text:
    SIXTY-SEVEN PROPERTIES, Appellant, v. CUTSINGER ELECTRICAL CONTRACTORS, INC., Appellee.
    No. 1047.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 22, 1976.
    Rehearing Denied May 13, 1976.

      William Key Wilde, Bracewell & Patterson, Houston, for appellant.
    Robert Hayden Burns, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is an action based on breach of contract, quantum meruit and the lien statutes for recovery by a subcontractor against a property owner and general contractor for labor and materials furnished and work performed. Trial was before the court without the aid of a jury. After hearing evidence, the trial court entered judgment in the subcontractor’s favor against the owners and general contractor for the sum of $23,332.17, plus attorney’s fees of $6,000.00 and foreclosure of its lien on certain properties. Only the owner perfected its appeal to this Court.

The facts of this case are relatively undisputed and are as follows: On October 7, 1968, the defendant Green Tree Constructors, Inc. (hereinafter referred to as Green Tree) as general contractor, entered into a written contract with the defendant Sixty-Seven Properties (hereinafter referred to as Properties) as owner, for the construction of an apartment project to be located in Harris County, Texas. The written contract between Green Tree and Properties called for the payment of the sum of $590,-929.00. There was no completion date set out in the original contract, but only that the work shall be commenced with the execution of the contract and completed without interruption.

On or about February 7, 1969, the plaintiff, Cutsinger Electrical Contractors, Inc. (hereinafter referred to as Cutsinger), entered into a subcontract with the defendant general contractor Green Tree. Cutsinger was to furnish all labor and materials and perform all electrical work per plans and specifications on the project which would include the installation of all light fixtures, exhaust fans, the electric range and oven combinations, range hoods, and hook up all dishwashers and disposals. No completion date was set out in the subcontract. For such labor, material, and extras, the defendant general contractor Green Tree agreed to pay the sum of $43,877.25. Cutsinger began work on the project December 30, 1968.

By letter dated April 15,1969, Green Tree notified Cutsinger that it was distressed by the alleged lack of progress Cutsinger had been able to accomplish and that Cutsinger was holding up the progress of other trades. Thereafter, by telegram on June 20, 1969, Green Tree again advised Cutsinger that unless its work was brought up to schedule that it would terminate the contract in accordance with its alleged terms. At this time, Green Tree had paid to plaintiff the sum of $14,535.00 under the subcontract leaving a balance due under the subcontract of $25,878.94. On July 14,1969, Green Tree terminated the subcontract between it and Cutsinger. Green Tree then employed another subcontractor to complete the work.

On September 23, 1969, Cutsinger notified the owner (Properties) by letter of its claim against Green Tree for the unpaid balance due of $25,878.94 for furnished materials and labor to Green Tree up to and including July 11, 1969. In the letter Cut-singer notified Properties that if the bill remained unpaid, they may be personally liable and their property subject to a lien unless such amount is withheld from the original contractor for payment of this statement or unless the bill is otherwise settled. Cutsinger also enclosed two copies of a subcontractor’s lien affidavit filed with the County Clerk of Harris County to secure the payment of the debt for $25,878.94. On September 24, 1969, Cutsinger filed for record its subcontractor’s lien affidavit asserting its claim against Green Tree and Properties for the unpaid labor and materials furnished by Cutsinger. Properties refused to pay Cutsinger anything.

Cutsinger then brought suit against Green Tree (general contractor) and Properties (owners) alleging that Green Tree had wrongfully and without justification terminated the subcontract and refused to permit Cutsinger from proceeding further and that because of said termination, plaintiff Cutsinger was damaged in the sum of $25,878.94. Cutsinger alleged that because of its filing of its lien, the owner Properties became jointly and severally liable, along with Green Tree for the damages sued for.

The defendants answered alleging that plaintiff had failed to perform the electrical wiring promptly and efficiently and at a speed that would not cause delay in the progress of the project and that because of such failure it became necessary for defendant, Green Tree, to employ another electrical contractor to rework and repair that portion of the work already done by plaintiff at a cost of $27,541.20 plus additional expenses of $15,080.00. Defendants filed a cross action against Cutsinger alleging that he had failed to perform the electrical work in accordance with the plans and specifications promptly and efficiently and it, therefore, became necessary to employ another subcontractor at a cost of $27,541.00 and with additional expenses of $15,080.00 incurred as a result of plaintiff’s failure to promptly complete the job.

The trial was before the court without the aid of a jury. The trial court after hearing evidence entered judgment that: 1) plaintiff Cutsinger recover from defendants Green Tree Constructors, Inc. and Sixty-Seven Properties the sum of $23,332.17 with interest at the rate of 6% per annum from August 10,1967; 2) that plaintiff Cutsinger recover from defendant Green Tree Constructors, Inc. reasonable attorney’s fees in the amount of $6,000.00; 3) that plaintiff Cutsinger has a valid lien upon the tract of land upon which the project was located and was entitled to judgment foreclosing its lien against the project; and finally 4) that cross plaintiffs Green Tree and Sixty-Seven Properties take nothing in its suit against Cutsinger. From such judgment, defendant Properties has appealed to this Court. Appellant makes no complaint of the trial court’s finding of wrongful termination or of its findings of fact.

The trial court found that: 1) Green Tree subcontracted the electrical work on the project to Cutsinger; 2) the written subcontract between Cutsinger and Green Tree called for the payment to Cutsinger of the sum of $38,000.00; 3) Cutsinger’s work on the project was terminated by Green Tree on July 14,1969; 4) labor and materials for which Cutsinger has not been paid were furnished by Cutsinger to Green Tree and Properties; 5) the reasonable value of the labor and materials for which Cutsinger has not been paid was in Houston, Harris County, Texas, in 1969, $23,332.17; 6) Green Tree and Properties received and accepted the benefit of the labor and materials for which Cutsinger has not been paid; 7) by means of a letter dated September 23,1969, and sent by certified mail, return receipt requested, Cutsinger notified Mr. R. Fred Beeler, President of Green Tree and a partner in Properties, of its claim against Green Tree and Properties for the unpaid labor and materials; 8) on September 24, 1969, Cutsinger filed for record in the office of the County Clerk of Harris County, Texas, its subcontractor’s lien affidavit asserting its claim against Green Tree and Properties for unpaid labor and materials furnished by Cutsinger; 9) Properties paid Green Tree sums in excess of $216,983.00 after it received Cutsinger’s notice of its claim against Green Tree and Properties.

The appellant Properties brings forward only two points of error on appeal. It first asserts that the trial court erred in holding that Cutsinger was entitled to recover in quantum meruit from Properties and second that Cutsinger had a valid lien and was entitled to judgment foreclosing that lien because plaintiff’s recovery was based on quantum meruit. Appellant more specifically asserts that when recovery is based upon quantum meruit, there can be no foreclosure of a lien on land. Appellee, on the other hand, asserts that while a recovery under quantum meruit may preclude a contractual lien, such does not invalidate a statutory lien. We agree with the appellee.

The appellee Cutsinger by counterpoints contends that its recovery against Properties, although authorized under the theory of quantum meruit, is expressly authorized by statute (Article 5463, Tex.Rev.Civ.Stat. Ann.1961) and the trial court was correct in holding that it was entitled to foreclose its statutory mechanic’s and materialman’s lien against the owner, Properties. The appellant, Properties, does not raise any points of error or objection to a recovery on this basis.

It is a well settled rule of law in this State that an appellate court will affirm the judgment of a trial court on any legal theory of law applicable to the case that has support in the evidence, regardless of whether the trial court gives the correct legal reason for the judgment it enters, or whether it gives any reason at all. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Custom Leasing Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138 (Tex.Sup.1974); Godde v. Wood, 509 S.W.2d 435 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.). The pleadings, the evidence and the court’s findings of fact support the judgment here rendered and entered by the trial court.

Article 5463 provides in part as follows:

“. . . The owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the provisions of Article 5469 hereof, that he may have paid to the contractor before he is authorized under this Article to retain the money. If the notices prescribed in Article 5453 have been received by the owner and claimant’s lien has been secured in accordance with Article 5453 and the claim or any part thereof is reduced to final judgment, the owner shall be required to pay, and his property shall be liable for, any money that he may have paid to the contractor after he is authorized to retain such money by virtue of this Article, as well as any money he is required to retain by the provision of Article 5469 hereof.” (Emphasis supplied.)

Article 5469 cited above requires an owner to retain ten percent of the contract price for a period of thirty days after the work is completed for the protection of laborers and materialmen “whenever work is done whereby a lien or liens may be claimed under Article 5452.” See General Air Conditioning Company v. Third Ward Church of Christ, 426 S.W.2d 541 (Tex.Sup.1968). Article 5469 further provides as follows:

“. . . All persons who shall send notices in the time and manner required by this Act and shall file affidavits claiming a lien not later than thirty (30) days after the work is completed shall have a lien upon the fund so retained by the owner, his agent, trustee, or receiver; . If the owner, his agent, trustee, or receiver refuses or fails to comply with the provisions of this Article, then all claimants complying with the provisions of this Act shall share ratably among themselves, with preference to artisans and mechanics as above specified, liens at least to the extent of the aforesaid fund of ten percent (10%) which should have been retained, as against the house, building, structure, fixtures, or improvement and all of its properties, and on the lot or lots of land necessarily connected therewith, to secure payment of such liens.”

The foregoing statutes (Articles 5469 and 5463) provide that when an owner (Sixty-Seven Properties) fails to retain the ten percent required by Article 5469, the claimants who have complied with the provisions of Article 5453 are entitled to recover against the owner “at least to the extent of the aforesaid fund of ten percent (10%) which should have been retained.”

With respect to the requirements of Article 5453, the record as we have stated conclusively shows that Cutsinger’s contract was terminated on July 14, 1969. On September 23, 1969, Cutsinger notified Properties in accordance with Article 5453 of its claim for a debt incurred by Green Tree in the amount of $25,878.94 as a result of Cutsinger having furnished materials and labor to Green Tree up to and including July 11, 1969. In such notice, Cutsinger informed Properties “That if this bill remains unpaid, you may become personally liable and your property subject to a lien unless you withhold funds from the original contract for payment of this statement, or unless this bill is otherwise settled,” along with enclosing two copies of Cutsinger’s lien affidavit to be filed with the County Clerk of Harris County, Texas. The lien affidavit was thereafter filed on September 24, 1969, perfecting the lien.

After Properties received notice of the claim and lien, Properties made payments to Green Tree in the amount of $216,983.00. This amount was far in excess of the amount claimed as due by Cutsinger. Properties made the final payment to the general contractor, Green Tree, on June 18, 1970, without having made any payment to Cut-singer in satisfaction of such alleged debt. Cutsinger’s certified letter and lien affidavit notified Properties of its claim within the time and in the manner prescribed by Article 5453. The lien claim and affidavit met the requirements for form and substance contained in Article 5455 and such was filed with the county clerk as required by Article 5453.

Although Article 5469 requires a claimant to send notices and file his affidavit within thirty days in order to secure a lien against the fund to be retained by the owner, the act does not require the filing within thirty days in order to secure the lien on the owner’s property as provided by Article 5469 or to obtain recovery against the owner as provided by Article 5463. See General Air Conditioning Company v. Third Ward Church of Christ, supra. Under these circumstances, Cutsinger was entitled to a recovery and a lien against the Sixty-Seven Properties’ property to the extent of the ten percent fund that Sixty-Seven Properties was required to retain. General Air Conditioning Company v. Third Ward Church of Christ, supra; W & W Floor Covering Company v. Project Acceptance Company, 412 S.W.2d 379 (Tex.Civ.App.-Austin 1967, no writ); Hunt Developers, Inc. v. Western Steel Company, 409 S.W.2d 443 (Tex.Civ.App.-Corpus Christi 1966, no writ).

Our Supreme Court has held that the thirty day period for claiming liens con-tamed in Article 5469 is not applicable when the owner fails or refuses to retain the ten percent fund because Article 5469 grants a lien against the owner’s property to “all claimants complying with the provisions of this Act”. Article 5463 authorizes recovery from the owner of the amount that should have been retained “if the notices prescribed by Article 5453 have been received by the owner and claimant’s lien has been secured in accordance with Article 5453.” General Air Conditioning Company v. Third Ward Church of Christ, supra. See also W & W Floor Covering Company v. Project Acceptance Company, supra.

Therefore, since Cutsinger fixed and secured its statutory lien under the provisions of Article 5453, it was entitled to a lien on Sixty-Seven Properties and to a recovery and foreclosure of the lien on Sixty-Seven Properties’ property by virtue of the provisions of Articles 5463 and 5469 to the extent of the ten percent of the contract price that Sixty-Seven Properties was required to retain. Since Cutsinger’s claimed lien is less than ten percent ($59,-092.90), Cutsinger is entitled to full recovery from Sixty-Seven Properties.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Alfredo Ernesto RAMOS, Appellant, v. Albert LEVINGSTON, Jr., et al., Appellees.
    No. 1066.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 22, 1976.
    Rehearing Denied May 13, 1976.

      Andrew L. Monson, Lopez, Uribe, & Mon-son, Brownsville, for appellant.
    F. Van Huseman, Maddin, White & Brin, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

In a jury trial on limitations issues separate from liability issues, the trial court rendered judgment granting the defendants’ motion for a directed verdict. The plaintiff appeals.

On June 21,1971, Alfredo Ernesto Ramos filed his original petition seeking damages for personal injuries alleged to have resulted from an automobile collision on February 13, 1971, in Willacy County, Texas. That petition alleged a collision between vehicles driven by the plaintiff and defendant Albert Levingston, Jr. Later the case was transferred to Nueces County on June 10, 1972, pursuant to the trial court’s order sustaining defendant’s plea of privilege.

Then on September 21, 1973, more than two years after the alleged collision occurred, the plaintiff filed his first supplemental petition alleging: a collision between vehicles driven by plaintiff and defendant Ramsey Edward Davis; and negligence of defendants Albert Levingston, Jr., and wife, Julie Beth Levingston in entrusting the family automobile to Davis.

Whereupon, in their first amended original answer, the defendants interposed the two year statute of limitations on behalf of Mrs. Levingston and Davis. The trial court then granted defendants’ motion for a separate trial on the issues of limitation. After the plaintiff had introduced his evidence before the jury and had rested, the trial court granted the defendants’ motion for directed verdict. In the resulting judgment, the trial court held against the plaintiff and for all the defendants. The plaintiff appeals from that judgment.

In three points of error, the appellant contends that the trial court erred in granting defendants’ motion for directed verdict because: (1) the statute of limitations was interrupted by the filing of plaintiff’s original petition within two years from the date of the accident; (2) there was conflicting evidence which raised an issue of fact whether State Farm Insurance Company gave plaintiff’s attorney false information which prevented his filing suit within two years from the date of the accident; (3) there was sufficient evidence that agents and attorneys for State Farm Insurance Company committed acts engendered to prevent plaintiff from discovering facts which would have allowed him to file suit against defendant Davis within two years from the date of the accident, and therefore the defendants should be estopped from relying on the statute of limitations.

About appellant’s first point, where he urges the timely filing of his original petition, we agree for two reasons with his contention insofar as Mr. Levingston is concerned.

First, the statute of limitations was never invoked in any pleading of the defendants on behalf of Mr. Levingston. The trial court, however, rendered a take nothing judgment in favor of all three defendants, including Mr. Levingston. This was error. Moran v. Midland Farms Co., 282 S.W. 612, 614 (Tex.Civ.App.-El Paso 1926, no writ).

Second, the record reflects that in plaintiff’s original petition Mr. Levingston was alleged to be a driver of the offending vehicle. This petition was filed within the two year period after the accident. After more than two years had elapsed after the accident, plaintiff filed a supplemental petition alleging that Levingston negligently entrusted the vehicle to Davis. In that regard, we look to Tex.Rev.Civ.Stat.Ann. art. 5539b (1958), which provides:

“Whenever any pleading is filed by any party to a suit embracing any cause of action . . . and at the time of filing such pleading such cause of action . is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability . . . shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence.

In our case the automobile collision was the transaction or occurrence out of which grew the appellant’s claim for personal injuries. And even though the cause of action alleged in the original petition was negligence of operation of a vehicle by Mr. Levingston, the cause of action alleged in the supplemental petition of negligence of entrustment of a vehicle by Mr. Levingston was not barred by limitations because both allegations of negligence grew out of the same transaction or occurrence, the automobile collision. We so hold. See Leonard v. Texaco Inc., 422 S.W.2d 160 (Tex.Sup.1967). So appellant’s first point is sustained insofar as it relates to Albert Levingston, Jr.

But Mrs. Levingston and Davis were not joined as defendants until plaintiff filed his supplemental petition on September 21, 1973, which date was more than two years after the date of the accident on February 13, 1971. In that situation, the general rule is that where a party defendant is added to a suit by amended pleading, the statute of limitations is tolled as to him at the time he is brought into the suit, not when the original pleading was filed. First State Bank & Trust Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16, 18 (1939, opinion adopted); Chesbrough v. State, 465 S.W.2d 224 (Tex.Civ.App.-San Antonio 1971, no writ). So, the running of the statute of limitations was not interrupted as to Mrs. Levingston and Davis until the supplemental petition was filed joining them as defendants on September 21, 1973, a time more than two years after the accident on February 13, 1971. Appellant’s first point is overruled insofar as it relates to Julie Beth Levingston and Ramsey Edward Davis.

In his second point, the appellant complains that agents of the appellees made false representations to appellant’s attorney on which he relied and that reliance prevented the appellant’s attorney from timely filing suit against Davis, the driver of the vehicle which collided with appellant’s vehicle. In other words, the appellant accuses the appellees of fraud. And fraud prevents the running of the statute of limitations until it is discovered, or by the exercise of reasonable diligence it might have been discovered. Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738 (1943); Bush v. Stone, 500 S.W.2d 885 (Tex.Civ.App.-Corpus Christi 1973, writ ref’d n. r. e.).

Since we are dealing with a directed verdict in favor of appellees, we will look only to that evidence which supports appellant’s position and accept such as true. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859 (1956); Walter E. Heller & Company, Inc. v. Allen, 412 S.W.2d 712 (Tex.Civ.App.-Corpus Christi 1967, writ ref’d n. r. e.).

Keeping these rules in mind, we believe the following is a fair summary of the evidence offered by the appellant in support of his second point. Unable to negotiate a satisfactory settlement with Mr. David Gil-land, the claims adjuster for State Farm Mutual Automobile Insurance Company, after the accident Ramos employed an attorney in April 1971 to represent him. The attorney surmised from his first conference with Ramos that the accident occurred in Willacy County and that Mr. Levingston was the driver of the other car. Whereupon the attorney notified the insurance company of his representation. Subsequently, on June 21, 1971, he filed suit against Lev-ingston only.

Shortly thereafter, according to the appellant’s attorney, he and Mr. Gilland discussed the case in person for the first time. This discussion lasted for several hours, beginning in the attorney’s office in Brownsville and continuing at dinner in Matamo-ros, Mexico.

The attorney’s version of that continuing first discussion between him and the insurance adjuster shows the following:

1. That they struck a congenial relationship with sincerity of friendship and neither trying to take advantage of the other.
2. That neither would betray anybody’s representation, but “You represent yours and I’ll represent mine."
3. That the adjuster informed the attorney that there was another party in the automobile; that this was the first time the attorney knew that fact.
4. That the adjuster said that Leving-ston was driving the other car at the time of the accident.
5. That the adjuster informed the attorney the accident occurred in Kenedy County, not in Willacy County (where the suit was first filed).
6. That the adjuster offered to settle the claim for “between $3,000.00 and $3,500.00.” That because he considered the amount too small, the attorney declined the offer.

From that day of discussions till after two years had elapsed from the date of the accident, the appellant’s attorney continued negotiating about settlement. His conversations and correspondence were with Gil-land and his subsequent replacement, Dan Villarreal. At no time did anyone representing Levingston or the insurance company inform the appellant’s attorney that Levingston was not the other driver. And at no time did the appellant’s attorney request a copy of the investigating officer's accident report, which would have shown that Davis was the other driver. He said he knew that the report was available and that a copy for him would cost no more than two or three dollars. Nor did he engage in any discovery by means of deposition or interrogatories, even though he said he knew that it was fairly common to use those types of discovery to find out who the drivers of the colliding cars were. His reason for not using any of these tools for information was that he had no reason to because they were “dealing right over the table very clearly”.

All of this brings us to an analysis of the evidence and the application of the appropriate rules of law. At the outset, we point out that fraud is never presumed; that it is the duty of a court to presume a want of fraud rather than the existence of fraud in a transaction. Hazle v. McDonald, 449 S.W.2d 343, 346 (Tex.Civ.App.-Dallas 1969, no writ). We also point out initially that in view of the agreement “You represent yours and I’ll represent mine”, this case was an adversary or arm’s-length transaction from the beginning. Therefore, there was not the confidential relationship that could be a basis for our applying the lenient standard of diligence that was discussed in Bush v. Stone, 500 S.W.2d 885, 890 (Tex.Civ.App.-Corpus Christi 1973, writ ref’d n. r. e.).

About the congenial relationships of the appellant’s attorney and the insurance adjusters, a failure to exercise diligence in an arm’s-length transaction is not excused by mere confidence in the honesty and integrity of the other party. Courseview, Incorporated v. Phillips Petroleum Company, 158 Tex. 397, 312 S.W.2d 197 (1957).

Where, on information supplied by the adjuster, the attorney learned for the first time that another party was involved in the accident and that Willacy County was not the place of the accident, the attorney should have realized that discovery was in order to marshall the correct and necessary facts. And he said that he was experienced in the use of the tools of discovery and was generally aware that their use by him would yield the facts which he lacked. In Ruebuck v. Hunt, supra, at page 739 we find the appropriate rule in this regard as follows:

“Knowledge of facts that would cause a reasonably prudent person to make inquiry, which if pursued would lead to a discovery of fraud, is in law equivalent to knowledge of the fraud.”

About the adjuster’s representation to the attorney that Levingston was the other driver, it is obvious that the attorney did not rely on that information. This is so because he had already filed the original petition designating Levingston as the other driver before the adjuster’s claimed misrepresentation was made to him. Of course, reliance is a necessary element of fraud. See 25 Tex.Jur.2d Fraud and Deceit § 20, p. 639 (1961).

Finally, the evidence covering negotiations between the appellant’s attorney and the representations of the appellees does not excuse the attorney’s delay in joining Mrs. Levingston and Davis as defendants. None of the offers of settlement made by the adjusters to the attorney were by him ever accepted. So it is not shown that those offers were false. See City of Athens v. Evans, 63 S.W.2d 379, 381 (Tex.Comm’n App.1933, holding approved). Therefore, the appellant’s second point of error is overruled.

In his third and final point of error, the appellant contends that the ap-pellees should be estopped from pleading the statute of limitations because of their actions in preventing appellant’s timely discovery of the true facts. To rely on estop-pel the appellant must show that he did not ignore requirements of due care (diligence) nor blindly rely on a situation as being what it seemed rather than what it in reality was. 37 Tex.Jur.2d Limitation of Actions § 155, p. 332 (1962). We have in our discussion of appellant’s second point held that appellant, as a matter of law, did not exercise reasonable diligence. For the reasons about diligence set out there the appel-lees are not estopped. The appellant cites Lanpar Company v. Stanfield, 474 S.W.2d 753 (Tex.Civ.App.-Waco 1971, writ ref’d n. r. e.) and City National Bank of Cleburne v. Strickland, 273 S.W.2d 667 (Tex.Civ.App.-Waco 1954, writ ref’d n. r. e.) as sustaining his contentions of estoppel.

In Stanfield, the debenture issuer represented that if Stanfield, a debenture holder, would withhold filing suit while other debenture holder suits were pending, that Stanfield would receive the same settlement which other debenture holders received. The appellate court affirmed the trial court’s holding of estoppel against the issuer’s pleading limitations because the other debenture holders were settled with and Stanfield was not. Our case can be distinguished on the facts. There was no settlement offer that was accepted by the appellant’s attorney.

In Strickland, an 85 year old widow sued the bank who had misappropriated her deposits. Estoppel against the bank’s pleading limitations was approved based on a confidential relationship between the widow and an officer of the bank. In our case we have held that there was no confidential relationship as a matter of law. The appellant’s third point is overruled.

That part of the judgment directing a verdict in favor of the defendant Albert Levingston, Jr. in the separate trial on the issues of limitations is reversed and the plaintiff’s cause of action is hereby reinstated and the cause is remanded to the trial court for a trial on the merits by the plaintiff against defendant Albert Levingston, Jr., only. The remaining portion of the judgment decreeing that the plaintiff take nothing in his action against defendants Julie Levingston and Ramsey Edward Davis is affirmed. Two-thirds of the costs of this appeal are taxed against plaintiff, and the remaining one-third is taxed against defendant Albert Levingston, Jr.

Reversed and remanded in part and affirmed in part.


author: BISSETT, Justice.

text:
    John J. MILLER, Appellant, v. Dr. Charles H. HOOD et al., Appellees.
    No. 1025.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 22, 1976.
    Rehearing Denied May 13, 1976.

      John H. Holloway, Houston, for appellant.
    O. F. Jones, Victoria, W. T. McNeil, Vance, Vance & McNeil, Edna, for appel-lees.
   OPINION

BISSETT, Justice.

This is a medical malpractice case. Suit was instituted by John J. Miller (“Miller”) sometime prior to February 1, 1971, against Dr. Charles H. Hood (“Dr. Hood”), Mauritz Memorial Jackson County Hospital (“Hospital”), Jackson County, Texas (“County”) and James Childress (“Childress”), to recover damages for negligence in connection with his treatment while he was a patient in the Hospital. Miller died on March 18, 1971, and the suit was thereafter prosecuted to judgment by the administratrix of his estate and his heirs at law.

Miller, in his pleadings, alleged that he was injured due to the negligent manner in which he was given a penicillin injection by a licensed vocational nurse who was employed by the Hospital; that the nurse, at the time of such injection, was under the control of Dr. Hood; that the negligence of the nurse was a proximate cause of the physical injury that he sustained; and that as a result thereof, he incurred certain medical expenses and suffered permanent injuries and total disability. He asked for judgment against all defendants in the amount of $385,000.00.

General denials were filed by all defendants. In addition, the Hospital and the County each pled the special defense of governmental immunity to the action brought against them by Miller.

Before going to trial on the merits, the Hospital and the County, by a joint motion, moved for summary judgment on the ground of governmental immunity. The trial court, on March 12, 1972, granted the motion in interlocutory form, subject to becoming final upon disposition of the cause.

The case then proceeded to trial before a jury on April 14,1975. Following the overruling of motions for instructed verdict filed by both the representative of the Estate of John J. Miller, Deceased, and his heirs at law and by Dr. Hood, the trial court submitted two special issues to the jury, which found: 1) that the licensed vocational nurse “when giving the penicillin shot” to Miller was not a “borrowed employee” of Dr. Hood; and 2) that Miller was not entitled to any money as damages “as a result of injury to his sciatic nerve”. A final judgment that the administratrix of the Estate of John J. Miller, Deceased, and the heirs at law of the decedent take nothing against all defendants was rendered on June 9,1975. An appeal has been perfected from that judgment.

The suit arose from the following facts: Miller, complaining of chest pain and fever, sought the medical assistance of Dr. Hood. Following an examination, Dr. Hood concluded that Miller was suffering from bronchial pneumonia and had him admitted to the Hospital. While in the Hospital, Miller, immediately after an injection of penicillin on January 16,1969 by a licensed vocational nurse who was then in the employ of the Hospital, began to complain of pain and discomfort. Upon notification of Miller’s condition, Dr. Hood examined Miller and diagnosed an improper application of penicillin in the sciatic nerve. Soon thereafter, Miller showed signs of paralysis in the lower extremities in the left side of his body. Dr. Hood, satisfied that Miller had recovered from pneumonia, discharged him from the Hospital. One month later, Miller saw Dr. Robert Hardy, a neurosurgeon, for additional treatment. Failing to respond to Dr. Hardy’s initial treatment, Miller was admitted to Baptist Memorial Hospital in San Antonio for purposes of nerve repair surgery. Following this surgery, Miller again complained of pain and discomfort, this time in his lower right extremity. Three weeks later, Miller was discharged from Baptist Memorial Hospital and soon afterward entered the Veterans Hospital in Houston for additional treatment, where he remained for approximately nine (9) months. He committed suicide shortly after his discharge from the Veterans Hospital.

Appellants, in their first three points, contend that the trial court erred in denying their motion for instructed verdict because the uncontroverted evidence established as a matter of law that the nurse, in giving the shot, was a “borrowed employee” of Dr. Hood, even though she was, at that time, in the general employ of the Hospital; that the finding by the jury that the nurse in administering the penicillin injection, was not a “borrowed employee” of Dr. Hood is contrary to the undisputed evidence; and that such jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. None of the points can be sustained.

Appellants argue that Dr. Hood had the right of control over the nurse’s acts, since he specifically gave the nurse her orders. Dr. Hood, on the other hand, says that the nurse, while acting pursuant to his orders, was not subject to his control, but was under the control of the Hospital, and was in fact performing regular and routine hospital functions as a general employee of the Hospital at the time she gave the penicillin shot to Miller.

Generally speaking, a doctor is not liable for the negligence of hospital nurses who are not his employees unless they administer medication or perform acts under his supervision and control. “The mere fact that a physician or surgeon gives instructions to a hospital employee does not render the physician or surgeon liable for negligence of the hospital employee in carrying out the instructions”. 70 C.J.S. Physicians and Surgeons § 54.

Whether a general employee of one employer becomes a borrowed employee of another at a given time is determined by who had the right to control the employee in the details of the work that was performed. Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632 (1943). If the general employee is placed under the control of a special employer in the manner of performing a particular service, he becomes a borrowed employee of the special employer, but if the employee remains under the control of his general employer in the manner of performing such service, he remains the employee of the general employer. Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.Sup.1963). Where there is no contract between the employers covering the specific right to control the particular employee then a factual question is raised as to whether the employee is a borrowed employee at the time in question. Sanchez v. Leggett, 489 S.W.2d 383 (Tex.Civ.App.-Corpus Christi 1972, writ ref’d n. r. e.).

There is testimony in the record from competent witnesses that it was the customary routine at the Hospital for the attending physician to leave written orders at the nurses’ station. Thereafter, the supervising nurse on duty would inform the nurse in charge of medications of the orders, and that nurse would carry out the orders without the assistance of the doctor. It was further established that once the doctor leaves such orders as to what treatment he desires the patient to receive, actual treatment is carried out by the personnel employed by the Hospital without the doctor in attendance except in special cases that require urgent treatment. There is testimony that the giving of a penicillin shot does not require the presence or the assistance of the doctor since the nurse is trained to administer such medication. No urgency is presented by the record.

At the time the shot of penicillin was given to Miller, the nurse was a general employee of the Hospital. It was her job, as a nurse in the Hospital, to administer medication prescribed by the doctors who were practicing medicine in the Hospital. Dr. Hood ordered penicillin to be administered to Miller in the “anterior thigh not closer to groin than four inches or in the deltoid muscle.” The nurse did not follow those instructions. However, there is no evidence that Dr. Hood had any right of control over the nurse concerning the details of how she was required to give the shot. Dr. Hood was not present when the shot was given. He did not select the nurse who was to administer the injection. While the nurse gave the shot as ordered by Dr. Hood, her actions in doing so were part of ordinary hospital routine and under the supervision of the supervising nurse then on duty. The relationship of “employer-borrowed employee” cannot be inferred or established in this case merely because the nurse, the general employee of the Hospital, performed routine acts in obedience to the instructions of the doctor. F. B. McIntire Equipment Co. v. Henderson, 472 S.W.2d 566 (Tex.Civ.App.-Fort Worth 1971, writ ref’d n. r. e.); Wise v. Texas Employers Ins. Ass’n, 402 S.W.2d 228 (Tex.Civ.App.-Houston 1966, writ ref’d n. r. e.).

In Bernardi v. Community Hospital Ass’n, 166 Colo. 280, 443 P.2d 708 (1968), a case similar factually to this case, the doctor left a written order at the hospital that the plaintiff be given an injection of tetracycline every twelve hours in her right glu-teal region. A nurse, who was in the general employ of the hospital, negligently injected the tetracycline into or adjacent to the sciatic nerve, which resulted in serious permanent injuries to the plaintiff. It was held that the doctor did not have the right to control the nurse, and that his instructions that injections were to be given did not give rise to a master-servant relationship. The trial court granted the doctor’s motion that the complaint be dismissed for failure to state a claim upon which relief could be granted against him. That ruling by the trial court was affirmed.

Another case in point is Honeywell v. Rogers, 251 F.Supp. 841 (Dist.Ct., W.D. Penn.1966). There, the law of Pennsylvania, like the law in Texas, imposed liability on a doctor for the negligence of an employee of the hospital only in those cases where the doctor had direct charge of the administration of the injection and had the right to control the act to be done and the details of its performance. The federal court, applying Pennsylvania law, refused to impose vicarious liability on the doctor where the injury to the patient was caused by the negligent injection of a drug by a floor nurse of the hospital when the doctor was not present during the administration of the shot.

The “borrowed employee” doctrine, as applied in the field of medicine, generally has been divided into two classifications: 1) operating room situations; and 2) non-operating room situations. We are here concerned only with the latter classification. In a non-operating room situation, absent any special circumstances, vicarious liability cannot be imposed upon the attending doctor for negligence in the treatment prescribed by him but administered by floor nurses employed by the hospital in the regular course of the services furnished by the hospital.

The record does not authorize a holding that the nurse was a borrowed employee of Dr. Hood as a matter of law. The trial court properly overruled appellants’ motion for an instructed verdict. The evidence makes it plain that reasonable minds could differ as to whether Dr. Hood had the right to control the acts of the nurse at the time in question. The jury was entitled to conclude that the nurse was carrying out her general duties as an employee of the Hospital, and was following the instructions of Dr. Hood, when the penicillin injection was administered to Miller. The finding by the jury that the nurse was not a “borrowed employee” of Dr. Hood is fully supported by the evidence and is not contrary to either the “undisputed evidence” or to the “overwhelming great weight and preponderance of the evidence”. Appellants’ points 1, 2 and 3 are overruled.

Appellants next complain that the jury’s finding of “none” to the damage issue is contrary to the undisputed evidence and is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, which indicates probable bias or prejudice against them (points 4 and 5). They insist that the trial court erred in denying them a new trial, since it is obvious that the jury attempted “to insure that no recovery would be made against Dr. Hood”; and, therefore, they did not receive a fair trial.

The uncontroverted evidence established permanent and disabling injury to Miller as a result of the penicillin injection on January 16, 1969. The necessity for medical treatment thereafter and the reasonableness of a charge of $2,900.00 therefor was stipulated. While the answer by the jury to the damage issue is contrary to the undisputed evidence and is against the great weight and preponderance of the evidence, the record does not present reversible error, since the jury, in answer to Special Issue No. 1, found that the nurse who gave the shot which caused the injury was not the borrowed employee of Dr. Hood at that time. That finding prevents appellants from recovering any damages in their suit against Dr. Hood. Thus the jury’s answer to the damage issue becomes immaterial. Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.); Rampy v. Allstate Insurance Company, 492 S.W.2d 85 (Tex.Civ.App.-Austin 1973, writ ref’d n. r. e.). Appellants’ points 4 and 5 are overruled.

Appellants, in points 6, 7 and 8, attack the granting of summary judgment in favor of the Hospital and of the County on the basis of “governmental immunity.” They say: 1) the summary judgment proof did not establish as a matter of law that no material fact issues existed under the Texas Tort Claims Act (point 6); 2) the hospital was liable under contract for negligent injury to a paying patient (point 7); and 3) the time limitation provision of the Texas Tort Claims Act is unconstitutional (point 8).

The trial court made the following findings of fact in the judgment:

“(1) that Mauritz Memorial Jackson County Hospital was operated by Jackson County under statutory authority for the creation of county-wide hospitals at the time of plaintiff’s injuries on January 16, 1969;
(2) that John J. Miller, deceased, was a paying patient of the hospital at the time of the injuries sustained by him when he received an injection in the sciatic nerve by a nurse employed by the hospital, and that the plaintiff paid the defendant for the services and drugs involved in the injection, and that the plaintiff was not a charity patient;
(3) that at the time plaintiff sustained his injuries as a paying patient of the hospital, that the hospital was furnishing services customarily performed by private hospitals.”

The court then concluded:

“ . . . that the Mauritz Memorial Jackson County Hospital and Jackson County, Texas are entitled to judgment based upon their governmental immunity from tort liability, . . . ”

The summary judgment proof establishes the fact that Jackson County is a duly organized and existing county of this State. We judicially notice that fact. The proof further establishes the fact that the Hospital is a county hospital. The injury occurred prior to the effective date of the Texas Tort Claims Act. None of the pleadings filed by either Miller, or by the representative of his estate and his heirs at law, raised the question of the applicability of the Texas Tort Claims Act to this case. Appellants do not attack the doctrine of governmental immunity by a single point of error. A reading of the trial petition in this case clearly shows that the cause of action alleged against all defendants sounds in tort, not in contract.

As the acts complained of in this case occurred prior to January 1, 1970, the effective date of the Texas Tort Claims Act (Tex.Rev.Civ.Stat.Ann. art. 6252-19), the provisions of the Act are not applicable. McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.Sup.1972). We, therefore, apply the law with respect to governmental immunity as it existed on January 16, 1969, the date of the injury.

The legal concept of governmental immunity as it existed on January 16, 1969, applies to the action brought against the Hospital and the County. The County is a governmental agency and an arm of the State; the Hospital is a governmental agency, an instrumentality of the State, which carries out a governmental function. Both are immune from tort liability caused by the negligence of the Hospital employee in the case here presented. Ritch v. Tarrant County Hospital District, 480 S.W.2d 622 (Tex.Sup.1972, cert. denied 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669); Hopper v. Midland County, 500 S.W.2d 552 (Tex.Civ.App.-El Paso 1973, writ ref’d n. r. e.); Dobbins v. Texas Turnpike Authority, 496 S.W.2d 744 (Tex.Civ.App.-Texarkana 1973, writ ref’d n. r. e.); Bayless v. Richardson Hospital Authority, 508 S.W.2d 189 (Tex.Civ.App.-Eastland 1974, writ ref’d n. r. e.); Fesal v. Hutchinson County, 443 S.W.2d 937 (Tex.Civ.App.-Amarillo 1969, writ ref’d n. r. e.). Neither the Hospital nor the County is liable in tort as a matter of law; therefore, there is no genuine issue of fact to be determined concerning the alleged acts of negligence. Appellants’ point 6 is overruled.

We also overrule appellants’ point 7. The trial petition does not allege anything that will support a contention that this is a suit for breach of contract. Moreover, a suit for breach of contract may not be maintained against a county or an agency of the State performing a governmental function without first obtaining legislative permission therefor. Townsend v. Memorial Medical Center, 529 S.W.2d 264 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.). No legislative permission to sue either the Hospital or the County is shown by the record.

Appellants’ point 8 reads as follows:

“The Court erred in granting Mauritz Memorial Jackson County Hospital’s motion for summary judgment on the basis that the Texas Tort Claims Act precludes liability for any injury occurring prior to January 1, 1970, because the Texas Tort Claims Act is unconstitutional in setting an arbitrary date for the abolishment of governmental immunity, thereby permitting a ‘class litigation preference to certain citizens of the State of Texas’ in denial of the State and Federal constitutional guarantees of equal protection of the law.”

We refuse to declare the Texas Tort Claims Act unconstitutional for the reason set forth in appellants’ point. If the question of immunity under the Act is to be re-examined “from the constitutional aspect of the limitation as to the time of injury provision of the Act being in violation of due process and equal protection of the law,” as argued by appellants in their brief, then such re-examination should be made by our Supreme Court, not by an intermediate court. We think the Act can be reconciled with our State Constitution. We hold that the Legislature acted within its constitutional authority in providing that the Act would become effective on January 1, 1970. Harris County Flood Control Dist. v. Mihelich, 525 S.W.2d 506 (Tex.Sup.1975); Harris County v. Dowlearn, 489 S.W.2d 140 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref’d n. r. e.). Appellants’ point 8 is overruled.

Appellants, in their 9th point of error, assert that the trial court erred in granting a summary judgment to Childress because he did not file a motion for summary judgment and did not establish, by summary judgment evidence, that he was entitled to summary judgment. The point has no merit.

The judgment that was rendered on June 9, 1975, and from which appellants have prosecuted this appeal, among other recitals, states:

“ . . . and it appearing that the Court had heretofore entered an order disposing of the claims against the Defendants, Mauritz Memorial Jackson County Hospital and James Childress. The Plaintiffs announced ready to proceed in their claim against the Defendant, Dr. Charles H. Hood;”

The judgment decreed that all those persons who are appellants in this appeal “take nothing of and from any of the Defendants in this cause”.

Apparently, appellants presume that the trial court granted a summary judgment in favor of Childress without any motion for summary judgment having been filed. The presumption is not warranted by the record in this case.

The judgment does not state that the claim against Childress was disposed of by summary judgment. The record is silent as to how the trial court disposed of such claim. Nevertheless, there is the positive recital in the judgment that such claim was disposed of by an order of the court prior to the commencement of the jury trial against Hood.

It is a settled rule in Texas that a judgment of a court of competent jurisdiction, rendered in the exercise of its usual powers and regular on its face, imports absolute verity, and carries with it a presumption of validity unless vice appears on the face thereof or in the record supporting it. Williams v. Tooke, 116 S.W.2d 1114 (Tex.Civ.App.-Texarkana 1938, writ dism’d). Every reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it; all prior requisites to the rendition of a judgment will be presumed to have been fulfilled and the recitals in a judgment will be presumed to state the truth. Liddell v. Blevins, 244 S.W.2d 335 (Tex.Civ.App.-San Antonio 1951, writ ref’d n. r. e.).

The burden was on the appellants to show by affirmative proof that the claim against Childress was disposed of by the trial court by an order that was invalid. They did not meet that burden. There are several orders besides summary judgment that could have disposed of the claim against Childress. Under the record and circumstances here presented, we must presume that the trial court, by proper order, correctly and validly disposed of the claim against Childress prior to the rendition of a final judgment in the case.

The appellants rely on Torres v. Aransas County Navigation District No. 1, 346 S.W.2d 903 (Tex.Civ.App.-San Antonio 1961, no writ) in support of their contention under the point. That case is totally different from the instant case. There, the trial court dismissed the action against all defendants on the basis that the “plaintiffs’ petition affirmatively shows that the tort action can not lie against a governmental agency”. The Court of Civil Appeals noted that while the plaintiffs could not assert a negligence action against the governmental agency, it did not follow that they could not assert such an action against the individuals. Accordingly, the judgment was affirmed insofar as it dismissed the action against the governmental agency, but was reversed and remanded insofar as it dismissed the action against the individuals. Here, there is no dismissal on the pleadings and there is nothing to indicate a dismissal of the action against Childress. Appellants’ point 9 is overruled.

The judgment of the trial court is AFFIRMED.


author: RALEIGH BROWN, Justice.

text:
    WHITEHALL LABORATORIES, INC., Appellant, v. Opal GILLIAM, Appellee.
    No. 4864.
    Court of Civil Appeals of Texas, Eastland.
    April 22, 1976.
    Rehearing Denied May 13, 1976.
    Anne Gardner (Brown, Crowley, Simon & Peebles), Fort Worth, for appellant.
    Ken Fuqua (Wilson, Berry, Jorgenson & Johnson), Dallas, Royce Adkins, Haskell, for appellee.
   RALEIGH BROWN, Justice.

This is a products liability case based on strict liability and in the alternative negligence. Opal Gilliam sought damages for burns sustained following her alleged use of Sudden Beauty hairspray, a product manufactured by Whitehall Laboratories, Inc. Judgment for Gilliam in the amount of $145,618.05 was rendered upon the jury’s findings of defendant’s negligence in failing to warn of post-spraying hazards of the product which was a proximate cause of the occurrence. Whitehall Laboratories, Inc. appeals. We reverse and remand.

Appellant argues the trial court erred in refusing to submit its requested issue on contributory negligence inquiring whether Opal Gilliam applied more Sudden Beauty on the occasion than would have been applied by a person using ordinary care under similar circumstances, together with its corollary proximate cause issue. We agree.

Opal Gilliam was found by her son and daughter-in-law sitting in her bathroom with second and third degree burns on her right arm, shoulder, back, and ear. Her hair was singed, matted, and wet. Her husband, Fred, was asleep at the time. No evidence of a fire was found in the house other than some burned hair in the sink and a cotton pajama top with the right side and sleeve burned which had been thrown into a trash can in the kitchen. These events occurred prior to the effective date of the comparative negligence statute. Mrs. Gilliam stated at that time she did not remember what had happened and was not completely coherent until the following afternoon.

Opal Gilliam testified that she had sprayed her hair at about 10:15 p. m. the evening of the occurrence after cleaning her face and putting on a cotton pajama top. About 10 or 15 minutes later, she sprayed her hair a second time at a washstand in the kitchen and “walked into the den, got a cigarette, struck a match, and I was on fire.”

Mrs. Gilliam further testified that the can had a warning on it which she thought said, “flammable, do not use before open flame or fire.” She had read the label prior to the accident and knew the spray was flammable. Appellant realized at the time she sprayed her hair the cotton pajamas she was wearing was flammable. She denied lighting a cigarette or striking a match near the washstand where she sprayed her hair.

Appellant’s daughter-in-law testified as to her observation of Mrs. Gilliam’s use of hairspray stating, “I would say most like other women, except she used a good bit more,” that she had a habit she applied hairspray “usually, anytime that she was going to leave the house” and “before she retired to bed.” Mrs. Gilliam had sprayed her hair at 5:00 p. m. in addition to the two times preceding the fire.

Fred Gilliam testified that he had gone to bed about 10:00 p. m. on the night of the fire. He believed that he had smelled the odor of hairspray drifting back into the bedroom as he was going to sleep. He opened the side door to let air in and shut the door from his room to the den. It seemed to him the odor was coming down the hall.

Fred Present, called as an adverse witness by plaintiff, testified “more than a three-second application on a single swatch of hair or cloth would be an overdosage” and “much more than an average person would spray their hair.”

Texas courts apply the rule that in a products liability case contributory negligence is not a defense to strict liability but contributory negligence would bar recovery based upon negligence.

The court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967) agreed:

“. . . with the Torts Restatement rule relating to contributory negligence as a defense to an action based upon strict liability, viz:
‘Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. * * * ’ § 402A, Comment (n), Contributory Negligence.”

In McKisson, supra, the court stated:

“. . . we may conclude that the jury’s finding upon the contributory negligence issue would bar a recovery based upon negligence. It does not, however, bar a recovery based upon strict liability which is not based upon negligence. Torts Restatement, § 402A, Comment (n)

The jury determined the hairspray was not unreasonably dangerous and therefore did not answer the inquiry as to whether such condition was a producing cause of the occurrence. The jury found, however, (1) the hairspray contained post-spraying hazards; (2) the caution notice on the can failed to give sufficient warning of such hazards; (3) such failure was negligence; and (4) such failure was the proximate cause of the occurrence. Such findings are not that the product itself was either defective or unreasonably dangerous and therefore strict liability could not be imposed upon Whitehall.

As stated by the court in Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.1972):

“The prime requirement for imposing liability on a seller under the rule of strict liability is proof by the plaintiff that he was injured because of a defective condition in the product when it left the hands of the particular seller.”

Opal Gilliam’s recovery then must be based on the affirmative findings of the jury on the negligent issues and a lack of error on the part of the trial court in failing to submit Whitehall’s requested contributory negligence issues.

In considering the question of the trial court’s failure to submit defensive issues, the court in Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941) said:

“. . . It is the settled law that under our present special issue statutes the defendant has the same right to have his defensive issues submitted to the jury that the plaintiff has to have his offensive issues submitted. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, 522. We quote the following from the opinion in the case just cited: ‘Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error’s suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her to recover, which she pleaded and proved.’ ”

See also Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958).

The evidence established Mrs. Gilliam knew Sudden Beauty was a flammable product. She was the wife of a Texaco wholesale dealer, a dealer in flammable products. Mrs. Gilliam had worked in her husband’s business for four or five years preceding the accident. There was evidence Mrs. Gilliam used more hairspray than an ordinary person would have used on the occasion in question and under the same or similar circumstances.

Reviewing the evidence in its most favorable light, we hold there was evidence to support the submission of the contributory negligent issues requested by Whitehall. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

The failure of the trial court to submit the issues was error.

This holding makes it unnecessary to consider other points of error.

The judgment is reversed and the cause remanded.


author: PER CURIAM.

text:
    A & H TRUCK LINE, INC., Appellant, v. KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Appellee.
    Supreme Court of Kentucky.
    April 16, 1976.
    George M. Catlett, Frankfort, for appellant.
    Iris R. Barrett, Kentucky Occupational Safety & Health Review Com’n, Frankfort, for appellee.
   PER CURIAM.

The Kentucky Occupational Safety and Health Review Commission upheld a citation issued by a compliance officer of the Kentucky Department of Labor, Division of Occupational Safety and Health, alleging the violation of certain occupational health and safety standards by the A & H Truck Lines, Inc., at its terminal in Owensboro. A & H appealed from this order to the Franklin Circuit Court designating as appellee the Kentucky Occupational Safety and Health Review Commission. The appeal was dismissed because A & H had failed to join the Kentucky Department of Labor as an indispensable party.

The only question before the court upon this appeal is whether the Kentucky Department of Labor is an indispensable party.

The Review Commission was created as an administrative review board within the Department of Labor. KRS Title XXVII. Labor and Human Rights, Chapter 338, Safety and Health of Employees. Its authority is limited in the final analysis to hearing appeals from citations, notifications, and variances and the issuance of an order disposing of the proceeding. KRS 338.071. The authority to enforce any order issued by the Review Commission is specifically vested in the Kentucky Department of Labor. KRS 338.101, 338.181, and 338.191. It is only when the department elects to enforce orders of the Review Commission that their full effect become evident; otherwise, they are an absolute nullity.

Without the Department of Labor to enforce its orders, the Review Commission is helpless. CR 19.01 requires the joinder of a party if in its absence complete relief cannot be accorded among those already parties. The circumstances presented in this proceeding conclusively establish that there can be no final disposition of the appeal without the presence of the Kentucky Department of Labor. Thus, it is an indispensable party.

The judgment is affirmed.

All concur.


text:
    CUMBERLAND FALLS CHAIR LIFT, INC. a Kentucky Corporation, Appellant, v. COMMONWEALTH of Kentucky et al., Appellees.
    Supreme Court of Kentucky.
    April 30, 1976.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, Pikeville, for appellant.
    Joseph J. Leary, Larry M. Greathouse, Frankfort, for appellees.
   PER CURIAM.

Cumberland Falls Chair Lift, Inc. (hereinafter “Chair Lift”), appeals from a summary judgment which dismissed Chair Lift’s action for damages, for alleged breach of contract, against the Commonwealth of Kentucky and various of its departments and officers. Prior to the entry of that judgment the parties had entered into a settlement under which Chair Lift was to be paid $127,100, and an agreed judgment so providing had been entered. On motion by the defendants, under CR 60.02, an order thereafter was entered setting aside the agreed judgment, following which the judgment dismissing the action was entered. The principal argument of Chair Lift, on this appeal, is that the circuit court erred in setting aside the agreed judgment of settlement, wherefore the judgment dismissing the action should be reversed and the agreed judgment reinstated. (Of course the order setting aside the agreed judgment is reviewable on appeal from the subsequent judgment.)

The contract which was alleged to have been breached by the defendants was between Chair Lift and the Commonwealth by and through its Department of Parks. It provided for a long-term lease or license to Chair Lift, of an area within Cumberland Falls State Park, for the operation of a chair lift as a tourist attraction. The rent to be paid was in the form of graduated percentages of gross receipts.

The contract was entered into on February 14,1974, and thereafter Chair Lift commenced work in clearing the site for the chair lift and incurred expenditures of $106,901.91 (this being an agreed figure) for machinery, equipment, fixtures, labor and supplies. On May 28, 1974, the Governor cancelled or terminated the contract on the ground that the construction and operation of the proposed chair lift would be in violation of the Wild Rivers Act, KRS 146.200 to 146.350, which had been enacted in 1972 but the possible application of which to the proposed chair lift had been overlooked by all parties to the contract. The Wild Rivers Act prohibits certain structures and activities within determinable distances of the streams in Kentucky designated in the Act as “wild rivers.” The position of the Governor in terminating the chair-lift contract was that the contract was illegal.

Thereafter, Chair Lift brought the instant action, seeking damages of over $1,600,000. A motion by the defendants to dismiss the action was overruled. An answer then was filed pleading, among other defenses, illegality of the contract. Interrogatories and requests for admissions were submitted, and depositions were taken. Finally, the parties reached the settlement agreement hereinbefore mentioned, and the agreed judgment was entered. That was on December 23,1974. The defendants had been advised by the Attorney General to use their own judgment as to making the settlement.

A few days after the agreed judgment was entered the incumbent Governor left office to become United States Senator, and was succeeded by a new Governor. The judgment was not paid, and on January 15, 1975, the new Governor (having been substituted as a party) moved under CR 60.02 to have the agreed judgment set aside on the grounds that the judgment was void and that it was of an extraordinary nature in that it awarded the plaintiff $127,100 under the contract while simultaneously it held the contract “for naught.”

The circuit court set aside the judgment on the grounds that (1) the refusal of the defendants to pay the amount of the agreed judgment was a “reason of an extraordinary nature justifying vacation of the judgment," (2) the contract at suit “may have been unlawful,” and (3) the fact that the rights, duties and obligations of the sovereign were at issue constituted yet another reason of an extraordinary nature justifying relief from the judgment. It will be noted that there were no allegations or findings of fraud or bad faith.

In the ultimate judgment dismissing the action the circuit court held that the contract was void because it violated the Wild Rivers Act, and that the agreed judgment was void also because it was “predicated upon” the void contract.

The primary contention of Chair Lift, on this appeal, is that the question of legality of the contract was in good-faith dispute between the parties, was reasonably arguable, and therefore the claim validly could be compromised. We believe the contention is correct.

The general rule, as stated in 15 Am. Jur.2d, Compromise and Settlement, sec. 15, p. 950, is:

“ * * * if it is disputed and doubtful whether a transaction was illegal, the relinquishment of a claim based on the transaction may constitute good consideration for a compromise. Thus, if there is a good-faith dispute as to the existence of illegality in a transaction, and if a compromise is made which expressly deals with the issue of illegality, the compromise will be valid * * * ”

The rule is recognized by decisions of this court, holding that the question in determining the validity of a compromise is not whether the claim ultimately would have been upheld, but whether the claim was not wholly groundless, was at least doubtful, and was settled in good faith. See Fisher v. May’s Heirs, 5 Ky. 448; Murphy v. Henry, 311 Ky. 799, 225 S.W.2d 662.

This court is not advised of any different rule applicable where the state is the party defendant, and in 81 C.J.S. States § 211, p. 1298, the statement is made that the general rules applicable to compromise of claims between individuals apply where the state is a party. This court is not prepared to say that in no circumstances will any consideration be given to the question of whether the interests of the citizenry have been observed in a particular compromise to which the state is a party, but the pleadings in the instant case do not call for such consideration.

The authorities on which the appellees rely all deal with the situation where the contract is undisputably and undoubtedly illegal and its illegality was not in fact disputed. Such is the authority of 15 Am. Jur.2d, Compromise and Settlement, sec. 15, p. 950 (first sentence). To the same effect are the individual cases cited by the appel-lees for the proposition that an agreed judgment or a compromise cannot be predicated upon, or be supported by, or emerge from, or arise out of an illegal contract. In every one of those cases, the illegality of the contract was unquestioned.

It is the opinion of this court that the burden was on the appellees in their motion under CR 60.02 to set aside the agreed judgment, to show that when the settlement was made there was no dispute or no reasonably arguable question as to the illegality of the contract. There was no such showing, and the only fact found by the circuit court, relevant to that issue, was that the contract “may have been unlawful.” The record evinces to this court that there was a reasonably arguable question as to the illegality of the contract. Chair Lift was maintaining that the Wild Rivers Act was not self-executing as to determination of the distances from the streams within which the prohibition of the Act applied, but required that the boundaries be physically laid out and marked by visual observations by state administrative personnel; and that the contract had validity absent such having been done. While this court might not be persuaded of the ultimate validity of that argument, we are not prepared to say that the argument did not present a reasonably debatable question. Chair Lift also was maintaining that there were equitable grounds on which Chair Lift was entitled to damages, even if the contract eventually be held illegal. Again, this court cannot say that these propositions were not reasonably arguable.

It must be remembered that the agreed judgment did not accomplish any violation of the Wild Rivers Act, the purpose of which Act is to preserve ecological values. The agreed judgment provided only for the payment of money in settlement of a claim in litigation.

This court finds no validity in the grounds relied upon by the circuit court in setting aside the agreed judgment. The fact that the state would not pay what it had agreed to pay does not strike us as being a reason of any nature, extraordinary or otherwise, to justify setting aside the judgment. The fact that the contract “may have been unlawful” is not significant; it would have had to be found undisputably and undoubtedly illegal. And the fact that the interests of the sovereign are involved is not a basis for granting relief, absent any authority for the proposition that the state is not bound the same as an individual in settling a legitimately disputed claim.

The judgment is reversed with directions to reinstate the agreed judgment of December 23, 1974.

All concur.


author: JONES, Justice.

text:
    Laurine LOCKHARD, Executrix of Estate of Minnie M. Brown, Deceased, Appellant, v. Harold Miller BROWN et al., etc., Appellees.
    Supreme Court of Kentucky.
    April 30, 1976.

      L. A. Paurest, Elizabethtown, for appellant.
    Hobson L. James, Elizabethtown, Brown, Miller, Alagia & Senn, Louisville, for appel-lees.
   JONES, Justice.

This appeal concerns the validity of a purported renunciation of the will of Denver T. Brown by his widow, Minnie Brown. Denver, a resident of Meade County, Kentucky, died testate on December 14, 1968. His will was probated in the Meade County Court on December 18, 1968. After Denver’s death Minnie, who was in ill health, was taken to a nursing home in Hardin County, Kentucky. There an attorney advised Minnie of her rights under Denver’s will. Minnie was subsequently moved to Louisville. On February 26, 1969, she signed and acknowledged the renunciation before a notary public. The renunciation was filed in the Meade County Court Clerk’s office on March 7, 1969. Minnie died testate on April 5, 1969. On August 19, 1969, the notary, who had witnessed the execution of the renunciation appeared before the Meade County Court Clerk and proved that the instrument was duly acknowledged by Minnie, and that she was a subscribing witness to the renunciation at Minnie’s request. The purported renunciation and the acknowledgments thereto are as follows:

“This renunciation of the will of Denver T. Brown made and entered into by MINNIE M. BROWN, his wife, this February 26th, 1969:
“WHEREAS Denver T. Brown died testate a resident of Meade County, Kentucky and his will has been probated by order of the Meade County Court and whereas the said MINNIE M. BROWN, widow of Denver T. Brown, desires to release and surrender what is given to her by the said will and to receive her share of the estate of Denver T. Brown as if no will had been made.
“Now the said MINNIE M. BROWN elects to surrender and relinquish what is given to her under the said will and in lieu thereof elects to receive her share of the said estate as provided by Kentucky statutes.
/S/ Minnie M. Brown
Minnie M. Brown”
“STATE OF KENTUCKY
JEFFERSON COUNTY
“I, Suzanne C. Schank, Notary Public, in and for the State and County Aforesaid, do hereby certify that on this day the foregoing RENUNCIATION was produced before me in said County and State and duly acknowledged by MINNIE M. BROWN, to be her act and deed.
“WITNESS my hand and seal of office, this 26th day of February, 1969.
/S/ Suzanne C. Schank
Notary Public, Jefferson Co., Ky.
My commission expires: 2-5-73”
“STATE OF KENTUCKY
COUNTY OF MEADE
“I, William P. Lusk, Clerk of the County Court in and for the County and State aforesaid, do hereby certify that the above and foregoing instrument was lodged for record on the 7th day of March, 1969. Whereupon I have truly recorded the same together with this and preceding certificate in my office.
“Given under my hand this the 12th day of March, 1969.
William P. Lusk, Clerk
BY: /S/ Ann Burnett D.C.”
“STATE OP KENTUCKY
COUNTY OF MEADE
“I, William P. Lusk, Clerk of the County Court in and for the County and State aforesaid, do hereby certify that the foregoing is a true and correct copy of the renunciation of the will of Denver T. Brown made by Minnie M. Brown, his widow. Said renunciation is of record in my aforesaid office in Will Book E. at page 324.
“Given under my hand this the 21st day of April, 1969.
William P. Lusk, Clerk
BY: /S/ Mary Helen Edelen D.C.
“Admitted to Record
’69 MAR 7 AM 9:25
“Exhibit ‘B’ ”
“STATE OF KENTUCKY
COUNTY OF MEADE
“I, WILLIAM P. LUSK, Clerk of the Meade County Court, do certify on this day came before me in my county SUZANNE C. SCHANK Dugan, formerly SUZANNE C. SCHANK, known to me to be the same person whose name is subscribed as witness to the renunciation of the will of DENVER T. BROWN, dated September 26,1969, and being duly sworn by me, she did declare on her oath that MINNIE M. BROWN did execute and acknowledge before her the foregoing renunciation of the will of DENVER T. BROWN to be her act and deed and that she knows her to be the same person named in the said renunciation and that by her request she did subscribe said renunciation as witness to the execution and the acknowledgement thereof.
“WHEREFORE, said renunciation is admitted to record in my office.
“Given under my hand this August 19, 1969.
“/S/ William P. Lusk
Clerk, Meade County Court
“A Copy Attest
/S/ William P. Lusk
Clerk, Meade Co. Court
“Exhibit ‘C’ ”

This action by the appellees sought to restrain the co-executors of Denver’s will from distributing any assets to appellant, executrix of Minnie’s estate. Appellant contends that Minnie executed a valid renunciation before a subscribing witness as required by the provisions of KRS 392.-080(1). The trial court sustained appellees’ motion for summary judgment. He found that the purported renunciation was invalid as it had been executed neither before the clerk of the county where Denver’s will was probated, nor acknowledged or proven by a witness to Denver’s will. This court disagrees with the trial court’s interpretation of the alternative requirement. It is not necessary that the renunciation be acknowledged and proven by a witness to Denver’s will.

That portion of KRS 392.080(1) concerning the acknowledgment and the recording of the renunciation provides:

“Such relinquishment shall be made within twelve (12) months after the probate, and acknowledged before and left for record with the clerk of the court where probate was made, or acknowledged before a subscribing witness and proved before and left with the clerk.” (Emphasis added)

The instrument by which Minnie renounced Denver’s will was witnessed by one who subscribed her name to the instrument. The fact that the witness was a notary is irrelevant. The renunciation was filed with the Meade County Court Clerk and proved by the subscribing witness to the renunciation. This court is of the opinion that the words “subscribing witness,” as used in KRS 392.080(1) describes any person who witnesses the acknowledgment of the re-nuneiation and subscribes their name thereto.

The dicta in Crittenden v. Rogers, 278 Ky. 481, 128 S.W.2d 942 (1939) that renunciation of a will “shall be made before a subscribing witness to the will” was not valid then, nor is it valid now. To the extent that they conflict with the views expressed in this opinion, the following cases are overruled: Miller v. Keown, 176 Ky. 117, 195 S.W. 430 (1917); Cook v. Bennett, 207 Ky. 837, 270 S.W. 463 (1925); and Crittenden v. Rogers, 278 Ky. 481, 128 S.W.2d 942 (1939).

The judgment is reversed with directions that the trial court enter judgment that Minnie’s renunciation of Denver’s will is valid.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Clyde A. HUTCHINGS, Appellant-Respondent, v. Charles J. MATTHYS, Appellant-Respondent.
    No. KCD 27202.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Rehearing Denied May 3, 1976.
    Wayne R. Starr, Jr., Independence, for appellant-respondent Hutchings.
    Preston H. Longino, Raytown, for appellant-respondent Matthys.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiff had a money judgment on a pleading which alleged that the defendant breached his agreement to bid for the collection of city trash as a joint venturer with the plaintiff. The defendant contended that the plaintiff was his subcontractor, not partner, and also pleaded the bar of the Statute of Frauds. The cause was tried to the court, and both parties appeal from the judgment.

The plaintiff and defendant are trash haulers and each conducts a separate business. The City of Kansas City determined to provide for residential trash collection service and sectioned the area into zones— called routes — for that purpose. In January of 1971, the City invited bids from trash haulers to service these routes for a one year period commencing March 1, 1971. The defendant Matthys decided to bid on Route 4, but did not own sufficient equipment to meet the requirements for that entire zone, so he invited the plaintiff Hutchings to combine with him for the bid.

The parties met to complete the proposal forms supplied by the City, among them a Contractor’s Occupation Statement which called for the signatures of the bidders and a description of their business organization. The plaintiff testified that the parties agreed, as joint venturers, to bid $2.25 per pickup, that plaintiff was to service one-third of the stops, receive one-third of the profits, and contribute one-third of the $2000 bid bond. [Matthys acknowledged that Hutchings had paid $667 on the bond as agreed.] The bid form was signed by both parties, sealed, and submitted to the City by Matthys.

It was the testimony of the plaintiff that when he signed the bid proposal, Matthys wrote next to that signature the legend, joint member, and at the same time marked an x next to Joint Venture and Missouri Corporation, two of the classifications listed to identify the business form of the bidder. The bid as received by the City, however, contained the term joint member (sub.) next to the Hutchings signature and the Joint Venture and Missouri Corporation designations were dubbed out and an x mark was placed next to the Individual category, instead, to describe the business form of the bidder.

The defendant Matthys contended that the writings and insertions on the form were all done at the time of the signatures and properly reflected the agreed role of the plaintiff as a subcontractor.

The court resolved this disputed evidence in favor of the plaintiff. The court found that the parties had made an oral agreement to act as members of a joint venture for the purpose of submitting a bid to the City which, if accepted, would entitle the plaintiff to one-third of the profits; that the plaintiff had not seen the bid form from the date of his signature [January 17, 1971] until the day of trial; that during that interim the bid was in the possession of the defendant, his agents and the City, and had been changed before submission without the consent or approval of the plaintiff. The court also found that the plaintiff agreed to service a designated area which turned out to include 679 units [about one-third of the total]; that plaintiff serviced these stops from March 1, 1971, until they were first reduced in number by the defendant and then discontinued altogether at the end of September of that year.

The court found that plaintiff was entitled to 679 stops for a period of one year, that on the basis of the demonstrated profit per unit, his damage was $5971.61, for which judgment was returned.

The defendant makes the contention that the oral agreement of January 17, 1971, between the parties which called for the submission of a bid to the City for services from March 1, 1971, through February 29,1972, was not capable of performance within a year of making and therefore was unenforceable by the Statute of Frauds. As the trial court recognized, however, the subject matter of the oral agreement was the making of the written bid [which ripened into a separate contract when accepted by the City] and not the doing of the services for which the bid was made. The principle is clearly stated in 37 C.J.S. Statute of Frauds § 64:

Where parties contract to enter into a contract at some future time, the test of enforceability of the original contract is whether that contract when made is capable of complete performance within a year and not whether subsequent contracts or arrangements made or to be made under or by virtue of it can be completely performed within a year.

A precedent which gives expression to this rule on analogous facts is Coughlin v. McGrath, 295 Mass. 499, 4 N.E.2d 319 (1936). The two parties formed an oral partnership to bid a contract with the city of North Adams for the collection of garbage for a period of five years. The defendant contended the agreement was not enforceable because it was an oral agreement not to be performed within a year. The court responded [l. c. 323]:

But an agreement to enter a contract where the latter contract is to run for longer than a year is not within the statute of frauds. ... In the case at bar, the terms of the partnership agreement were that a bid should be submitted and that an attempt should be made to obtain the contract. If the attempt had been made, and the contract had not been obtained, the agreement would have been performed at that time. “It has been repeatedly held that, if an agreement whose performance would otherwise extend beyond a year may be completely performed within a year on the happening of some contingency, it is not within the statute of frauds.”

The cross-appeal of the plaintiff Hutchings contends that damages should have been assessed on the basis of 1000 residential collections rather than the 679 found by the trial court. There was evidence that at the time the parties agreed to the bid, they scanned the route, and the plaintiff then agreed to service a general area which, it happened, contained 679 units, somewhat less than one-third of the total stops. The trial court found that the plaintiff acquiesced without objection to this arrangement and denied additional damage. We will not disturb that finding.

The judgment is affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Wanda Nolen HAMPTON, Plaintiff-Respondent, v. Scott Artis HAMPTON, Defendant-Appellant.
    No. 10049.
    Missouri Court of Appeals, Springfield District.
    April 20, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 6, 1976.

      William Clayton Vandivort, Hux & Green, Sikeston, for plaintiff-respondent.
    James R. Robison, Robison & Blanton, Sikeston, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

The Circuit Court of Scott County overruled appellant’s motion to quash execution of the child support provisions of a 1972 divorce decree obtained by respondent. The decree awarded respondent real estate owned by the parties as tenants by the entirety as lump sum child support. We reverse and remand.

The decree granted respondent a divorce and vested custody of the parties’ five children in her. In addition, the decree states: “Plaintiff is awarded a lump sum settlement, it being the Defendant’s one-half interest in [two described tracts of real property], the same having a value of $2500.00 in lieu of all other child support, and [the Court] further directs the Defendant to sign all documents to convey said property to the Plaintiff.”

Six months after the decree was entered respondent filed a partition suit alleging she and appellant each owned an undivided one-half interest in the real estate as tenants in common. A partition sale of the realty was held in 1974, and respondent was the purchaser. She paid the purchase price into court and had execution issued for $2500.00 against the appellant’s interest in the money. Appellant’s motion to quash the execution alleged the portion of the decree, supra, was void because the court was without jurisdiction to award real estate as child support.

Respondent contends the decree did not award specific real property but awarded her $2500.00 as a lump sum settlement for child support, and secondly, appellant consented to the decree and his consent vested the court with jurisdiction. Neither position is sound.

The general rules of construction of written instruments apply to the construction of judgments. Keiser v. Wiedmer, 283 S.W.2d 914 (Mo.App.1955). Although there is a preference for construing judgments in a way that will make them effective, “if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used.” 49 C.J.S. Judgments § 436 (1947).

The language of the decree is plain and without ambiguity. It purports to award appellant’s interest in the real estate to the respondent as a lump sum settlement for child support and orders the appellant to convey the property to the respondent.

At the time the decree herein was rendered the divorce court was without jurisdiction to make an award of specific property as alimony or child support. § 452.070, RSMo 1969; Watts v. Watts, 304 Mo. 361, 263 S.W. 421 (1924); Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960); Singleton v. Singleton, 239 S.W.2d 773 (Mo.App.1951); Bishop v. Bishop, 151 S.W.2d 553 (Mo.App.1941). Also see Hagemann v. Pinska, 225 Mo.App. 521, 37 S.W.2d 463 (1931). The divorce court did not have the jurisdiction, or power, to award the real property to respondent, and that portion of the decree is void as a matter of law. Judgments that are void because of lack of jurisdiction are subject to collateral attack as well as appeal. Hughes v. Neely, 332 S.W.2d 1 (Mo.1960); Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974).

Respondent argues that the decree merely incorporated the terms of a property settlement agreement and appellant “consented” to the exercise of jurisdiction by the divorce court. The decree makes no mention of a property settlement being incorporated therein and extrinsic evidence is not admissible to modify, explain or contradict a judgment. Marley v. Marley, 356 Mo. 870, 204 S.W.2d 261 (1947). We do not have here a situation where the contractual provisions of a settlement agreement are to be enforced as an order of the court [Crews v. Mooney, 74 Mo. 26 (1881), Jenks v. Jenks, 385 S.W.2d 370 (Mo.App.1964), McDougal v. McDougal, 279 S.W.2d 731 (Mo.App.1955); Landau v. Landau, 71 S.W.2d 49 (Mo.App.1934)]. Furthermore, later cases hold that where the decree incorporates a property settlement agreement the latter is to be enforced and modified as contractual not decretal. Vorhof v. Vorhof, 532 S.W.2d 830 (Mo.App.1975); Holmes v. Holmes, 527 S.W.2d 684 (Mo.App.1975); Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974).

In Vorhof, supra, the St. Louis District of this Court said at p. 832: “Under the cases in Missouri, we have no hesitation in saying that the award [of alimony] to the wife was contractual in nature, not decretal. The stipulation here purported to cover all facets of the parties property rights. It included areas which could not have been decreed as part of the judgment by the court awarding the divorce. While wife characterizes the judgment as a consent decree, the power of the court in a divorce action was limited by the provisions of Sec. 452.070 RSMo 1969. . . . Delineating the judgment as a consent judgment does not alter the limits of the court’s power. . [emphasis added]

Pursuing her “consent” theory, respondent claims appellant is now estopped to assert the invalidity of the portion of the decree awarding her appellant’s interest in the realty.

Estoppel cannot be invoked to preclude a person from attacking the adjudication of a court that was beyond the jurisdiction of the court to make [31 C.J.S. Estoppel § 120 (1964)]; although where a judgment beyond the court’s jurisdiction is entered by mutual consent it may have validity as a contract even though it is a void judgment. 49 C.J.S. Judgments § 452 (1947).

We rule that portion of the 1972 decree awarding specific property of appellant to respondent for child support is void and so hold. The judgment being void, the execution thereon should have been quashed. It is so ordered.

All concur.

      . See also, North v. North, 339 Mo. 1226, 100 S.W.2d 582 (1936); G_R_K_ v. M_M_E_, 531 S.W.2d 772 (Mo.App.1975) [Separation agreement to transfer realty treated as a contract]; Goulding v. Goulding, 497 S.W.2d 842 (Mo.App.1973); and cases cited in Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974).

      . In referring to “appellant’s interest in the realty” we have not overlooked the fact that until the divorce decree became final the estate by the entirety was not converted into a tenancy in common.


author: HARBISON, Justice.

text:
    Alfred M. STEWART et al., Appellants, v. Earl WAKEFIELD et al., Appellees.
    Supreme Court of Tennessee.
    April 15, 1976.
    Rehearing Denied May 5, 1976.
    Jack Kershaw, Nashville, for appellants.
    D. C. Lee, Pulaski, C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, for ap-pellees; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

This is the fourth action instituted by citizens, property owners, taxpayers, parents and children in Giles County, attempting to block a public school bond issue authorized pursuant to T.C.A. §§ 49-701 et seq. In this, as in the previous suits, it is insisted that the Quarterly County Court may not issue bonds such as those in question without a referendum.

This contention has been repeatedly rejected by this Court. In the case of Wilds v. Coggins, 496 S.W.2d 460 (Tenn.1973), the exact contentions made by the plaintiffs in these suits were rejected on their merits. They had also been rejected in the case of State v. Safley, 172 Tenn. 385, 112 S.W.2d 831 (1938). See also Crewse v. Beeler, 186 Tenn. 475, 212 S.W.2d 39 (1948); Southern v. Beeler, 183 Tenn. 272, 283, 195 S.W.2d 857 (1946).

The rule in these cases was followed in the case of Mitchell v. Taylor, Lincoln Equity, in an opinion issued by the Court of Appeals, Middle Section, on January 30, 1976, petition for certiorari in which was denied by this Court on April 1, 1976.

This issue, therefore, needs no further consideration, and the repeated attempts by the appellants to delay the public school bond issue here in question on that ground have become harassing and oppressive to the public officials involved to the extent that intervention by this Court has become imperative.

In two previous opinions issued by this Court, involving the construction of a high school building and public bond issues for that purpose, persons occupying the same status and classes as appellants have been held to be without standing to raise any of the other issues involved as to the local officials, and their standing to sue the State officials involved is governed by the decision of this Court in the case of Sanders v. Carmichael, 527 S.W.2d 92 (Tenn.1975).

It is acknowledged in the complaint filed by appellants that the effect of their previous suits has been to delay public bond issues, and no other purpose or reason for the filing of the present suit can be conceived, other than to continue to delay and harass public officials in the consummation of a duly authorized school bond issue.

In the ease of Mitchell v. Carmichael, 522 S.W.2d 869 (Tenn.1975), this Court warned that it would not permit the legal processes of this State to be used for the purposes of harassment or delay. A similar warning had been contained in one of the earlier unpublished opinions of this Court on the same subject, involving the same attorney and some of the very same individuals who are appellants in the present case.

The trial court sustained a motion to dismiss by both the State and local officials for lack of standing, and we are of the opinion that his decision was soundly based not only upon that ground, but upon failure of the complaint to state a claim for which relief could be granted, particularly insofar as the referendum issue is concerned, that issue having been so thoroughly disposed of on repeated occasions by this Court.

The judgment of the trial court is accordingly in all things affirmed, at the cost of appellants.

In addition, appellants, and all persons acting in concert or privity with them, are enjoined from instituting any further litigation in the courts of this State questioning or attempting to challenge the validity of the bond issue here in question, and the cause will be remanded 'to the Chancery Court of Giles County for entry of and enforcement of a decree of injunction in accordance with this opinion.

FONES, C. J., and COOPER and BROCK, JJ., concur.

HENRY, J., not participating.