author: JACKSON, Justice.

text:
    FRASER et al. v. ROGERS.
    No. 3955.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 1, 1933.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for appellants.
    Philip Wolfe, of Pampa, E. P. Ritchey, of Miami, and A. J. Welch, of Clinton, Okl., for appellee.
   JACKSON, Justice.

Rose Rogers, plaintiff, as a feme solfe, instituted this suit in the district court of Gray Comity against the defendants W. T. Eraser, W. C. Upton, and M. P. Downs, to recover the sum of $3,500, with interest thereon at the rate of 6 per cent, per annum from April 24, 192S.

She alleges that on January 11, 1928, the defendants were fire insurance agents doing business at Pampa, Tex., as a copartnership under the firm name of Fraser-Upton & Downs. That on said date the defendants, as such agents, solicited her to purchase two insurance policies covering loss by fire on: her property located on lot 24 in block 25 in the town of Roxanna, Tex.; that in pur-.suaiice to such solicitation, she purchased two fire insurance policies covering said property, the improvements thereon, and the household goods and furniture located in the improvements. That the policies were delivered to her by the defendants; one for the sum of $1,500, issued by file D’Activite Insurance & Reinsurance Company, Limited, and covered the furniture and household goods, the articles of which she itemizes and alleges to be of the value of $2,349.60. That the other policy was for the principal sum of $2,000, issued by the British Islands Insurance Company, Limited, and covered the two-story sheet iron building situated on said lot, of the value of $3,310.10, the title to which she owned in fee simple. That both of said insurance companies were foreign corporations, and neither had a permit to write insurance in the state of Texas, and .plaintiff could not enforce the policies against said companies, all. of which was unknown to plaintiff, but well known to the defendants. That she paid the full premium of $122.50 to the defendants, and on February 4, 1928, while the policies were in full force and effect, the .building, household goods, and furniture were entirely destroyed by fire, of which she gaye the defendants proper notice.

The defendants answered by general demurrer, general denial, specially denied that plaintiff was the owner of the property, denied ■ partnership by verified pleading, and alleged that the policies were obtained by plaintiff with the intention of defrauding the companies by causing the property to be destroyed by fire, and that she did cause the property to be burned.

W. T. Eraser and M. P. Downs also pleaded that if any partnership existed, all of the transactions had with plaintiff pertaining to said policies were had with W. O. Upton, and that they had no notice or knowledge of any of said transactions.

In response to special issues submitted'by the court, the jury found, in effect, that the plaintiff caused the property covered by the insurance policies to be burned.

• On the verdict of the jury, judgment was .rendered that the plaintiff take nothing by her suit, and the defendants go hence with.out day.

The plaintiff filed a motion for new trial, which was granted, and the judgment based 'on the jury’s finding against her was set aside and' judgment non obstante veredicto rendered that the plaintiff recover from the ■ defendants, jointly and severally, the sum of ■'$4,357.50, from which judgment the defend.ants appeal.

The appellants present as error the action of the court ion rendering judgment for ap-pellee inasmuch as she pleaded that she was the owner of the title to the lot in fee simple, and the policies provide they should be void if the insured is other than the sole and unconditional owner, or if the subject of the insurance be a building on ground not owned by the insured in .fee simple; the ■appellee having* testified that she did not own the lot in fee simple on which the building insured was situated.

The appellee contends that .the appellants, having failed to plead specially these provisions of. the policies, cannot avail themselves thereof as a defense.

The suit is based on article 5056, R. 'O. S., and appellee alleges that the appellants violated the provision thereof by soliciting her insurance and delivering to her the policies. No other infraction of the statute which provides for a penalty is set up, and the pleading must be strictly construed. Cross v. Wilson (Tex. Civ. App.) 33 S.W.(2d) 575.

The article of the statute, so far as material to this litigation, provides: “Any person who solicits insurance on behalf of any insurance company, whether incorporated under the laws of this or any other State or foreign government * * * * or who shall receive or deliver a policy of insurance of any such company * * * or do or perform any other act or thing in the making or consummating of any contract of insurance for * * * any insurance company without such company having first complied with the requirements of the laws of this State, shall be personally .liable to the holder of any policy of insurance in respect of which such act was done for any loss covered by the same.”

A violation of this article in the particulars alleged, if established by the testimony, made the agents personally liable to the holder of the policies; but any defense available to the insurance companies affecting the loss or avoiding the policies is available to the defendants, since the statute makes the contract embrace or cover the loss for which the agent is liable. Drummond v. White-Swearingen Realty Co. (Tex. Civ. App) 165 S. W. 20, and authorities cited. See, also, Price et al. v. Garvin (Tex. Civ. App.) 69 S. W. 985; 2 Cyc. of Insurance Law (Couch) 1372; Gates v. Justice, 107 W. Va. 331, 148 S. E. 197; King v. Winston-Norris Co., 139 Okl. 277, 281 P. 955.

It is conceded that neither of the insurance companies issuing the policies had secured a permit to do business in this state.

The appellee testifying in her own behalf, and her testimony is not controverted, stated: “I did not own the land. I just owned the building and furniture. Mr. Bryan owned the land.” That she did not build on her own land, never did own the property, never had a deed to it, never had title thereto; .that she leased it from the owner, and the lease provided that she might at any time she saw fit move the building off of the lot.

The appellee introduced the policies which, among other things, provide: “This entire policy, unless otherwise provided by agreement endorsed thereon or added thereto, shall be void, * * * if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

She pleaded that she owned the title to the lot in fee simple. This was specially denied by the answer of appellants.

“Where a policy is expressly conditioned that it shall be null and void if the interest of the insured be other than unconditional and sole ownership, the required title is a condition precedent to the policy becoming effective. Likewise, a stipulation requiring a fee-simple title to be evidenced by deed is held a condition precedent to the risk attaching. In fact, where the validity of the policy is made to depend upon the insured being the absolute and unconditional owner of the true title to the property insured, ful-filment of the contract is a necessary prerequisite to the validity, and hence to the operative effect of the policy.” 4' Cyclopedia of Insurance Law (Couch) 3182.

This -doctrine finds support in the following cases by the Texas courts: Home Insurance Co. v. Smith et al. (Tex. Civ. App.) 29 S. W. 264; Fire Association of Philadelphia v. Calhoun, 28 Tex. Civ. App. 409, 67 S. W. 153; Merchants’ & Bankers’ Fire Underwriters v. Williams (Tex. Civ. App.) 181 S. W. 859; National Fire Insurance Co. of Hartford v. Carter et al. (Tex. Com. App.) 257 S. W. 531; United States Fire Insurance Co. of New York v. Farris (Tex. Civ. App.) 297 S. W. 575.

The provisions of the policy pertaining to the character of ownership render them void ‘‘unless otherwise provided by agreement endorsed thereon or added thereto,” and no such agreement is disclosed by the record. Under appellee’s pleading and the facts which she introduced in evidence, she was not entitled to a judgment on the policy covering the building on the lot in which she had a leasehold estate, because she did not prove her cause of action as alleged. It is true that appellants did not plead the specific provisions of the policies relative to appellee’s title to the insured property, but, having specially denied her ownership, it was incumbent upon her to establish a fee-simple title to the lot as she alleged.

It is not contended either by pleading or proof that appellants knew of the condition of the title to the lot or waived the provisions of the policies relative to ownership, or were estopped from asserting such provisions as a defense to appellee’s suit.

The testimony discloses that appellee was the owner of the household goods and furniture insured, and if the contract of insurance covering the household goods and furniture was separate and distinct from the contract covering the building, the fact that she did not own the title to the lot in fee simple would not defeat her right to recover for the loss of the furniture and household goods. Sullivan v. Hartford Fire Ins. Co., 89 Tex. 665, 36 S. W. 73.

The appellee alleged that the policy on the building was for the sum of $2,009, and the policy on the household goods and furniture was for the sum of $1,500. The policies introduced are at variance with these allegations ; and, as the judgment will be reversed, it is unnecessary for us to determine whether the insurance covering the building is separate and distinct from the insurance covering the personal property.

Some of the facts necessary to establish in order to authorize appellee to recover were supported by her testimony only. She was an interested witness, and the court was not authorized to withdraw 'the case from the jury and decide these issues on her uncorroborated testimony, because such testimony was controverted, not free from inconsistencies and circumstances tending to cast suspicion upon it, and her veracity was impeached by other witnesses. American Surety Co. v. Whitehead (Tex. Com. App.) 45 S.W.(2d) 958.

Appellants by proper assignments contend that the judgment against them was erroneous because the appellee alleged that she was a feme sole and testified, in effect, that she was a femé covert; that there is a fatal variance between the property described ini the petition and the property covered by the policies; that there was no proof offered of the value of the personal property; that certain inadmissible testimony was heard, but as these matters can be readily corrected and probably will not occur on another trial, we deem it unnecessary to discuss them.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: PLEASANTS, Chief Justice.

license: Public Domain

text:
    BOHLSSEN v. BOHLSSEN et al.
    No. 9754.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 1, 1932.
    Rehearing Denied Jan. 19, 1933.

      Campbell, Myer & Foster, of Houston, for appellant.
    A. D. D-yess, of Houston (Paul Strong, of Houston, of counsel), for appellees Mary O. Bohlssen and American Surety Co. of New York.
    Tom F. Coleman, of Lufkin, for appellees Tom F. Coleman and R. Ü. Jordan’s Estate.
   PLEASANTS, Chief Justice.

This is a suit by appellant against appel-lee, his mother, and the sureties upon her bond as guardian of the estate of appellant .and his three minor sisters, to recover the sum of $17,641.66, with interest at 10 per cent., álleged to have been fraudulently misappropriated and converted by appellee in the administration of appellant’s estate: Appellant also sued to recover title and possession of lands claimed by him as belonging to his estate, and to cancel deeds to his mother conveying his interests in the lands, upon the ground that such conveyances were obtained from him by the fraud and misrepresentation of the appellee, Mrs. Bohlssen; and also to recover a tract of 130½ acres in Harris county alleged to have been purchased by the guardian for him, with his money, and the title to which the guardian had fraudulently obtained in her own name. Plaintiff’s petition is redundant in charges of fraud, deceit, and misappropriation made by appellee. It alleges;

“Plaintiff alleges that said defendant has wholly disregarded her duty to plaintiff in the premises, and she has handled his property selfishly and most recklessly and in utter disregard of her duty as his guardian, and in total disregard of plaintiff’s rights in the premises. Ever since the said defendant’s appointment as guardian of his estate she has not missed a single opportunity to swindle, defraud and cheat him wherever she could. He alleges that she has managed his property, since her appointment as guardian, in such manner as legally to deprive her of the right to receive and collect the usual five per cent allowed guardians' by law for receiving, and five per cent for disbursing, funds belonging to plaintiff that came into her hands. Some of the many illegal, fraudulent, and wrongful things done, and omitted that should have been done, by said defendant while acting as his guardian are as follows:
“From the inception of said guardianship she has sought to swindle, defraud and overreach her wards, and especially this plaintiff. In the original inventory filed by her of the property belonging to her said four wards she knowingly made the following false and fraudulent statements and representations concerning the wards’ said property and their interest therein.” ■ ..

These allegations are followed by statements of a number of instances in which plaintiff’s interest in different items of property belonging to the estate of plaintiff and the other minor wards of the guardian are alleged to have been fraudulently understated in the inventory filed by the guardian, and in some instances received and appropriated by the guardian and not shown on any inventory or report made to the court in which the guardianship was being administered. Other direct charges of misappropriation by the guardian of specific funds belonging to her wards are made in the petition.

The defendants presented in due order pleas of privilege, pleas to the jurisdiction of the court, and pleas of res adjudicata, and further, .answered by general demurrer, a number of -special exceptions, the nature of which need not be here shown, and by general and special denial of the allegations of the petition, and specially pleaded a settlement in full by the guardian of all moneys due plaintiff by her as guardian of his estate, and -the release by' plaintiff, after he became of-age, of all claims against her as guardian of his estate.

Upon a hearing of the pleas above mentioned, the trial court overruled the pleas of privilege, and sustained the pleas to the jurisdiction of the court and the pleas of res ad-judicata, and dismissed' plaintiff’s suit, but expressly adjudged and decreed: “That this order shall not prejudice the plaintiff’s right, nor shall it deprive him of the privilege, if he so desires, to hereafter file and prosecute such suit or suits as he may see proper against the defendant, Mary O. Bohlssen, sometimes called Mrs. H. G. Bohlssen, in her individual capacity to recover from her the title and possession of the 130½ acres of land described' in paragraph 12 of plaintiff’s first amended original petition heretofore filed in this casé; nor shall this order in any manner deprive or interfere with the plaintiff’s right to file and prosecute such suit or suits as he may see proper against the defendant, Mary O. Bohlssen, sometimes called Mrs. H. G. Bohlssen, in her individual capacity to have set aside and cancelled the deed or deeds to the two tracts of land in Jasper County, Texas, and to the tract of land jn Oshkosh, Wisconsin, fully described and set'.forth in paragraphs 7, 8, and 9 of plaintiff’s said first amended original petition heretofore filed in this ease on April 28, 1931.”

No complaint is made by appellees of the ruling of the trial court on the pleas of privilege, nor does appellant contend that the dismissal of this suit against his mother as guardian of his estate affects his right to prosecute a suit against her in her individual capacity for the recovery of title and possession of the lands claimed by him in this suit.

This relieves us of the necessity of further mention of these matters. ■

Under appropriate assignments and propositions, appellant vigorously assails the rulings of the court sustaining appellees’ pleas to the jurisdiction and pleas of res adjudicata.

The undisputed record presented on the hearing of the pleas to the jurisdiction and pleas of res adjudicata shows that appellee Mrs. Bohlssen was appointed, on September 12, 1923, by the probate court of Angelina county, temporary guardian of the persons and estates of her minor children, appellant Henry Edward Bohlssen, 17 years of age, Helen Elsie Bohlssen, 14 years old, Dorothy Ann Bohlssen, 11 years old, and Margaret Bohlssen, 9 years old. On the 14th day of September, 1923, Mrs. Bohlssen executed, a bond as such guardian in the sum of $20,000, conditioned and payable as required by the statute. This bond, which was approved by the próbaté court, was signed by two of the defendant appellees. On the 12th day of December, 1923, Mrs. Bohlssen was duly appointed by the Angelina county probate court permanent guardian of the persons and estates of these minors, and was required by the court to make a bond as such guardian in the sum of $120,000.

Thereafter, on September 19, 1924, Mrs. Bohlssen, as principal, and American Surety Company, as surety, executed a bond in the sum of $120,000, conditioned as required by the statute for the faithful discharge of duties as such guardian. This bond was approved by the probate court and filed in the guardianship estate.

Appellant became of age in July, 1927, and his sister Helen married about the same time. Thereafter Mrs. Bohlssen filed in the probate court in which this guardianship was pending her final account as guardian of her children, Henry Edward and Helen. The following orders were thereafter made by the probate court in the settlement of the estates of these two children:

“No. ■-
“Guardianship of Henry Bohlssen, Helen Bohlssen, Dorothy Bohlssen, and Margaret Bohlssen.
“In County Court of Angelina County, Texas, March Term, A. D. 1928.
“This day came on to be heard the application of Mrs. H. G. Bohlssen, guardian of the estate of Henry Bohlssen and Helen Bohlssen, accompanied by an account showing the condition of said estate and guardianship duly verified as required by law; and it appearing to the court that due notice thereof has been given as the law requires, and the court having examined said accounts and heard all proof that was offered in support of the same, and all objections, exceptions and proof offered:against the same, it appears to the court that she, the said Mrs. H. G. Bohlssen, guardian of the estate of said wards, has accounted for all of said estate according to law. It is, therefore, ordered that said account be and it is hereby in all respects approved, and she, the said Mrs. H. G. Bohlssen, is hereby directed to deliver the estate of the said Henry Bohlssen and Helen Bohlssen remaining in her possession to each respectively, who is qualified by law to receive it.”
“Guardianship of Bohlssen Minors.'
“In the County Court of Angelina County, Texas, May Term, A. D. 1928.
“20th day of April, 1928.
■ “On this day came on to be considered in the guardianship of Henry Bohlssen, Helen Bohlssen, Dorothy Bohlssen and Margaret Bohlsseñ, the reports of Mrs. H. G. Bohlssen, guardian of said minors, and it appearing to the court that the said Mrs. H. G. Bohlssen, guardian of said minors, has in all things fully complied with the order of this court made on the-day of-, 1928, approving her final accounts as guardian of said estate of said Helen Bohlssen and Henry Bohlssen and entered on the minutes of the court, it is, therefore, ordered by the court that she, the said Mrs. H. G. Bohlssen, be and she is hereby fully discharged as guardian of the estate of the said Helen Bohlssen and Henry. Bohlssen, and it is also ordered that the guardianship of the estate of each, the said Helen and Henry Bohlssen, be, and the same is, hereby fully closed.”
"In Re: Guardianship of Dorothy Bohlssen and Margaret Bohlssen.
“In County Court, Angelina County, Tex.
“In the above entitled' and numbered cause, this day came on to be considered the application of Mrs. H. G. Bohlssen, Guardian, for permission to make a personal boiid in lieu of and to take the place of the Surety Bond she has heretofore executed with the American Surety Company as surety, and it appearing to the court that all monies and other things of value coming into the possession of Mrs. H. G. Bohlssen, Guardian, have been accounted for, and paid over to her wards in accordance with the orders of this court, it is considered, ordered, adjudged and decreed by the court, that the said Mrs. H. G. Bohls-sen, Guardian, do be given, and she is hereby given, permission to make a personal bond in lieu of and to take the place of the surety bond she has heretofore executed, it is therefore ordered, that the American Surety Company be, and it is hereby, in all things released and fully discharged as surety for said Mrs, H. G. Bohlssen, Guardian.”

Plaintiff’s pleadings admit that he had notice of the filing of the final account of the guardian and her application for closing the administration of his estate, and discharge of her sureties, appellees herein.

On April 17,192S, three days before the entry of the order of court closing the administration of the estate and discharging the guardian, plaintiff and his married sister executed the release of the guardian and her sureties, as follows:

“No. -—
“In Re: Guardianship of Helen Elsie Bohls-sen, Henry Edward Bohlssen, Dorothy Bohlssen and Margaret Bohlssen, Minors.
“In County Court, Angelina County, Texas.
“Received of Mrs. I-I. G. Bohlssen, Guardian, the sum of ‘Ten’ Dollars, which is in full and final payment of all money, or monies, due us from the estate of our deceased Father, H. G. Bohlssen, and we acknowledge the receipt of said sum of money in full and final satisfaction of all sums of money coming to us direct, or indirectly, from the estate of our deceased father, through our mother, Mrs. H. G. Bohlssen, Guardian, and we hereby release our said Guardian and her bondsmen from any further liability to us in any manner, or for any further sums of money, and acknowledge- same to be a full and final satisfaction of our part of said estate, and we do not now, nor will we hereafter, have claim against our said Guardian or her bondsmen for any other sums of money whatever.
“Witness our hands this the 17th day of April, A. D. 1928.”

These orders of the probate court of Angelina county are orders which that court had power or jurisdiction to make and enter, and are not void on their face, and therefore not subject to collateral attack. They can only be set aside in a direct proceeding brought for that purpose in the court in which the judgment was rendered.

The original jurisdiction of the probate court in passing upon the final account of a guardian appointed by it to hear and determine all questions as to the amount of the wards’ property and money which had come into the possession of the guardian, and the disposition made by the guardian of the estate so received by him, is exclusive. When, as in this case, the ward, with due notice of the filing of the final account, and the application for the discharge of the guardian, not only makes no objection to the account filed, but before the final order of discharge is made executes a receipt to the guardian “in full and final satisfaction of all sums of money coming to him directly or indirectly” from the estate administered- by the guardian, and expressly releases his guardian from any further liability to him “for any further sums of money,” and acknowledges the amount theretofore received by him from the guardian “to be a full and final satisfaction” of his part of the estate, and declares that he will not hereafter “have claim against his guardian or her bondsmen for any other sums of money whatever,” the judgment approving the final account and discharging the guardian and her sureties, being upon its face a valid judgment of a court of competent jurisdiction, cannot be collaterally attacked in any other court. Such judgment is only subject to a direct attack by motion for new trial, appeal therefrom, or bill of review brought in the court in which the judgment was rendered, under the equitable rules regulating such proceedings. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Foster v. Christensen. (Tex. Civ. App.) 42 S.W.(2d) 460; Robins v. Sandford (Tex. Com. App.) 29 S.W.(2d) 969.

Since the question of the invalidity of the judgment of the probate court in discharging the guardian and her sureties, on the ground that such judgment was obtained by the fraud and misrepresentation of the'guardian, cannot be inquired into in this suit, it follows that such judgment, having been rendered by a court of competent jurisdiction, and being in full force and. effect, is res ad-judicata of all the matters involved therein and determined thereby. We cite the following, -among many, of the 'authorities cited in appellees’ brief which fully sustain this conclusion: Tannery v. Pirtle (Tex. Civ. App.) 19 S.W.(2d) 862; Hassell v. Steinmann (Tex. Civ. App.) 132 S. W. 948; De Berry v. Wootters (Tex. Civ. App.) 57 S. W. 885; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153; Holman v. Ward (Tex. Com. App.) 288 S. W. 148; Hornung v. Schramm, 22 Tex. Civ. App. 327, 54 S. W. 615.

We know of no case in which, a contrary doctrine has been announced or upheld by our Supreme Court. The rule is so reasonable and so necessary to preserve the sanctity of judgments of courts of competent jurisdiction to finally determine all questions involved in the suit in which the judgment was rendered that its continued enforcement by our appellate courts is, in our opinion, imperative.

In this view of the settled law upon the controlling questions presented by this appeal, it would serve no useful purpose to set out or discuss in detail the various propositions presented in appellant’s brief. All of these propositions have been duly considered, and none of them, in our opinion, presents any sufficient ground for a reversal of the judgment appealed from.

It follows that the judgment must be affirmed, and it has been so ordered.

Affirmed.

On Motion for Rehearing.

After full consideration of appellant’s forceful motion for rehearing, we adhere to the conclusions expressed in our original opinion in this case.

It seems clear to us that that portion of appellant’s suit to which the pleas of jurisdiction and res adjudicata were sustained is a collateral attack upon the judgment of another court of competent jurisdiction which could only be made in the court in which the judgment was rendered. The strict enforcement of this rule is necessary to preserve the sanctity of judgments, and the evil which would result from its nonenforcement should, as always heretofore, receive higher consideration from our appellate courts than any injury that a party to such judgment, who failed • to follow the legal method provided for the correction of any error in the rendition of the judgment, might suffer.

As shown in our original opinion, the county court of Angelina county, at its March term, 1928, by an order duly entered in the minutes of the court, approved the final account of the appellee as guardian of appellant and his married sister, Helen. This order approving the final account of appellee guardian directs her “to deliver the estate of the said Henry Bohlssen, and Helen Bohlssen, remaining in her possession to each respectively, who is qualified by law to receive it.”

Thereafter, on April 17, 1928, appellant and his sister, Helen, executed a full receipt for all sums of money due them by appellee as guardian of their estate, and an express release of appellee and her sureties from all further liability “for any further sums of money.” This receipt and release was filed in the county court of Angelina county on the day of its execution.

On April 20, 1928, the county court rendered a judgment which, after reciting that the guardian had fully complied with the former order of the court approving her final account as guardian of appellant Henry Bohlssen and his sister, Helen, adjudged and ordered that “she, the said Mrs. H. G. Bohls-sen, be and she is hereby fully discharged as guardian of the estate of the said Helen Bohlssen and Henry Bohlssen, and it is also ordered that the guardianship of the estate of each, the said Helen and Henry Bohlssen, be, and the same is, hereby fully closed.”

There is nothing upon the face of this record which casts any doubt upon the power or jurisdiction of the court by which it was made to so dispose of the matter therein adjudicated, and the well-settled rule which requires that a suit to set aside a judgment of a court of competent jurisdiction must be' brought in the court in which the judgment was rendered is clearly applicable. We think the cases cited in our original opinion sustain this conclusion.

The receipt and the release executed by the appellant and the order of discharge entered thereon by the county court discharges and releases appellee from all liability as guardian for all money received by her as such guardian from the estate of her said wards. Of course, if the receipt and release upon which the order of discharge was based was obtained by fraud and misrepresentation, it should be set aside in a timely proceeding for that purpose brought in the court in which it was rendered, but no other court of concurrent jurisdiction can entertain such. suit. The two cases cited and relied on by appellant to sustain his contention that the court below had jurisdiction to entertain appellant’s suit for money received by the guardian for the estate of her wards and not shown on any inventory filed by the guardian are Yates v. Watson (Tex. Com. App.) 221 S. W. 966, 967, and Davis v. Harwood, 70 Tex. 71, 8 S. W. 58.

Neither of these cases sustains appellant’s contention. In the Tates Case the court holds that a bill of review of an order approving a final account of a guardian is not the proper proceeding to obtain correction of erroneous or incomplete inventories filed by a guardian, but the methods provided by the statute must be followed to obtain sucH relief. It seems clear to us that this ease has no bearing upon the question of whether the court below had jurisdiction of this suit to set aside the judgment or order of the county court of Angelina county closing tlie guardianship by appellee of appellant’s estate and discharging the guardian and her sureties from all further liability for any sums of money which she received for appellant’s estate.

The case of Davis v. Harwood is less in point, since it only decides that, after an estate had been withdrawn from administration by the heirs and its assets partitioned among them, the county court in which the administration had been pending had no- authority to require the administrator to file an additional inventory, but the heirs might sue the administrator in the district court to recover money or property received by him and not accounted for to the heirs. There was no contention in that case that the county court, in granting the application of the heirs for withdrawal of the estate from further administration, had heard and adjudicated the question of the administrator’s liability to the heirs and rendered judgment thereon, as in this case.-

The further contention of appellant that the order of discharge of appellee and her sureties is void because not made at a term of the county court authorized by law was, we think, properly disposed of in our original opinion. Tn support of the conclusion reached in that opinion on this question, the cases of Employers’ Casualty Company v. Smith (Tex. Civ. App.) 284 S. W. 991, and Idar v. Uehlinger (Tex. Civ. App.) 49 S.W.(2d) 998, are directly in point.

In his motion for rehearing appellant has filed and presented a certificate from the county clerk of Angelina county showing that no order of the commissioners’ court of the county fixing any terms of that court in addition to those named in the Constitution was made and entered prior to the order of the county court closing the guardianship and discharging appellee.

In answer to this motion, appellee has presented a certificate from the clerk showing that the certificate presented by appellant is erroneous, and that the judgment discharging the guardian and her sureties’ was made and entered at a regular term of the court as fixed by an order regularly made and entered in the minutes of the court. .

It is a well-settled general rule that amendments of the record by certificates or affidavits cgnnot be considered by antappellate court. 3 Texas Jurisprudence, pp. 531-533, and 426, and cases there'cited.

If such evidence can be considered upon the question of the jurisdiction of the court a quo as that question affects the jurisdiction of this court, we find from the contradictory certificates presented that the judgment, of the county court attacked in this suit was rendered at a term of the court fixed by law.

These general observations upon the merits of the motion for rehearing were probably unnecessary, but, in deference to the earnestness of appellant’s counsel in presenting the motion, we deemed it proper to give here a statement of our conclusions thereon.


author: O’QUINN, Justice.

text:
    CROSWELL v. COMMERCIAL STANDARD INS. CO.
    No. 2298.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 4, 1933.
    Rehearing Denied March 8, 1933.

      Jas. A. Harrison and Tom C. Stephenson, both of Beaumont, for appellant.
    Barnes & Barnes, of Beaumont, and Henry Strasburger, of Dallas, for appellee.
   O’QUINN, Justice.

This suit was instituted by appellant, W. J. Croswell, against appellee, Commercial Standard Insurance Company, to set aside an order of the Industrial Accident Board refusing him compensation for an injury alleged to have been received while in the course of his ’employment as an employee of Pig Stands;Company, Inc. .

Appellant’s petition contained the usual and necessary allegations to state a cause of action of the character involved.’ Appellee answered by general demurrer, general denial, and specially denied that it ever issued a policy of insurance that was in effect at the time appellant received his injury which covered work such as appellant was engaged in doing at the time of his alleged injury. However, appellee admitted it had issued a policyto Pig Stands Company. Inc., but thát said policy did not cover employees of said company engaged in such work as appellant alleged he was performing at the time he received his injury, and further specially answered that there was an indorsement or rider placed on said policy after appellant suffered his injury, which said indorsement was placed on said policy at the instance and request of Pig Stands Company, Inc., in an effort on its part ■to-.cover employees performing the kind of work appellant was doing at the time of his injury, and specially denied that the policy as originally issued covered appellant, and further denied that- the indorsement or rider attached to the policy after appellant was injured in any way protected or covered appellant at the time of his injury.

The ease was tried.to a jury, but at the completion of- the evidence, .the court, on motion of appellee, instructed the jury to return a verdict for appellee, which they did, and judgment was accordingly rendered. Motion for a new trial was overruled, and appellant brings this appeal.

There is but one assignment of error, which, in substance, is that the court erred in instructing a verdict for appellee, because whéther appellant, Croswell, when injured, was employed in the usual course of trade, business, .or occupation of his employer, was a question of fact to be determined by the jury and not by the court.

•Pig Stands Company, Inc., is a corporation, and the business for which it was created is disclosed in its charter as follows: “That this corporation is created for the purpose of conducting a manufacturing business, to-wit, baking, roasting, curing and converting raw meats into edible and table products, and the purchase and sale of such products, goods and merchandise as are used for such a business, and the sale of such manufactured products.”

Pig Stands Company, Inc., carried with ap-pellee a policy of insurance in compliance with the Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended). Said policy classified the operations and employees of said company covered by the policy, as :

“Restaurants — including musicians and entertainers, and clerical office force—
“Salesmen (outside) collectors or messengers—
“Chauffeurs and their helpers, Commercial, including incidental garage employees — if not included in division 1.” .

The Pig Stands Company, Inc., operated stands at several different places in the state. It is stated that there were some twenty-six of them.. In April, 1931, the company, desiring to open á stand in the city of Beaumont, began the -construction of a stand' or structure for the carrying on of it& business, under the supervision of H. E. Kimery. Kimery was an employee of the company, and was known as “superintendent of construction.” He was not on the regular pay roll of the company — was not paid a regular salary, but was paid by the day. He had authority to employ workmen, carpenters, and such other workers as was necessary, to‘construct, under his.supervision, the stands at'or in which the company business was to be carried on. The company paid the workers. The work of erecting a stand in Beaumont was in progress and appellant was one of the men employed by Kimery, and on April 29, 1931, while performing carpenter work on this job, he was injured. He filed his claim for compensation with the Industrial Accident Board, and being dissatisfied with its award, brought this suit to set aside said award and: to recover compensation. The company did not erect all of the stands or structures in which it did business, but would rent, remodel, and build stands; as the exigencies of the situation demanded. The record shows that of the twenty-six stands operated> they had built ten — seven in 1929, two in 1930 and one in 1931. Kimery superintended the erection of all of these. He had been with.tbe company, at irregular intervals, for three years, but at the time of the trial of this case, he was not working for the company.

The company began business in 1923. Sim T. Lake, secretary and treasurer of the company, testified that the things ordinarily and commonly done by the company in carrying on its business were “the manufacture and sale of sandwiches, sale of cold drinks, tobacco and other merchandise, purchase of real estate for locations and erection and repair of buildings thereon.” R. W. Jackson testified that he was president of the company, and had been since its incorporation in October of 1923. That the usual and ordinary business of the company was “operating sandwich shops from which they sell various kinds of sandwiches, and allied products, buying and leasing properties, erecting and maintaining buildings.”

The question to be determined is whether Croswell was an employee, under the express terms of the policy, in evidence, and under the statutes of this state defining that relation. Article 8309; § 1, par. 3, R. S. 1925, defines “employee” as follows: “ ‘Employee’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written * * * except one whose employment is not in the usual course of trade, business, profession or occupation of his employer.” Whether the employment of a workman injured while engaged in a particular task is in the usual course of the business or occupation of his employer is ordinarily a question of fact. To make such issue a question of law, the testimony must not only be without contradiction, but must be so conclusive that reasonable minds cannot differ as to its effect. The charter of appellee shows that it was not chartered for the purpose of building houses or structures, but for the manufacturing and selling of edible and table products and the purchase and sale of such products. The evidence shows that the ordinary and usual business conducted by the company was the manufacture and sale of sandwiches and- allied products. While it is true that in securing properly arranged houses or structures in which to carry on their baking, roasting, and curing operations, they sometimes remodeled rented structures and built new ones for such purpose, still it is undisputed that such was not the business for which it was incorporated and not the ordinary and usual business by it conducted. It was an outside matter occasionally done in the course of their authorized business, and only' incidental thereto. We do' not think it can be said that appellant was an employee of the company within the definition of that term by article 8309, § 1, par. 3, R. S. 1925, quoted supra; but to the contrary, the evidence clearly shows that he was one “whose employment was not in the usual course of trade, business, profession or occupation of his employer.” The exception contained in said paragraph of said article (article 8309, § 1, par. 3) excludes appellant, because it clearly appears that he was doing carpenter work in erecting a building for the company, which work was not in its ordinary or usual business. Oilmen’s Reciprocal Ass'n v. Gilleland (Tex. Com. App.) 291 S. W. 197; Texas Employers’ Ins. Ass’n v. Sewell (Tex. Civ. App.) 32 S.W.(2d) 262 (writ refused).

In the Gilleland Case, supra, the employer was engaged in the laundry business. On account of the increased volume of business, it became necessary to increase and enlarge its water supply. On this account it caused two additional wells to be sunk to such depth that it became necessary to install a larger and more powerful pumping equipment. For this purpose it caused an excavation to be made near the two wells, which was sixteen feet deep, eighteen feet long, and six feet wide. To prevent the walls of the excavation from caving in, it was necessary to line or wall it with brick. Gilleland was a brick layer, and, at the time he was killed, had been employed by the laundry company, with other workmen, to build the brick walls lining the excavation. While so engaged, one side caved in and buried him under several tons of earth, causing his immediate death. In reversing and rendering the judgment, the Supreme Court, through the Commission of Appeals, held that Gilleland was not, at the time of his injury and death, engaged in the usual course of his employer’s business or occupation.

In the case of Texas Employers’ Insurance Ass’n v. Sewell, supra, the employer, the Mexia Textile Mills, was engaged in manufacturing textile products. The mills had erected several cottages to be occupied by persons who worked in the mills. Sewell was not one of their regular employees, but was employed for the sole purpose of painting the cottages. While so engaged he was injured. The Waco Court of Civil Appeals held that under the statutory definition of “employee,” and the facts in evidence, Sewell was not entitled to compensation, not being engaged in the usual course of his employer’s trade or business, and reversed and rendered the judgment. This holding was approved by the Supreme Court by its refusing a writ of error. See, also, Morse v. New Amsterdam Casualty Co. (D. C.) 30 F.(2d) 974, 976, affirmed (C. C. A.) 37 F.(2d) 100; Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876.

Among others, appellant cites us to the cases of Georgia Casualty Co. v. Gibson (Tex. Civ. App.) 11 S.W.(2d) 191; Maryland Casualty Co. v. Williams (Tex. Civ. App.) 47 S.W.(2d) 858, 859; and Commercial Standard Ins. Co. v. De Hart, (Tex. Civ. App.) 47 S.W.(2d) 898, as supporting his contention that under the law and the facts he is entitled to compensation. We think these cases are easily distinguished from the instant case on the facts.

In the Gibson Case, the defense was that he was not an employee and was not working in the usual course of his employer’s business when he received his injury. Gibson was an employee of the Kean Lumber Company. The insurance policy described the business of the employer as “lumber yards and building material dealers,” and also as “planing and molding mills,” and its place of business on Beekly street in Oakcliff, tbe city of Dallas. Tbe lumber company was constructing some eight-' een or twenty bouses on Twelfth street in Oakcliff, some distance from its place of business. Tbe material going into tbis construction was hauled from tbe lumber yard to tbe place of construction, and some of it put in a sbed to await its use in the buildings. Fart of tbe stored material was window sashes and window weights. Gibson did not work in tbe lumber yard, but was to wait upon the carpenters in tbe construction of tbe buildings and to pour concrete. At tbe time be was injured he was bringing window weights from tbe sbed to tbe place where they were to be used. Tbe evidence showed Gibson a regular employee and carried on the pay rolls of the company, and at tbe time of bis injury be was engaged in delivering material to be used in' tbe construction of tbe buildings, and hence in the usual course of his master’s business. Not so here. Appellant was not on the pay •rolls as a regular employee of Pig Stands Company, Inc., but was working as a carpenter in erecting one stand or place to do business, not in the usual- course of business of said company; its business being that of manufacturing sandwiches and kindred products and selling same.

In the Williams Case, Williams was doing carpenter work for tbe Coca Cola Bottling Company in Dallas, Tex., and while so working received an injury from which be died. Said company, at the time Williams received bis injury, bad its principal office in tbe city of Dallas, which was its headquarters. In addition to its refrigeration machinery in its Dallas plant, it maintained eight other refrigerating units in its plants in surrounding territory. Woodwork for all such units was done from time to time by its regular force of carpenters. Williams had for about two weeks been employed as a member of its regular force of carpenters before the accident. The company carried compensation insurance covering its employees in the Dallas plant where Williams worked. There is a vast difference in the facts of that case and the instant case. There the employer kept and maintained a regular force of carpenters to do certain work, and they were covered by compensation insurance. Williams for some time had been and at the time of his injury was a member of this carpenter force. Not so in the instant case. Croswell was not a regular employee of the Pig Stands Company, Inc., but was doing casual work on one job, which was not in tho usual course of the company’s business, and the company did not carry insurance covering carpentry workers.

In the De Hart Case, the Bryan Amusement Company operated three shows. Extensive repairs became necessary on one of them. The company shut it down and employed an architect, foreman, and corps of workmen, including carpenters, bricklayers, painters, electricians, and laborers to do the work, and applied for and obtained compensation insurance to cover its said employees while doing this repair work, which was extensive costing some $25,000, and requiring three or more months to complete. De Hart was doing carpenter work when injured. While the Bryan Amusement Company, the employer, was engaged in the operation of picture shows, yet if it so desired it could itself have the repair work done on its place of business and it had the right to carry compensation insurance to protect its employees while doing such repair work, which it did. In the instant case, no insurance was carried by the Fig Stands Company, Inc., covering occasional workers doing repair, remodeling, or construction work on the stands it operated.

There is a rider attached to the original insurance policy covering employees such as Croswell, but it is undisputed that the application for such insurance was made and the premium therefor paid and the rider attached to said policy after Croswell was Injured. This insurance could not inure to Groswell’s benefit, for it was not in existence at the time he received his injury.

It appearing without dispute the appellant, at the time of his injury, was net an employee of the Pig Stands Company, Inc., under- the definition of “employee” contained in the statute, and, therefore, not engaged in the usual course of his employer’s business or occupation, and his employer not carrying insurance covering him in the work he was doing when he received his injury, the court did not err in directing the verdict, and the judgment must be affirmed, and it is so ordered.

Affirmed.


author: LANE, J. GRAVES, J.

text:
    HARTWELL IRON WORKS v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.
    No. 9738.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 13, 1932.
    Rehearing Denied Feb. 2, 1933.
    E. R. Campbell and Campbell, Myer & Foster, all of Houston, for appellant.
    Jas. L. Shepherd, Jr., and S. H. German, both of Houston, J. M. Chambers, of Dallas, Baker, Botts, Andrews & Wharton, of Houston, and Charles C. Huff, of Dallas, for appel-lee.
   LANE, J.

Hartwell Iron Works brought this suit against the city of Houston and the Missouri-Kansas-Texas Railroad Company of Texas, herein referred to as M., K. & T. Company, praying for, an injunction requiring the opening of Bramble, Lyle, and Runnels streets., in the city of Houston, which had been ordered closed by the city of Houston, and which had thereafter been closed by the M., K. & T. Company. Thereafter the plaintiff dismissed the suit against the city, and an amended petition was filed praying judgment against the M., K. & T. Company for injunction as in the original petition, and in the alternative for damages to plaintiff’s land, alleging that such land had been decreased in value by the closing of said streets. It alleged that its land abutted on the streets named, and by reason thereof it was entitled to the unobstructed use thereof as public streets.

As the plaintiff upon appeal has abandoned its suit for damages, the suit is now one against the M., K. & T. Company for injunction only.

Defendant answered by general denial, specially pleaded its charter rights as a railroad and common carrier, the rights and powers of the city of Houston under its charter with reference to streets within its limits. It alleged the necessity for the relocation of its freight terminals in Houston and the construction of additional track facilities to meet the demands made upon it as a common carrier. It alleged that under the Constitution and statutes of .Texas, and its charter, the city had and has for many years had full power and authority to vacate, close, abandon, and sell the streets within its boundaries. It then alleged that, in pursuance of a contract entered into between it and the city for the mutual benefit of both parties, the city by a valid ordinance, in consideration of the transfer of valuable property to it by defendant, conveyed to defendant that portion or parts'of the streets closed by defendant, and other'property; that, after such conveyance and the acquisition of the property conveyed, it removed structures therefrom, and constructed thereon its railroad tracks, freight station, and other improvements in connection therewith; that up -to the time of such construction plaintiff had not instituted this suit for injunction, and did not do so until August 12, 1927, a .time.,subsequent to defendant’s having incurred large expenses in purchasing the property and making improvements thereon. Pleading in the alternative, it said that by reason of the premises the court should deny the injunction prayed for by plaintiff if for no other reason upon the balance of convenience. '

Facts.

On the 13th day of April, 1837, one J. B. Frost became the owner of 15 acres of land out of the eastern part of the John Austin survey in Harris county, Tex., and in a few days thereafter one J. W. Moody became the owner of another 15-acre tract, a part of the same survey. Both of such tracts are now, as they have been for many years, within the boundaries of the city of Houston, Both of them were conveyed to the respective purchasers, Erost and Moody, as acreage. The Erost tract thereafter became known as “Frost Town.” Both of said tracts were at the same time — date not shown — subdivided into lots and blocks. On January 1, 1879, one W. E. Wood made an actual survey of a part of the city of Houston, composed of the Erost and Moody 15-acre tracts. He compiled from such survey a map of the lands surveyed, shown by Plaintiffs Exhibit No. 1. Such map represents only what the surveyor found on the ground at the time the survey was made with reference to the existence of streets and boundaries of property, etc. There is no evidence tending to show that he reproduced on his map any part of a pre-existing plat of either Erost Town or of the Moody addition, if any such plat was ever compiled. This fact is evident from an inspection of the map, which shows that, if there had ever been any prior plat of either of said tracts, he did not attempt to reproduce the same, because on that, part of the map embracing the Moody tract not a single block number is shown, nor the name of any street given. There is nothing tending to show that the Moody 15-acre tract was subdivided by any one prior to 1879, nor to show that the Hartwell Iron Works, which brought this suit, bought with reference to either Bramble, Lyle, or Runnels street.

The plaintiff’s property was conveyed to it by J. J. Settegast.on the 1st day of June, 1904; by such conveyance it is described as a part of ,the J. W. Moody tract, and further described by metes and bounds as beginning.at a stake in the eastern 'boundary Une of Pine Street 112½ feet north of the north boundary line of Runnels street. Thence north toitli the eastern boundary line of Pine street to another stake in the eastern line' of Pine street, where the south line of Race street extended eastwardly intersects the east boundary line of Pine street. Thence east 240 feet along the south boundary line of Race street to a stake. Thence southwardly 701 feet to a stake to tlie east line of the Moody tract. Thence north 60 feet to a stake. Thence west 100 feet to the place of beginning, including within said bounds lots 12 to 20, inclusive, and part of lot 11 of the Moody addition according to 'Whitty & Scott map of Houston, made in 1S95, and also including the old Super homestead tract in such Moody addition according to said Whitty & Scott maps, and also that part of the Moody addition of a tract lying between the old Super homestead tract and lots 12 to 20 east of Pine street. In the deeds offered in evidence there is no reference to any map, nor reference to any dedicatory •plat or map of the Moody'addition with reference to which sales were made. There was no proof that the Whitty & Scott map of 1895 was a reproduction of any pre-ex-isting plat, if any such plat was ever made: Nor was there any proof that either Erost or Moody ever subdivided their respective tracts into lots, blocks, and streets by means of a dedicatory map or plat, or that any sale was ever made with reference .to any such map or plat.

On all maps introduced in evidence it ap¿ pears that Pine street runs practically north and south, and that Bramble street runs east and west, and that it extends no further east than the west line of Pine street, a point many feet west of plaintiff’s property upon which its business improvements are situated, which lies wholly east of Pine street. It is shown that, if Lyle street ever extended east of the west line of Pine street, such part thereof as extended further east was closed by the plaintiff, and was so closed at the time defendant closed that part of the same lying west of Pine street.

It is conclusively shown that Bramble street is wholly within the boundaries of “Frost Town,” and that no part of the plaintiff’s property abuts on said street, and the evidence shows that, if the two 15-acre tracts were ever formally subdivided, the Erost tract was the first to be so subdivided. This .appears obvious from the Wood map, made in 1879, introduced in evidence. That map shows that practically all of the land owned by plaintiff was in 1879 acreage property. It appears, therefore, that what is shown on said map or plat as “Frost Town,” including Pine and Lyle streets, were parts of the Erost tract and no part of the Moody tract.

We agree with the conclusions of defendant that, when the maps introduced in evidence are interpreted in the light of the other facts shown, it is made to appear: (1) That the land now owned by appellant is situated entirely within what is known as the Moody tract, sometimes designated as Moody addition; (2) that at the time the Wood map was compiled appellant’s land was then acreage, but the Frost tract had to some extent been subdivided, although there is no proof that there was .an original subdivision map, and no proof as to Just what was delineated on such map, if any; (3) that Pine, Lyle, and Vine (now Bramble), Race, and Arch streets were entirely within the boundaries of the Frost tract; (4) that there was no evidence to show that the land now owned by appellant was platted as a part of the Moody addition until long after the Wood map was compiled, but was platted prior to 1895, and probably about 1879, although there is no proof of the existence of any dedicatory map or the sale of lots with reference to any such map; (5) that a part of Lyle street shown on both the Wood map and the Whitty <% Scott map is included within the boundaries of the land claimed by appellant, and has been inclosed by a fence and occupied by it for over twenty-five years.

Before Bramble, Lyle, and Runnels streets were closed, a contract was entered into between the city of Houston and the M., K. & T. Company on the 6th day of June, 1927, the purpose of which is disclosed in the preamble, which is as follows:

“Whereas said Missouri, Kansas & Texas Railroad Company of Texas desires to use a certain portion of Runnels, Bramble, Spruce and Maple, Chenevert and Lyle Streets and Maple Place Alley for use for freight terminal purpose and;
“Whereas the City of Houston is desirous of securing certain properties for the widening of Gabel Street and for the construction of a subway underneath the Galveston, Houston & Henderson and Houston Belt & Terminal Railroad Company’s tracks adjoining Block No. 110, and out of Lot 17 of the S. M. Williams survey and part of the Moody subdivision of the John Austin two-league grant, Houston, Harris County, Texas.
“It is therefore hereby agreed and understood by and between the parties thereto as follows, to wit:
“First: Missouri, Kansas & Texas Railroad Company of Texas will secure and deed to the City of Houston, Texas, for street and subway purposes the following described tract of land, to-wit: [Here follows description of property.]”

Upon its part the city agreed to pass an ordinance vacating and closing the parts of streets in question, and, after same were vacated and closed, and the railway company had secured the land for the city which it desired, was to execute a quitclaim deed to the railway company.

The railway company, on November 16, 1928, deeded to the city of Houston a strip of land 20 feet in width along the east line of Gable street off its property, the same extending from the north line of Magnolia street to the southwesterly limits of the right of way of the G. H. & H. Railway.

It was expressly agreed that this 20-foot strip was deeded to the city for the purpose of widening Gable street, and that such strip (shown in red on the Bracey map) was at the time of the trial a part of Gable street, and was being used as such.

To carry out the terms of the contract the city council on the 12 th day of July, 1927, regularly passed an ordinance vacating and closing Bramble, Lyle, and Runnels streets. This ordinance was amended by making certain slight additions to the description of portions of streets vacated and closed by the ordinance, duly passed and approved October 5, 1929.

Under such contract, agreement, and ordinance, the M., K. & T. Company took possession of the property eonvéyed to it by the city, and constructed its railroad tracks and other improvements thereon.

The case was submitted to a jury upon special issues, in answer to which the jury found:

First. That all of plaintiff’s land that is a part of the Austin survey as described in the deed from J. J. Settegast to plaintiff lies within the J. W. Moody addition; second, that the market value of plaintiff’s land immediately after the streets in question were closed by defendant was the same as before such streets were closed.

Upon such findings of the jury and upon t-he evidence, the court rendered judgment denying the injunction prayed for by plaintiff. Plaintiff has appealed.

By its first proposition appellant contends that the trial court erred in overruling its general demurrer to all of the appellee’s answer except the general denial, because the matters and things therein alleged showed no legal right on the part of defendant to close the streets referred to, especially Bramble, Lyle, and Runnels streets. ■

We overrule such contention. The answer was not subject to the complaints made thereof.

By propositions Nos. 3 and 4, appellant contends that the evidence shows that plaintiff’s land abuts upon Bramble, Lyle, and Runnels streets, and that as such abutting owner it had a special interest in such streets and their use, and therefore it was entitled to the injunction prayed for requiring the opening thereof, and the court erred in refusing to award to it such injunction.

We overrule the contention. It is clear, we think, that appellant’s property does not abut upon Bramble street, and that appellant never acquired any rights in Lyle street other than a public easement. We think the evidence shows that Lyle street was laid oujt as a street of the Frost addition, and that it lies wholly upon the Frost 15-acre tract; that the property of appellant lies wholly within, the Moody tract; that the vendor of appellant at no time owned any interest in Lyle street, and therefore by his deed he conveyed no interest in said street to appellant. The right of appellant in such street was purely one of public easement of which it may be deprived by a closing of same by the city of Houston, as it is a street of said city.

On page 27 of appellant’s brief it admits that Runnels street, which lies to the south of its property, is not a street abutting on plaintiff’s property, in the following language: “The closing of those portions of Bramble and Lyle streets prevents the passage of plaintiff from his property through said streets to Gable Street, and the closing of Runnels to the south, though that is not a street abutting plaintiff’s property, prevents transit through that street.” (Italics ours.)

There was ample evidence to support a finding that appellant had in no manner acquired a private easement in any one of the streets closed, by virtue of its deed to its property. As to whether appellant acquired such private easement was not submitted to the jury, nor was there any request for any such submission.

We think it is clear that the city had the legal power to close said streets under the terms and for the purposes, stated in the contract and agreement it had with appellee, which is shown to have been carried out. One of the considerations moving the city to enter into said contract and to close the streets in question was to eliminate the traffic hazards of grade crossings on such streets.

Appellee having acquired the fee-simple title to the property now occupied by its freight terminal, it is conceivable that it might have constructed its terminal and freight warehouses and buildings without closing the streets in question, and leaving these streets open for such traffic as might pass that way across the various switches and tracks. As shown by Plaintiff’s Exhibit 3, there are some eight or ten separate tracks crossing what was formerly known as Lyle street and ten or twelve tracks crossing what was formerly Runnels street. Can it be doubted for a moment but that the hazard which the witnesses testified existed where there was only one railroad track would have been magnified many times? It would have been folly indeed for the city of Houston, in making its plans for the proposed subway, to eliminate grade crossings over two railroad tracks to have left open these short streets where eight to eleven separate railroad tracks were to be constructed. As stated by the witness Seaman, if Lyle and Runnels streets were open to-day with these various railroad tracks crossing them, that would be a decided traffic hazard.

The city of Houston being vested with power to determine the necessity for vácat-ing streets, and the city council having acted in conformity with law in vacating the streets in question, its action cannot be inquired into by the court, in the. absence of proof that it was done solely for the purpose of promoting a private enterprise. In 13 R. C.. L. p. 70, it is said: “The presumption is that a street or highway was vacated in the interest of the public, and that its vacation was necessary for public purposes, and the burden of showing to the contrary will be put upon the persons who object to the proceeding.”

We have no doubt that the city had the authority to close the streets in question. Kahn v. City of Houston (Tex. Com. App.) 48 S.W.(2d) 595, 596.

At the Fifth Called Session of the Forty-First Legislature (Acts 41st Legislature [1930] p. 257, c. 84 [Vernon’s Ann. Civ. St. art. 4646a]), the Legislature passed an act giving cities authority to close streets, which became effective June 18, 1930. This act is applicable to this case, which was not tried until May 18, 1931. The act referred to, among other things, provides as follows:

“Art. 4646a. — No injunction shall be granted to stay or prevent the vacating, abandonment or closing, by the City Council or governing body of any incorporated city of this State, of any street or alley in any such incorporated city of this State, except at the suit of the owner or lessee of real property actually abutting on that part of such street or alley actually vacated, abandoned or closed, and then only in the event that the damages of said owner or lessee shall not have been released or shall not have been ascertained and paid in a condemnation suit by such city..
“Sec. 2. Provided that any person, who under existing laws has-the right to enjoin a city from vacating, abandoning or Closing any street or alley of such city and whose right to such injunction is denied by this Act, shall have the right to an action for damages for any injury that he may sustain by reason of the vacating, abandoning or closing of any street or alley by such city.
“Sec. 3. The fact that there is much confusion in reference to whether or not the right to enjoin a city from abandoning and closing a street applies only to abutting property owners, and the further fact that the decisions of the Courts of this State have rendered it doubtful as to what are the rights of the city, and the rights of property owners with reference to closing streets, creates an emergency and' an imperative public necessity which requires that the Constitutional Rule requiring bills to be read on three several days be, and the same is hereby suspended, and that this Act shall take effect and be in force from and after its passage, and it is so enacted.”

Our conclusions upon the pleading and evidence are: That the rights of appellant in the obstructed streets are such only as the community generally is entitled to enjoy, and, since it is conclusively shown that it has suffered no damage in the depreciation of the value of its property, or that it has suffered any inconvenience not suffered by the community in general by reason of such obstruction, it is not entitled to injunctive relief as prayed for.

To entitle a property owner to in-junctive relief against the vacation of a purely public street, it must be shown that he will suffer a special injury and not such only as is cast upon the community generally. The general rule is that the mere fact that a vacation of a street in which one has no private interest results in a depreciation of the value of property of an owner of land abutting on the same, which causes a diversion of travel and added inconvenience of access; does not of itself constitute such special injury as entitles him to damages. Johnson v. Lancaster (Tex. Civ. App.) 266 S. W. 565; Chichester v. Kroman, 221 Ala. 203, 128 So. 166; York v. Chesapeake & O. Ry. Co., 240 Ky. 114, 41 S.W.(2d) 668; Arcadia Realty Co. v. City of St. Louis, 326 Mo. 273, 30 S.W.(2d) 995; Dickson v. Town of Centreville, 157 Miss. 490, 128 So. 332; Kemp v. City of Seattle, 149 Wash. 197, 270 P. 431; Kahn v. City of Houston (Tex. Com. App.) 48 S.W.(2d) 595; 13 R. C. L. page 75; Siegel v. Hotel Co. (Tex. Civ. App.) 40 S.W.(2d) 168.

By appellant’s fifth proposition it is insisted that the court erred in denying the injunction prayed for as to Lyle and Runnels streets, because it and appellee deraigned title to their respective properties from a common source proprietor, and that appellant acquired a property right in the use of the streets closed.

What we have said under our disposal -of propositions 3 and 4 is, we think, a disposal of proposition 5 adversely to' appellant’s contention. However, we will make the following observations:

One J. K. Allen, in the year 1837, sold 15 acres of land to one Frost, and a few days later sold to one Moody 15 acres adjoining the Frost tract. The Frost tract embraced and included within its boundaries the following streets: Pine, which borders it on the east; Lyle, which borders it on the south; and also Bramble- and Race streets traversing its center. The evidence shows that the Frost tract was platted by some owner or owners, and in such plat the streets mentioned appear as Streets of '“Frost Town.” Such plat was made and was in existence long before the Moody tract was platted, ;if it was ever platted. No part of the streets closed were parts of the Moody subdivision. Neither Moody, nor any one of his successors in title, ever owned any part of the streets mentioned. Wherefore neither of them did convey to appellant what they did not own, and as a consequence appellant has not by its deed, nor otherwise, acquired any private rights or easement in any of said streets. Appellant is not, nor was it ever, the owner of any part of any of such, streets as a common source owner, or otherwise; hence its suggestion of common .source owner has no application to the facts of this case.

It is plain from the evidence that appellant’s grantor owned no interest in the fee of either Pine or Lyle streets; the conveyance to appellant carefully avoids “bounding” land conveyed by the street or using any language which could be construed as a reference to it as a boundary.. The beginning point called for is in the outside line of the street. The description confines the west line to the outside of Pine street. The grant negatives the implication of a conveyance of an easement in Pine street.

For the reasons above expressed, the judgment is affirmed.

Affirmed.

GRAVES, J.

I concur in a judgment' of affirmance because, as seems to me, appellant failed to show either^ (1) that the opposing parties de-raigned their respective titles through a common-source proprietor who'had so laid out and dedicated the three closed streets as to bring them — as against each other — within the principle applied in such' cases as Dallas Cotton Mills v. Industrial Company (Tex. Civ. App.) 252 S. W. 821, and Blair v. Astin (Tex. Civ. App.) 10 S.W.(2d) 1054; or (2) that it was an abutting owner on any one of such streets-especially on such part thereof as could have left it any injunctive right against the closing under the recent holding in Kahn v. City of Houston (Tex. Com. App.) 48 S.W.(2d) 595, 596, and the new statute on which it was based, article 4646a, Vernon’s Ann. Civ. St., that was enacted during the pendency of that cause.


author: LOONEY, J. BOND, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. WRIGHT.
    No. 11331.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 14, 1933.
    Rehearing Denied Feb. 11, 1933.

      James P. Swift, of Dallas, for appellant.
    Webb & Webb, of Sherman, for appellee.
   LOONEY, J.

This is a compensation case. Texas Employers’ Insurance Association, insurance carrier for Diamond Mill & Elevator Company, subscriber, appealed from an adverse judgment in favor of Charles O. Wright, employee, rendered in his suit to set aside the final decision of the Industrial Accident Board, and to recover full compensation in a lump sum for alleged injuries. The material facts are these: When injured, Wright was, and for a number of year^ had been, in the service of Diamond Mill & Elevator Company, as sweeper in its milling plant at Sherman, Tex., where the company was engaged in the manufacture and sale of flour and feed stuff; that during August, 1931, the company had under construction at its said plant a frame building, to be used in the manufacture of sweet feed, the construction being under the supervision of a Mr. Pum-phrey, foreman, and in furtherance of said enterprise, Wright was directed by the employer to work on the outside under the directions of Pumphrey, the nature at the time being foundation work, and, when injured, Wright and a fellowman employee by tha name of Reed were carrying a bundle of metal rods, about twelve feet in length, weighing about 200 pounds, used to reinforce concrete; Reed was walking in front, one end of the bundle resting upon his shoulder, Wright following with the other end upon his shoulder, stepped into a mud hole, and, struggling to keep from falling, wrenched his back and sustained the injuries for which he claimed compensation.

Appellant contends that the record being silent as to the amount appellee claimed before the Industrial Accident Board, and his petition failing to allege necessary jurisdictional facts, the court erred in not sustaining exceptions urged to the petition.

Appellee alleged the nature of his injuries, that is, that he was totally and permanently incapacitated to labor; that his average weekly wage was $15; that he had in due time filed his claim for compensation with the Industrial Accident Board; that the matter in controversy exceeded the sum of $500; and prayed for the recovery of a lump sum judgment for $3,000.

These allegations are sufficient. Thet amount in controversy need not be alleged in dollars; it is sufficient if the character of the injury is described, jurisdiction being determined by the maximum amount of compensation the law allows for such an injury. Texas Employers’ Ins. Ass’n v. Nunamaker (Tex. Civ. App.) 267 S. W. 749, 751; American Employers’ Ins. Co. v. Scott (Tex. Civ. App.) 33 S.W.(2d) 845, 847, and the authorities there cited.

Appellant’s main contention is: “That the undisputed facts as disclosed by the record in this ease, and upon which reasonable minds could not differ, conclusively show that at the time and upon the occasion of his alleged injuries, Charles C. Wright was engaged in assisting in the construction or erection of a new sweet feed plant, and that such employment was not within the ‘usual course of business, trade, profession or occupation’ of the Diamond Mill & -Elevator Conn-pany which was engaged in the business of milling flour and other products.”

The purpose of the compensation law is to provide speedy," equitable relief ,' to an employee injured “⅛-the course of his employment,” or beneficiaries in case of his death.' The term “employee,” includes “every person in the service of another under any contract of hire, expressed or implied, oral or written, * * * except one whose employment is not in the usual course of trade, business, profession or occupation of his employer.” See section I, art. 8309, R. S.

Injuries compensable under the law are defined thus: “The term ‘injury sustained in the course of employment,’ as used in this law, shall not include: * * * [Here follows list of injuries not compensable], but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises on elsewhere.” See definition of compensable injuries, section 1, second subd. 4, art. 8309, R. S.

The leading authorities relied upon by appellant are: Oilmen’s Reciprocal Ass’n v. Gilleland (Tex. Com. App.) 291 S. W. 197, 199; Morse v. New Amsterdam Cas. Co. (D. C.) 30 F.(2d) 974, 976, same case affirmed by Circuit Court of Appeals, 37 F.(2d) 100. The question in the Gilleland Case was whether a bricklayer, not regularly in the service of a laundry company but called in for the particular purpose of walling up a cistern, was an- employee within the meaning of the law, section 1, art. 8309, R. S. Judge Powell, for the commission, stated the question involved as follows: “Therefore we come now to a consideration of the holding by the Court of Civil Appeals that Gilleland, when killed, was in the usual course of his employer’s business. This is the one and only question in this case, as shown by the briefs of all the attorneys.” Holding that, under the) facts, Gilleland was not an employee, the commission recommended that recovery be denied. This recommendation was approved by the Supreme Court, but the holdings of the commission on the questions discussed were left unapproved.

The Morse Case, by Atwell, District Judge, was similar on the facts to the Gilleland Case; the defense urged being that the men callad in by the elevator company to erect a new building were not employees within the meaning of the Compensation Daw. Sustaining this contention, Judge Atwell cited and followed the Gilleland Case, saying, among other things: “That the erection of a new building by workmen called for that purpose, in which the employer proposes to carry on an established business, cannot be said to be in the ‘usual’ course of such business as he was already carrying on. It is the unusual. It is the extraordinary. This employer was not engaged in the building of elevators, nor in the building of hoppers therefor, but it was engaged in the business of grain and groceries. Such business had reached the proportion that it seemed wisdom to add the elevator feature, and the building therefor was being constructed by additional workmen, one of whom, while in such work, was injured.” Judge Atwell stated that he felt impelled to follow the Gilleland Case, because it was a decision by the highest court of the state on a purely local law.

It will be observed that neither Gille-land nor Morse was in the service of the employer prior to the work at which he was engaged when injured. This fact distinguishes these cases from the case at bar, as it is undisputed that when Wright was detailed by his employer to assist, under the direction of Pumphrey as foreman, in construction work on the new building, he was, and had been, for at least eight of the ten preceding years, employed as sweeper in the milling plant, and when' injured was engaged in services of a different nature under orders of the employer. So the question presented here is, Did Wright’s injury have its origin in the work or business of the employer, and was it received while he was engaged in and about the furtherance of the affairs or business of his employer?. To ask the question, we think, in view of the undisputed facts, is to answer in the affirmative; the jury so found, and we adopt their finding as our conclusion of .fact on that issue.

It is generally held that a regular employee, directed by the employer to engage for a time or on an occasion in unusual work, receiving injuries while so engaged, is nevertheless entitled to compensation under the law, provided the unusual engagement is in or about the furtherance of the affairs oh business of the employer. This doctrine ruled the following cases: Commercial Cas. Ins. Co. v. Strawn (Tex. Civ. App.) 44 S.W.(2d) 805, involved these facts: Strawn, city salesman in Dallas for the General Tire Service, Inc., was directed by its general manager to entertain certain prospective customers, by taking them on a duck hunt, and being severely injured in an automobile accident, while returning from the hunt, claimed compensation for said injuries. The record disclosed that it was a custom of the employer to entertain prospective customers at places of amusement. The insurance carrier contended that the employee was not entitled to compensation because not injured in the course of his employment. The Waco Court of Civil Appeals, denying this contention, affirmed a judgment awarding compensation, and the Supreme Court refused a writ of error. In Constitution Indemnity Co. v. Shytles, 47 F.(2d) 441, 444, the Circuit Court of Appeals had a similar case; there Shytles, regularly employed as manager of a local theater in Fort Worth, was directed by his general manager to visit the San Angelo airport, as a representative of the theater in an aeroeade, and while flying to San Angelo on this mission was killed. The contention of the insurance carrier was that the facts did not present a compensable case, because, when killed, deceased was not employed in the usual course of trade, business, profession, or occupation of the employer. This contention was denied, and in disposing of the case Judge Hutcheson used the following language in point:

- “The employment must be in the business which is usual to the employer, and this is determined by the nature and character of that business and the contract of employment. Nothing in the statute nor in the policy requires, that the particular activities of an employee in carrying on that business have the quality of usualness or repetition; he might conceivably do a different thing each day.
“One employed in the usual business of his employer is just as fully covered when the acts which are done by him in carrying it' out are the occasional and unusual as: when they are the usual, provided the employment is general in the business, as this one was, and the acts are within the reasonable scope of that employment and in furtherance of that business.
“To say that a theater manager killed while on an airplane trip to advertise and obtain trade for his theater, with the consent: and approval of his employer and on his employer’s pay, comes within the exception of the statute excluding an employee as ‘not in the usual course of’ that company’s business, would be to deny the reality of the occurrence, and, because the particular incident was unusual, to close the eyes to the the usu-alness of its general character, that is, advertisement and trade promotion.”

The case of Solar-Sturges Mfg. Co. v. Industrial Commission, 315 Ill. 352, 146 N. E. 572, arose under the Compensation Law of Illinois. The employee, an ice cream salesman in the city of Chicago, had an allowance to be expended for cigars used in soliciting business, received injuries, for which he sought compensation, while on a trip to purchase cigars for such purpose. The claim was contested on the ground that injuries received under the circumstances did not arise from or in the course of the employment. This contention was denied in a few words; the court said’: “The injury received under these circumstances ‘arose out of and in the course of his employment.’ ” To the same effect, see Illinois Pub. & Printing Co. v. Coates, Industrial Commission, 299 Ill. 189, 132 N. E. 511; McNaught v. Hines, 300 Ill. 167, 133 N. E. 53; Porter Co. v. Yentzer, Industrial Commission, 301 Ill. 76, 133 N. E. 652.

The following from Schneider, in his work on Workmen’s Compensation Law (vol. 1, see. 23, p. Ill), fairly represents the con-census on the point; he says: “It would appear therefore that if the work being done may properly be within the ordinary expectation or contemplation of the parties as being necessary or proper for the employee to do, to aid in carrying out either directly or in-directly the main purpose or business of the employer, even though the employee steps aside from his usual work to do this unusual or isolated act or work, he should nevertheless receive compensation when injured in such work.”

The construction of the Compensation Law contended for by appellant would lead to this situation: An employee being directed by the employer to engage for a time in a character of work out of the ordinary, yet of a nature in furtherance of the employer’s business, is, under stress of these circumstances, compelled to choose between obedience and disobedience, that is, obedience at the risk of forfeiting the protection the Compensation Law affords, or disobedience at the risk of being discharged from employment; the law with such meaning would be difficult of administration, and its protection to wage-earners uncertain and elusive.

We think appellee’s injuries were compen-sable ; therefore affirm the judgment of the trial court.

Affirmed.

BONE, J., dissents.

BOND, J.

(dissenting).

I. cannot concur in the conclusion of this court. Appellant, Texas Employers’ Insurance Association, under the Workmen’s Compensation Laws of Texas, made a contract with and issued a policy to the Diamond Mill & Elevator Company, of Sherman, Tex., indemnifying it against liability for injuries to its employees arising in the course of their employment, and agreed to pay the compensation provided for under the law. The terms and conditions of the policy, and the classification of the hazards which appellant assumed are specified in the law, and must be considered as being embodied in the policy of indemnity. It cannot be presumed that appellant agreed to do more than that which it was compelled to do under its policy, and within the scope of the law. It must be observed that the terms of the policy limited the liability of the insurer to injuries suffered by an employee of the Diamond Mili & Elevator Company while engaged in the “usual course of trade, business,- profession, or occupation” of the milling company. The hazards which appellant contracted to insure, and to which the Diamond Mill & Elevator Company assented in accepting the policy, are those incident to and in furtherance of the usual business of the milling of flour and other products, and those hazards which might reasonably be anticipated as being incident to, and in furtherance of, that business. The usual business of the Diamond Mill & Elevator Company was that of milling flour and mill products. The insurer knew the risk and hazards that it undertook to indemnify, and the rate of premium applicable thereto. In consideration for such premium, appellant assumed such risk and hazards, and contracted to pay the compensation provided by law. The Diamond Mill & Elevator Company was not engaged in the business of erecting buildings, and it could not reasonably be anticipated by the insurer and by'the party insured that it would be so engaged. Its business was that of milling flour and other products, and such was the usual business of the company. The erection of thei building described in the evidence was unusual, and could not reasonably have been anticipated as being incident to, and in furtherance of, its milling business. It might have been reasonably anticipated that the milling company would, through necessity,-make repairs and cause replacements, and even build additions to its business; but when it stepped aside from its usual business, and that which might have been reasonably anticipated as being incident thereto, and began the erection of a new and independent addition to its mill, the construction of a substantial building three stories in height, 72 feet in length, and 72 feet in width, it thereby took itself from the protection of the policy and outside of the purview of the law, and assumed liability to its employees for injuries sustained by them while engaged in or about the furtherance of its affairs or business.

I reached the conclusion with great reluctance ; but I must read the policy and determine the contractual rights and responsibilities in the present case in the light of and in conjunction with the statutes, and in harmony with the decisions of the highest courts of the state. The case of Oilmen’s Reciprocal Ass’n v. Gilleland (Tes. Com. App.) 291 S. W. 197, 201, and the authorities cited therein, and referred to by the majority of this court, is decisive of this case. In that case the court said:

“It is our view that the California court adopted the proper policy and refused to ignore this word ‘usual’ or give to it any unusual meaning. ■ The ordinary meaning of the. word ‘usual’ is given by Webster’s New International Dictionary as follows: ‘Such as is in common use; such as occurs in ordinary practice, or in the ordinary course of events; customary; ordinary, habitual; common.’
“The same dictionary tells us that the word is synonymous with ‘accustomed, common, wonted, ordinary, regular.’ It goes without saying that walling up a pit with brick is not in the ordinary ’ course of the) laundry business.
“In one word, it is clear that Gilleland was a bricklayer. Therefore he was unquestionably engaged in the usual course of his own business when killed. But, it is equally clear that he was not, in any sense, in the usual course of his employer’s business at that time.”

The employee Wright, in the instant case, at the time of his injury, was engaged in the furtherance of his employer’s business; but I cannot say that he was engaged in the usual course of trade, business, profession, or occupation of his employer. It is immaterial whether he was a regular or a casual employee. It is not a question as to his contract of employment, but a question as to the business his employer had him engaged in at the time of his injury. In the above-cited ease, the court quoted with approval the opinion of the Court of Civil Appeals, 285 S. W. 648, as follows:

“The Court of Civil Appeals in this case, in giving a history of the clause in the statute now under consideration, speaks as follows:
“ ‘The Workmen’s Compensation Act of Texas seems to have been fashioned very largely after the Massachusetts act. The original act in Massachusetts * * * in defining employee, excepted ‘one whose employment is but casual or is not in the usual course of trade, business, profession or occupation of his employer.’ This definition was adopted when the Texas law was enacted. Vernon’s Sayles’ Civil Statutes, art. 5246yyy. Dater, after the Massachusetts law had been amended * * * eliminating the words ‘but casual or is,’ the Texas act in 1917 * * * was also amended so as to conform in this particular with the Massachusetts amendment. Vernon’s Civil Statutes 1918, art. 5246-82. The effect of this amendment was to broaden and liberalize the scope of the act with reference to who should be classed as employees, and, as amended, one who is only casually employed •is entitled to the benefits of the act if he is injured while in the usual course of the trade, business, profession, or occupation of his employer. R. S. art. 8309, § 1.’ ”

In the case of Employers’ Liability Assurance Corporation v. Cook, 281 U. S. 233, 50 S. Ct. 308, 309, 74 L. Ed. 823, Cook was ai regular employee of the Ford Motor Company, and as a part of his contract' of employment was assisting in unloading cargo from a ship when on navigable water, and while so engaged on the ship he was injured. He was under the instruction from the Ford Motor Company to assist in unloading the ship. In the instant case, Wright was a regular employee of the Diamond Mill & Elevator Company and was engaged in assisting in the construction of a substantial building, and was under the instructions from his employer. The Supreme Court, in that case, said: “Whether Cook’s employment contemplated that he should work regularly in unloading vessels or only when specially directed so to do is not important.” It further held that, since the unloading of vessels anchored on navigable waters was outside the purview of the Workmen’s Compensation Laws of Texas, it was unimportant whether the unloading of such vessel was a part of the regular employment of Cook.

The law also excludes coverage of one whose employment is not in the usual course of trade, business, profession, or occupation of his employer. Article 8309, § 1, R. S. 1925. It was unimportant whether the construction of the building was a part of the regular employment of Wright. Was it the usual business of the milling company?

The employee Wright has his remedy against his employer, under the Workmen’s Compensation Laws of Texas. For the reasons assigned, I respectfully dissent, and believe that this cause should be reversed and rendered.