author: BISSETT, Justice.

text:
    Fidel LEAL et ux., Appellants, v. Narciso CORTEZ et al., Appellees.
    No. 1312.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1978.

      H. H. Rankin, Jr., Rankin & Kern, McAl-len, for appellants.
    Tony Martinez, Brownsville, for appel-lees.
   OPINION

BISSETT, Justice.

The question presented by this appeal is whether the trial judge rendered judgment in accordance with an agreement between the parties which was dictated into the record. Fidel Leal and wife, Magdalena Leal, brought this suit against Narciso Cortez and other named defendants, where, among other things, they sought a recovery of certain lands. During the course of a jury trial all parties announced in open court that they had reached a settlement of the lawsuit. The terms of the settlement were then dictated into the record and the jury was discharged. Several months later a dispute arose between the parties as to whether a certain promissory note was to be made payable to Gloria Leal Cortez, as insisted by plaintiffs, or to the Cortez Trust, as contended by defendants. Following a hearing relating to the sole issue in disagreement, judgment was rendered that the note be made payable to the Cortez Trust. Plaintiffs have appealed.

Two points of error are brought forward. Plaintiffs contend that the trial court erred: 1) in rendering judgment when neither they nor the defendants mutually agreed upon all the terms of the judgment. 2) in not rendering a judgment which conformed to all of the terms of the agreement. They ask that the judgment of the trial court be reversed and the cause remanded, or, in the alternative, that the judgment be reversed and judgment rendered in accordance with the settlement agreement as the same appears in the record.

Rule 11, T.R.C.P., provides:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

In a judgment by consent, the terms must have been definitely agreed upon by all parties, and either reduced to writing, signed by all parties and filed among the papers of the case, or made in open court and dictated into the record. McIntyre v. McFarland, 529 S.W.2d 857 (Tex.Civ.App.—Tyler 1975, no writ); Behrens v. Behrens, 186 S.W.2d 697 (Tex.Civ.App.—Austin 1945, no writ).

It is absolutely essential that the parties themselves agree upon all the terms, provisions and conditions of the agreed settlement; the trial court has no power to supply terms, provisions or conditions not previously agreed to by the parties; and the trial court is without authority to render an agreed judgment that does not fall strictly within the terms of the agreement dictated into the record by the parties themselves. Matthews v. Looney, 123 S.W.2d 871 (Tex.Com.App.1939, opinion adopted); Pope v. Powers, 132 Tex. 80, 120 S.W.2d 432 (Tex.Com.App.1938, opinion adopted); Wyss v. Bookman, 235 S.W. 567 (Tex.Com.App.1921, opinion adopted); Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). Further, it is not sufficient that a party’s consent to the agreed judgment may at one time have been given; consent must exist at the very moment the trial court undertakes to make the agreement the judgment of the court. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951); Wilmer-Hutchins Independent Sch. Dist. v. Blackwell, 529 S.W.2d 575 (Tex.Civ.App.—Dallas 1975, writ dism’d).

In the case at bar, on the morning of April 13, 1977, during the trial before the jury, Mr. Hollis Rankin, Jr., counsel for plaintiffs, and Mr. Tony Martinez, counsel for defendants, announced that they had reached a settlement of all matters in dispute. The trial judge then instructed counsel for the parties to dictate into the record the terms of settlement. This was done. It was agreed by both Mr. Rankin and Mr. Martinez, who represented to the court that each had full authority from his respective clients to settle the suit, that Gloria Leal Cortez was to be conveyed as her sole and separate estate free and clear of all indebtedness approximately 100 acres of land, and the remainder of the lands in dispute was to be conveyed by the Cortez Trust to the plaintiff Fidel Leal for the total consideration of $130,000.00, to be paid $13,000.00 in cash and the execution and delivery of a note for the remaining balance of $117,-000.00, to be paid in 15 equal annual installments, with interest at 7½% per annum; it was further agreed that a second lien on the land to be conveyed by the Cortez Trust to Leal “will be given on this land to Gloria Leal Cortez as her sole and separate property to secure this.”

A short time after the agreement was dictated into the record, and before the jury was discharged, counsel advised the trial court that they had decided to change some of the terms of the original agreement of settlement. The following statements were then dictated into the record:

“MR. RANKIN: The agreement that we have heretofore dictated is the same with the exception that the property will be conveyed to the Cortez Trust.
MR. MARTINEZ: All right. The property previously described as the property going to Gloria Leal Cortez.
MR. RANKIN: The hundred-acre tract.
MR. MARTINEZ: Right. Shall remain in the Cortez Trust; either way., as we see fit to do.
MR. RANKIN: I would prefer to deed it.
MR. MARTINEZ: As you wish. It shall be deeded to the trust.
THE COURT: All right, Gentlemen, have you recited the amendment in the agreement now?
MR. RANKIN: Yes, sir.
THE COURT: Now, do I understand now that as amended the agreement now comprises the settlement entered into by all parties?
MR. RANKIN: That is correct, Your Honor.
MR. MARTINEZ: Yes, sir.
THE COURT: And that you have settled all your differences?
MR. RANKIN: We have settled the differences. The only change was that the hundred acres is to be deeded directly to the Cortez Trust.
THE COURT: And the necessary instruments will be executed by all parties by agreement to effect the agreement, the settlement; is that correct?
MR. RANKIN: Yes, Your Honor.
MR. MARTINEZ: Yes, Your Honor.
THE COURT: Any reason why the jury should not be discharged?
MR. RANKIN: No, Your Honor.
MR. MARTINEZ: No, Your Honor.”

Whereupon, the jury was discharged. Later, and before judgment was rendered, a dispute arose with respect to the identity of the payee of the note. ■ Plaintiffs contended that the payee, under the terms of the agreement, was Gloria Leal Cortez. Defendants contended that all parties to the original agreement, as amended, agreed that the Cortez Trust was to be the named payee. On September 26, 1977, a hearing was had, wherein the following statements were made:

“THE COURT: All right, Gentlemen, the Court set a hearing for today with respect to an agreement that had been entered into while a jury was waiting in this cause, and I will hear from you. What seems to be your differences, Gentlemen?
MR. MARTINEZ: Your Honor, on behalf of Dr. Cortez, I guess we tried this way back in April, but since that time Mr. Rankin had submitted to me a proposed judgment in this cause in accordance with our agreement and, obviously, there was a discrepancy in understanding exactly what was meant or said back on April the 13th of 1977 with regard to a note for a hundred and thirty thousand dollars.
It was my understanding and the way that I read the notes of the court reporter from that time that the note was to be payable to the Cortez Trust, and the Cortez Trust would, in turn, deed the properties over to Mr. and Mrs. Leal.
Mr. Rankin feels that the note was meant to have been to Gloria Leal Cortez, and that is our sole and only dispute that we have as of right now. And my client’s understanding at that time was that it was going to go strictly to the Cortez Trust and he is staunch about the fact that it should so reflect in the judgment.
MR. RANKIN: Your Honor, my recollection of the record — and Your Honor has it before you — was that we dictated an agreement providing that certain land, roughly a hundred and one and a fraction acres and a note for a hundred and thirty thousand or a hundred and thirty thousand dollars payable $13,000.00 down and the balance over a period of years at a certain percent should be given to Gloria Cortez as her sole and separate estate, and certain other terms and conditions, and this was dictated into the record.
THE COURT: Yes. As I look at the recitations with which I have been favored now, and as I recall this situation, you gentlemen agreed that everything was going to go to Gloria Leal Cortez in her separate right.
MR. RANKIN: Yes, sir.
THE COURT: And that then a phone call was made in between and then the agreement was off.
MR. RANKIN: He said it was off.
THE COURT: And it came back because of the fact that the Defendant Nar-ciso Cortez would not agree.
MR. RANKIN: That is right. Unless she agreed to convey to—
THE COURT: You then came back and returned and at that time Mr. Leal had taken ill the day before.
MR. RANKIN: Yes, sir.
THE COURT: And then everybody returned and said it would go to the trust.
MR. RANKIN: The land, Your Honor.
THE COURT: Well, as I noticed, the record only made reference to the land specifically.
MR. RANKIN: That is right, sir.
THE COURT: But I remember the holdup between the parties was the fact that there was a projection by which she was to receive everything in her separate right. This was disagreeable. And then they talked to Mr. Leal and you came back and said that — so the problem as between both parties appears to be as to whether a hundred thirty thousand dollars was a part of the land.
MR. RANKIN: That is right.
THE COURT: I will give you one of two choices: I will declare a mistrial and we’ll start trying this case again, or I will rule on the motion for a verdict from the evidence I heard in the case.
There was perjury in this case, my recollection is. I will give you one of two choices.
MR. RANKIN: Your Honor, let me talk to my clients and I will give you a—
THE COURT: Go ahead and discuss it, but I was very displeased by the fact that there was perjury.”

After a short recess, the hearing continued, and the following statements were made:

“THE COURT: All right, Gentlemen, I will hear you.
MR. RANKIN: All right, Your Honor. For the plaintiffs, as I understand, the Court said that he would declare a mistrial or the Court would enter a judgment in accordance with his understanding of the agreement, and we are prepared for the Court to enter a judgment in accordance with the agreement as it was made and appears in the record.
THE COURT: Very well. Both sides ready, Gentlemen?
MR. MARTINEZ: Yes, sir.
THE COURT: Both sides ready?
MR. MARTINEZ: Yes, sir.
MR. RANKIN: Yes, sir.
THE COURT: All right. It is my opinion from all of the circumstances that took place at that time that it was the intention of the parties that all of the matters go into the Cortez Trust.
That is my opinion, Gentlemen, and I am going to so rule.”

A judgment was then rendered which stated that the parties “had reached an agreement and settlement of this lawsuit”, wherein the said 100 acres “is to be conveyed” to the Cortez Trust, and the Cortez Trust will convey certain described lands to plaintiffs, and that “plaintiffs shall give defendant Cortez Trust a note for $117,-000.00”, payable in 15 equal annual installments, “and further the sum of $13,000.00 should be paid to defendant Cortez Trust by plaintiffs”.

It is plaintiffs’ position that in the original agreement of settlement, it was agreed by all parties that the 100 acres would be conveyed to Gloria Leal Cortez free and clear of liens and as her separate property and estate and that the remaining lands (544 acres) would be conveyed by the Cortez Trust to Fidel Leal; and, also, that $13,-000.00 in cash was to be paid to Gloria Leal Cortez and a note in the amount of $117,-000.00 was to be executed to her as payee, which was to be secured by a second lien on the 544 acres. They admit that the original agreement was amended so as to provide that the 100 acres would be conveyed to the Cortez Trust instead of to Gloria Leal Cortez, but say that this was the only change made by the amendment. They further contend that at the hearing on September 26, 1977, that they agreed to the rendition of a judgment in accordance with the agreement as it was made and appears in the record, and did not agree to a rendition of judgment based on the trial judge’s interpretation of the agreement.

The original agreement does not specifically provide that the note in question shall be made payable to Gloria Leal Cortez. With respect to the original agreement, all that was said concerning any deferred consideration for the transaction was:

“[t]he total consideration will be $130,-000.00, $13,000.00 cash, the balance in 15 equal installments, with interest at 7½ per cent per annum, and a second lien will be given on this land to Gloria Leal Cortez as her sole and separate property to secure the payment of this.”

The implication from the above-quoted statement is that the parties agreed that a note payable to Gloria Leal Cortez would be executed. Further, after the statement was dictated into the record, counsel for both plaintiffs and defendants, in the initial settlement agreement, used the word “note” in their discussions clarifying some of the terms of settlement, and agreed that the “note” would be an “on or before note” which would contain a “prepayment clause”. No mention of the note was made when the agreement was amended.

We tend to agree with plaintiffs’ contention that the trial court, in rendering judgment, failed to follow the final agreement made by the parties. Statements by counsel for each side have already been delineated. The amendment to the initial settlement did not refer to the note in question. The amendment affected only the disposition of the 100 acres. This is made clear by the last part of Mr. Rankin’s statement, which was not contradicted by Mr. Martinez, when he represented unto the trial court:

“We have settled the differences. The only change was that the hundred acres is to be deeded directly to the Cortez Trust.”

After the trial court told the parties that they had a choice of either a mistrial or the rendition of judgment “from the evidence I heard in the case”, Mr. Rankin said:

“[w]e are prepared for the court to enter a judgment in accordance with the agreement as it was made and appears in the record”.

There was no agreement by counsel for plaintiffs to be bound by the judgment of the trial court according to the trial court’s understanding of the settlement terms. The court below had no power to alter the agreement or supply additional terms; it only had the power to put the agreement as made by the parties themselves into judgment form. The trial court may not enter a valid consent judgment when consent of one of the parties is lacking. Burnaman v. Heaton, supra. A judgment by agreement must fall strictly within the stipulations and agreements of the parties. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786, 788 (1941). Where the trial court undertakes to make an agreement of the parties the judgment of the court, and consent is lacking in the case, the judgment of the trial court must be reversed and the cause remanded for a new trial. Carter v. Carter, 535 S.W.2d 215, 217 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). Accordingly, we sustain plaintiffs’ first point of error.

The circumstances suggest that the parties were not in agreement as to the identity of the payee of the note in question. It is apparent that both defendants’ counsel and the trial judge were under the impression that the settlement agreement, as finally reached, provided that the note would be payable to the Cortez Trust. It is likewise apparent that plaintiffs’ counsel was under the impression that the final settlement provided that the note would be made payable to Gloria Leal Cortez.

We hold that the judgment was not in accordance with the agreement of the parties which was dictated into the record. Plaintiffs’ second point is sustained.

An argument can be made that we should reverse the judgment of the trial court with respect to the note in question. However, we do not believe that we should do so under the record here presented. Since it is evident that there was an honest misunderstanding between the parties, we believe, and so hold, that the ends of justice would be better served by a reversal and remand of the case for a new trial. See: Morrow v. Shotwell, 477 S.W.2d 538 (Tex.Sup.1972); National Life and Accident Insurance Co. v. Blagg, 438 S.W.2d 905 (Tex.Sup.1969).

REVERSED and REMANDED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Roger BUTLER, Appellant, v. STONEWALL BANK, Appellee.
    No. 1358.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1978.

      Hubert L. Stone, Jr., Victor H. Gillespie, Corpus Christi, for appellant.
    Ronald W. Bradley, Wood, Burney, Nes-bitt & Ryan, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This case presents the novel question of whether a responding party in a post-judgment proceeding under Rule 621a, T.R.C.P., “Discovery in Aid of Enforcement of Judgment” can seek relief on other causes of action not adjudicated in the original suit. We hold that he cannot.

The proceeding under Rule 621a was initiated by Stonewall Bank against Roger Butler in cause number 74-3887-F in the 214th District Court of Nueces County, Texas. A final judgment in that cause had previously been rendered on August 5,1977, in which the Bank recovered on its claim against Butler, and a counterclaim by Butler was denied. This judgment was affirmed on certificate by this Court on November 10, 1977, in our cause number 1306.

In the Rule 621a proceedings, the Bank filed “Plaintiff’s Discovery in Aid of Enforcement of Judgment” on November 14, 1977, in the court below, which pleading requested answers to an attached set of interrogatories. Butler timely filed answers to the interrogatories on December 1, 1977, and on the following day filed “Defendant’s Further Reply to Plaintiff’s Proceedings in Discovery Under Rule 621a and a Statement of a Cause of Action Against Charles Wooldridge, Dallas Harrison and Stonewall Bank.” This appeal concerns the granting of the Bank’s motion to quash or strike the “Further Reply”.

In the “Further Reply”, Butler sets out claims against the Bank and two persons who were not parties to the original suit. He asks for: (1) judgment of $20,000 against Wooldridge and Harrison; (2) abatement of any action by the Bank until the funds obtained by Wooldridge and Harrison have been restored to the Bank; and (3) any judgment lien be directed to be enforced against Wooldridge and Harrison prior to any action against Butler or four other persons who were not parties to the original suit. In response to this new cause of action, brought forward for the first time in the post-judgment discovery proceedings, the Bank filed a motion to quash, or in the alternative, to strike all or portions of Butler’s “Further Reply”. The Bank’s motion also contained numerous special exceptions to the “Further Reply” and an allegation of want of jurisdiction of the new claims. The trial court granted the Bank’s motion. From this ruling, Butler brings this appeal.

The Bank contends that the order granting its motion to quash or to strike is a denial of Butler’s prayer to temporarily enjoin further discovery proceedings and therefore is interlocutory. It filed a motion to affirm on certificate under Rule 387, T.R.C.P., claiming the appeal was not timely because the record was filed more than twenty days after judgment. The time for filing the record in an appeal of an injunc-tive matter is twenty days. Rule 385, T.R. C.P. Butler responded that the order is not interlocutory, but is a dismissal of his cause of action. As noted above, Butler’s prayer for relief in his “Further Reply” asks for judgment against Wooldridge and Harrison, for abatement of the discovery proceeding while this new claim is adjudicated, and for a priority order concerning properties against which the Bank’s judgment is to be satisfied.

In a ruling on April 28, 1978, we decided to carry the motion to affirm on certificate with this case. In Butler’s brief he does not bring forward a point of error complaining about the failure to temporarily enjoin further discovery proceedings, and we conclude that he has not attempted to appeal from the denial of injunctive relief. Accordingly, the Bank’s motion to affirm on certificate is denied.

Appellant urges three points of error which are grouped together for argument in his brief. The points allege it was error for the trial court: (1) to grant the motion to quash and dismiss for want of jurisdiction; (2) to disregard and not respond to appellant’s exception to the court’s order quashing and striking all of the pending action where such exception directed the court’s attention to the severability of the then pending causes of action; and (3) to respond to the Bank’s motion to quash when there were severable pending actions against one or more defendants. Butler contends that the trial court had jurisdiction of the new causes of action, and that because these claims were pending, the court’s summary dismissal was erroneous and an abuse of discretion.

Butler recognizes that the judgment in cause no. 74-3887-F is final, but finds this no impediment to the initiating of a new claim in the same cause against new parties because, as stated in his brief, the proceeding in discovery was separate and apart from any of the litigable matters which were indeed res adjudicata. Apparently he views the proceeding under Rule 621a to have the characteristic of a separate suit similar to a bill of discovery under Rule 737, T.R.C.P.

A post-judgment discovery proceeding under Rule 621a is equivalent to a post-judgment bill of discovery under Rule 737, the only difference being whether the action is filed ancillary to the main suit or in an independent suit. Emmons v. Creditor’s Financial Services, 492 S.W.2d 363 (Tex.Civ.App.—Waco 1973, no writ). The purpose of a post-judgment bill of discovery under Rule 737 or a post-judgment proceeding in aid of judgment under Rule 621a is the same. In either case, the successful party in the main suit may invoke the aid of the court in effecting discovery of the judgment debtor’s assets in his effort to locate assets from which the judgment can be satisfied. Neither post-judgment discovery procedure can be used as a vehicle to reopen the main case or to independently join additional claims or parties.

A historical review of bills of discovery and their nature as separate equitable proceedings is well explained in Equitable Trust Co. v. Jackson, 129 Tex. 2, 101 S.W.2d 552 (Tex.Com.App.1937, opinion adopted). It is well settled that a ruling on a discovery motion filed in a bill of discovery brought before or during pending litigation is not appealable. Crane v. Tunks , 160 Tex. 182, 328 S.W.2d 434 (1959); Equitable Trust Co. v. Jackson, supra; Dallas Joint Stock Land Bank v. Rawlins, 129 S.W.2d 485 (Tex.Civ.App.—Dallas 1939, no writ); Thompson v. Republic Small Business Invest. Co., 464 S.W.2d 726 (Tex.Civ.App.—Dallas 1971, no writ); Morris v. Hoerster, 368 S.W.2d 639 (Tex.Civ.App.—Austin 1963, writ ref’d n. r. e., cert. den. 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 614 (1964). It is equally well settled that a ruling on such a discovery motion brought in a post-judgment bill of discovery is final and ap-pealable. Dallas Joint Stock Land Bank of Dallas v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993 (1940); Thompson v. Republic Small Business Investment Co., supra; South Falls Corporation v. Davenport, 368 S.W.2d 695 (Tex.Civ.App.—Dallas 1963, no writ). The finality of a ruling on a discovery motion in a post-judgment bill of discovery under Rule 737 and an action for discovery in aid of enforcement of judgment under Rule 621a is the same.

The question in this case, however, does not involve a ruling granting or denying discovery. It is therefore necessary for us to decide whether a ruling on a motion not involving discovery, but filed with a discovery proceeding, is final and appeala-ble. The order granting the Bank’s motion to quash or strike Butler’s “Further Reply” finally disposed of Butler’s newly asserted claims. There is nothing in the record to indicate any pending motions to compel discovery. In fact, the record reflects that Butler timely complied with the Bank’s request to answer interrogatories. We conclude that the order which strikes the “Further Reply” is not interlocutory or preliminary to an anticipated final judgment, but is reviewable.

Butler claims that the Bank’s motion to quash is, at most, a complaint of misjoinder, and his cause of action cannot be dismissed for misjoinder, citing Cruz v. Guajardo, 502 S.W.2d 610 (Tex.Civ.App.—Corpus Christi 1973, no writ). But improper joinder of parties in a pending suit is quite different from an attempt to join new parties in a suit in which judgment is already final.

Butler apparently desires to try a new and different lawsuit separate from the main action in which judgment is already final, but yet have the new suit considered as a part of or ancillary to a post-judgment discovery proceeding in the main suit. This he cannot do. While he may be free to file a separate suit in order to assert these claims, he cannot attempt to bring these claims to final judgment in cause number 74-3887-F. This would amount to a second final judgment within the same suit.

Because the trial court had no jurisdiction to re-open the main suit or to permit a post-judgment ancillary suit involving matters other than discovery to be filed, it was not error to grant the Bank’s motion to quash or strike the “Further Reply.” Butler’s referral to his claim as “pending” in his points of error is incorrect. All of appellant’s points are overruled.

The judgment of the trial court is affirmed.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Betty Jean PRASEK, Appellee.
    No. 1307.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1978.
    Rehearing Denied Aug. 29, 1978.

      Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.
    Robert B. Thornton, Robert R. Biechlin, Jr., Thornton & Summers, San Antonio, for appellee.
   OPINION

BISSETT, Justice.

This case involves death benefits under the Texas Workmen’s Compensation Law. Texas Employers’ Insurance Association, hereinafter referred to as “Texas Employers”, initiated this lawsuit, seeking to set aside an award made by the Industrial Accident Board to Betty Jean Prasek, the widow of Robert John Prasek. Betty Jean Prasek filed a “cross-petition” seeking the recovery of survivor’s death benefits. After a jury trial, the trial court rendered judgment on the verdict which among other things awarded Betty Jean Prasek statutory death benefits. Texas Employers appeals.

Mr. Prasek worked in oil fields practically all his life. At the time of his death, he was working for Harkins and Company (“Harkins”) as a tool pusher. He was “on call” twenty-four hours per day, but was free to go home to sleep and eat. The company also provided a trailer house and, according to a Harkins’ Vice President, a company employee could use the trailer house for eating and sleeping while on duty if the occasion demanded that the employee be physically present at the drill site during his usual hours for eating and sleeping. Mrs. Prasek testified that the trailer was kept stocked with food and that it was usual for Mr. Prasek to eat and even sleep there, especially when he was required to be at the well site around the clock during crucial drilling stages, as was the case at the time of the accident. Her testimony was not contradicted or disputed. At 9:00 P.M. on a Sunday evening around the end of March, 1975, Mr. Prasek left his home in Cuero, Texas to go to work at Rig No. 2 near Cuero, where Harkins was drilling a well for Kilroy and Company. He returned home for breakfast around 9:30 A.M. the following morning. Mrs. Prasek had Mondays off from her job as a restaurant waitress and cashier, and, as was customary on Mondays, she accompanied Mr. Prasek to the drilling site, after breakfast. On arrival that Monday morning around 10:30 A.M., Mr. Prasek went to the rig floor to supervise the setting of pipe, and Mrs. Prasek went to a trailer house on the rig site, where she embroidered and read a magazine.

Around 3:00 P.M., Mr. and Mrs. Prasek went to Cuero to have lunch and do some grocery shopping, after which they returned to the drill site. About 12:45 A.M., (the next morning) Mr. Prasek told Mrs. Prasek to prepare a meal because he and Hoot Wright, an employee of Kilroy, would be in to eat in about fifteen minutes. When Mr. Prasek and Wright came in to eat, Mrs. Prasek served them. She then went to the stove to get her own plate, and when she returned Mr. Prasek had collapsed. Hoot Wright and others tried to assist Mr. Prasek, but to no avail. Mr. Prasek was taken to the hospital at Cuero, where he died of aspiration of food.

The jury found that 1) Mr. Prasek received an injury on or about April 1, 1975; 2) that the injury was received in the course of his employment by Harkins; and 3) that the injury was the producing cause of Mr. Prasek’s death.

Texas Employers brings forward twelve points of error. In point one, it is asserted that there is “no evidence” to support the jury’s answer to Special Issue No. 2, wherein it was found that Mr. Prasek received an injury in the course of his employment. That finding is also attacked in point two on the ground that the evidence is (factually) insufficient to support the same. Texas Employers, in points three and four, contends that there is “no evidence” and (factually) “insufficient evidence” that Mr. Pra-sek’s choking on a particle of food had to do with and originated in the work of his employer. In points five to eight, complaints are made that the trial court erred in rendering judgment for Mrs. Prasek because, as a matter of law: 1) there is no causal connection between Mr. Prasek’s employment and his choking on a particle of food (point five); 2) the particle of food was not such a hazard within the scope of Mr. Prasek’s employment as would allow recovery for the choking and resultant death of Mr. Prasek (point six); 3) the risk of choking on a particle of food was purely personal and was not a hazard peculiar to the employment of Mr. Prasek (point seven); and 4) Mr. Prasek’s employment did not subject him to a greater hazard from choking on a particle of food than ordinarily applies to the general public (point eight).

Section 1 of Tex.Rev.Civ.Stat.Ann. art. 8309 (1967) provides with respect to the term “injury sustained in the course of employment” as follows:

“The term ‘injury sustained in the course of employment,’ as used in this Act, shall not include:
(1) An injury caused by an act of God, unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from an act of God responsible for the injury than ordinarily applies to the general public.
(2) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.
(3) An injury received while in a state of intoxication.
(4) An injury caused by the employee’s wilful intention and attempt to injure himself, or to unlawfully injure some other person, but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

For a claimant to recover under our statute he must meet two requirements: (1) the injury must have occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business and (2) the claimant must show that the injury was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession. Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex.Sup.1977); Texas General Indemnity v. Bottom, 365 S.W.2d 350 (Tex.Sup.1963).

In determining whether the injury originated out of claimant’s employment, it is necessary to determine that there was a sufficient causal connection between the conditions under which his work was required to be performed and the resulting injury to him. Such an injury originates out of claimant’s employment when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent or incident to the conduct of such work or business. Texas Employers Insurance Association v. Page, supra; American General Ins. Co. v. Williams, 149 Tex. 1, 227 S.W.2d 788 (1950); Lumberman's Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App.—Eastland 1931, writ ref’d). The fact that an employee is injured while at work or on the premises of the employer does not in and of itself make the injury compensable. Liberty Mutual Insurance Co. v. Hopkins, 422 S.W.2d 203 (Tex.Civ.App.—Beaumont 1967, writ ref’d n. r. e.).

The most serious challenge made to the judgment of the trial court is that Mr. Prasek’s injury contained no element of causative danger peculiar to the work involved. 62 Tex.Jur.2d Workmen’s Compensation, § 76 (1965). In that regard we note that an employee need not have been engaged in the discharge of any specific duty incident to his employment; rather an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger. Such acts are considered as incidental to the employee’s service and the injuries sustained while doing so arise in the course of employment and are com-pensable. Texas Employers' Ins. Ass’n v. Anderson, 125 S.W.2d 674 (Tex.Civ.App.—Dallas 1939, writ ref’d); Insurance Company of North America v. Estep, 501 S.W.2d 352 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.); Texas Employers’ Insurance Ass’n v. Davidson, 295 S.W.2d 482 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n. r. e.); 62 Tex.Jur.2d, Workmen’s Compensation, § 92 (1965). Also, the fact that an employee performs an act in an improper manner does not preclude recovery under compensation laws. Whether an employee sustained an injury while in the course and scope of his employment is to be determined on the peculiar facts of each case and is usually a question of fact for the jury. Insurance Company of North America v. Kneten, 430 S.W.2d 565 (Tex.Civ.App.—Waco 1968), aff’d, 440 S.W.2d 52 (Tex.Sup.1969); Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581 (1938). The Compensation Act should be liberally construed in favor of the employee. Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73 (1953); Texas Employers Insurance Association v. Loesch, 538 S.W.2d 435 (Tex.Civ.App.— Waco 1976, writ ref’d n. r. e.).

We hold that the injury suffered by Mr. Prasek was incidental to and originated in his employment. While the record does not disclose whether or not the employer furnished the meal, and particularly the steak on which Mr. Prasek choked to death, it is nevertheless apparent that the employer provided the facilities on its premises whereby employees who were on call could attend to their personal necessities while on the job. The employer by providing employees such as Mr. Prasek a place to sleep and prepare meals invited their presence. The fact that Mr. Prasek was at the drill site at midnight supports an inference that the drilling had reached a very critical stage and that his presence was required. The record clearly discloses that the house trailer was to serve no purpose other than the business interest of Harkins and the convenience of its employees.

It was within the province of the jury to conclude that it was the employer’s work which brought Mr. Prasek to the place where the injury occurred. We have reviewed the record and weighed the evidence according to the standards laid down by our Supreme Court. We find there is ample evidence that Mr. Prasek, at the place of injury and time he sat down to eat his meal, was then and there engaged in an act incident to his employment; that is, the act of eating his meal at the trailer house was connected with the work he was employed to do for his employer. Goodyear Aircraft Corporation v. Industrial Commission, 62 Ariz. 398, 158 P.2d 511 (1945); St. Alexandre v. Texas Co., 28 So.2d 385 (La.Ct.App.1946); Campbell v. Liberty Mutual Insurance Company, 378 S.W.2d 354 (Tex.Civ.App.—Eastland 1964, writ ref’d n. r. e.); Southern Surety Co. v. Shook, supra. The cases dealing with idiopathic events, upon which Texas Employers relies, are not applicable to this case since Mr. Prasek was under no preexisting condition. Choking on a particle of food does not constitute an act of God.

There is no dispute that Mr. Prasek was engaged in or about the furtherance of his employer’s work at the time of the injury. There is ample evidence which shows that the injury “originated in” or “had to do with” the employer’s work. We find that the evidence is sufficient to meet “the two-prong course of employment” test. See Texas General Indemnity v. Bottom, supra; Texas Employers Insurance Association v. Page, supra. Points one to eight, both inclusive, are overruled.

In connection with the submission of Special Issue No. 2, which inquired as to whether or not Mr. Prasek suffered an injury in the course of his employment, which was answered in the affirmative, the following instructions, over Texas Employers’ objections, were set out in the court’s charge:

“ ‘Injury in the course of employment’ means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.
In this connection you are instructed that an act at the place or area of employment necessary to the health, comfort, and convenience of an employee while within working hours, during a lunch period, or while preparing to begin work or leave the premises, is not a departure from the course of employment.”

Texas Employers, in points nine, ten, eleven and twelve, asserts that the second instruction given to the jury in regard to Special Issue No. 2 was misleading; that it shifted the burden of proof; that it constituted a comment on the weight of the evidence; and that it precluded submission of an essential element to the jury. We do not agree. When both instructions are read together, it is apparent that the second merely explains the first; it simply instructs the jury that the mere fact that the employee, at the time of injury, is engaged in a personal activity, such as eating, does not in and of itself constitute a departure from the course of employment, so long as the requisites of the first instruction are not. The second instruction was not misleading; it did not shift the burden of proof; it was not a comment on the evidence; it did not preclude the submission of an essential element to the jury. We do not find the instruction to be so defective as to result in the rendition of an improper judgment. See Texas Employers’ Insurance Association v. Davidson, 295 S.W.2d 482, 484-85 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n. r. e.); Texas Pattern Jury Charges, Vol. 2, § 21.31 (1970). See also Fritzmeier v. Texas Employers’ Ins. Ass’n, 131 Tex. 165, 114 S.W.2d 236, 239 (Tex.Com.App.1938, opinion adopted) wherein the court noted that “ ‘originating in the work, business, trade or profession of an employer’ ” was not a legal term requiring definition. Points nine, ten, eleven and twelve are overruled.

The judgment of the trial court is AFFIRMED.


author: NYE, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Elbert N. HERRON, Appellee.
    No. 1315.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1978.
    Rehearing Denied Aug. 29, 1978.

      James W. Wray, Jr., H. T. Hermansen, Jr., Dyer, Redford, Burnett, Wray & Wool-sey, Corpus Christi, for appellant.
    Anthony F. Constant, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a workmen’s compensation case. The injured employee, Elbert N. Herron, filed his claim with the Industrial Accident Board more than six months after the accident took place. The Board made an award from which the insurance company, Texas Employers’ Insurance Association, appealed to the District Court. Herron filed a cross-action to recover the benefits to which he contends that he is entitled under Art. 8306, Tex.Rev.Civ.Stat.Ann. (1967). Based on the jury’s answers to special issues, the trial court entered judgment awarding Herron benefits for total and permanent disability. The appellant insurance company, Texas Employers’ Insurance Association, perfected its appeal to this Court.

On August 22, 1975, Herron sustained personal injuries in the course and scope of his employment as a mechanic for Trade-winds Ford Sales, Inc., in Corpus Christi, Texas. Herron reported the injury to his boss, Fred Burke, vice president and service manager for Tradewinds Ford. Thereafter, in spite of several attempts, Herron was unable to return to work. Although the accident took place on August 22, 1975, Herron did not file his claim for compensation with the insurance company until September 4, 1976, approximately twelve and one-half months after his accident. Herron testified that during this intervening period, he received repeated assurances by Burke that he (Herron) should not worry about insurance because everything would be “taken care of”. Herron testified that these assurances caused him to believe that any necessary paperwork would be taken care of by his employer. In August, 1976, Herron consulted an attorney who discovered that no claim for benefits had been filed. Immediately thereafter, Herron’s claim was filed on September 4, 1976.

In addition to other special issues, the trial court submitted special issues to the jury requesting findings on whether or not good cause existed for the belated filing of Herron’s claim. The jury made the following findings in response to the good cause special issues: 1) that within six months from the date of his injury, Tradewinds Ford or its agents had represented to Her-ron that notice of claim had been filed with the Industrial Accident Board; 2) that Her-ron believed continuously until about the time his claim was filed that his claim had been filed for him by representatives of Tradewind Ford; 3) that such belief caused Herron to delay filing a claim for compensation until the time the claim was filed; and 4) that such belief was good cause for Herron’s delay in filing the claim for such period of time. The sole issues before us on appeal concern the sufficiency of the evidence to support the jury’s answers to these special issues.

In workmen’s compensation actions, the claimant must plead and prove that he timely presented his claim to the Texas Industrial Accident Board within six months after the occurrence of the accident. If the claim is filed after the expiration of the six-month period, the claimant must show that good cause existed for his failure to file the claim within the statutory time limit. Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 4a (1967). Furthermore, when a claim has not been properly presented within the six-month period, the claimant must prove that good cause for failure to file continued up to the date of filing. Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33, 34 (Tex.Sup.1965); Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053 (1939). The meaning of the term “good cause”, while not defined in Art. 8307, supra, was clearly set forth in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948) as follows:

“The term ‘good cause’ for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.”

In accordance with these guidelines, the totality of the claimant’s conduct must be considered to determine whether the test of ordinary prudence has been met. Lee v. Houston Fire & Casualty Ins. Co., 530 S.W.2d 294, 297 (Tex.Sup.1975); Moronko v. Consolidated Mutual Insurance Co., 435 S.W.2d 846, 848 (Tex.Sup.1968); Texas Employers Insurance Association v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.—Amarillo 1940, writ ref’d). The claimant’s reason for delaying the filing of his claim is to be found principally in his own testimony. Texas Casualty Insurance Company v. Beasley, supra at 35.

Appellant insurance company brings forward eight points of error on appeal. These points of error are legal and factual insufficiency complaints directed to each of the above jury findings relevant to good cause. The thrust of appellant’s appeal, however, is its contention that, even if we should find the jury’s answers to special issues 1 through 3 above to be warranted by ample evidence, Herron, as a matter of law, failed to prove that degree of diligence necessary to support the jury’s ultimate finding of “good cause” (special issue 4 above). Before addressing this contention, we consider appellant’s legal and factual insufficiency points attacking the first three jury findings. A no evidence point of error is a question of law, and in considering the question, it is the duty of this Court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of the judgment and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972). In deciding an insufficiency evidence point, this Court is required to consider all of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Fred Burke, vice president and service manager of Tradewinds Ford, had been a close personal friend of Herron for over twenty years at the time Herron sustained his injury. Burke characterized their relationship as a “very close” one. The Herrons and the Burkes made frequent social visits to each other’s homes. Herron testified that Burke came to see him in the hospital and visited him in his home many times after the accident. Herron testified that during these frequent visits Burke would tell him: “Al, don’t worry about insurance;” “everything will be taken care of down there [referring to Tradewinds Ford];” or “everything, all your insurance will be taken care of.” On many occasions, Herron testified, Burke told him: “Al, do you need anything? If you need money, I can get you money from down there if you need money, but don’t worry. Everything will' be taken care of.” Herron testified that similar statements were made to him on many occasions within the first six months after the injury. Herron stated that he believed Burke’s statements and added: “Why shouldn’t I believe him? He was my boss, and my friend, and he was a manager down there.” Herron also testified in essence that he understood these statements to mean that Tradewinds Ford would take care of all the necessary paperwork, including filing a notice of claim with the Industrial Accident Board. The record indicates that Burke had never had a workmen’s compensation claim before.

Burke testified to the effect that in his conversations with Herron, Burke never agreed to take care of all Herron’s paperwork in connection with the claim. Burke did admit, however, that he had agreed to “take care of it up to a reasonable point”. When he was asked, “What’s a reasonable point?”, Burke responded:

“Oh, I visited him in his home. I tried to find out if I could help with anything over there. I got a couple of tires for his wife’s car while he was sick. Me and my wife visited him in his home, and — let’s see — ”.

Concerning the assistance that Burke volunteered, Herron testified that he called Burke after the Tradewinds Ford’s insurance secretary had called him to inform him that premiums were due under a small personal policy carried through the company. Herron, immediately called Burke who, in effect, told him not to worry about the premiums, that they would be taken care of by the company. Apparently Tradewinds Ford thereafter paid these premiums. Burke admitted that he had volunteered to take care of an insurance matter unrelated to Herron’s workmen’s compensation claim.

Burke stated that, as service manager, one of his duties was to “make sure that the first report of injury is immediately filed. After that, normally the secretary takes care of it.” There is considerable testimony in the record indicating that the insurance secretary at Tradewinds Ford worked closely with Herron and his wife to file proper claims on other insurance policies carried through Herron’s employer.

The parties stipulated that Tradewinds Ford and the appellant insurance company received actual notice of Herron’s injury within 30 days of the occurrence. They further stipulated that the employer’s first report of injury (the “E-l” report) was filed with the Industrial Accident Board on or about October 21, 1975. A resident reviewer for the Industrial Accident Board testified that after the receipt of the “E-l” report, the Board’s procedure was to start a file relevant to the claimant’s injury. Relying on the information contained in the “E-l” report, the Board would then mail instructions to the claimant concerning the procedures to follow in submitting a notice of claim to the Board. In this case, the “E-l” form did not contain Herron’s proper mailing address. Herron testified emphatically that he did not receive instructions concerning such procedures. Nevertheless, Herron received weekly workmen’s compensation checks for 23 weeks, beginning on approximately August 22, 1975, and continuing through February 2, 1976, a period of almost six months.

There is ample evidence to support each of the first three jury’s findings in question. Herron had been employed with the same dealership for over 20 years, during which time Burke and Herron had a very close relationship. Burke visited Her-ron in the hospital and at home many times between the injury and the filing of the claim and repeatedly assured Herron that everything was taken care of. He assured Herron that he should not worry about his workmen’s compensation claim. There is ample testimony to the effect that Herron believed that all of the necessary paperwork, including his notice of claim, had been filed. Herron started receiving workmen’s compensation benefits shortly after his injury. The jury's answers to the first three good cause issues are not against the great weight and preponderance of the evidence. In Re King’s Estate, supra. Appellant’s first six points of error are overruled.

During oral arguments and, again, in its post submission brief, appellant insurance company admitted that good cause for Her-ron’s delay existed, at least until Herron stopped receiving workmen’s compensation benefits, approximately February 2, 1976. Appellant vigorously contends, however, that there is no evidence of “good cause” for the intervening period of approximately seven months which ended on September 4, 1976, the date Herron’s claim was filed. Appellant argues, in essence, that during this period, Herron did nothing but rely on Burke’s prior representations. Appellant contends that such cessation of benefits charged Herron with knowledge, as a matter of law, that no claim had been filed, and thereafter, Herron’s continued reliance on Burke’s prior statements was insufficient diligence.

We must review the record in order to determine whether there is any evidence to support the jury’s finding of good cause for the untimely filing. The appropriate appellate standard of review for this determination was recently reaffirmed by the Supreme Court in Lee v. Houston Fire & Cas. Ins. Co., supra, at 296.

“In Moronko v. Consolidated Mutual Insurance Company, 435 S.W.2d 846 (Tex.1968), this court stated that to hold as a matter of law good cause is not shown is to hold that there is no evidence to support the jury’s finding that the test of ordinary prudence has been met. If there is any evidence of care and pru- ' dence in the prosecution of the claimant’s rights, the sufficiency of the evidence is a question for the jury. Texas Employers’ Ins. Ass’n v. Crain, 259 S.W.2d 905 (Tex.Civ.App.—Fort Worth 1953, writ ref’d n. r. e.). Thus, whether the claimant has exercised that degree of diligence required under the ordinarily prudent person test is usually a question of fact to be determined by the jury or trier of fact. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948).”

A claimant is presumed to know the law. Mere ignorance of the six-month filing requirement will not constitute good cause for delay in filing. Lee v. Houston Fire & Cas. Ins. Co., supra; Allstate Insurance Company v. King, 444 S.W.2d 602, 605 (Tex.Sup.1969). Payment of compensation benefits or medical bills by the compensation carrier may constitute good cause. Continental Casualty Company v. Cook, 515 S.W.2d 261, 263 (Tex.Sup.1974). Reliance on statements of employers or their agents may constitute good cause for a delayed filing. Lee v. Houston Fire & Cas. Ins. Co., supra at 297. However, mere reliance on an employer’s promise to file a claim, without more, does not constitute good cause, particularly where 1) there is a lengthy delay between the promise and the ultimate filing date, or 2) the claimant had not been told that a report had actually been sent to the Board. See Allstate Insurance Company v. King, supra. See also Lee v. Houston Fire & Cas. Ins. Co., supra at 298.

The record does not support appellant’s argument that Herron did “absolutely nothing about his compensation benefits” for the seven month period after his workmen’s compensation checks stopped. The record shows that after the compensation checks ceased, Herron contacted Burke about the problem. Herron testified that Burke assured him that he would “check into it”. He (Burke) then told Herron: “Things are taken care of, don’t worry about it, Al.” There is considerable evidence in the record to the effect that both Herron and his wife repeatedly attempted to gain information concerning the status of his workmen’s compensation claim. There is testimony that Herron and his wife discussed insurance matters not only with Burke, but also the insurance secretary, and other managerial employees of Tradewinds Ford throughout the spring and into the early summer of 1976. Burke admitted that it was his personal knowledge that the insurance secretary had talked with Herron about his workmen’s compensation insurance, but the exact time was not specified. Although the insurance secretary had informed Herron on other occasions when insurance matters needed attention, Herron was never told after the checks stopped that he needed to file a claim.

Herron testified, in effect, that he was repeatedly reassured that everything was all right by his conversation with Burke and by the fact that he was receiving some money on a short term disability policy issued by John Hancock Life Insurance Company. The payments under the John Hancock policy commenced at about the time his compensation ceased and continued thereafter until some time in August, 1976, just prior to the filing of the present late claim. In August, 1976, when his financial situation became critical, he consulted an attorney. The attorney investigated his case and discovered that no notice of his claim had been filed with the Board. Shortly thereafter, on September 4, 1976, the attorney filed such a notice on Herron’s behalf. Herron, in essence, testified that until he was informed that no claim notice had been filed, he was under the impression that Tradewinds Ford had completed all of the necessary paperwork, including such a claim notice.

Appellant relies primarily upon Allstate Insurance Company v. King, 444 S.W.2d 602 (Tex.1969) and Texas Employers Insurance Association v. Coronado, 519 S.W.2d 517 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.) to support its argument that there is no evidence of good cause in the present case. Herron, on the other hand, contends that the decision in Lee v. Houston Fire & Cas. Ins. Company, 530 S.W.2d 294 (Tex.Sup.1975) controls the disposition of this case. We have carefully examined each of these cases and conclude that Lee is factually more analogous to the case before us. As was the situation in Lee, more evidence is present here than a simple employer’s promise to file a claim in the future. After Herron’s compensation benefits had ceased, Herron testified he was told not to worry because “things are taken care of”. (Emphasis ours). Herron, like Lee, did not rely solely on a future promise but on a present purportedly completed act.

There are still other factors present in this case. After Herron told Burke his compensation benefits had ceased, Burke promised he would “check into” the matter. Burke, who was Herron’s boss, was a close personal friend. On previous occasions Burke had assisted the Herron family in company insurance matters and personal family affairs. Herron had no reason to doubt Burke. Under these circumstances, particularly since Burke not only reassured Herron that everything was in order, but also promised to investigate the mere cessation of workmen’s compensation benefits is not as significant as appellant contends. Herron and his wife made several inquiries to Burke and the insurance secretary who both had established a practice of assisting the Herrons with insurance matters. This also is evidence of diligence.

Considering the facts and circumstances in the light most favorable to the jury’s answer to this issue, we cannot agree with the appellant that the evidence presented in this particular controversy reveals that the late filing date was due to a lack of diligence as the only reasonable conclusion. It cannot be said that good cause for the untimely filing did not exist as a matter of law. We believe that Herron acted as an ordinarily prudent person would have under the same or similar circumstances as the jury so found. The question of good cause was properly one for the jury’s determination in this case.

In addition to the evidence discussed above, we have carefully considered all of the remainder of the record and conclude that appellant’s factual insufficiency point must also be overruled. The evidence supporting the jury’s answer to special issue 4 above is not against the great weight and preponderance of the evidence. In Re King’s Estate, supra.

The judgment of the trial court is AFFIRMED.


text:
    Ethel SNEED, Appellant, v. H. E. BUTT GROCERY COMPANY, Appellee.
    No. 1323.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1978.
    Rehearing Denied Aug. 29, 1978.

      Frederic Johnson, Sinton, for appellant.
    George G. Brin, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

NYE, Chief Justice.

This is a slip and fall case. The plaintiff, Ethel Sneed, brought suit against H. E. Butt Grocery Company for injuries she sustained as a result of slipping on a grape in defendant’s store. The case was tried before a jury which answered the liability issues against the plaintiff resulting in a take nothing judgment. Mrs. Sneed appeals complaining primarily that the trial court abused its discretion in ruling on the various discovery procedures instituted by Mrs. Sneed.

Mrs. Sneed, as the appellant, states that her question on appeal relates to whether or not the trial court abused its discretion by the limits it placed on the appellant Sneed to discover and present evidence which could have permitted the jury to find for the appellant. Stated differently, in the appellant’s brief the appellant says that all of her points are directed collectively at the fact that the court erred in refusing to permit her to discover from the defendant company the number of accidents involving grapes occurring on its premises among its 167 stores which it operates. The appellant states that it was her theory of this case that the store manager was negligent in displaying the grapes in bulk rather than packaging the grapes. Plaintiff’s idea was that if she could discover the number of accidents throughout the store system involving slip and fall cases on grapes that she might be able to show that such lack of packaging created a dangerous condition, and that the defendant knew of this danger and did nothing to protect this appellant, all of which caused or was a proximate cause of her injuries.

The appellant says that if she had been able to show that there were many similar accidents in the defendant’s other multiple stores during the last several years, this would be a natural and convincing way of showing a jury that the sale of unpackaged fruits and vegetables constituted a hazardous condition when so used in defendant’s operations.

Each of the appellant’s points of error are directed at the abuse of discretion of the trial judge in failing to permit the discovery sought by the appellant. In addressing this question, we must test the trial court’s ruling to see if it was arbitrary or unreasonable. Landry v. Travelers Insurance Co., 458 S.W.2d 649 (Tex.Sup.1970). And if so, whether such ruling caused or probably caused the rendition of an improper judgment. Rule 484, T.R.C.P. See Bounds v. Caudle, 549 S.W.2d 438 (Tex.Civ.App.— Corpus Christi 1977), rev’d on other grounds, 560 S.W.2d 925 (Tex.Sup.1978).

Appellant’s points of error must be overruled. The trial court did not abuse its discretion. The rules related to the discovery procedures in question here specifically authorize the trial court to: 1) quash or modify a subpoena if it is “unreasonable and oppressive”; and to 2) enter orders protecting the party from whom discovery is sought from “undue annoyance, embarrassment, oppression or expense”. Rules 177a and 186b, T.R.C.P.' This the trial court did. The court permitted discovery as to the number of grape-fall accidents which occurred at defendant’s store in question. Such discovery revealed that two such accidents occurred during the past year that the store was in operation. The trial court authorized the appellant to gather this information concerning these two particular incidents. Even if it could be said that the trial court should have permitted additional discovery into all of the grape-fall accidents which had occurred at all of defendant’s stores, the appellant cannot and does not show harm because of the trial court’s ruling. The appellant did not even attempt to utilize the discovered evidence she had at the trial concerning the prior grape-fall accidents which occurred at the very store in question.

At the beginning of the trial, the court granted appellee’s motion in limine which, in effect, precluded the appellant from introducing any evidence concerning prior accidents until the appellant, outside the presence of the jury, established the materiality and relevancy of such evidence. This, she did not attempt to do. Appellant made no attempt to offer any type of such evidence, secure an adverse ruling from the court, or to preserve the substance of such evidence for appellate review. See Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 335 (Tex.Sup.1963); City of Corpus Christi v. Nemec, 404 S.W.2d 834, 836 (Tex.Civ.App.—Corpus Christi 1966, no writ). Furthermore, the appellant did not attempt to elicit the desired information concerning accidents in other stores by subpoenaing the appropriate witnesses from the defendant company or by questioning those company witnesses that were present at trial. See Meyer v. Kupatt, 549 S.W.2d 263, 266 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). There was no attempt to utilize the available evidence regarding prior accidents at the store in question. In addition, no bill of exception was presented during the course of the trial that would show the relevancy of the evidence the appellant wanted to discover, i. e., evidence concerning prior slip and fall accidents occurring in other stores of the defendant company because of the method of packaging. See Gale v. Spriggs, 346 S.W.2d 620 (Tex.Civ.App.—Waco 1961, writ ref’d n. r. e.). There is no basis from the record before us to review appellant’s contentions that the trial court’s action was responsible for the rendition of an improper judgment.

We have reviewed the entire record, considered all of appellant’s points of error, and do not find reversible error. The judgment of the trial court is AFFIRMED.


author: O’QUINN, Justice.

text:
    Audrey Williams FAGLIE, Appellant, v. Charles E. WILLIAMS et al., Appellees.
    No. 12690.
    Court of Civil Appeals of Texas, Austin.
    June 28, 1978.
    Rehearing Denied July 19, 1978.

      David L. Tisinger, Roy Y. Martin, Gus M. Hodges, Roger W. Hughes, Austin, for appellant.
    Forrest N. Troutman, Sneed, Vine, Wilkerson, Selman & Perry, Austin, Jerry C. Saegert, Austin, for appellees.
   O’QUINN, Justice.

In its initial stage this lawsuit, brought in August of 1976 by Audrey Williams Faglie, now appellant, against a daughter and three sons, was a suit in trespass to try title to approximately four acres of land, now in the northwest part of the City of Austin. As amended from time to time, the suit at time of trial in May of 1977 involved two tracts of land, the second consisting of about seven acres, and suit encompassed several defendants, in addition to the four children of appellant.

The case was tried before the court without aid of a jury, and in June of 1977 the trial court entered judgment that Audrey Williams Faglie take nothing by her suit. We will affirm the judgment of the trial court.

As originally instituted, the suit in trespass to try title set up a claim of one-half interest in the four-acre tract, under a number of legal theories, by virtue of a relationship spanning three decades with Mike Williams, who died in 1956. Plaintiff alleged, and at trial it was shown, that the daughter and three sons of appellant sold the four acres to a limited partnership, engaged in land development, in 1975 for $156,300, retaining a vendor’s lien, secured by deed of trust.

By amendments subsequent to the initial filing, plaintiff below alternatively sought recovery of the value of improvements placed by her on the property. Plaintiff also sued for a share in the proceeds of sale by the children of an adjoining tract of seven acres, sold by them in 1967 for $12,-000. Defendants ultimately made parties included the four children by Mike Williams, the limited partnership, and others acting as trustees or in other capacity.

The record is voluminous, consisting of 665 pages in the statement of facts and 583 pages in the transcript. Numerous witnesses testified, in person and by deposition, and extensive documentary, photographic, and other graphic and instrumental evidence was introduced at trial. The controlling issues in this case grew from, or are interwoven in some fashion with, the relationship between Audrey Williams Faglie and Mike Williams, the natural parents of the four defendants so far designated as the daughter and three sons of the couple.

The record reveals a succession of marriages, divorces, and deeds, but the legal status of the relationship between Audrey Williams Faglie and Mike Williams in the years from their marriage in 1930 to Williams’ death in 1956 is labyrinthine and in most aspects eludes classification. Harsh circumstances, arriving in this country with the stock market crash of 1929 and extending through the 1930’s, purportedly made expedient from the outset this starkly strange and unconventional union. As the testimony at trial unfolded, this union came more and more to find description in the words of W. Somerset Maugham, an articulate witness of life who observed, “It is not difficult to be unconventional in the eyes of the world when your unconventionality is but the convention of your set.” (The Moon and Sixpence, ch. 14).

Appellant and Mike Williams were ceremonially married in March of 1930 before a justice of the peace in Austin, when appellant was 15 years old and Williams was 34. The couple started married life in San Saba County, where they worked at cutting cedar posts before returning to Travis County in 1931, when they moved onto the seven-acre tract, one of the two parcels in controversy in this lawsuit. A son, Charles Williams, one of the defendants below, was born to the couple in 1937, and a daughter, Betty Williams (Cloud), also a party defendant, was born in 1938.

In December of 1942 appellant brought suit against Williams and obtained a divorce in Williamson Gounty under a judgment validity of which she seeks in this action to challenge. In her petition for divorce appellant alleged that she and Williams had no community property, and the trial court in the judgment entered in March of 1943 found “that the material allegations in the plaintiff’s petition are true.” In the action now on appeal appellant alleged and proved at trial that waiver of issuance and service of citation in the divorce action was signed by Mike Williams on December 19,1942, two days prior to the filing of the petition on December 21.

About two and one-half months after her divorce from Williams, appellant on May 28, 1943, married Howard Nalley, who was a friend of both Williams and appellant. At the trial of the present action appellant testified that Mike Williams originated the idea of a divorce from him and appellant’s marriage to Nalley, who was in the military service at that time, and that Williams persuaded Nalley to enter into the marriage with appellant for economic reasons.

Appellant explained at trial that Williams believed himself dying of tuberculosis and pressured appellant to get the divorce and marry Nalley because Williams could not provide enough to feed his family. Appellant pointed out that the children were sick, and she and the children could be cared for from Nalley’s military allotment. Appellant insisted, in effect, that the marriage to Nalley was purely an economic expediency, and that she did not consummate the marriage with Nalley, but on the contrary never left Williams’ bed and remained his wife until 1951 when they separated.

Appellant’s testimony as to the Williams’ illness, inability to provide for the family, and illness of the children was corroborated by Dollie Faglie, appellant’s sister-in-law during the time appellant, subsequent to 1951, was living with Robert Faglie and had taken his name. Other witnesses contradicted the testimony of both appellant and Dollie Faglie and claimed that Mike Williams had never been sick.

Howard Nalley testified in direct rebuttal of some of the essential matters to which appellant testified. Nalley denied that Williams had any influence on Nalley in bring- • ing about the marriage after appellant divorced Williams. In fact Nalley testified he and appellant were intimate in 1942, the year before the divorce and subsequent marriage to Nalley, and stated that he married appellant because at the time he was in love with her. In July of 1942, Nalley testified, he and Williams had a fist fight in a grocery store parking lot in Austin when, confronted by Williams, Nalley admitted to Williams that he loved Audrey, then Williams’ wife. Nalley stated that he was on military duty in Tennessee in 1943 and when unable to obtain a furlough to meet appellant in Livingston, Texas, where her sister lived, he went absent without leave for eight days in order to meet and marry appellant in Livingston. Nalley denied that the marriage was never consummated, and named occasions when he and appellant had relations as “man and wife.”

Appellant and Nalley married in May of 1943, and the following September 18 appellant filed suit for divorce. In her petition appellant alleged that at the time of her marriage to Nalley she was an unmarried woman and that their marriage was lawful. She also alleged that two days before filing suit, on September 16, Nalley had beaten her while in Texas on furlough and while in a drunken condition. Waiver of issuance and service of citation in this action was dated September 18, the day suit was filed, and, bore Nalley’s signature.

Nalley’s testimony again conflicts with that of appellant. He was uncertain whether he was in Texas on furlough in September of 1943 and could not remember signing the waiver. Nalley stated that when he returned from fifteen months of overseas duty in 1945 he had no reason to believe that appellant was not still his wife and therefore was surprised to discover that she was nine months pregnant by Williams with a child born less than two weeks later. The child, Dennis Williams, is a party defendant in this case. The divorce from Nalley was granted appellant on December 10, 1945, about two months after Nalley’s return from military service.

As stated earlier, two adjoining tracts of land constitute the property in controversy, the tract of four acres was conveyed by Rena Williams Flint to Mike Williams by deed dated November 1, 1943. This occurred some eight months after appellant and Williams were divorced, about four months after appellant had married Nalley, and a month subsequent to the filing of her suit for divorce against Nalley. Appellant testified that when the deed passed she and Williams were living together as man and wife, and that they were agreed that she would buy the property and put it in Williams’ name. Appellant claimed that the down payment of $100 came in part from her brother, Mape Bartree, and in part from the first allotment check she received by reason of Howard Nalley’s military service. Appellant testified she thereafter made monthly payments of ten dollars to the vendor until the balance of $300 was paid in full.

Appellant by her testimony took credit for most of the construction work on a rock house erected on the four-acre tract between 1943 and 1945. She testified that Aubrey Neely, a rock mason, furnished a limited amount of labor and materials, and that Mike Williams was not well enough to help with the work. In contradiction, Betty Williams Cloud testified that Neely and her father, not her mother, built the house, and this testimony was corroborated by several neighbors. Appellant testified that she and Mike Williams moved into the house in October of 1945, shortly before Dennis Williams was born, and that they were living in the house when another child, Kenneth Williams, was born to them in 1947.

The record shows that part of the four acres, a small lot, was conveyed jointly by Mike and Audrey Williams as “man and wife” in 1946 to Mape Bartree, appellant’s brother, after which the lot was reconveyed to appellant and Williams, as “man and wife,” in 1950. Mike Williams conveyed his interest in the same lot to appellant as his “wife” a year later. In 1952, on June 23, appellant as Audrey Williams, “a widow, formerly the wife of . Mike Williams,” reconveyed the lot to Mike Williams. On the same day, acting in the same capacity, appellant conveyed her interest in the seven-acre tract to Mike Williams. Appellant conceded she signed the first deed to Williams, but denied she signed the deed conveying her interest in the seven acres. Both deeds were filed for record at the same time and the same notary public took acknowledgments on both deeds.

Appellant insisted in her testimony that she lived with Mike Williams as his wife until some time in 1951 when he forced her to leave him. She testified that she miscarried a child in 1950 that Mike Williams had fathered. Appellant claimed that Williams beat her regularly, and when she became pregnant again by Williams, she began living with her sister a mile away for reasons of health. Shortly thereafter, appellant testified, she persuaded Williams to convey to her his interest in the small lot, out of the four acres, which was occupied by a small house. From that place, appellant said, she walked back and forth to care for Williams and their children. It appears that it was about this time that Robert Faglie began living with appellant, purportedly for her protection. A child, named Bobby Faglie, was born in December of 1951, but appellant insisted Williams was its father, although Williams refused to allow appellant to give the baby his name. Appellant testified that she reconveyed the small house and lot to Williams in 1952 and left the property on advice of a doctor.

Thereafter, appellant testified, she and Faglie lived at various places nearby, and appellant paid weekly visits to the four children by Williams, who were living with their father. When Williams died in 1956, their son Charles Williams was in military service, and Betty Williams Cloud and her husband George continued their care of Dennis and Kenneth Williams living in the rock house on the four acres. Appellant stated that the Clouds preferred this arrangement because of the benefits they drew from social security. Appellant had several children by Robert Faglie over a period of years, and in 1973 Faglie brought suit for divorce alleging that he and appellant had entered into a common law marriage in February of 1951. Divorce was granted August 16, 1973.

Betty Williams Cloud testified that her mother began living with Faglie and abandoned Mike Williams and the children as early as 1949. From that time on, Mrs. Cloud stated, responsibility of caring for the two younger Williams children fell upon her and her husband. She refuted claims of her mother that appellant had frequently visited the children and helped with their care. This testimony was corroborated by George Cloud and by both Dennis and Kenneth Williams. The Clouds conceded that appellant once made demand for her two young sons, sometime in 1958 or 1959, and when refused, appellant left and “never did come back.”

Transfers of parcels of the disputed realty began in 1966 and were completed in 1975. By deed dated in May of 1966, Charles and Kenneth Williams conveyed, out of the four-acre tract, a parcel of one-half acre, on which the rock house was located, to their sister Betty and her husband George Cloud in May of 1966. The next year all four children and their brother-in-law George conveyed the seven-acre tract to Westover Hills, Inc., for $12,000. In 1975 the four children of appellant sold the entire four acres to a limited partnership for $156,000. Betty Williams Cloud and her husband, at time of trial were occupying the premises under a lease from the limited partnership.

At conclusion of trial the court found that “the law and the facts” were with defendants and entered judgment that plaintiff, now appellant, take nothing by her suit. No findings of fact and conclusions of law, aside from the judgment, were filed and none requested.

Appellant brings thirty-five points of error, which in the main attack the judgment on the basis of only three claims. Appellant contends that (1) she is the widow of Mike Williams because the judgment of divorce she obtained in 1943 was void for want of personal jurisdiction over Mike Williams; that (2) even if the judgment of 1943 be valid, she and Williams immediately thereafter established a common law marriage, irrespective of the subsequent ceremonial marriage to Howard Nalley and her subsequent relationship with Robert Faglie which ended in divorce; and that (3) even if her relationship with Mike Williams, after the divorce in 1943, was meretricious, the tract of four acres was purchased with her money and the property thereby was impressed with an express, or resulting, trust in her favor.

Secondary claims asserted by appellant are that (1) she is entitled to value of the improvements she made on the four acres, and that (2) the deed by which she conveyed to Williams her one-half interest in the seven acres in 1952 was void, entitling her to half the proceeds from sale of the tract by her children in 1967.

We consider first appellant’s contention that the judgment of divorce from Williams in 1943 was void and without effect. Appellant filed that suit against Williams on December 21, 1942, in Williamson County. The record in that cause reflects that Williams signed the waiver of issuance and service of citation on December 19, 1942, two days prior to filing of the petition.

Rule 119, Texas Rules of Civil Procedure, prescribes the general form of waiver and employs this language:

“The defendant may accept service of process, or waive the issuance or service thereof by a written memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn to by a proper officer . . . and filed among the papers of the cause . . ” (Emphasis added) (Rule 119, as amended effective January 1, 1961)

The Rule makes it clear that the waiver must be executed after the suit has been filed and not before. This requirement is made jurisdictional by Article 2224, V.A.C.S., so that a waiver executed prior to filing of an action is void. See 2 McDonald, Texas Civil Practice, sec. 9.02. The waiver Williams signed preceded the filing of suit by two days, was void under terms of Article 2224, and cannot support the judgment of divorce since the court did not acquire jurisdiction over the person of Williams. See 1 McDonald, sec. 1.04.

It has been held, however, that when the judgment is regular on its face and rendered by a court of general jurisdiction, the “ . . . judgment does not yield to a collateral attack.” Bragdon v. Wright, 142 S.W.2d 703, 705 (Tex.Civ.App. Texarkana 1940, writ dism’d). In that case the court stated: “A judgment rendered without acquiring jurisdiction over the defendant by some character of lawful notice, waiver or appearance is generally said to be void.. But such expression is not entirely correct, because a void judgment is one without any force or effect and may for that reason be attacked in any court in any proceeding, either directly or collaterally. Though entered without jurisdiction having been in fact acquired over defendant ... a judgment that is regular on its face and rendered by a court of general jurisdiction has a binding effect until set aside in a direct attack. Such is so for the reason that our courts accord absolute verity to the jurisdictional recitals contained in such a judgment. Such a judgment does not yield to a collateral attack.” (142 S.W.2d 705, col. 1)

The judgment of divorce recited that appellant, as plaintiff in that cause, appeared in person and by attorney, “ . . . and the defendant [Mike Williams], having filed a written waiver of citation herein, failed to appear . . . ” Where a judgment is collaterally assailed, as in this appeal, the jurisdictional recitals of the judgment are not open to attack but import absolute verity. Empire Gas & Fuel Co. v. Albright, 126 Tex. 485, 87 S.W.2d 1092, 1096 (1935). A recitation or finding that the defendant was served, or by other means such as waiver of citation was before the court, such finding imports verity and may not be impeached by other parts of the record. Jordan v. Texas Pacific Coal & Oil Co., 152 S.W.2d 875, 879 (Tex.Civ.App. Amarillo 1941, writ ref’d).

The rule is different in a direct attack upon a judgment, permitting objections in the court which pronounced the judgment or in a higher court upon appeal, writ of error, or certiorari. Albright, supra; Jordan, supra; Adamson v. Blackmar, 546 S.W.2d 698, 701 (Tex.Civ.App. Austin 1977, no writ). Under the facts of this case insistence by appellant that her attack is direct can avail her nothing, though the irregularity claimed with respect to the waiver be jurisdictional. Having invoked the jurisdiction of the district court to obtain a divorce, that court having jurisdiction over the subject matter, appellant may not be permitted thereafter to question validity of the judgment of divorce for want of jurisdiction. Spence v. State National Bank of El Paso, 5 S.W.2d 754, 756 (Tex.Comm’n App.1928, jdgmt. adopted).

In Spence the court declared that “To permit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts.” (Emphasis added) The court described this principle as “ . . . one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised — not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.” (Emphasis added) (5 S.W.2d 756, col. 1) To these pronouncements, the court added “ . . . one will not be allowed to take advantage of an error of the court which has been invited by him.” See 2 McDonald, Texas Civil Practice, sec. 1.04, fn. 21; Long v. Long, 365 S.W.2d 214 (Tex.Civ.App. Fort Worth 1963, no writ); Jett v. Sides, 367 S.W.2d 921 (Tex.Civ.App. Waco 1963, no writ).

Appellant’s contentions under her claim that the judgment of divorce from Williams in 1943 was void and not binding on her are overruled.

It is appellant’s position that even if the divorce in 1943 from Mike Williams was valid and effective, they continued living together after the divorce and maintained a common law marriage that survived until Williams died thirteen years later in 1956. This contention, pleaded and pursued in district court, was impliedly rejected by the trial court in its judgment that as plaintiff below appellant take nothing.

The marriage of a man and woman may be proved under the Texas Family Code by evidence in any judicial, administrative, or other proceeding that “ . . . they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.” (Emphasis added) Texas Family Code, sec. 1.91, V.A. C.S. In the same section the Code provides that “In any proceeding in which marriage is to be proved . . [under provisions of the section earlier stated] the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.” Section 1.91(b). The statutory provisions aré recognized as an enactment of prior case law already established in this state. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.Sup.1963); Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955).

Appellant insists upon inapplicability of the rule here, as applied in cases which hold that there is a presumption against any agreement to marry by common law means when there has been a subsequent ceremonial marriage by one of the parties. “This suggestion of the law . . . gives way,” appellant argues, “if there is an express agreement; that has been affirmatively shown in the testimony . . . ” The express agreement referred to is based on the testimony of appellant, who when asked if there was an agreement, replied, “We came right home together [from the divorce trial at Georgetown] just like we went over there together.”

Relying apparently on an assumption that since appellant’s statement is undisputed, the common law marriage was established as a matter of law because there is nothing to imply, appellant on appeal asks this Court to reverse the trial court’s judgment and render judgment for appellant.

Under Section 1.91 and settled case law, the party asserting a common law marriage has the burden to prove (1) an agreement, express or implied, between the parties to become husband and wife, (2) cohabitation pursuant to the agreement, and (3) holding out by the parties that they are in fact husband and wife. Shelton v. Belknap, supra, 282 S.W.2d 684 col. 1. Whether there was in fact an agreement, express or implied, is for the trier of facts to determine. Moore v. Jordan, 328 S.W.2d 343, 345 (Tex.Civ.App. Houston 1959, writ ref’d n. r. e.). No distinction exists between cases in which the evidence of an agreement is express and those in which the evidence is implied, and the existence of the agreement to be married remains a fact question in either instance.

The facts of the case on appeal essentially are not unlike the facts of the early case of Walton v. Walton, 228 S.W. 921, 922-23 (Tex.Comm’n App.1921, jdgmt. adopted) often cited in other cases as controlling. In Walton there was evidence of cohabitation and common reputation, elements which when proved raise an inference of an implied agreement to be married. The court pointed out that even though such evidence was uncontradicted, there was evidence also that there was a subsequent separation of the parties and one of them entered into a ceremonial marriage with another person. The court held that the implied agreement was not conclusively established but was clearly a question of fact. In the present case plaintiff entered into a ceremonial marriage with Nalley, and the testimony offered as proof that appellant and Williams lived together as man and wife and held themselves out as such was contradicted by several witnesses. An implied agreement therefore was not conclusively established, and the trier of the facts in effect found that no common law marriage between appellant and Williams after the divorce in 1943 had been established.

In Walton, as in this case, evidence of an express agreement to be married was introduced through the plaintiff alone, an interested witness. Appellant’s reply, as pointed out earlier, when asked if there was an agreement, was simply that from Georgetown, where the divorce was granted, “We came right home together just like we went over there together.” In Walton the court held that uncontradicted evidence of cohabitation and having children, coupled with holding themselves out as married, did not conclusively establish the fact of marriage, and that the existence of an express agreement was a question of fact. '■ The court stressed that under the circumstances the trier of the facts should have been permitted to judge the credibility of plaintiff, who alone testified there was an agreement to marry, in determining whether there was such an agreement.

It is doubtful, even under liberal construction, that appellant by proper point of error has challenged sufficiency of the evidence on the issues of proof required to establish a common law marriage. Existence of an agreement to be married, either express or implied, as well as issues of cohabitation and common reputation are questions of fact, determination of which on review, if properly presented, becomes conclusive in the court of civil appeals. Art. V, sec. 6, Constitution of Texas; Art. 1820, V.A.C.S. But courts of civil appeals may make such conclusive determination only on questions of sufficiency of the evidence. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948). In the absence of a proper challenge of the sufficiency of evidence on issues determined by the trial court as to existence of a common law marriage, the question of whether a common law marriage existed between appellant and Mike Williams after 1943 may not be before this Court. Under the rule of Walton and other cases in accord, it is clear, however, that the finding of the trial court that a common law marriage did not exist is not, under the evidence found in the record, against the great weight and preponderance of the evidence.

The final principal contention of appellant is that the trial court erred in not holding that, by some character of trust, title in the property in dispute was vested in appellant. The courts of this state have invoked the doctrines of express and resulting trusts in vesting title to property in a woman who lived with a man and accumulated real property in conjunction with him when there was neither a ceremonial nor a common law marriage, nor a putative marriage.

To establish an express trust, appellant had the burden to show that at the time title was conveyed to Mike Williams there existed an agreement between appellant and Williams that the property would be taken in his name for the benefit of both of them. Cluck v. Sheets, 141 Tex. 219,171 S.W.2d 860 (1943). To establish a resulting trust in her favor, a woman living in meretricious relations with a man at the time the land was purchased and taken in his name has the burden to prove that she contributed to the purchase price, which is done by showing that they worked together to a common purpose, that the proceeds of labor performed by them became their joint property, and that the proceeds, a specified part to which she contributed, was used to purchase the land; but no trust in her favor will arise out of the dealings between them after the vesting of title. Hayworth v. Williams, 102 Tex. 308, 116 S.W. 43 (1909); Hyman v. Hyman, 275 S.W.2d 149, 151 (Tex.Civ.App. Amarillo 1954, writ ref’d n. r. e.); Cluck v. Sheets, supra.

In considering whether appellant had proved the existence of an express or a resulting trust in her favor the court had before it the testimony of appellant and her sister, Ella Mae Lemons, as well as the contradictory testimony of Charles Williams. In a cause tried before the court without a jury the court, like a jury, becomes the judge of the credibility of the witnesses and the weight to be given their testimony. Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686, 689 (1936). In light of the sharp conflict between appellant’s testimony and that of other witnesses pertaining to the circumstances of her divorce from Williams, her subsequent relationship with him, and her marriage to Howard Nal-ley, the trial court understandably could find that appellant had not met her burden of proof in an attempt to establish an express or a resulting trust in the realty. Identical considerations are applicable to an attempt to establish a partnership relation between the parties. Lovell v. Lovell, 202 S.W.2d 291 (Tex.Civ.App. San Antonio 1947, no writ); Hyman v. Hyman, supra. Recovery of the value of any improvements would likewise be precluded in the absence of pleadings and proof.

No rights in the property flow from appellant’s meretricious relationship with Mike Williams, without proof of an express trust, or a resulting trust in her favor, or existence of a" partnership. In the absence of proof of one of these three theories, the courts refuse to award anything to a pretended wife who knows the nature of the relationship. Lawson v. Lawson, 30 Tex.Civ.App. 43, 69 S.W. 246, 247 (1902, writ ref’d). “In such cases,” the court in Lawson said, “the courts will leave the parties as they find them, on the same principle— that they refuse to enforce any other contract which by reason of its objects, or the nature of the consideration upon which it rests, is violative of law or against public policy.” In accord, see: Meador v. Ivy, 390 S.W.2d 391, 394 (Tex.Civ.App. San Antonio 1965, no writ).

Appellant’s attempt to recover half of the proceeds from sale of the seven-acre tract must fail also, for reasons additional to those applicable to the four-acre tract. As plaintiff below appellant pleaded that she did not sign the deed of 1952, by which her interest in the tract was conveyed to Williams, and appellant testified to the same effect. But appellant did not deny execution by verified affidavit as required by Rule 93(h), Texas Rules of Civil Procedure. In the absence of denial by sworn plea, the instrument was received in evidence as fully proved.

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Appellant does not claim on appeal that the deed was a forgery, but only that the conveyance was an unlawful transfer of a community interest by one spouse to the other. Upon the trial court’s finding that appellant and Williams were not married at the time the deed was made, the court correctly denied the claim to proceeds of sale of the seven acres later by her children.

Appellant challenges admission of certain testimony of Betty and George Cloud and of Charles Williams concerning matter which appellant insists was accepted in violation of the Texas Dead Man’s Statute (Art. 3716, V.A.C.S.). We find the contention without merit, since some of the testimony was admitted without objection and part of it we regard as harmless, or its substance was received from other witnesses not within the class named in the statute. The contentions under these points are overruled.

We have carefully examined the record and considered all points of error and contentions made thereunder affecting the controlling issues. We conclude that the judgment of the trial court should be affirmed and we accordingly affirm the judgment.

Affirmed.