author: LANE, Justice.’

text:
    McANALLY v. PERSON.
    No. 9883.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 16, 1933.
    Rehearing Denied March 2, 1933.

      Henderson & Copeland, of Houston (Dev-ereaux Henderson and James A. Copeland, both of Houston, of counsel), for appellant.
    Cole, Cole, Patterson & Kemper, of Houston (W. L. Kemper, of Houston, of counsel), for appellee.
   LANE, Justice.’

On tbe lltb day of June, 1932, S. J. Person, hereinafter referred to as complainant, filed in the Eleventh district court of Harris county his sworn application for an injunction to restrain F. MeAnally, hereinafter referred to as respondent, from working either as deliveryman, solicitor, driver, or salesman in the ice business for himself or any other-person, firm, association, or corporation, within the city of Houston, Harris county, Tex., and from the date of filing such application during the remainder of an unexpired term of about twenty-eight months of a three-year term provided for in a written contract executed by the parties, the material and pertinent parts of which are as follows:

“Agreement entered into between S. J. Person of the said County of Harris and State of Texas, doing business under name and style of Brazos Fuel & Ice Company; and F. MeAnally of the said County, hereinafter called ‘Employee,’ Witnesseth: — ■

“That said Person is engaged in the business of selling, delivering and distributing ice in and around the City of Houston and in the said County of Harris, in the State of Texas, said sales and distributions being made by means of wagons, trucks and other vehicles as well as at the platforms of ice plants and at various stations established and to be established in the said County and by freight and express, and has employed the said employee as Ice-delivery man, etc., and agrees to pay said employee a weekly-monthly-wage in the sum of-Dollars ($-) to' be paid on-of each week-month hereafter during the term of said employment.

“Said employee in consideration thereof does hereby agree to devote all of his working time and energy to the interests and business of the said Person and hereby agrees that he will to the best of his skill and ability use his best efforts and endeavors to the extension and promotion of the said business, to the procuring of new and further business, the proper servicing and holding of present business ard the protection of the' good will of the business of the said Person, both as now enjoyed and hereafter , acquired. That any business secured or acquifed by said employee during the term .of this contract and while in the employ of said Person as Ice-man or in any other capacity that said' employee may hereafter be employed by said Person, shall belong wholly to the said Person and to his heirs and assigns.

“It is expressly agreed that any re-employment of said employee from tiiae to time, whether as such Ice-man or otherwise, shall be deemed as continuous employment, and is mutually recognized and accepted as a renewal of and ancillary to this contract without formal written renewal, arid the provisions hereof and this contract are carried into such renewal or extension as fully to all intents and purposes as if new written contracts were entered into and executed. It is agreed that changes in the foregoing wage rate may be made by agreement without vitiating this agreement or the renewals thereof, and that, such employment shall continue so long as mutually satisfactory to both parties hereto, provided the same may be can-celled and terminated by either party hereto upon -days written notice of such intent.

“It is further agreed, for the considerations aforesaid, and for the protection of the said business and the securing of the good will of the said business of' the said Person and because of the trusted and confidential employment of the said F. MeAnally and in the event the said employee may hereafter leave the employment of said Person, of should this agreement terminate, or said employee cease to work for said Person; then said employee hereby specially agrees that he will not for a period of three years after the severance— for any cause — of said employment; either for himself or for any other person, firm, corporation or association, sell or offer for sale, canvass, solicit, deliver or offer, ice or ice service to any of the customers, trade or business of the said Person or enjoyed or served by said Person or his heirs or assigns at the time of the termination of such employment, that said employee will not use his knowledge of the business of said Person for the benefit of himself or any other person, that he will not divulge the business affairs or the names of customers, lists Or descriptions of routes, names of employees, number or character, of contracts, prices, terms or particulars of the trade and business owned and enjoyed by the said Person, either by sale, gift or by any device, subterfuge or evasioji and in all things will in good faith protect the good will of the said business and keep secure his knowledge of the said business and affairs of said Person acquired while in the employ and under the wage of said Person. * * *

“Witness the hands of the parties to two instruments of like tenor and date at Houston, Texas, on this the 15th day of February in the year 1930.”

A copy of such contract was attached to complainant’s petition or application as an exhibit and made a part thereof.

The cause was transferred from the Eleventh to the Fifty-fifth judicial district court of Harris county.

Complainant alleged and the evidence shows that complainant had no ice factory but engaged in buying ice at wholesale and delivering at retail, more or less peddling, but sold ice to anybody in the city of Houston or Harris county that came to his platform to buy; that is, to the general public, and distributed it over the southern part of town. His only platform was located at 2817 Milam street. He had six other employees at the time respondent quit on the 28th of September, 1931, including among the six respondent’s brother. He had been in this business several years.

Respondent went to work for complainant in October, 1929, and was employed as a deliveryman on the 1st of November, 1929, at regular wages. He worked on two of complainant’s four routes and about every two or three days sold ice on the platform sometimes until about 7 or 8 p. m. He worked the routes as a rule by himself, driving complainant’s truck and selling, complainant’s ice, working the whole year and not just during the ice season, with a steady job other than when off with an injury, having had an appendicitis operation and two hernias.

Complainant had personal contacts with the customers on the routes to the extent that for about four or five days when respondent first went to work for him, complainant relieved the deliveryman who preceded respondent and was taking a few days vacation; but he was not acquainted with each of the customers his drivers were and could not keep up with them. Respondent learned the route by working with complainant during this few days vacation time and during some three days a little later on, and was paid, like each other deliveryman, from the time he went on.

The contract herein sued upon was not executed at the time respondent first went to work for complainant in October, 1929, or even when he started as a deliveryman on the 1st of November. It bears date as of the 15th of February, 1930, and respondent admits having executed it. Had he refused to sign the contract, complainant would not have continued him in employment, because through respondent’s personal contact with customers he might take them as his own, such deliveryman being in a good position to influence customers through seeing and waiting on them daily, and at times attempting to take the business they have been paid to wait on.

That the other employees executed contracts similar to the one executed by respondent; that when respondent quit the employment with complainant, on the 28th day of September, 1931, he started an ice business of his own in May, 1932, with his own truck, selling, delivering, and soliciting, within the same territory he had worked for complainant’s customers he had at the time he was employed by complainant, running in competition with complainant; that he was “still running” though he had answered in this case; and that it was his purpose, if the court permitted him, to go ahead, as he had been, selling ice and soliciting what ice customers he could get for his own account and go along with the business.

Complainant alleged that unless the injunction prayed for was granted he would suffer irreparable injury, in the sum of $10,000; that respondent was insolvent; and that by reason thereof complainant was without an adequate remedy at law. He prayed for a temporary restraining order and upon a final hearing for the issuance of a permanent injunction enjoining respondent from breaching his covenants during the unexpired portion of the three-year period from September 26, 1931, to the date of the termination of his employment.

On said 11th day of June, 1932, Judge Ewing Boyd, judge of Fifty-fifth judicial district, upon complainant’s petition ordered the issuance of a temporary restraining order, restraining respondent from working as deliveryman, solicitor, driver, or salesman in the ice business for himself, for any other person, firm, association, or corporation within the territory in the city of Houston, Tex., bounded by Smith street on the west, Texas avenue on the north, Dowling street on the east, and Tuam avenue on the south. An order was at such time entered ordering the clerk of the court to issue an order requiring the respondent McAnally to appear before Hon. Roy F. Campbell, judge of the Eightieth judicial district court, on the 17th day of June, 1932, to show cause why an injunction should not be granted upon the complainant’s petition, effective until a final decree was entered in the suit.

On said 17th day of June, 1932, respondent filed in the Eightieth district court his answer to complainant’s petition, praying for the dissolution of the temporary restraining order theretofore granted, and that no temporary injunction be granted upon complainant’s petition, for the following alleged reasons:

First, because the contract entered into, pleaded by complainant, is null and void, in that it is in restraint of trade and in violation of the antitrust laws of Texas, and in violation of respondent’s constitutional rights.

Second, that the consideration for the contract has wholly failed, in that it implied that complainant would continue to employ respondent at a regular weekly-wage and complainant lias wholly failed so to do; that he breached the contract, and therefore he is not entitled to recover in this suit, in that during the spring of 1930, at the inception of the summer ice season, complainant, in order to cause respondent to exercise greater industry and activity in his work, agreed to amend the contract and pay to respondent 2 cents per pound on each 100 pounds of ice sold by him during such season; that under such agreement respondent earned $200 and complainant refused to pay the same.

Complainant by supplemental petition demurred generally to respondent’s answer and made general denial of the allegations of such answer.

The cause came on for hearing on the Eightieth district court, in chambers, on the 22d day of June, 1932, and at such Rearing the court rendered and caused to be entered an order in which it is recited that the pleadings of the parties having been heard by the court, together with the evidence adduced upon such hearing, “It is on this 22nd day of June, A. D., 1932, here now by this Court ordered, adjudged and decreed as follows: That defendant’s Motion to dissolve Temporary Restraining order heretofore entered herein is overruled, and that pending a final determination of this cause, the defendant, E. Mc-Anally, is hereby enjoined, either for his own account or as agent, servant or employee of any person, firm or corporation, from soliciting or canvassing for ice business and delivering ice, or engaging in the ice business in any manner whatsoever, within the territory included between Texas Avenue, St. Emanuel Street, Richmond Road and Baldwin Street, in the City of Houston, Texas, and defendant is also enjoined from selling or transferring or giving to anyone any. alleged right he may claim to have acquired in the ice business 10: cated within said territory, and he is further enjoined from furnishing anyone any information as to said ice business, including names of plaintiff’s customers residing within the same.”

Prom the order so rendered and entered respondent has appealed.

By appellant’s first and second propositions contention is made that the court erred in granting the temporary injunction, in that appellee did not specifically pray for such injunction.

We overrule such contention. By his verified petition appellee affirmatively alleged his performance’ of all things essential to be done and performed by him under the terms of the contract and relied upon the same for. the issuance of the injunction granted. Such' allegations disclosed such facts as authorized the issuance of such temporary injunction: There is no .allegation from which it might be deduced that appellee might not, under other supposable facts connected with the subject, be entitled to such injunction. The evidence is amply sufficient to support all the allegations of the petition. Such allegations were followed by a broad prayer for injunc-tive relief (upon final hearing and for such other and further relief, general and special, legal and equitable, to which he may show himself justly entitled.

In Harding v. W. L. Pearson & Co., 48 S. W. (2d) 964, 966, an opinion by the Commission of Appeals, it is said: “The rule is also well established in this state that the granting or refusing of a temporary injunction is within the sound discretion of the district court, and that the court’s action will not he disturbed on appeal, unless it clearly appears from, the record that there has been an atuse of such discretion." (Emphasis ours.)

In Fort v. Moore (Tex. Civ. App.) 33 S.W. (2d) 807, 808, a case in which a question similar to the one presented in the present case was presented, the court said: “Our courts hold that, although the defendant does deny under oath all the allegations contained in an application for a temporary injimction, it is still within the discretion of the trial court to grant a temporary injunction pending a final hearing on the merits of the case." (Emphasis ours.)

By appellant’s third proposition he contends that the court erred in granting the temporary injunction, in that it was shown by the undisputed evidence that appellant had worked for appellee for several months before the contract pleaded by appellee was executed, and therefore the agreement of ap-pellee to extend appellant’s employment if appellant would sign the contract, and the execution thereof by appellant, would not and did not constitute sufficient consideration for the agreement of appellant to abide by the prohibitive stipulations in the contract; that the agreement of appellee to extend appellant’s employment was, under the circumstances, only a negative covenant in regard to personal employment and it will not be enforced, there being “no mutuality of remedy in the contract.”

We overrule the contention. While it is true that appellant had worked for appellee in various capacities for some months prior to the execution of the contract, his subsequent agreement, in consideration of further or extended employment, but to engage in the sale and delivery of ice for himself, or for any other person, firm, or association, etc., for three years in certain territory after ceasing in the extended employment, is supported by sufficient consideration, it being shown that appellant would have been discharged had he not signed the contract.

In Bettinger v. North Ft. Worth Ice Co. (Tex. Civ. App.) 278 S. W. 466, 469, it is said: “It is further urged that the contract shows upon its face to be unilateral, and such a contract will not support an action for specific performance. We think that the contract imports a valuable consideration moving from petitioner to defendant, to wit, the further employment of defendant. Mr. Heeger testified that, while he did not tell the defendant at the time of the conversation with reference to the signing of the contract that, if the defendant did not sign the contract, he would be discharged, yet he told him that all of the employees had signed, or would have to sign, the contract, and he stated that, if defendant had not signed the contraot, he would have had to discharge him. Moreover, this contract was entered into on March 1, 1924, and the parties thereto operated thereunder until September 17, 1925, when defendant voluntarily quit the employment of the plaintiff. One cannot successfully plead a want of consideration, or unilateralness, m a contract which he has performed in whole or in part.” (Emphasis ours.) See Walker Coal & Ice Co. v. Westerman, 263 Mass. 235, 160 N. E. 801; Wark v. Ervin Press Cor. (C. C. A.) 48 F.(2d) 152; Richardson v. Webster-Richardson Pub. Co. (Tex. Civ. App.) 46 S. W.(2d) 384-387.

It was shown, as already stated, that appellant worked under the contract from its 'late, February 15, 1930, to the 26th day of September, 1931, a period of about one year and nine months, before his employment ceased.

By appellant’s fourth proposition he contends that appellee failed by a preponderance of the evidence to establish the necessity for and the reasonableness of the restraint prayed for and granted as a protection of his business and the good will of same.

We overrule such contention. We think the facts proven, which we have hereinbefore stated, clearly established the necessity for and reasonableness of the restraint granted as a protection of appellee’s business. American Ice Co. v. Lynch, 74 N. J. 298, 70 A. 138; Koenig v. Galveston Ice & Cold Storage Co. (Tex. Civ. App.) 18 S.W. (2d) 1099.

However, as stated in Kennedy v. Winfrey (Tex. Civ. App.) 163 S. W. 1018, 1019: “The law is well settled in this state that where a party admits the execution of an instrument, and then attempts to avoid it by showing a failure of consideration or otherwise, the burden is upon him to establish such defense.”

In 10 Texas Jurisprudence, page 225, second paragraph of section 132, it is said: “Where the circumstances appear on the face of the contract, the court will determine the reasonableness of the restriction as a matter of law; if they do not so appear, the contract will not be presumed to be illegal, Tout the party seeking to avoid liability under it must plead and prove facts which make it unlawful.” (Emphasis ours.)

By appellant’s fifth and sixth propositions he contends that the evidence raised the issue as to whether appellee had breached the contract before it was breached by appellant, thus creating a substantial doubt as to whether appellee would be entitled to the relief sought, therefore the court erred in granting the temporary injunction before a trial on the merits of such issue.

We overrule such contention. Appellant insists that appellee breached the contract, first, by changing the scale of wages pending appellant’s employment; second, that he breached it by terminating appellant’s employment; and, third, by failing to pay appellant a bonus of $200 which he had earned under an oral agreement made by and between appellee and his ice salesmen.

That the wage scale might be changed and appellant’s employment canceled at the option of appellee without violating the provisions of the contract is expressly provided in the contract in these words: “It is agreed that changes in the foregoing wage rate may be made by agreement without vitiating this agreement. ⅜ * * The employment of appellant shall continue as long as mutually satisfactory to both parties, and such employment may be canceled and terminated by either party to the contract upon-days written notice of such intent.”

It is, therefore, clearly apparent that ap-pellee did not breach the contract by making a change in the wage scale, nor by terminating the contract, there being no contention that the required notice was not given.

We now come to consider appellant’s contention that appellee breached the contract by his refusal to pay appellant $200 which he alleged he earned under the terms of an oral bonus contract.

If it be conceded that such contract was consummated, which is not done, its breach by appellee would not constitute a breach of any provision of the contract of date February 15, 1930. All the evidence shows that, if such bonus agreement as alleged by appellant was ever entered into, it was an entirely separate contract in no way connected with the former contract. If, however, we are in error in the conclusions just expressed, there can be no doubt that there was sufficient evidence to support a finding that such alleged bonus agreement was never consummated and that, if it was, appellant never earned anything under it.

Appellee, S. J. Person, testified that he never made any agreement with appellant to pay any such bonus as appellant testified was made; that appellant made no demand upon him for a bonus until after this suit was filed; that he never sold 1,000,000 pounds of ice.

W. I. Moore testified that he was employed by appellee in the capacity as route foreman ór superintendent; that at the beginning of the summer season he and appellee talked ■with their ice salesmen relative.,to a bonus; that the proposition contemplated was one to encourage the salesmen to exercise greater industry in their work; that the suggestion was that, if the salesmen would sell 1,-000,(XX) pounds of ice in, one season and return to appellee the proceeds of such sales, appellee might pay such salesmen 2 cents bonus on each 100 pounds of ice sold by him, but that such contemplated agreement was never agreed upon by the parties; but if it had been agreed upon, appellant never earned anything under it, as he never sold 1,000,000 pounds of ice, and in several instances he failed to return the money for some sales hé made.

It was the prerogative of the trial court in this case to determine the issue on conflicting evidence, and since he has done so in favor of appellee upon sufficient evidence to support such determination, this court is without authority to set the court’s finding aside.

Appellant alleged, and sought upon the trial to show, that at the time this suit was filed he was earning in his ice business $1.50 per day; that he was a man without means except money as he could earn by hard labor; that he was a man of family, composed of a wife and four children; that the issuance of the temporary injunction prayed for before trial on the merits rendered him a pauper and a subject of public charity, and under such pleadings and proof he insists in this court that the trial court erred in refusing •to apply the equitable doctrine of the balance of convenience and damages in this case.

We overrule the contention. The case as made by appellee by pleadings and evidence shows that he has complied with all the requirements of law for the issuance of an injunction, which entitles him to the injunction granted as a matter of right. The case is not one where the equitable doctrine of the balance of convenience applies.

In Burrell v. Michaux (Tex. Com. App.) 286 S. W. 176, 181, it is said: “It has often been held that where the issuance of an injunction will cause great injury to defendant and will confer little or no benefit in comparison upon complainant, the writ will be refused, and, conversely, where a wrong against complainant is clear, and his injuries great, the writ will issue, notwithstanding it will produce some hardship upon the defendant. Nevertheless, it is also clear that tohere there is a violation of a plain right of the complainant and his injury is regarded as irreparable, he is ordinarily entitled to an injunction, even though the injury is relatively small as compared with the injury which the defendant will suffer as a result of the issuance of the writ. 32 C. J. p. 78, § 64.” (Emphasis ours.)

The evidence in this case shows that unless the injunction sought is granted, appellee will suffer irreparable injury and damage. It shows appellee’s right and the violation of such right by appellant It shows not only injury to appellee, but also danger of continuing injury in the absence of the writ.

We are of opinion that under the evidence the plea of appellant undertaking to prevent the issuance of the temporary injunction upon the. equitable doctrine of balance of convenience has no place in this case.

We now come to a consideration of appellee’s cross-assignment by which appel-lee insists that the court erred in refusing to grant him a temporary .writ of injunction covering the entire city of Houston.

In refutation of appellee’s contention, we quote from his brief as follows: “Even if the territory described in this contract were un- • reasonably extensive, contracts which might for that reason unreasonably restrain trade, and, although they may not so describe the unit of space as to indicate its component territorial parts and divisions, are held, under the modern rule of decision, divisible as to space and enforcible in equity within a reasonable area.”

He then quotes from Ackelbein v. Davey Tree Expert Co., 233 Ky. 115, 25 S.W.(2d) 62, 64, a Kentucky case, in which quoted part of such opinion it is said: “In the case of Thomas W. Briggs Co. v. Mason, 217 Ky. 269, 289 S. W. 295, this court pointed out how covenants of the character of the one in question must not be wider than reasonably required for the protection of the employer’s business, and restraint must not be broader than is necessary for the protection of the business or good will of the employer. Judge Dietzman, in his opinion above referred to, expressed the view that the contract under consideration was too broad in its terms, in that its negative covenant restricted the operations of Aekelbein to limits not necessary for the protection of the business of the Davey Company. He held, however, that, although the covenant in question may be too broad, yet, if it can be cut down to what is reasonable, and enforced to that extent, the Davey Company is entitled to such relief as may be necessary for the full protection of its business. Contracts restraining freedom of employment are enforceable when they are reasonable, taking into account the interest of the employer, the employee and the public. It was so held in Thomas W. Briggs Co. v. Mason, supra.”

In Owl Laundry Co. v. Banks, 83 N. J. 230, 89 A. 1055, it was in effect said that both the American and English courts until recently have enforced the promise, but only as to those parts which the courts consider reasonable.

.In Edgecomb v. Edmonston, 257 Mass. 12, 153 N. E. 99, 102, the Supreme Court of Massachusetts said;- “Having regard to the terms of the contract in the suit at bar and to the attendant circumstances of its mating ■ and breach, a majority of the court are of opinion that the theory of the divisibility of space as applied to this contract is consonant with public policy and is more consistent with the intent of the contract than is the contention that the negative covenant is not enforceable in equity, in whole or in part, because the unit of space is not so described as to indicate its component territorial parts and divisions.” (Emphasis ours.)

For the reasons pointed out the judgment is in all things affirmed.

Affirmed.

On Motion for Rehearing.

In our original opinion we recited the facts that upon an application made to the Eleventh district court of Harris county the appellant prayed for the issuance of a temporary restraining order, and that upon a final hearing a permanent injunction be issued; that the cause was then transferred to the Fifty-fifth district court for further disposition; that on the 11th day of June, 1932, the presiding judge of the Fifty-fifth district court, sitting in chambers, entered an order granting the temporary restraining, order prayed for by appellant, the same to continue in force pending a hearing to be held before Roy F. Campbell, judge of the Eightieth district court, on the 17th day of June, 1932; that respondent on said 17th day of June, 1932, answered praying for the dissolution of the- temporary restraining order theretofore granted, and that a temporary injunction be not granted upon the application of the complainant.

On said 17th day of June, 1932, complainant denied generally the allegations of respondent’s answer, and prayed that the temporary restraining order theretofore granted be made effective in the final decree in the ' cause, and on the same day, upon a hearing before the Eightieth district court sitting in chambers, the judge of that court rendered . judgment refusing to dissolve the temporary restraining order theretofore granted, and in ' such judgment it is recited that, pending a final determination of the cause, the defendant F. McAnally is hereby enjoined, etc.

In our opinion, in stating the prayer of,complainant, we unnecessarily stated that complainant made “a broad prayer for in-junctive relief upon final hearing,” in addition to the showing that complainant had prayed for a temporary restraining order upon which the judge of the Eightieth district' court granted the temporary injunction above stated.

Appellant has filed his motion for rehear-' ing in this court and asks that such motion he granted, asserting that “this court erred in ' holding in its opinion that ‘a broad prayer for injunctive, relief upon final hearing, and for such other 'and further relief, general and special, legal and equitable, to which he may show himself justly entitled’ would support the issuance of a temporary injunction pen-dente lite, although such temporary injunction is not specifically prayed foy by complainant.”

This court did not intend to make any such holding as asserted by the motion, nor ¡has it done so.

We concluded that the prayer for a temporary restraining order was synonymous with a prayer for temporary injunction. A holding to the contrary, in our opinion, would be the substitution of a myth for common sense.

A prayer for either a temporary restraining order or a temporary injunction is amply specific to support the jurisdiction of the court to grant relief by preliminary injunction as distinguished from a permanent or perpetual-injunction. A prayer for either a temporary restraining order or a temporary injunction is all the authorities require.

In Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, 16, our Supreme Court held that a restraining ' order and a temporary injunction is of the same identical character of relief, to wit, preliminary relief, as' distinguished from a permanent or perpetual injunction. The court said: “The learned judge, in effect, directs that a restraining order shall be granted until it is determined whether a permanent injunction shall issue, which means an injunction to remain in force until the final determination of the suit, and not an injunction granted upon the final trial, which is ealled a ‘perpetual injunction.’ ”

The case of Ely v. Elliott (Tex. Civ. App.) 55 S.W.(2d) 1080, cited and quoted from by appellant as supporting his contention, is one, as shown by that part of the opinion quoted in appellant’s motion for rehearing, in which there was no prayer for either a restraining order or a temporary injunction. The court in that-case said: “One of the errors assigned by appellants is that the temporary injunction was erroneously - granted because there was no prayer for such relief by appel-lees. -With their position we must agree. Nowhere in the pleadings do the appellees seek- a: temporary injunction or a temporary restraining .order and .without such a prayer the court could not grant such relief.”

As already shown, there was a prayer for a temporary restraining order which, in our opinion, is sufficient to sustain an order for a temporary injunction. An inspection of; appellant’s answer, including his prayer, will clearly show that he interpreted complainant’s prayer as one for preliminary relief, either a temporary restraining order or temporary injunction. It is clear that the case was tried upon such interpretation by the trial court, and both parties to the suit, and that appellant’s contention that there was no plea authorizing the issuance of a temporary injunction was for the first time made in this court on appeal.

The motion for rehearing is refused.

Refused.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    TAMPKE v. CHILDRESS et al.
    No. 9014.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Rehearing Denied March 15, 1933.
    S.B. Carr, of Floresville, for appellant.
    DeWitt Murray and D. Richard Voges, both of Floresville, for appellee.
   SMITH, Justice.

This is a boundary suit.

On October 21, 1928, the district court of Wilson county ordered the partition of a certain 100-acre tract of land in said county, said land being described generally in the order for partition as “a part of the Morris May 2/3 League,” and particularly by metes and bounds.-

In pursuance of said order the tract, ascertained by a survey to contain 99.7 a'cres, was apportioned and partitioned so that 82.7 acres thereof were awarded to L. H. West and others as the heirs of William West, including a daughter, Annie West Childress, wife of S. A. Childress, who owned land adjoining said 82.7 acres.

The 82.7-acre tract so awarded was surveyed and segregated from the remainder of the original tract and in the decree of partition was described by metes and bounds. Aft-erwards said heirs, joined formally by S. A. Childress as the husband of one of them, sold and conveyed the 82.7-acre tract to M. L. Tampke, who brought this suit in the form of an action in trespass to try title and for damages, alleging that the tract actually conveyed to him included the land here in controversy. The action was'brought against all the grantors in said deed to Tampke, but all of them disclaimed except Childress, who, it is conceded, joined in the deed only as the husband of one of the heirs from whom Tampke purchased.

■ Tampke contends that he fenced the land as it was actually described in the conveyance to him, but that Childress then moved the fence back so as to exclude a strip- of about 8 acres, thereby creating a shortage in the acreage acquired by him in the transaction.

As all claims for damages were abandoned, the suit was reduced to one to recover of Childress the title to said 8-acre strip, and was finally resolved into a strict boundary suit. The trial court rendered judgment denying any recovery to Tampke, who has appealed.

The judgment was based upon a singlé jury finding that the disputed strip was not included in the field notes in the deed from the grantors to Tampke.

It is contended by appellant that appel-lee was present when the 82.7-acre tract was surveyed for the purpose of this conveyance, and witnessed the location of the northwest (beginning) corner of the tract at the point claimed by appellant, and which embraced the strip in controversy; that appellant-knew the strip was being cut off into the parcel to be conveyed to appellant, and with that knowledge joined in the conveyance, and that he is therefore estopped to contest appellant’s claim of title to the strip thus taken. Upon that premise, if established, appellee undoubtedly would have been estopped. But it seems the tract was surveyed more than once for the purpose of this transaction, and appellee denies that he was present at any survey which embraced the disputed strip.

It may be said, generally, that the appeal must be determined by the major proposition of appellee that the field notes in the deed to appellant, when actually applied on the ground, do not embrace, but in fact exclude, the disputed strip.

There was a conflict in the evidence as to the true location of some of the landmarks and corners, and the actual location of the beginning point in the survey must depend upon a proper resolution of those conflicts. The testimony was full and exploited the whole situation, which was encompassed in the sole and rather broad issue submitted to the jury in this language: “Do you find from a preponderance of the evidence that the disputed strip of land, described in Plaintiff’s Petition, is included within the field notes of the deed from L. H. West et al. to M. L. Tampke?”

Appellant acquiesced in this form of that issue, and did not request additional instructions or issues, wherefore he is bound by that submission.

When stripped of all nonessentials, the case turns upon the true location of the beginning point, the northwest corner of the tract conveyed, as fixed by the field notes in the deed in question. Appellant contended that it was at a point 718 varas northwest of the Stockdale and Union road, and appel-lee contended that it was about 100 varas nearer said road, which was designated as the southeastern boundary of the tract. This variance accounts for the disputed strip. There was testimony to support each claim, in consequence of which the controlling question became one of fact. The jury has resolved the conflict against appellant, and this court is bound by that determination.

Much is said in the briefs as to ap-pellees’ intentions when executing the deed in controversy. It does not matter what his intentions were, and the evidence thereon was properly excluded from the case in the trial court. The case, as we view it, was one of fact, and was settled by the jury finding.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant vigorously complains of the statement in the original opinion that appellant acquiesced in the “form” in which the one special issue was submitted to the jury, “and did not request additional instructions or issues, wherefore he is bound by that submission.” That statement, however, was literally true, and fully warranted by the record. Appellant did not object to the form in which the case, or the one special issue, was submitted, or make any request for other issues or instructions. Appellant did object to the submission of that special issue, but only upon the ground that “there is no evidence in the case to warrant” its submission, whereas, the appeal and the motion for rehearing do not rely upon that ground, but upon others, for reversal.

We adhere to the original opinion and overrule appellant’s motion for rehearing.

MURRAY, J., not sitting.


author: HIGUINS, Justice.

text:
    McNamara v. RUSS MFG. CO. et al.
    No. 2793.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1933.
    B. F. Howell, of Rankin, and Kerr & Gayer, Of San Angelo, for appellant.
    Leo Jaffe, of El Paso, and Roy R. Priest, of Rankin, for appellees.
   HIGUINS, Justice.

Appellant sued appellees in the county court for the title and possession of a soda fountain counter and equipment of the alleged value of $350 and special damages in the sum of $600, alleged to have been caused by the wrongful detention of the chattels sued for.

The defendants filed pleas in abatement setting up that the allegation as to the value of' the chattels was false and made for the purpose of conferring jurisdiction upon the county court and tile amount in controversy exceeded $1,000 in value.

■ No evidence was offered in support of the pleas, but they were sustained and the suit dismissed.

Jurisdiction of the amount in controversy is concluded by the averments oí the petition in the absence of plea that the value so pleaded is fraudulently alleged for the purpose of conferring jurisdiction. Dwyer v. Bassett, 63 Tex. 274.

The presumption is that the value is alleged in good faith and a defendant challenging the jurisdictional averments as to the value of the amount in controversy must support his plea with proof. Western Union Tel. Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8, and other eases cited in 11 Michie Digest, 379.

The court erred in sustaining defendants’ pleas without evidence having been offered in support of the same.

Reversed and remanded.


author: LOONEY, Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. ARNOLD.
    No. 11099.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1933.
    Rehearing Denied March 11, 1933.

      Lawther, Cox & Cramer and James P. Swift, all of Dallas, for appellant.
    Bailey, Nickels & Bailey, of Dallas, for ap-pellee.
   LOONEY, Justice.

Following an award of the Industrial Accident Board in favor of Jim Arnold, compensating him for incapacity resulting from injuries sustained in the course of employment with Brown Cracker & Oandy Company, the Texas Employers’ Insurance Association (insurer) filed suit ⅛ the district court of Dallas county to set aside the award, but later an agreed judgment was entered in favor of Arnold and his attorneys for $1,300, which was paid.

Thereafter, Arnold filed suit against appellant to set aside the agreed judgment, upon grounds of fraud and misrepresentations, alleged to have been practiced by appellant’s representatives, inducing him to agree to the. settlement, concluding with the prayer that the award of the board be matured; that he recover the whole of the same, with penalty and attorney’s fees; and, in the alternative, that he recover judgment for 401 weeks compensation, less $1,300 paid on the agreed judgment, and further in the alternative, prayed for damages in the amount of $4,240. Thereafter, appellee urged the same cause of action in another suit against appellant filed in a district court of Dallas county, which was, by order of court, consolidated with the former.

Appellant answered by general demurrer, general denial, and pleaded the agreed settlement, in bar. Appellant’s general demurrer was overruled, the case was tried to a jury, and the only issues submitted were as to the alleged misrepresentations that induced appellee to agree to the settlement. These issues being found in favor of appellee, the court rendered judgment setting aside the agreed judgment, and allowed him compensation for 401 weeks at $13.85 per week, less $1,300 theretofore paid, from which this appeal is prosecuted. The questions discussed are properly presented and briefed.

Appellant contends that the court erred in overruling its general exception to appellee’s petition, because the same is lacking in essential averments, that is, (1) as to his average weekly wages, and (2) as to the nature, extent, and duration of his incapacity.

In passing upon the action of the court in overruling the demurrer, every reasonable intendment, arising upon the pleading attacked, should be indulged in favor of its sufficiency. See rule 17, District and County Courts. Wynne v. State National Bank, 82 Tex. 378, 383, 17 S. W. 918; Wiggins v. Bisso, 92 Tex. 219, 222, 47 S. W. 637, 71 Am. St. Rep. 837.

Plaintiff alleged that, at the time of the injury he was earning $24 per we.ek (of 6 days), and for a long time continuously theretofore had been in such employment, that the value of the compensation to which he is entitled (after deducting $1,300 formerly paid) is $4,240, and prayed for the recovery of compensation for 401 weeks at the rate of $13.85 per week. As. against a general demurrer, these allegations are, in our opinion, sufficient on the measure of recovery. See Davies v. Tex. Employers’ Ins. Ass’n (Tex. Com. App.) 16 S.W.(2d) 524.

Appellee’s allegations are also to the effect that he was injured in the course of employment, resulting in incapacity for work or service in said employment or in other classes of work or services; that the value of the compensation to which he is entitled under the compensation law is $4,240 (after deducting $1,300 formerly paid), concluding with a prayer for recovery of the maximum allowed for total permanent incapacity. These aver-ments describe in outline and by implication a condition of total permanent incapacity, and, as to its nature, extent, and duration, are sufficient. ' See Tex. Employers’ Ins. Ass’n v. Nunamaker (Tex. Civ. App.) 267 S. W. 749, 751; American Employers’ Ins. Co. v. Scott (Tex. Civ. App.) 33 S.W.(2d) 845, 847, and authorities cited; Beal v. Texas Ind. Ins. Co. (Tex. Com. App.) 55 S.W.(2d) 801.

But if the petition be found lacking in essential averments, as to the nature, extent, and duration of appellee’s incapacity, such defect was cured by allegations contained in appellant’s plea in bar, to the effect that the incapacity, in respect to which ap-pellee sued and seeks to recover under the compensation law, is total and permanent. In Davies v. Tex. Employers’ Ins. Ass’n (Tex. Com. App.) 16 S.W.(2d) 524, the doctrine is announced that on general demurrer, allegations of an adversary may be looked to in aid of a pleading attacked. We therefore overrule the assignment and proposition just considered.

Appellant contends that the court erred in refusing, on request, to direct a verdict- in its favor, and in rendering judgment for appel-lee, because of the absence of any proof showing that, within thirty days after the alleged injury, tlie subscriber or the association bad, or was given notice thereof; because of the absence of any proof that within 6 months after the alleged injury appellee made claim to the Industrial Accident Board for compensation with respect to said injuries; because of the absence of any proof that the employer was a subscriber or that appellant was the insurer, within the terms of the compensation law.

These facts were, in our opinion, abundantly and indisputably established. The testimony of Arnold, uneontradicted, is to the effect that, immediately after being injured he complained to some of the employers at the place of business, and shortly thereafter was examined by a physician at the suggestion 'of the subscriber, also was examined by a physician at the suggestion of appellant, and that his claim for compensation was presented to the Industrial Accident Board. That the board made an award, that appellant gave notice of its “unwillingness to abide ‘by same, and filed suit to set it aside, to which appellee filed answer, praying judgment for total and permanent disability compensation, are facts fully and lengthily alleged by appellant in its answer to the present suit, all of which are shown to have occurred within 6 months after the injury, hence, the facts alleged will be treated as admitted and conclusively established.

A fact admitted in a pleading, on which the case is tried, is held, without other evidence, to be conclusively established for the purpose of the trial, under the doctrine of admissions against interest. Ogden v. Bosse, 86 Tex. 336, 344, 24 S. W. 798; Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245; H. E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 134, 70 S. W. 531, 97 Am. St. Rep.

Where an employer knows' of an injury to an employee and causes him to be treated by a physician, as in the case at bar, other notice to the employer or insurer is not required. Texas Employers’ Ins. Ass’n v. Ericker (Tex. Civ. App.) 16 S.W.(2d) 390, 395. Where, within six months after an injury, a claim for compensation is pursued in a court action, the statute (Rev. St. 1925, art. 8307), with reference to the presentation of the claim to the board, is satisfied. See Tex. Employers’ Ins. Ass’n v. Wonderley (Tex. Civ. App.) 16 S.W.(2d) 386; Tex. Employers’ Ins. Ass’n v. Fricker (Tex. Civ. App.) 16 S.W.(2d) 390, 395; Ocean, etc., Corp. v. Nance (Tex. Civ. App.) 25 S.W.(2d) 665; Tex. Employers’ Ins. Ass’n v. Bradshaw (Tex. Civ. App.) 27 S. W.(2d) 314; Millers, etc., v. Heller (Tex. Civ. App.) 253 S. W. 853, 857; Roland, etc., v. Employers’ Cas. Co. (Tex. Civ. App.) 290 S. W. 895.

•[10] The award of the Industrial Accident Board was not only alleged by appellant, as above shown, but was in evidence without objection or request that its probative effect or purpose be limited, therefore, being in evidence for all purposes, furnished ample proof of the facts that appellant contends appellee failed to prove. See Blum Milling Co. v. Muore-Seaver Grain Co. (Tex. Com. App.) 277 S. W. 78, 81, and authorities Cited. The assignment and propositions just considered are overruled.

Appellant contends further that the court erred in rendering judgment for appellee because proof was lacking as to his wages for and during the period of the whole, or substantially the whole, of the year immediately preceding the alleged injury.

The testimony of appellee, undisputed, is to the effect that, when injured he was, and had been for 6 or 7 months, earning $24 per week, that immediately before his wages were raised to that sum he had for more than a year continuously been earning, in the same employment, $21 per week. This, in our opinion, was sufficient proof of wages earned for the whole, or substantially the. whole, of the year immediately preceding the injury, and justified the finding that 60 per centum of appellee’s average wages for the whole of the year preceding the injury equalled the weekly compensation used in the calculation that produced the judgment rendered.

As before stated, the only issues submitted were as to certain representations made that induced appellee to agree to the settlement sought to be overturned in these proceedings. These issues were found for appel-lee, and are not challenged. However, the court neither submitted, nor did appellant request the submission of, any issue in regard to whether appellee sustained injury in the course of employment, or as to the extent of his incapacity, so, on the findings and evidence, the court set aside the agreed judgment and rendered judgment for appellee, compensating him for 401 weeks at $13.85 per week, less $1,300 theretofore paid. Based upon this status, appellant contends that the court erred in rendering judgment for appel-lee, because not supported by jury findings as to his injury and incapacity. Appellant cites Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, in support of this contention.

These facts are undisputed: On Au-‘ gust 17, 1928, appellee, an employee of the Brown Cracker & Candy Company (subscriber), was injured in the course of employment, that is, while he and a fellow employee were engaged in lifting, from a platform to a truck, a barrel of cakes weighing about 160 pounds, appellee Was struck with a sudden pain in the back of his neck (which, according to the medical testimony, was the result of a hemorrhage in the left internal capsule of the brain), and within two or three hours lost the use of his right arm, partially his ability to speak, was seized with nervousness, was sleepless during the first night, lost appetite, discovered next morning that he had suffered partial loss of the sight of his right eye and the hearing of his right ear; was immediately treated by a physician, who advised moderate exercise, stating that it would he some time before he would he able to go back to work; that at the time of being injured he weighed 180 pounds, subsequently lost weight down to 135 pounds, at the time of the agreed judgment in August, 1929, weighed about 145 pounds, and at the time of the trial in April, 1931, weighed 140 pounds. While there is some conflict as to the nature, extent, and duration of appellee’s incapacity, the evidence abundantly sustains the finding of the trial court to the effect that his incapacity is total and permanent.

These undisputed facts showing that appellee sustained injury in the course ’of employment, established his right to recover something, and it was neither necessary nor proper that the court should have submitted that issue to the jury. In Maryland Casualty Co. v. Long (Tex. Civ. App.) 9 S.W.(2d) 458, 460, the Texarkana Court was confronted with a similar situation, described by Judge Hodges as follows: “In their brief and oral argument counsel for appellant contend that the court erred in failing to .submit to the jury the issue of total and permanent incapacity. While they concede that there was no request for the submission of that issue, they insist that none was required. As supporting the proposition that this was a fundamental issue, which in jury trials could only be passed upon by the jury, they refer to the following cases: Norwich Union Ins. Co. v. Chancellor (Tex. Com. App.) 5 S.W.(2d) 494; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S. W.(2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591. * ⅜ * In the present case there was evidence sufficient to warrant the finding that Long was totally and permanently incapacitated to follow the occupation for which he was fitted. Such incapacity was not pleaded as a distinct ground of recovery, but as a collateral matter affecting only the extent of his recovery. The injury sustained while in the service of his employer was the fundamental fact which formed the basis of his suit, or claim for compensation: The incapacity was merely a result of the injury, and the degree of incapacity determined only the amount of the compensation which should be awarded. We do not think the facts of 'this case bring it within the rule stated in the eases above referred to.”

The case just referred to is in point, and the doctrine announced is decisive of the question under consideration. It being undisputed that appellee sustained injury in the course of employment, his right to be compensated in an amount, dependent upon the correlative, supplemental, and incidental issues, as to the nature, extent, and duration of the resultant incapacity, was established. These dependent issues were neither submitted nor was request for their submission made by appellant, hence, were properly found by the court, with ample evidence to sustain the findings, in such manner as to support the judgment. This holding is not violative of, but is in accord with the doctrine announced in the Ormsby-Ratcliffe Case. We therefore overrule the assignment and propositions in regard to the matters just discussed.

I-Iaving fully considered all assignments, and finding no reversible error, the judgment of the court below is affirmed.

Affirmed:


author: O’QUINN, Justice.

text:
    BOLTON v. BALDWIN et al.
    No. 2258.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 23, 1933.
    Rehearing Denied March 8, 1933.

      W. R. Blain and D. E. O’Fiel, both of Beaumont, for plaintiff in error.
    Llewellyn & Dougherty and E. B. Pickett, Jr., all of Liberty, and W. H. Ward, of Houston, for defendants in error.
   O’QUINN, Justice.

This is an interpleader suit. June 3, 1916, F. Antoine and his wife, Adlawyer Antoine, executed an oil lease on 75 acres of land, a part of the David Minchey league in Liberty county, Tex., to Marrs McLean, who assigned same to the Gulf Production Company. The royalty retained by the lessors was one-tenth of the oil produced and saved, the same to be delivered at the wells, free from charge to said lessors, or to their credit in pipe lines which might be connected with such wells. The fund, or cash amount of money, $11,246.-03, involved in this suit, accumulated under said lease operated by said Gulf Production Company; the oil being delivered to said Gulf Pipe Line Company, plaintiff herein. The land covered by the lease was the separate property of F. Antoine. F. Antoine died in April, 1920, leaving surviving him his wife, Adlawyer Antoine, and four minor children, Frederick, Sarah Lee, Theresa Jane, and Leanna Antoine, and so at his death his said four children became the owners of said land, subject to the one-third life interest that vested in their mother, the widow of said F. Antoine. The mother, said Adlawyer Antoine, was appointed and duly qualified as guardian of said minors, Frederick, Sarah Lee, Theresa Jane, now the wife of E. G. Thompson, and Leanna, now the wife of Emery Smith.

Said fund, or amount of money, $11,246.03, represents only one-fourth of the one'-tenth royalty provided for by said lease, as by various assignments three-fourths of said one-tenth royalty were sold and transferred to other persons not parties to this suit. The period of time during which said fund accumulated extended from May 1, 1925, to March 31, 1930, and the oil produced, on which the royalty was calculated, was delivered by said Gulf Production Company to the Gulf Pipe Line Company, wherefore the pipe line company became liable, as the purchaser of said oil, to the owners of the royalty accruing under the lease for the value thereof. Because of disputes, affecting and conflicting claims to a one-fourth of the one-tenth, or one-fortieth, part of said royalty, the Gulf Pipe Line Company, on April 24, 1931, filed this suit of interpleader against the widow and said four children of F. Antoine, deceased, and others, as defendants, for the purpose, as set forth in the prayer of plaintiff’s bill, of having the rights of the defendants in and to said one-fortieth of said royalty fixed by decree of the court, particularly setting out the quantum of interest to which they, and each of them, are entitled to share in all and other and further payments due or to become due in respect to said one-fortieth royalty.

The defendants in, error E. B. Pickett, Jr., and J. F. Richardson were made defendants in the bill of interpleader, but the defendant in error First State Bank of Liberty, Tex., and plaintiff in error, C. W. Bolton, both came into the case as interveners. By its judgment the court decreed that the plaintiff Gulf Pipe Line Company, being entitled to file its bill of interpleader and to the relief it sought, and having paid into the registry of the court the fund of money in question, “be and the same is now hereby entirely discharged of and from any and all liability to any and all of the claimants of and to said fund, both the defendants and the interven-ors herein.” The court also found defendants in error E. B. Pickett, Jr., and J. F. Richardson were the owners of the sum of $3,500 out of said total fund by virtue of having and holding an equitable lien against said total fund to that extent and having and holding an equitable title to such portion of said fund, and decreed that said Pickett and said Richardson “do have and recover as against and of and from all the other parties to this suit the said sum of $3,500.00.” The court further found, “That the intervener, First State Bank of Liberty, Texas, has a lien upon all the right, title and interest of the defendant, Adlawyer Antoine Baldwin, in and to said fund and sum of money,” and entered judgment and decreed “that said mortgage lien existing in favor of said First State Bank of Liberty, Texas, be and the same is hereby foreclosed, and the said First State Bank of Liberty, Texas, is hereby adjudged and decreed to be the owner of said life estate of the said Adlawyer Antoine Baldwin in and to said monies, and as such owner, the said First State Bank of Liberty, Texas, is entitled to such revenues and income as may be realized from the sum of $2,415.34 out of the above mentioned total fund and sum of $10,746.03, thisl amount being one-third of the total amount remaining after deduction of the $3,500.00 hereinbefore decreed to the defendants, J. F. Richardson and E. B. Pickett, Jr., and $500.00 attorney’s fee allowed the plaintiff,” Gulf Pipe Line Company. To this judgment C. W. Bolton, Edith K. Jones, and Adlawyer Antoine Baldwin, individually and as guardian of the estates of Frederick Antoine and Sarah Lee Antoine, minors, excepted and gave notice of appeal, but C. W. Bolton only perfected his appeal and is plaintiff in error herein.

Numerous other defendants were disposed of by the judgment of the court, but' they are not concerned here.

It was agreed by all parties that the bill or suit of interpleader was properly brought, and that sufficient grounds were shown for subjecting the fund of money to the court’s jurisdiction and for depositing same in the registry of the court. It was also agreed that the said Gulf Pipe Line Company, plaintiff in interpleader, was entitled to have awarded to it the sum of $500 as attorney’s fee. Deducting that sum, $500, from the $11,246.03, there remained $10,746.03 to be disposed of and distributed among the disputing claimants, who by their pleadings joined issues and asserted ownership and established their right to definite portions of said fund.

The right of interpleader existing and the equitable power of the court having been properly invoked, the filing of the bill gave the court, in the exercise of its equity jurisdiction, full power to hear ahd determine the claims and rights of ownership, asserted to, the fund of money in question by the several disputing claimants, and to adjust all equities involved, and by its final judgment to award and decree to each of the claimants, who established title thereto, whether legal or eqxdtable, the particular portion of said fund belonging to such claimant. Legg v. McNeill, 2 Tex. 428; Rochelle v. Express Co., 56 Tex. Civ. App. 142, 120 S. W. 543; Melton v. Surety Co. (Tex. Civ. App.) 240 S. W. 574; Van Slyck v. Dallas Bank & Trust Co. (Tex. Civ. App.) 45 S.W.(2d) 641; 33 C. J. pp. 461, 466-468.

Plaintiff in error complains that the court erred in not sustaining his special exception to the answer and cross-action of defendants Pickett and Richardson wherein they asserted a right to a portion of the fund in controversy. The claim of Pickett and Richardson was based upon the following facts: Adlawyer Antoine (now Adlawyer Antoine Baldwin), the guardian of her four minor children, Frederick, Sarah Lee, Theresa Jane, and Leanna Antoine, employed said E. B. Pickett, Jr., and C. H. Cain, lawyers, to represent her and her said minor children in the defense of a suit in the federal court at Beaumont, Tex., -known as the Wayman suit, in which suit the title of said minor children to the land in question was challenged, and also employed said Pickett and Cain to bring suit in the district court of Liberty county, Tex., known as the Jones suit (see 23 S.W.(2d) 308), against claimants to recover and remove cloud from their title to said land, and agreed to pay them for their services in. said two suits one-third of the amount of royalty that had already accumulated, and that would thereafter accumulate up to the final termination of said last-mentioned (Jones) suit, to the credit of said Adlawyer Antoine Baldwin, individually and as guardian of her said minor children under the terms of the mineral lease held and operated by the Gulf Production Company. The said fee was to be paid to said attorneys when said royalty money was freed from the adverse claim thereto asserted by the defendants in the Liberty county suit, and said royalty should become payable to and be paid to said Adlawyer Antoine Baldwin, individually and as guardian of the said minors. The services so contracted for were fully, faithfully, and successfully performed by said attorneys, whereby they earned and were entitled to receive the compensation agreed upon by them and said Adlawyer Antoine Baldwin for herself and as guardian of said minors and of which said fee the sum of $3,500 was due and unpaid. Said $3,500 was one-third of the total royalty balance on hand which had accumulated up to the date the Liberty county suit was finally terminated, and was due to be paid to said Adlawyer Antoine Baldwin, individually and as guardian of her said minor children, and was in the possession of and held by the plaintiff Gulf Pipe* Line Company, and was a portion of the $11,246.03 fund set out in plaintiff’s petition for interpleader. Cain assigned his interest in the attorney’s fee in question to Richardson; hence his claim.

The special exception to the answer and claim of said defendants was grounded on the fact that Adlawyer Antoine Baldwin was the guardian of the estates of her minor children, and the contention that as such she was entitled to receive the portions of the fund in question to which they would be entitled, and that the claim, if any, of said Pickett and Richardson against said fund, or to be paid out of said fund, must be paid by and through her, as guardian, under orders of the probate court of Liberty county; in other words, that the claim of said Pickett and Richardson is a claim against the estates of said minors, and that they should be required to present their said claim to her (the said guardian of said minors) and to the probate court for allowance and to require payment through the probate court, and not through the instant- trial court. As we understand the insistence of plaintiff in error, it is to the effect that the trial court was not authorized to pass upon and order paid the claim in controversy. This contention is not sound. The law, article 4168, R. S. 1925, requires that a guardian of the estate of a mi-, nor shall use due diligence to collect all claims or debts owing to the ward, and to recover possession of all property to which the ward has title or claim, provided there is a reasonable prospect of collecting such claims or debts, or of receiving such property, and makes the guardian and his sureties liable for all damages occasioned by his negligence to exercise due diligence to do so. Also the law, article 4312, R. S. 1925, expressly provides that “all necessary and reasonable expenses incurred by the guardian in the preservation and management of the ward’s estate, and in collecting or attempting to collect claims or debts due the ward, and in recovering or attempting to recover property to which the ward has a title or claim, and all reasonable attorneys’ fees necessarily incurred in the management of such guardianship, shall be allowed the guardian, to be paid out of the estate on satisfactory proof thereof being made to the court.”

It is not contended that the employment of Pickett and Gain, attorneys, to represent the guardian and the minors in the two suits relating to and affecting the title to the property of the wards, was unnecessary, or that, the fees charged were excessive. Adlawyer Antoine Baldwin, as guardian of the estates of her minor children, was authorized to employ Pickett and Gain, attorneys, to represent said minors and their estates in defending the Wayman suit in the federal court at Beaumont, and in filing and prosecuting the suit against Jones et al. in the district court at Liberty, which was prosecuted to a final and favorable -judgment in the Supreme Court of Texas. Had she not taken such action, it affirmatively appears her wards would have been wrongfully deprived of their entire interest in the land and the royalty then being and afterwards produced therefrom. By reason of these services lawfully contracted, and faithfully and successfully performed, said attorneys were entitled to a reasonable fee in compensation for said services. They presented their claim for said fee to said guardian, which she allowed, and to the probate court, which approved same. This allowance by the guardian, and order of approval by the probate court, had the effect of a judgment setting apart to said attorneys said sum, and entitled them to be paid said sum out of the very fund in controversy, Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118; De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16; Logan v. Gay, 99 Tex. 603, 90 S. W. 861, 92 S. W. 255; Eastland v. Williams, 92 Tex. 113, 46 S. W. 32; Krawietz v. Kneiski (Tex. Civ. App.) 236 S. W. 805; Jones v. Williams (Tex. Civ. App.) 14 S.W.(2d) 300; and so they had an equitable ownership in and to said fund to the extent of their said allowed and approved fee. The district court having acquired by the bill of interpleader complete jurisdiction of the fund, which had been protected and preserved by the services of said attorneys, properly held that said attorneys had an equitable ownership in said fund to the extent of their said claim, and were entitled to a judgment ordering same to be paid out of said fund. This was but a consummation of what the probate court had already ordered to be done.

Plaintiff in error cites us to the case of Glassgow v. McKinnon, 79 Tex. 116, 14 S. W. 1050, as sustaining his contention that Ad-lawyer Antoine Baldwin, guardian of said minors, was not authorized by law to make the contract with Pickett and Gain, lawyers, wherein she promised to pay them one-third of the royalty accruing from the oil lease and development under it of the land belonging to the minors, as a fee for defending and prosecuting the suits above mentioned. The cited case has no application to the facts of this case. There the guardian contracted with attorneys to recover certain land‘belonging to the minor and to allow said attorneys one-Ihalf of the land recovered as their fee. The attorneys recovered the land (169 acres), and it was sought to sell the whole tract for the purpose of partition between the minor and the attorneys; it being shown that the land itself was not susceptible of equitable partition. It was held that the probate court, in a matter of guardianship, had no power to order a sale of the land for purposes of partition. In other words, it was held that a guardian does not have the power to make a contract with an attorney for legal services in the recovery of land belonging to the ward, and to share the land recovered with the attorney. In the instant ease, Pickett and Richardson made no effort to recover or obtain for themselves any portion of the land owned by the minors, nor did they have any such contract, but they asserted the right to recover a money demand against the estates of the minors'in payment of compensation actually earned by attorneys regularly and lawfully employed to represent said minors in the saving and protecting of their said estates. Furthermore, Pickett and Richardson also pleaded and urged their right to recover their claim of $3,500 balance due on attorneys’ fee on a quantum meruit basis. We think the court, in the absence of a contract for a stipulated sum as an attorney’s fee, upon proper pleadings and proof, which both existed, was authorized to award judgment for said amount as a fee upon a quantum mer-uit for services performed and accepted to the benefit of the estate of said minors. But the contract to pay the one-third of the royalty accruing up to the termination of the Jones suit in Liberty county was not denied or in any way disputed, and so, being lawful, the court did not err in awarding judgment accordingly.

It is further insisted by plaintiff in error that the order of the probate judge approving and ordering paid the claim of said attorneys for their fee was not final and gave no force to their claim in the trial court, because, he says, he removed the matter of the approval of said claim by the probate court to the district court of Liberty county by writ of certiorari, and that same was then pending on the docket of said court undis-posed of. The record does not disclose any of the proceedings as to said writ of certiorari other than that by such writ said matter was carried to the district court. Without discussing whether plaintiff in error was such party as had the right to undertake the review of the approval of the claim in controversy, we will say that the certiorari proceedings were of no avail. The action of the probate court in approving or refusing a claim in guardianship proceedings cannot be appealed or carried to the district court for review by certiorari. It must be done by appeal under article 4252, R. S. 1925. In such cases article 4318, relating to appeal, and article 4328, relating to bill of review, and article 4329, relating to certiorari, are not applicable. De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16; 21 Tex. Jur., § 62, p. 293.

It is contended by plaintiff in error that Pickett and Richardson had no assignment of any specific sum or interest in the fund in controversy, and, there being nothing of record to show that the estates of Theresa Thompson or Leanna Smith were indebted to said Pickett and Richardson, or that they were entitled to any portion of said Theresa Thompson and Leanna Smith’s interest in said fund, he (plaintiff in error, C. W. Bolton), having purchased from said heirs for a valuable consideration and without notice of the claim of said Pickett and Richardson, was entitled to receive the entire amount of money assigned to him and to J. V. Polk, whose interest he had purchased, by said Theresa Thompson and Leanna Smith.

This contention is based upon the fact that November 26, 1929, Theresa Antoine Thompson and Leanna Antoine Smith, joined by their husbands, conveyed to J. Y. Polk an undivided one-half interest of said heirs’ undivided interest in and to 70 acres of the Frederick Antoine 75-acre tract of land, and also an undivided one-half interest in and to their right and interest in and to $10,407.41 royalty money then held by plaintiff Gulf Pipe Line Company derived from said land, which interests J. V. Polk conveyed to Bolton. He (Bolton) also asserted title and claim to the sum of $342 which he loaned to Adlawyer Antoine Baldwin, as guardian, for the use and benefit of said minors.

This contention must be overruled. It is agreed that Adlawyer Antoine Baldwin was, after the death of her first husband, Frederick Antoine, in 1920, duly appointed guardian of the estates of her four minor children, and that such guardianship had not been closed by order of the probate court. Two of the children, Sarah Lee and Frederick, are still minors, but September 27, 1927, Theresa married Arthur McCoy and after his death married E. G. Thompson, and May 3, 1928, Leanna married Emery Smith. They were minors at the date of their marriage. As hereinbefore stated, attorneys Pickett and Cain, in 1926, were employed by the guardian of said four Antoine minors to represent their estates in the Wayman suit in the federal court and the Jones suit in the Liberty county district court. The Wayman suit was finally disposed of by judgment of the trial’ court on April 14, 1926. In the Jones suit, judgment favorable to said minors and their mother, guax-dian, was rendered by the trial court in October, 1926, and that judgment was affirmed by the Court of Civil Appeals and the Supreme Court. The claim of Pickett and Richardson, based upon the fee earned by said Pickett and Cain in said suits, was filed in the guardianship proceedings March 26, 1931, and allowed by the guardian on said date. The county judge approved said claim March 27, 1931. The land from which the oil was produced, and the royalty fupd, which the court in this interpleader suit has ordered distributed among the several claimants, were involved in the Jones suit, which said suit was not terminated, until the Supreme Court affirmed the trial court’s judgment and the judgment of the Court of Civil Appeals January 29, 1930. 23 S.W.(2d) 308.

The probate records gave notice to plaintiff in error of the pendency of the guardianship by which the estates of the two minors Theresa Thompson and Leanna Smith were still subject to the control and jurisdiction of the probate court until said guardianship was legally closed. Furthermore, the conveyance from said Theresa Thompson and Leanna Smith to J. V. Polk, and the conveyance from Polk to plaintiff in error, Bolton, contained recitals putting Bolton upon notice that the property therein conveyed had been, and at the time of the conveyance was then, involved in litigation.

All persons are charged with notice of everything revealed by any instrument in the chain of title under which they claim an interest in land. In the chain of title under which Bolton asserts ownership to a portion of the fund involved is a deed from Theresa Jane McCoy and husband, and Leanna Smith and husband, to J. Y. Polk, dated November 26, 1929, in which reference is made to a prior conveyance which same grantors had executed to W. E. Jones; it being stated that the grantors had conveyed to said Jones an undivided one-half interest “in and to any and all of the right, title and interest inherited by” said Theresa and Leanna Antoine from .their deceased father, Frederick Antoine, and immediately followed by this recital: “Save and except a sum of money held by the Gulf Production Company, in the sum of $10,407.41 in and to which we have an interest, which we especially reserved from said conveyance to said W. E. Jones at the time of conveyance. And, whereas, the said property has been and is involved in law suits, and at the present time there remains only a portion of same that is not involved and in and to which other parties do not make claim thereto at this time.”

Said conveyance contained this other recital: “We do also hereby and by these presents grant, sell and convey unto the said J. Y. Polk of the County of Jefferson and State of Texas an undivided one-half interest in and to all of our right title and interest in and to that cértain amount of cash being $10,407.41 now held by the Gulf Production Company of Harris County, Texas, hereinabove referred to, and we do hereby direct and authorize the said Gulf Production Company, of said Harris County, their officers, agents and assigns to pay over and deliver to the said J. V. Polk of the County of Jefferson and State of Texas, the said undivided one-half interest in and to the said $10,407.41, and for which we specially do hereby authorize the said J. V. Polk to give a receipt therefor.”

By deed dated June 21, 1930, J. V. Polk conveyed to plaintiff in error, C. W. Bolton, “the same land as conveyed in the deed from Theresa McCoy and others to J. V. Polk and which contains this recitation:

“It being the intention of this instrument to convey all of the right, title, equity, estate and interest in and to the above described land, which I own, especially all of the interest, title, estate, right and equity to me conveyed in the deed by Theresa Jane Antoine McCoy and by Arthur McCoy, Leanna Antoine Smith and husband Emery Smith by deed dated November 26,1929, etc., (being the deed last above referred to) and to convey my entire interest in the personal property therein referred to, together with all of the rights and appurtenances therein and thereto in anywise appertaining.”

See Houston Oil Co. v. Hayden, 104 Tex. 182, 135 S. W. 1149; Hexter v. Pratt (Tex. Com. App.) 10 S.W.(2d) 692, 693; Texas Co. v. Dunlap (Tex. Com. App.) 41 S.W.(2d) 42, 44; Temple Lumber Co. v. Kirby Lumber Co. (Tex. Civ. App.) 42 S.W.(2d) 1070, 1076.

There is nothing to show that plaintiff in error or his attorney made, or attempted to make, any inquiry or effort to ascertain what character of claims were being asserted to the land in question, or to what extent such fund was involved by other claims asserted thereto, at the time Theresa McCoy and Leanna Smith executed to Polk the deed whereby Polk and his vendees were specifically informed that only a portion of said total fund was not involved in litigation and not then being claimed by other parties.

Moreover, it is believed that plaintiff in error could not acquire title from female minors, who had married, free from liability for unpaid claims properly chargeable against the estates of such minors of which the probate court still had jurisdiction. Article 4296, B. S. 1925, reads: “When the ward dies, or if a minor, arrives at the age of twenty-one years, or if a female, marries, or, if a person of unsound mind or habitual drunkard, is restored and discharged from guardianship, the guardianship shall be immediately settled and closed and the guardian discharged, as provided in this chapter.”

Article 4297 provides that: “The guardian shall file with the clerk of the court in which the guardianship is pending his account for final settlement of such guardianship; which account shall show fully and - completely,” among other things, “3. The expenses and debts, if any, against the estate remaining unpaid,” and “5. Such other facts as may be necessary to a full and definite understanding of the exact condition of the guardianship.”

In the language of counsel for defendants in error: “These articles plainly indicate that the mere marriage of a female minor does not of itself withdraw jurisdiction of the probate court from over the minor’s estate. The court retains, full power and authority to adjust and settle the estate, and .this necessarily includes the consideration and settlement of unpaid expenses incurred by the guardian and properly chargeable to the estate. The two articles above quoted are a part of Chapter 15 of the Title ‘Guardian and Ward’, and said chapter is headed ‘.Final Settlement’. The next chapter is headed ‘Costs of Guardianship. Article 4312, a part of this-chapter, expressly requires that there shall be ‘paid out of the estate on satisfactory proof thereof being made to the court’, all necessary and reasonable expenses incurred by the guardian in the preservation and management of the ward’s estate, and in collecting or attempting to collect claims or debts due the ward, and in recovering or attempting to recover property in which the ward has a claim or title, and all reasonable attorneys’ fees necessarily incurred in the management of such guardianship. And certainly such costs and expenses of the guardianship are prior in point of right to any title to property of the estate asserted by a third party under some trade had, before the guardianship has been closed, with a female minor who has married.”

It is believed that plaintiff in error, C. W. Bolton, was, by the statutes above referred to, charged with constructive notice that the estates of the two married female minors were still subject to the jurisdiction of the probate court for the purpose of winding up and closing the guardianship relating to them and their estates, and that the probate court, in ordering final settlement of the guardianship, had the power to Require the payment, out of said estates, of all unpaid claims properly and justly chargeable against the estates. Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153, 156 (writ refused).

What we have said disposes of plaintiff in error’s first fifteen propositions.

Plaintiff in error’s sixteenth, seventeenth, and eighteenth propositions assail the judgment of the court in favor of intervener First State Bank of Liberty, adjudging said bank to be the owner of the life estate interest of Adlawyer Antoine Baldwin in and to said impounded fund, and that said bank had and held a lien upon all of said Adlawyer Antoine Baldwin’s life estate interest therein, and foreclosing said lien, as error. It is insisted (a) that, the asserted lien being verbal, it was not effective because there was no delivery of any portion of such fund to inter-vener, or any act placing said fund beyond the control of said assignor, and that a mere promise to pay the debt out of such fund did not amount to either a lien against said fund, or an assignment of same; (b) Adlawyer Antoine Baldwin not having made any claim to any portion of said fund, and said intervener bank not having a valid assignment of or lien against the fund, the court could not award any portion of said fund to said bank as the life estate of said Adlawyer Antoine Baldwin ; and (c) that there was no evidence to establish the fact that said bank had a legal assignment of or lien against the life estate or interest of said Adlawyer Antoine Baldwin in and to said fund.

As these propositions bear upon the same question, they will be considered together. It is without dispute that the land upon which the oil lease was given, and out of the operation of which the royalty fund in controversy accumulated, was the separate property of Frederick Antoine, the first husband of Ad-lawyer Antoine,' now Adlawyer Baldwin, and that at his death in 1920 his children, the four minors herein mentioned, inherited said land and the royalty funds resulting from the operation of said oil lease, subject to the one-third life estate interest therein of their mother, Adlawyer Antoine, now Adlawyer Baldwin. It is further without dispute that, at various times during the year 1929, Ad-lawyer Antoine Baldwin solicited and obtained loans from the intervener bank amounting to $1,650, for which she executed her several promissory notes, and promising to pay same out of her interest in the said royalty fund, and verbally pledging her said interest in said fund to protect and pay off said loan notes. Her application for said loan was made to the attorney E. B. Pickett for the bank and to the bank. Pickett had represented and was then representing her and her minor children in the litigation affecting the land and royalty funds in question. Pickett also represented the bank, and, upon her promise to pay said loan out of her interest in said royalty fund, and her verbally pledging her said interest in said fund to protect and pay off said loan, she was advanced the money — every dollar in cash — she at the time being in necessitous circumstances, which was known to the bank and her said attorney. Said Adlawyer Antoine Baldwin did not controvert the claim of the bank to its lien or claim to the money, and does not here do so. Under these facts, we think it clear that the bank did and does 'have a verbal or equitable lien upon the life estate interest owned by said Adlawyer Antoine Baldwin in the royalty fund impounded by the bill of interpleader, and that the court, in the exercise of its equity jurisdiction, was required to determine the ownership of said life estate interest and to properly award same, and that the court properly adjudged to the bank the amount out of said interest which she verbally pledged to said bank as security for the loan. Such verbal pledge or mortgage upon Adlawyer Antoine Baldwin’s life estate interest in said fund was valid and binding, although the money pledged as security for the payment of said loan was not placed in the possession of the bank, but remained in the custody of the stakeholder. The interest of Adlawyer Antoine Baldwin was her separate property inherited from the estate of her deceased husband, Frederick Antoine. As such she had the right to mortgage same. Collins v. Austin (Tex. Civ. App.) 32 S.W.(2d) 912 (writ refused); Jones on Chattel Mortgages (5th Ed.) § 42; Id. § 12; Richardson v. Washington, 88 Tex. 339, 31 S. W. 614.

In the case last cited, the court, at page 344 of 88 Tex., 31 S. W. 614, 616, says: “In equity, however, a lien may be created without the passing of the legal title. Where one agrees to execute a mortgage on certain property, and, at the time he is called ¡upon to perform his agreement, he has the ability to do so, equity will either compel its execution, or, in a suit to enforce the lien, will consider that as done which ought to have been done, and enforce the agreement as a mortgage.”

It is well settled in this state, in accord with the weight of authority, that a verbal chattel mortgage is valid and binding. Gardner v. Bank, 54 Tex. Civ. App. 572, 118 S. W. 1146 (writ refused); Galbraith v. Bank, 63 Tex. Civ. App. 179, 133 S. W. 300 (writ refused); Edwards v. Mayes (Tex. Civ. App.) 136 S. W. 510; Sparkman v. Bank, 112 Tex. 33, 244 S. W. 127; 11 C. J. § 71, p. 453; 5 R. C. L. § 10, p. 390.

In 11 C. J., cited supra, it is said: “As a general rule, any agreement entered into by the parties for the purpose of pledging the property or some interest therein as a security for a debt, which is informal and insufficient as a common law mortgage, will nevertheless be enforced in equity as an equitable mortgage, where it appears that it was intended by the parties as a mere security for a debt.”

In 5 R. C. L. cited supra, it is stated: "Equitable Mortgages. An agreement founded on a valuable consideration to give a mortgage on a chattel constituted an equitable mortgage. Equitable chattel mortgages may be created by parol, and it is not necessary that the agreement to give such mortgage should be.in writing.”

Furthermore, there is nothing in the record to show that plaintiff in error, C. W. Bolton, attempted to establish a claim to any part of the royalty fund vested in Adlawyer Antoine Baldwin. That being true, plaintiff in error cannot complain of the trial court’s judgment whereby the interest of said Ad-lawyer Antoine Baldwin in the royalty fund was adjudged to First State Bank of Liberty, and from which said judgment she did not appeal. It is not shown that plaintiff in error had any assignment or transfer of any nature of any portion of the one-third life estate or interest' of Adlawyer Antoine Baldwin, inherited from her deceased husband, Frederick Antoine, therefore plaintiff in error has no interest in the disposition of said interest, and cannot complain of the court’s judgment as to same.

No error being shown, the judgment should be affirmed, and it is so ordered.

Affirmed.


text:
    CONSOLIDATED UNDERWRITERS v. WARD et al.
    No. 9061.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Rehearing Denied March 15, 1933.

      E. C. Gaines, of Austin, for appellant.
    Boone & Raymer and Allen Y. Davis, all of Corpus Christi, for appellees. ,
   SMITH, Justice.

The appeal presents the question of whether a person standing in loco parentis of an industrial employee is entitled to compensation for his death occurring in the course of his employment, by virtue of the provision of the Workmen’s Compensation Act that an employee’s “parents” shall be entitled to such compensation. . An aunt of the employee brought this action, alleging and proving facts which placed her in loco parentis of the deceased employee. She recovered, and the insurer has appealed.

The decision must rest upon the provisions of section 8a of article 8306, R. S. 1925, as follows: “The compensation provided for in the foregoing section of this law shall be for the sole and exclusive benefit of the surviving husband, * * * and of the wife, * * * and of the minor children, parents and stepmother, without regard to the question of dependency, dependent grandparents, dependent children and dependent brothers and sisters of the deceased employee. * * * ” .

The specific question presented here has not been decided by the courts of this state, or of any other state, for that matter, so far as we are informed, although it may be said to have been decided in principle, or indirectly decided, adversely to appellee in McDonald v. Ins. Ass’n (Tex. Civ. App.) 267 S. W. 1074, decided by the Dallas Court of Civil Appeals. There the word “parents” was construed to include persons who had legally adopted the employee in accordance with the provisions of the adoption statutes. Article 42 et seq., R. S. 1925. In the well-considered opinion in that case Judge Looney carefully distinguishes between a parent by adoption, upon one hand, and a person standing in loco parentis, upon the other, and by implication, if not by express language, excludes those in the latter class from the benefits of the Compensation Act.

We are of the opinion that appellee is not entitled to recover.

It is true that the Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended) should be liberally construed in order to effectuate its fine purpose to compensate industrial employees in case of injury, or their beneficiaries in case of death. But this liberality of construction applies only to those classes specified in the statute, and will not be extended beyond its plain terms to include those not specifically named.

Such enlargement would tend to break down the law, by opening up its benefits to every dependent, regardless of age or relationship, which clearly was not within the contemplation of the Legislature. If such had been the legislative intent, it would not have specified those persons entitled to compensation.

Specifically, if the Legislature had intended to include persons in loco parentis, it would have specified that class. It did name “parents,” and, apparently realizing that such specification would exclude stepmothers, expressly named the latter as well. Surely, if “parents” as used in the statutes includes persons standing in loco parentis, it would have included stepmothers standing in that relation. So, by naming the latter, it plainly excluded the former.

Appellees concede that appellee’s relation as aunt has nothing to do with the case, as of course it has not, since aunts are not specifically named. And the statute expressly excludes the question of dependency from consideration in determining the claim of a parent. The facts, therefore, that appellee was an aunt and was dependent upon the employee, have no bearing upon the question presented. So, those elements being out of the case, and appellee’s class-status not being included among those specially designated in a statute which expressly names those entitled to its benefits, and concededly relying solely upon that statute for relief, ap-pellee ,has no right or remedy.

The judgment is reversed, and judgment is here rendered that appellee take nothing.

On Motion for Rehearing.

Appellee insists that this court has entirely missed the point of her case. She insists that she does not seek to extend the benefit of the Compensation Act to a class not therein designated, but that she merely contends that the designated class, “parents,” should be extended over by implication to include appellee; or, in short, appellee insists that she was in fact a “parent” of the deceased employee because she cared for him through his childhood, in return for which he was morally bound, had he lived, to care for her in her advancing years. If the claimed distinction exists between the case made and the case decided by this court, then it is a technical distinction, and does not affect the merits of the decision.

Appellee invokes the case of McDonald v. Ins. Ass’n (Tex. Civ. App.) 267 S. W. 1074, in which it is held that, where one legally adopts a child under the statutory procedure therefor, such one thereupon becomes a “parent” within the meaning of the act. That is plainly so, for the simple reason that the statute expressly creates the relation of parent and child, the same as if the natural relation existed, and adjusts the rights and liabilities of the parties to that legal status. Under the terms of the Compensation Act, the parent in that case was entitled to be compensated for the accidental death of the child, without reference to the question of ' dependency. But in this case appellee’s only claim rests, after all and as a practical matter, upon dependency, which, under the statute, must be coupled with the relation of grandparents, children, brothers and sisters of the deceased employee, in order to entitle the claimant to compensation. Article 8306, § 8a, R. S. 1925.

We conclude that we properly appraised appellee’s case in the original opinion, to which we adhere, and overrule her motion for rehearing.