute provides that, in such a case, the injured employee may recover, among other things, “a reasonable attorney’s fee for the prosecution and collection of such claim.” Article 8307, § 5a, R. S. 1925.

The language of this statute is simple, and limits the fee to a reasonable one for the prosecution of the particular suit. Texas Employers’ Ins. Ass’n v. Nunamaker (Tex. Civ. App.) 278 S. W. 889. This, however, is not the question before us. The appellant’s difficulty lies in the fact that it did not, in the trial court, raise the question which it now seeks to present in this court as a fundamental error. In the trial court the appellant presented no exception whatever to the form and manner in which the court submitted the special issue relative to attorneys’ fees. Having failed to except to the court’s charge upon the ground now complained of, the appellant is in no position to raise the question here as a fundamental error, or any other character of error. Such has been the law since the enactment of article 2185, R. S. 1925, as may be seen from the numerous authorities construing the same. Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; Largent v. Etheridge (Tex. Civ. App.) 13 S.W.(2d) 974, 979; Texas Electric Railway Co. v. Barton (Tex. Civ. App.) 213 S. W. 689; Alderete v. Cabello (Tex. Civ. App.) 278 S. W. 950; Childress v. Pyron (Tex. Civ. App.) 285 S. W. 1100; Texas Elec. R. Co. v. Crump (Tex. Civ. App.) 212 S. W. 827; Loeb v. T. & N. O. Ry. Co. (Tex. Civ. App.) 186 S. W. 378; Ball v. Henderson (Tex Civ. App.) 228 S. W. 361; Parsons v. Hubbard (Tex. Civ. App.) 226 S. W. 441; Denman v. Pyle (Tex. Civ. App.) 210 S. W. 335; Port City Lbr. Co. v. Markell (Tex. Civ. App.) 9 S.W.(2d) 449; Hendrick v. Lbr. Co. (Tex. Civ. App.) 200 S. W. 171.

In the Largent-Etheridge Case, this court, considering the effect of article 2185, in disposing of the appellant’s complaint that the court’s instruction permitted the jury to consider matters beyond the appellee’s pleadings, said: “The gravamen of appellant’s complaint seems to be that the court, by its instructions to the jury, directed them to consider matters beyond tbe scope of appellee’s pleading in arriving at their verdict. If the instructions had such effect and should be conceded to be error, the provisions of article 2185 supra, pronounce as the consequence of not having made timely objection to the giving of the instruction the taking of a proper bill of exception, and urging an assignment here to that effect, that such error is waived.”

In Port City Lbr. Co. v. Markell (Tex. Civ. App.) 9 S.W.(2d) 449, 450, the court, in considering a question like that before us, involving double recovery, etc., used this language: “But, if it be conceded that the charge was subject to the complaint made of it, we would not be authorized to reverse the judgment because of such error, in that appellant made no timely objection to the charge upon the ground that it authorized a recovery of double damages. The objection to the charge now urged was not stated in the objections made and filed in the trial court to the charge, but, so far as shown by the record, such objection- was made for the first time in appellant’s motion for a new trial. * * * ”

The court then cited article 2185, and, continuing, said: “By its failure to comply with the statute quoted, appellant waived the error in the charge, if any, even though it be an error apparent of record” — citing numerous authorities.

And then concluded with a quotation from the opinion in Hendrick v. Lbr. Co., supra, as follows: “To give full effect to the terms ot the later law (* * * article 2185), even an error apparent upon the face of the record, when resulting from an improper charge, is waived, and the right of revision on appeal lost, when no objections are presented in the court below.”

Such is the tenor of all the authorities, and numbers of them are collated in 3 Tex. Jur. p. 202, §§ 137 and 138. There it is shown by the authorities cited that the statute has application where a cause is submitted on special issues, etc. The contention embodied in appellant’s proposition 9 cannot, under the statute and the foregoing authorities, be considered by this court and given effect as a fundamental error. The statute and decisions rob it of that nature, if it ever had such.

On the trial of the case there was much testimony introduced pertaining to the attorneys’ fee, but there is not a bill in this record complaining of the court’s ruling thereon, nor is there any exception taken to any testimony relating to the attorneys’ services before the Industrial Accident Board. At least there is no assignment of error predicated upon any such bill of exception. In this state of the record, and for the foregoing reasons, the appellant has waived its right to have this court review any such alleged error. .

This appeal was disposed of by an opinion handed down December 16, 1932. In that opinion we held on all points except the ninth, as we hold in this opinion. In that opinion we held that the ninth proposition presented fundamental error, sustained the point, and, upon such holding as a predicate, we directed a remittitur of the attorneys’ fees under a penalty of suffering a reversal of the trial court’s judgment in its .entirety. On further investigation we have concluded that we erred in the former opinion in so sustaining the ninth proposition. It follows that, if a remittitur should be filed in accordance with the previous opinion, such action would be based on an erroneous conclusion and holding which this court desires to withdraw and correct at this time, and before motions for rehearing, if any, are filed. The former opinions are withdrawn, the judgment pursuant thereto is set aside, and, for the reasons assigned herein, the judgment of the trial court is in all respects affirmed. All members of the court concur.

On Rehearing.

We have examined appellant’s motion for rehearing, and are satisfied with the conclusions reached in the original opinion, but desire to make a few additional remarks on what the appellant calls its ninth proposition, wherein it is urged that the court committed fundamental error in the manner in which he submitted question No. 1, in that the same called not only for a finding of a reasonable attorney’s fee for services rendered by the plaintiff’s attorney in the institution and prosecution of the instant suit, but permitted the jury to include therein an element of attorney’s fee for services rendered before the Industrial Accident Board in the presentation of the claim.

In approaching the question before us,' it •must be recognized, and it is so recognized by us, that it is a fundamental consideration that any finding, to be effective, must be supported by both the pleadings and the evidence. Judgments of the court shall conform to the pleadings, the nature of the case proved, and the verdict. Article 2211, R. S., as amended by Acts 1931, c. 77, § 1 (Vernon’s Ann. Oiv. St. art. 2211). The sufficiency of the evidence is not here challenged, and this is not a case or question of defective pleadings or lack of pleadings. The plaintiff’s suit is authorized by article 8307, §§ 5 and 5a, of the Revised Civil Statutes of 1925. There are three elements of recovery in it: (1) It seeks to mature a claim alleged to have been awarded by the Industrial Accident Board; (2) 12 per cent, penalty as damages; and (3) reasonable attorney’s fee for the prosecution and collection of the award. Texas Employers’ Insurance Ass’n v. Nunamaker (Tex. Civ. App.) 278 S. W. 889.

Hence this case is not to be confused with that long line of cases wherein the appellate courts have set aside, on the basis of fundamental error, judgments that have no support in tlie pleadings or judgments resting on verdicts without support in the pleadings. Such holdings are correct; many of them are by this court, but have no application to the record before us because this is a case with sufficient and unchallenged pleadings on the essential and authorized elements of recovery.

If there be any vice in this case or in the judgment, it did not get there by the pleading route. The vice, if any, crept in by' and through the charge to which the appellant urged no objection in the trial court, although both the statute (article 2185) and the trial court afforded it an opportunity to do so and thus facilitate an accurate trial. In other words, the vice here complained of was aptly described by this court in Largent v. Etheridge, 13 S.W.(2d) 974, 979, where a similar attack on the judgment was made by the appellant, and this court disposed of the same in this language: “The gravamen of appellant’s complaint seems to be that the court, by its instructions to the jury, directed them to consider matters beyond the scope of ap-pellee’s pleading in arriving at their verdict If the instructions had such effect and should be conceded to be error, the provisions of article 2185 supra, pronounce as the consequence of not having made timely objection to the giving of the instruction * * * and urging an assignment here to that effect, that such error is waived.”

That conclusion is not only apt and correct, but applicable to the point under consideration.

If it be conceded that an incorrect element entered into the verdict and judgment in the manner indicated, and if it be further conceded that the verdict and judgment should embrace nothing by way of compensation for the attorney’s services before the board, which we recognize, nevertheless, how was such a result attained? Or to what is it attributable? Unquestionably to the fact that no objection to the charge was interposed by the appellant,, who is presumed to have accepted same as correct and sanctioned its submission to the jury. Not only this, but there is not to be found in this record an assignment of error to the court’s giving the issue in the form stated. Neither was it mentioned in the motion for a new trial. At either juncture the learned trial court would doubtless have corrected the error and thus economized in time and expense of litigation. In this situation, the observation of Judge Speer in Law of Special Issues, p. 196, § 147, is pertinent. It is there said: “Most any error committed during the ‘progress of the trial is capable of being cured by appropriate instructions from the court. If those supposed errors have occurred prior to the reading of the charge, the matter should be dealt with at that time. * * * ”

This is evidently based upon the provisions of article 2185, R. S. 1925, which reads: “The charge shall be in writing, signed by the judge, filed with the cleric, and shall be a part of the record of the cause. It shall he prepared after the evidence has teen concluded and shall he submitted to the respective parties or their attorneys for inspection, and a reasonable time given them m which to examine and present objections thereto, which objeetions shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.” (Italics ours.) As held by the authorities, this is a highly remedial statute. Western Ind. Co. v. Toennis (Tex. Civ. App.) 250 S. W. 1098.

This statute has in fact had a salutary and beneficial effect. According to its intent and purpose, it promotes accuracy in trial, and it nowhere adds confusion in matters of judicial procedure. Its spirit and purpose is well expressed by Judge Speer in his commendable work on Law of Special Issues, in this language (page 391, § 272): “The statute imposes upon the judge the duty of preparing the charge, — and this includes the special issue, — and a corresponding duty upon the respective parties or their attorneys tot inspect the same and to present objeetions thereto. The end sought is a most desirable one, and the statute was born of the necessity evidenced by the prior common practice of lodging objeetions to the court’s charge at any time before taking out the record, thus, as it were, laying a trap for the judge and enabling an appellant to reverse the judgment upon an objection to the charge for a vice that could and would perhaps have been readily corrected, if called to the attention of the trial judge before it was too late. The responsibility for the accuracy of the charge when it finally is read to the jury is now where it rightfully belongs; that is to say, with the judge preparing it, but only after! he has been aided by such objections as the parties or their attorneys have seen fit to make thereto. The real purpose of the requirement no doubt is to secure constructive criticism.”

The manner in which point 9 is presented to this court discloses that the trial court was not aided by the appellant in a correct submission of the issue to the jury.

Soon after article 2185 was enacted, its effect and purpose as stated by the author were substantially so declared by our Supreme Court in Gulf, T. & W. Railway v. Dickey, 108 Tex. 126, 187 S. W. 184. In Denman v. Pyle, 210 S. W. 335, 336, the Court of Civil Appeals at Austin, discussing the statute, used this language: “The contention that the action of the court complained of constitutes fundamental error does not aid appellants’ cause. A failure to comply with the statute referred to results in a waiver of any error that can be waived, though such error may be fundamental. We see no reason why a litigant may not waive any error in a charge or instruction given to the jury, regardless of the importance or result of the error. The statute is as comprehensive as it could well be made; and, as it contains no exceptions, we think it must be construed to include fundamental as well as other kinds of error in a charge. The Legislature had the power to so frame the law, and the fact that one of the results is to deprive appellate courts of the discretion they formerly had to reverse cases on account of fundamental error in the trial court’s charge, though not complained of on appeal, is no reason why the statute should not be enforced. The Legislature, having the power to enact the law in the form it has been enacted, and there being ño ambiguity about its meaning, its wisdom should not be a matter of concern to the courts.”

In Alderete v. Cabello, 278 S. W. 930, 952, the El Paso Court of Civil Appeals, through Judge Higgins, in considering an objection to the court’s charge, urged for the first time on appeal, said: “As to all objections to the court’s charge raised for the first time in this court and submitted as fundamental error, it is sufficient to say that, under the present statute, all objections to a charge must be called to the attention of the court below. All objections not so made and presented must be considered as waived. * * * The fact that the error may be fundamental is immaterial. Gestean v. Bishop (Tex. Civ. App.) 180 S. W. 302. Errors in court charges are usually of that nature, but the statute does not except from its operation errors in the charge which are fundamental. To so hold would ingraft an exception which the Legislature did not see fit to make when the¡ statute was enacted.”

In Childress v. Pyron, 285 S. W. 1100, 1101, the San Antonio court, in commenting upon article 2185, said: “It will not do to say that the statute does not apply where the error in the charge is fundamental, as claimed here. This statute applies to every erroneous charge, real or imaginary.” Citing several authorities.

The exact point here under consideration was disposed of by the Dallas Court of Civil Appeals, in Ball v. Henderson, 228 S. W. 361, 362: “ * * * The ease is submitted in this court on three assignments presenting what is claimed to be fundamental errors. * * * The first and second asserts, respectively, that the court erred in submitting special issue No. 1, and the issue of exemplary damages, because there is no pleadings to support the issue and judgment. [Italics ours.] If it should be conceded that either, or both, of these assignments presents fundamental error, the matters complained of cannot be considered on this appeal. It is admitted by appellant that no objection whatever was urged to the court’s charge in submitting either of the issues, and, in the absence of objection made and presented to the court before the charge was read to the jury, such objections as should have then been made must now be considered as having been waived” — citing authorities.

Considering a like error, the Court of Civil Appeals of Texarkana, through Judge Hodges, in the ease of Hendrick v. Blount-Decker Lumber Co., 200 S. W. 171, 173, disposed of the same in the light of article 2185, asi follows: “To give full effect to the terms of the later law even an error apparent upon the face of the record, when resulting from an improper charge, is waived, and the right of revision on appeal lost, when no objections are presented in the court below.”

A like holding was made by that court in Parsons v. Hubbard, 226 S. W. 441, in which a writ of error was denied by the Supreme Court.

■ In Texas Electric R. Co. v. Crump, 212 S. W. 827, 830, the Austin Court of Civil Appeals recognized that such a point as that here under' consideration was merely an attack on the charge, and disposed of it in this language: “This assignment is really an attack upon the charge of the court. Our statute provides, in effect, that a charge of the court will be regarded as approved, and any objections thereto waived, unless prior to it being read to the jury objection is made, pointing out wherein the charge is erroneous. The manifest purpose of this statutory provision is to enable the trial court to correct its errors before the law of the case is given in charge to the jury. As stated,' no such objection was made to the charge, and it was. too late to raise the point in a motion for new trial.”

Further; we are of .opinion that there are other and additional reasons why the issue complained of did'not inject a reversible error into the case. The situation, from appellant’s viewpoint, is analogous to that of a defendant against which judgment has been recovered for negligent death, etc. In submitting the proper elements of damage in such a case, it is held to be reversible error, when objected to, for the trial court to fail to instruct the jury, in substance, at least, that, in arriving at their verdict, they should exclude from their consideration damages resulting from physical and mental suffering, grief and sorrow, or the loss of society or companionship on account of death, etc. Texas & P. Ry. Co. v. Phillips (Tex. Civ. App.) 56 S.W.(2d) 210; Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1033; International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S. W. 328.

In such a case it would not be contended that such an omission upon the part of the trial court would be reversible error when raised for tbe first time in tbe appellate court. It is elementary that sueb an objection would have to be urged to tbe charge under article 2185, before tbe error would be available on appeal. This is not only analogous to tbe situation before us, but is perhaps a deadly parallel, compelling tbe conclusions which we entertain relative to tbe disposition to be made of point 9.

We have thus extended these remarks to make clear our view that tbe appellant’s point 9 simply involves an attack upon tbe charge when it made no such attack in thé trial court, and to show that tbe question is not one of pleading at all. We are conscious of tbe fact that a, bard ease is calculated to make bard law. History so shows, but it does not always repeat. To be sure tbe verdict and tbe judgment possibly embrace an unwarranted element of recovery, and it counts for nothing that it is doubtless insignificant in amount compared with tbe sum necessarily found by tbe jury to justly belong to tbe plaintiff. Tbe primary consideration is a correct application of a legal' principle or statutory rule. Nothing else is desirable. If tbe proposition under consideration is merely an attack on tbe charge, then we think that tbe wholesome effect of article - 2185 should not be whittled away and emasculated by a new-found exception, even though an issue too generous to tbe plaintiff crept into the charge. Tbe Legislature did not create such exception.

Tbe motion for rehearing is overruled.’

FUNDERBURK, J„ dissenting, see 57 S.W. (2d) 1120..


source: Caselaw Access Project

author: FUNDERBURK, Justice. HICKMAN, Chief Justice

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. MARSDEN.
    No. 1075.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 17, 1933.
    Rehearing Denied March 3, 1933.
    Lawther, Cox & Cramer, of Dallas, for appellant.
    Frank S. Roberts, of Breckenridge, for ap-pellee.
   FUNDERBURK, Justice.

The Industrial Accident Board, acting upon the claim of D. E. Marsden, made an award in which was recited a finding that the injury for which compensation was claimed had re-suited in hernia (having all the characteristics to make such injury compensable). It was found that said Marsden should submit himself to a surgical operation, and it was so ordered. It was further directed that, if he submitted to the operation and it resulted successfully and effected a cure, he should have compensation at the rate of $20 per week for 26 weeks, less any previous payments. The board, in said award, upon condition that no appeal had been taken by either party therefrom, made several contingent orders, as follows: (1) That, if said employee submitted ¡to the operation and it failed to effect a cure, he receive compensation under the general provisions of the law for whatever incapacity may be found to exist, the amount in case of disagreement of the parties to be subject to further action of the board; (2) that, if he refused to submit to operation, then he should have compensation for 52 weeks at the rate of 60 per cent, of the difference between $34.61, his average weekly wage-earning capacity before he suffered the injuries, and his average weekly wage-earning capacity during said period of one year; (3) that, if the operation were undergone and the parties who furnished the operation and the other items associated therewith failed to agree upon the reasonable value of the services, the matter to be subject to further action of the board.

Both Marsden and the Texas Employers’ Insurance Association, the latter being the insurer, gave notice of unwillingness to abide said rilling and decision of the board. Mars-den, within 20 days after such notice, filed this suit to set aside the award and recover compensation, and the insurer within said time filed its cross-action, likewise seeking to set aside said award. In his petition Mars-den, in addition to other necessary and proper allegations, averred that he was in such physical condition as to make it more than ■ordinarily unsafe for him to stand an operation, and sought judgment for compensation upon the basis of total and permanent incapacity, and in a lump sum. »TJpon a jury trial, compensation was awarded him in the lump sum of $6,583.10, with interest and costs. The insurer has appealed.

The appellant has filed a motion seeking to have us reverse and dismiss the case on the ground that the trial court was without jurisdiction because the award of the Industrial Accident Board was not a final award. The same question is also presented by appellant’s first and second propositions in its brief.

The Industrial Accident Board decided and ruled, as shown by the award, as follows: (a) That Breekenridge Gasoline Company was a subscriber; (b) that Texas Employers’ Insurance Association was the insurer; (c) that D. E. Marsden was an employee of said subscriber ; (d) that said employee, on April 25, • 1931, sustained an injury while engaged in the course of his employment; (e) that his average weekly wage was $34.61; (f) that said injury resulted in hernia, (g) which appeared suddenly (h) and immediately following its infliction; (i) that it did not exist in any degree prior to infliction thereof, and (j) was accompanied by pain (k) “from which compensation and the benefits to accrue under the provisions of the employers’ liability law exist in favor of D. E. Marsden and against the Texas Employers’ Insurance Association” ; (1) that Marsden should submit himself to a surgical operation; (m) that the “expense incident to and associated with said operation in the reasonable value thereof to be borne and paid by the Texas Employers’ Insurance Association” ; (n) “that said D‘. E. Marsden is entitled to recover from and have paid to him by the Texas Employers’ Insurance Association on account of said injury, compensation in accordance with the' facts that develop in the event he undergoes operation; that is.'to say, if said operation is submitted to, and same results successfully and effects a cure, said D. E. Marsden will be entitled to recover from and have paid to him by the Texas Employers’ Insurance Association compensation at the fixed rate of $20.00 per week for the definite and fixed period of 26 weeks, same beginning to accrue on. the date operation is undergone and being payable weekly thereafter until the full period of 26 weeks has expired, less a credit of sum total of all .previous payments of compensation, if any, and less attorney’s fees hereinafter ordered paid, and it is so ordered, adjudged and decreed by the Board.”

The above provisions of the award designated (a) to (n), inclusive, must, we think, be considered as constituting the entire award. All other provisions are expressly upon condition that neither party appeals within the time required by law, and are therefore by their own terms inoperative. If this construction be correct, then the award clearly determines, among other things, the question of appellant’s liability to pay compensation, and provides that, if appellee submits to an operation and the same is successful and effects a. cure, he shall be paid $20 a week for 26 weeks, less prior payments, if any. The implication is that, if appellee does not submit to the operation, or if the operation be unsuccessful, he shall receive nothing unless no appeal shall be taken, in which case compensation under different contingencies is provided. The question for decision is whether there is thus shown a “final ruling and decision” of the board which either of the parties are entitled to have determined by recourse to the court.

The Industrial Accident Board is not a court, and its rulings and decisions are therefore not judgments of a court. It is doubtful, we think, if principles governing the finality of judgments have application to the question here presented. We think the law clearly evinces the intent that either party shall have the right to have the proper court determine the question involved in any ruling or decision of the board which purports to finally determine any right of the parties arising under the Workmen’s Compensation Haw. The decisive test of finality of such ruling or decision is not whether the board purports to have exhausted its jurisdiction or to hold certain questions open for future decision, hut rather whether the ruling or decision upon any matter is of such a nature that it imposes upon a party the alternative of either having it set aside or becoming hound thereby. We think that in principle this test is sustained by a number of decisions. Southern Casualty Co. v. Todd (Tex. Com. App.) 29 S.W.(2d) 973; Todd v. Southern Casualty Co. (Tex. Civ. App.) 18 S.W.(2d) 695; Oilmen’s Reciprocal Ass’n v. Harris, 116 Tex. 247, 288 S. W. 809; Southern Surety Co. v. Hendley (Tex. Civ. App.) 226 S. W. 454; Lumbermen’s Reciprocal Ass’n v. Warren (Tex. Civ. App.) 272 S. W. 826; Security Union Ins. Co. v. Cartwright (Tex. Civ. App.) 33 S.W.(2d) 1088; Consolidated Underwriters v. Saxon (Tex. Com. App.) 265 S. W. 143. The award in question seems to us clearly to meet this test. It will not be contended, we take it, that an award may be final and therefore appealable as to one of the parties, and not final and therefore not-appealable as to the other. .The statute (R. S. 1925, art. 8307, § 5) will'not reasonably lend itself to ány such construction. The right of appeal is given alike to both parties. But anyway both parties here have, in legal effect, appealed. The situation is no different than it would have been had appellant filed the suit and the ap-pellee had asserted his claim in a cross-action.

Let us consider now whether the award in question finally determined any legal right of either party, in the absence of timely suit by one or the other. The award determined the existence of a compensable injury. How could the binding effect of that ruling or decision have been avoided by appellant except by a transfer of jurisdiction of the proceeding from the board to the court? Nothing in the award provided, even if if could do so, for a redetermination of that question by the board. The award further determined that appellee was an employee; that he was injured in the course of his employment; that his average weekly wage was $34.61, etc. These were all determinative questions, either of the liability of appellant, or of the amount of compensation to be paid. The board’s decision of these questions put the appellant to an election to abide by same and become bound thereby or to have them determined by the court. The award shows a ruling or decision of the board that appellee should submit to an operation. If appellee was dissatisfied with that ruling, how, other than by appeal, could he avoid being bound thereby, with ■the result that his rights would be limited accordingly. Let us suppose that neither party had appealed and appellee had insisted upon an operation, b.ut appellant repudiated its obligation to pay for same and refused to do so! Oan it be doubted that appellee would have had the right, under R. S. 1925, art. 8307, § 5a, to mature that part of the award? To hold: that he would not would, it seems to us, be to strike down a plain provision of the statutes.

These illustrations, it is believed, will suffice to demonstrate that, if the real test of finality be as we have above suggested, then the award in question comes clearly within such test.

But even if we have not properly construed the award, and, to the contrary, it should be interpreted j.ust as though none of its provisions were to be operative only upon the contingency that neither party appealed, we could reach no different conclusion than we have. Oan the Industrial Accident Board make decisions or rulings sustaining or denying legal rights of the parties under the Workmen’s Compensation Law and simply by purporting to retain jurisdiction or reserve the right to change them, or hold some questions open for future determination, thereby defeat the jurisdiction of the courts and work a denial of the rights of the parties to have the courts finally determine such questions? We are not prepared to assent to such a proposition. Southern Surety Co. v. Hendley, supra; Ind. Ins. Co. v. Sparra, 57 S.W.(2d) 892; Vestal v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 285 S. W. 1041.

With reference to other conclusions of appellant, we deem it sufficient to say that, in our opinion, the words and terms “permanent,” “more than ordinarily unsafe,” and “suddenly and immediately following the injury,” are not such legal terms as to require definition or explanation under the provisions of R. S. 1925, art. 2189.

There is no merit to the contention that the court erred in failing to define “average weekly wages.” The court did define said term as follows: “The term ‘average weekly wage’ shall be a one-fifty-second (1/52) of the average annual wages.” The objection does not challenge the correctness of the definition, but the failure to give a definition. No question is presented as to its correctness, and we express no opinion as to that. Evidently the foregoing definition was afterwards given in response to said objection.

It was further objected that said definition contained the term “average annual wage,” of which there was no definition. The undisputed evidence showed the average annual wages received by appellee, and the' jury could have considered nothing else. It therefore affirmatively appears that no prejudice could have resulted to the appellant by the failure of the court to further define the term “average annual wage.”

Neither do we believe there was error in permitting Dr. O. Lindley, while testifying as an expert medical witness, to state the history of the case as given to him by appellee while undergoing examination. It is our understanding that physicians in making a diag-. nosis reach their conclusions based upon two sources of information, namely, the objective and subjective symptoms. The subjective symptoms must necessarily come from the pa-' ttent and include in part at least some of the history of the case.

Being of opinion that there was no error in the trial of the case, and that the judgment of the court below should be affirmed, it is accordingly so ordered.

HICKMAN, Chief Justice

(dissenting).

The exact question presented by this record was before the Supreme Court recently in the case of Tally v. Texas Employers’ Insurance Ass’n, 48 S.W.(2d) 988. The only question decided in that case was that an award of the Industrial Accident Board, requiring an operation for hernia, was not final as respects the jurisdiction of the court to set same aside. The award there considered was, in all essential respects, the same as that in the instant case. The opinion was by the Commission of Appeals, but the holding was necessarily approved by the Supreme Court, which entered its judgment reversing the judgments of the trial court and the Court of Civil Appeals and dismissing the cause. It could not have entered that judgment without agreeing with the conclusion of the Commission that the award of the Industrial Accident Board was not final as respects jurisdiction of the court. I believe that this court is bound by that decision, and this irrespective of whether we give mental assent to the holding in that case. Thus believing, I respectfully enter my dissent.


author: HALE, Chief Justice.

text:
    CHAMPLIN REFINING CO. v. STREET.
    No. 3946.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1933.
    Rehearing Denied March 1, 1933.

      R. T. Correll, of Perryton, and Works & Bassett, of Amarillo, for plaintiff in error.
    Hoover, Hoover & Cussen, of Canadian, Allen & Allen, of Perryton, and M. H. Gordon, of Woodward, Okl., for defendant in error.
   HALE, Chief Justice.

L. O. Street, a resident citizen of Oklahoma, owned several town lots in Farnsworth, Ochil-tree county, Tex., upon which he desired to have storage tanks for petroleum products, as well as a filling station, erected. On the 21st day of April, 1927, he entered into a written contract with the appellant refining company, for the construction and erection of said improvements upon said lots. The lots are a part of a block situated between the highway and the railroad right of way running through said town. The storage tanks and improvements were near the railroad track and the filling station faces the highway. The contract provided that the rights of the parties thereunder should exist for three years, beginning on June 1, 1927. That no rent should be paid to Street for the use of the lots during said period. It. bound the refining company to purchase and install on lot 9 two storage tanks of not less than 11,000-gallon capacity each, to be ready for use by June 1, 1927. Paragraph 3 provided that at the expiration of the three-year term Street would purchase, for cash, the storage tanks and all other equipment which the company might ship to Farnsworth during the life of the contract for use in operating the agency at that point; the purchase price being the original cost of such property, plus freight and expenses of installation. It is further provided in section 3 that the failure of Street to purchase the property as stipulated should be construed as an option to the refining company to purchase said lot 9 for the sum of $200 and that Street would convey the property by warranty deed. That it was also an option to the refining company to lease the service station on lot 9 for an additional period of five years at a rental not to exceed 1 per cent, of the cost of the station, plus a reasonable valuation of the ground on which it is located. Paragraph 4 provided that Street should purchase a portable steel service station to be located on lot 8 and to be properly installed and ready for operation not later than June 1,1927. Paragraph 5 provided that the refining company would furnish the gasoline pump, the underground tank, and the lubricating oil pumps necessary for the successful operation of the service station, provided, however, that Street would install a Y-20 Curtis air compressor and all other equipment necessary for the operation of the station, and that further equipment furnished by the refining company should constitute all the loaned equipment to be used there. By paragraph ⅜ the refining company appointed Street as its agent to operate its bulk and service stations. Paragraph 8 recites that the refining company employs Street as its agent under the terms and conditions of another agreement made between them, “which is attached to and made a part of this contract”; but it was not attached and is not in the record. By paragraph 9 Street agrees to operate the agency in accordance with the. rules and regulations issued by the refining company and comply with all instructions governing the operation and maintenance of the bulk storage and service stations, and further stipulates that should Street violate the terms of the contract, the refining company at its option might cancel and revoke the ‘agency without violating the terms of the lease and optional agreement conveyed. That Street should pay all the expenses incident to operating the bulk station and service station.

The refining company instituted this suit January 14, 1931, alleging a breach of the contract, and filed its first amended original petition March 28, 1932, upon which the case-wa's tried. By its amendment it set up the execution of the original contract April 21, 1927, setting forth the substance of the various provisions as stated above, and further-alleged that the contract was executed at Enid, Okl., and that the plaintiff below, being plaintiff in error here, and its said representatives, were ignorant as to the division into lots of the contemplated location for said bulk station and service station as the same existed upon the ground, but that the defendant knew of such subdivision,and designation of the several lots in block A of said-town of Farnsworth. That plaintiff is now advised that said block A is a long strip of. land about 100 feet wide, extending in a northeasterly and southwesterly direction between the tracks of the Santa Fé Railroad on the northwest and the public highway leading from Spearman to Perryton. That this strip of land is divided into lots numbered consecutively from the northeast to the southwest and that Street owned all of the lots numbered from 1 to 12, inclusive, and also owned a grain elevator situated on or about lot 8 of said series of lots and near the railroad track. .That there was also situated on said lot 8 an office building. .That lot 9 is immediately southwest of lot 8; lot 10 immediately southwest of lot 9; lot 11 immediately southwest of lot 10; and that there was a warehouse on said lot 11. That each of said lots is 50 feet wide, and it was agreed that the bulk storage station should be' located on one of the lots and the service station on the lot adjoining same on the east. That in reducing their contract to writing, there was a clerical error made by the draftsman, and by mutual mistake of all parties, lots 8 and 9 were mentioned therein instead of lots 9 and 10. That by mutual mistake, lot 9 was designated as the location for the bulk station instead of lot 10, which erroneous designation of lot 9 appears in all of the paragraphs of said contract. That instead thereof, there should have been written lot 10. That in the latter portion of subdivision 3, in referring to the option given by defendant to plaintiff to lease the gasoline service station, lot 9 is properly designated and such service station was, in fact, located on said lot 9, but that the bulk storage station was on said lot 10. That in keeping with said real and true contract, the refining company placed on said lot 10, as directed by Street through his authorized agent and representative, Bradley Anderson, the equipment which is itemized in the petition .and separately valued, aggregating $4,168.69. -Plaintiff refining company' further alleged -that on May 31,1927, it entered into a written contract with Bradley Anderson, who was the agent for .and acting on behalf of Street, providing for the operation and conduct of said service station. That Street still resided in Oklahoma and that Anderson was fully authorized and empowered by him to represent him in the execution of said contract and the performance of said services.

That in the execution of said contracts, the refining company, as party of the first part, and Bradley Anderson, as party of the second part, executed another written instrument, designated “Loaned Equipment Contract,” on June 15, 1928, wherein plaintiff company agreed to furnish Anderson for a •period of three years, and thereafter until terminated by either party by thirty days’ previous notice, one Butler model 71 gasoline pump, hand operated; one 550-gallon underground tank; two Tokhein 60-gállon lubricating tanks, to be used by the second party in •the sale of petroleum products manufactured ■by plaintiff refining company. In said contract lot 8 is named as the location for installing said property, but lot 8 was designated by mutual mistake and error and the same should have been lot 9.

That the act of Bradley Anderson in executing said above contracts as the agent of Street has been ratified, confirmed, and approved by the latter up to the time of the repudiation and breach of said contract by Street. That plaintiff furnished all the equipment, tanks, and other material required by said contracts and placed the same upon the ground in the locations pointed out and designated by defendant, acting by and through his agent, Anderson. That after being so located upon the ground, said equipment was used and operated under the contract with the approval of the defendant by Anderson, whereby defendant has waived any mistake as to the numbers of said lots and is estopped from taking an advantage of any such mistake by having pointed out upon the ground the location and having received the benefits therefrom.

That on or before the expiration of the three-year term stated in the contract and at the expiration of which time Street was obligated to purchase the equipment of said storage station or his failure at said time to do so would constitute an option to plaintiff to purchase the lot for $200, Street repudiated and breached the contract, in that he failed and refused, about May 23, 1930, to so purchase said equipment or to recognize plaintiff’s option to purchase the lot; he, in fact, having prior thereto rendered himself incapable of complying with the contract by having deeded and conveyed both of said lots to other parties, lot 10 being conveyed to Sharon Grain Company and lot 9 to Bradley Anderson on or about March 8, 1929.

'Having been informed that Street had conveyed lot 9 to Anderson, plaintiff, in an effort to protect itself and to continue to sell its products in and about Farnsworth, arranged to take over the service station by securing a conveyance of the front, or south, portion of said lot 9 on which the service station was ■located, after which it conducted the station without the aid and assistance of defendant and his representatives. That in connection with so adjusting said service station matter, after such conveyance of said lot 9 by defendant to Anderson, plaintiff sought to acquire all of said lot 9 and was ready, willing, and able to have purchased said lot 10 on which said bulk station was located in fulfillment of its said option, but learned that lot 10 had already been conveyed with its permanent structures and equipment and was informed by Anderson that, its contract with defendant having been burned, plaintiff would have to work out as best it could its rights with Street as to the remainder of said lot 9 and all of lot 10.

That plaintiff demanded compliance with the contract and defendant failed and refused to perform his obligations.

Plaintiff alleges that if it should be held that the operation of the service station by Anderson was not for and on behalf of Street, that defendant is not relieved from liability to plaintiff on account of his acts in the premises ; such operation of the service station being severable from defendant’s obligations and liabilities as to the lot on which the bulk and storage tanks were located.

The prayer is for judgment against Street in the sum of $4,168.69, with 6 per cent, interest from June 1, 1930, upon the contract, or in the alternative for .that amount as damages for breach thereof, because of the conversion and sale of the items listed in the contract.

The contract declared upon, the substance of which is set out first above, provides that the equipment furnished by the refining company should be used for the exclusive distribution and sale of the products manufactured by the refining company so long as Street continued to be the agent of the refining company.

By his answer Street demurred generally to the plaintiff’s petition and specially to the effect that the contract sued upon was shown to be illegal and void because it was contrary to public policy and made in restraint of trade, in that it required Street to sell only Champlin products.

By further exception it is insisted that the petition shows that the contract was unilateral, in that it gave the plaintiff power to revoke the agency created without violating the law or the optional agreement therein contained. That it was insufficient ■ because it was an action based upon the failure of Street to convey real estate at an agreed price; tha true measure of damages being the difference in the value of said real estate and the price at which the plaintiff, under the contract, was at liberty to purchase it.

In addition to a general denial, Street alleges that he complied with all the terms of the written contract and that plaintiff had violated the contract by appointing one E. D. Grebe on the 15th day of June, 1928, to sell Champlin products in the city of Farnsworth, after having by the contract awarded Street the exclusive right and agency to sell said products. That at no time prior to the in- ' stitution of this suit had the plaintiff notified defendant that it desired to exercise its option and purchase said lot for the sum of $200, but on the contrary, retained possession of said property, both real and personal, using the same and enjoying the rents and revenues thereof and is estopped by its own acts to exercise its option. That after the execution of the contract and long prior to the institution of this suit by plaintiff and after plaintiff had breached the contract as hereinbefore stated by turning its oil business over to Grebe, plaintiff, with full knowledge of the fact that defendant had deeded lot 9 to Bradley Anderson, defendant, at the special instance and request of plaintiff, deeded said lot 9 by quitclaim conveyance to plaintiff, the consideration being a full and complete settlement and relinquishment of all obligations and liabilities which the plaintiff might have against the defendant by reason of said contract, and therefore • all matters in litigation were thereby settled. That at said time plaintiff was in possession of said lot and is still in possession of same and has never offered to reeonvey the same or to do equity in the matter, all of which the defendant pleads as a full and complete settlement and bar to the right of plaintiff to recover against him any sum whatever. That the mistake in conveying lot 9 was not discovered until after defendant had conveyed lot 10 to Sharon Grain Company, their elevator being on lots 7 and 8. That there was no- intention to convey to the elevator company the lot upon which the tanks were located, but it was intended by the quitclaim deed to convey to plaintiff the identical ground upon which its tanks were located. That defendant did not know of the mistake until after this suit was instituted, when he offered to correct the error by procuring for plaintiff a conveyance of lot 10, and was in a position •at that time to do so, but plaintiff refused to accept a deed to lot 10 and thereby correct the mistake and advised defendant that the business at Farnsworth had decreased and was not paying, that it desired to get out of there and refused to correct the error, although they were willing to accept the deed and did accept it as hereinbefore stated in full settlement of all matters in controversy and for all claims against the defendant, and having done so and having refused to correct the error, are now estopped to disavow its own acts and exercise an option long since abandoned.

The defendant denied that Bradley Anderson was ever his agent or was ever in any manner authorized to represent him in any of the matters and things charged in the petition.

The refining company filed a supplemental petition denying that Bradley Anderson was its agent until defendant had breached his contract, after which Anderson become the direct agent of plaintiff for the distribution of its products at Farnsworth. The allegations of settlement were denied, as well as the ability of. the defendant to convey the title to lot 10. It is alleged that there was no consideration as a basis for any settlement or for waiver on its part of its claim against defendant. That possession of or use of the bulk station by plaintiff, since defendant so breached his contract and rendered himself unable to fulfill the same, had been by way of sufferance and was brought about by defendant’s own wrong.

The case was tried to the court without a jury and resulted in a judgment that the plaintiff in error take nothing as against Street and decreed that plaintiff in error pay all costs.

There are no findings of fact or conclusions of law in the record.

In the absence of findings by the trial judge, it is the duty of this court to affirm the judgment upon any theory which may be supported by pleadings and evidence.

The defendant in error insists that the judgment is proper because there is a want of mutuality in the contract.

We cannot assent to this proposition. The contract, the substance of which is set out in the first part of this opinion, imposes obligations upon both parties, both dependent and independent. Street was to surrender the possession of the lots for three years, rent free. It was his duty to furnish and install a V-20 Curtis air compressor and other equipment necessary in the operation of the filling station. He was also required to provide a steel service station and to install it ready for operation by June 1st. It provided that he should represent the company as its agent and that his duties were to be performed in accordance with instructions thereafter to be given. Some of the obligations resting upon the refining company were to furnish two storage tanks and to install them upon the premises, which required the company to provide a concrete base upon which the steel support for the tanks would rest and to provide further equipment, such as gasoline pumps, lubricating oil pumps, an underground tank, etc. At the expiration of three years Street had the option of purchasing the improvements and equipment at a stated price. Failing in this, the company had the option of acquiring the title to the lots at the stipulated price of $200. The equipment to be furnished was itemized in the contract. Since the contract imposed mutual and dependent obligations upon both parties, it was not void for want of mutuality. .The fact 'that the contract did not state the amount of gasoline and other products to be furnished did not render the contract uncertain or void for want of mutuality. Grand Prairie Gravel Co. v. Joe B. Wills (Tex. Civ. App.) 188 S. W. 680; Cox, Inc., v. Humble O. R. Co. (Tex. Com. App.) 16 S.W.(2d) 285.

Nor do we agree with defendant in error that the contract was void as being in violation of the provisions of the national and state anti-trust laws (see 15 USCA § 1 et seq.; Vernon's Ann. Civ. St. art. 7420 et seq.). It was a lease contx-aet and an agency contract combined under which one party could sell, and the other purchase, products during a definite period, at the expiration of which time certain options accrued to each under stated conditions. It provided that the equipment furnished by the refining company should not be used except for the exclusive distribution and sale of petroleum products manufactured by the second party. There is no territorial limit mentioned. Since the company had a three-year lease upon the lot, it certainly had the right to limit its own agent in the character and kind of products to be, sold upon its own property. It appointed an agent to operate its bulk and service station described in the contract and to distribute and sell Ohamplin products only, so long as he remained its agent. In our opinion this does not violate the anti-trust statutes. State v. Gulf Refining Go. (Tex. Civ. App.) 279 S. W. 526; State v. Texas Company (Tex. Civ. App.) 280 S. W. 1119; State v. Producers’ Refining Company (Tex. Civ. App.) 281 S. W. 1118.

The plaintiff: in error insists that' the contract is divisible and alleges, that the operation of the service station was severable from defendant’s obligations as to the lot where the bulk tanks were situated.

Whether a contract is entire or separate depends primarily upon the intention of the parties. There is nothing in the contract, considered from its four corners, which would indicate that the parties ever intended that it should be severable. The plaintiff’s prayer for relief and the pleadings of the defendant treat it as an entire contract. Their conduct is a practical construction of the instrument by the parties and indicates that the idea of severability is an afterthought. No evidence was introduced ‘to sustain that theory.

Defendant in error insists that the judgment may be sustained upon his contention, both pleaded and proven, that the controversy between the parties had been compromised and settled.

On the 20th day of June, 1928, Street and wife conveyed lot 9 to Bradley Anderson, and while the original contract designates Street as the agent of the refining company to sell its products at Farnsworth, Street téstified that he never acted as the agent of plaintiff and that plaintiff gave the agency to Anderson. The record contains an agency contract between plaintiff and Anderson, executed on the 31st day of May, 1927, in which Street is not mentioned, and it appears that Anderson was in actual operation and management of plaintiff’s business at Farnsworth; yet in the face of these facts plaintiff insists that Street was the real agent and not Anderson. It is significant that Anderson did not testify in-person or by deposition. The original contract first above set out recites that the refining company employs Street as its agent “under the terms and conditions of another agreement made and entered into by the parties hereto and identified by copy of the agreement being attached and marked Exhibit A and made a part of this agreement.” No such agreement as “Exhibit A” appears in the record, and it seems to be conceded that no agency contract was ever executed by the refining company appointing Street its agent. The only inference from these facts is that the original contract was abandoned or changed in the particulars mentioned.

The testimony with reference to a compromise and settlement shows that just about the time Street and wife conveyed lot 9 to Anderson, they also conveyed to W. A. Teter, his-wife, and to A. C. Teter, a firm designated as the Sharon Grain Company, lots 7, 8, 10, :11, 12, and 13 in the town of Farnsworth for a recited consideration of $5,000 and other valuable considerations. Street testified that he sold all of his property in Farnsworth to Sharon Grain Company and to Anderson about the same time. That soon 'thereafter Preston Rathburn, representing the refining’ company, came to defendant’s,'..office in.Woodward, Old., bringing a quitclaim deed, and requested him to sign it, which conveyed to the refining company said lot 9. Street said that Rathburn wanted the deed signed “to settle our affairs — our business.” Rathburn did not testify and the quitclaim deed is not in the record.

It further appears from the record that Anderson quit working for the refining company after about one year, whereupon the pompany checked him out at Farnsworth and appointed one Grebe as its agent there, without consulting Street in any way. Street admitted that Anderson had worked for him in connection with his elevator-at Farnsworth, but had never represented him and was not authorized so to do at any time in any other matter and especially in regard to the contract with the refining company. The fact that matters between the parties had not been fully settled, and all the terms of the original contract had not been complied with, was a sufficient consideration to support a compromise and settlement upon the basis contended for by Street.

i Plaintiff in error says that while the court listened to the testimony of Howard Street and L. O. Street as to an alleged conversation in the last pa,rt of January, 1981, in the State Hotel at Woodward, that testimony was finally stricken out by the court. That may be true, but according to Street’s testimony the conversation which resulted in the execution by him of a quitclaim deed to lot 9 is, according to the record, an entirely different conversation and the judgment may therefore be sustained upon the plea and proof of settlement.

It further appears from the record that the refining company is in possession of the oil truck, galvanized iron barrels, and other equipment which was furnished and which Anderson, had used in conducting the business. This equipment was not tendered by the refining company and no offer was made in its pleadings or otherwise to account for the same.

The record does not sustain the eleventh assignment of plaintiff in error, which recites that the defendant had sold and conveyed the bulk station lot, with all of said permanent fixtures thereon, and after all of the equipment to be used therewith had been.disposed of so. he had thereby rendered himself incapable of complying with the conditional option..

It is said in 39 Oye. 1252: “A mistake as to the location of the realty contracted for is a mistake as to the identity of the subject-matter of the contract and avoids the same.”

Both sides plead that there was a mutual mistake in describing the lots as 8 and 9 and that a proper description would have been lots 9 and 10. It is held in Harkrider v. Oapps (Tex. Civ. App.) 250 S. W. 1093, that where a purchaser of real property discovers that through the inadvertence and mutual mistake of the agent and the purchaser himself a different property than that contracted for has been conveyed, he has a right of action to rescind or in the alternative to sue for damages occasioned by the mistake, and in the event of suit for specific performance he has a right to abate the purchase price to the amount of his damages under a plea of failure of consideration. The plaintiff has resorted to none of these remedies in this case, but its suit is based upon a contract which, according to the pleadings and admissions of both sides, is void at least in so far as it attempts to create rights as to lot 8.

The record further shows that after part of the improvements had been placed upon lot 10 by mutual mistake and said lot had been conveyed to the Sharon Grain Company, Street offered to execute a new deed conveying lot 10 to the refining company and have the Sharon Grain Company relinquish its rights thereto, but that the refining company refused to accept a correction deed and insisted upon prosecuting this suit.

Under the case as presented by the pleadings of both parties and after considering the evidence introduced, we think the court has rendered the only judgment which properly could have been rendered, and it is affirmed.