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fied that he never received the $1 recited in FITTS V. PANHANDLE & S. F. RY.CO.

the release, the court declined to admit the (No. 139-3053.)

release in evidence. The Court of Civil Ap

peals reversed and remanded the cause, hold(Commission of Appeals of Texas, Section B. ing this ruling to be erroneous. 188 S. W. June 2, 1920.)

528. Writ of error was granted by the ComRelease Cu 13(6) --Promise to employ and to mittee of Judges, in the view that the Court pay $1 not consideration where money not

of Civil Appeals committed error in this holdpaid.

ing. Plaintiff's release of liability for personal

The full review and discussion by the Court injuries, made on a recited consideration of $1 of Civil Appeals of the authorities upon the and defendant's promise to employ plaintiff question at issue renders unnecessary any exas a trucker for one day at the usual rate of tended observations thereupon. The release pay, was without consideration where the $1 in question is identical in its language with was not paid, and was properly excluded in that in the case of Quebe v. Railway, 98 Tex. plaintiff's action.

6, 81 S. W. 20, 66 L. R. A. 734, 4 Ann, Cas.

515, except as to the subject-matter dealt Error to Court of Civil Appeals of Seventh with. The cases are practically on all fours Supreme Judicial District.

in every particular, except that in the Quebe

Case the $1 was paid, whereas in the case at Action by C. I. Fitts against the Panhandle bar it was not paid. In the Quebe Case the & Santa Fé Railway Company. From judg- Supreme Court, speaking through Judge Wil. ment for plaintiff, defendant appealed to the liams, says: Court of Civil Appeals, which reversed and remanded (188 S. W. 528), and plaintiff brings

"The consideration was a valuable and legal error. Judgment of the Court of Civil Ap- one, though small. Considering the fact that peals reversed, and that of the district court the matter settled was regarded by both parties affirmed, on recommendation of the Commis- as involving no large amount, it cannot be said

the smallness of the consideration, by itself, sion of Appeals.

furnishes grounds for disregarding the

lease." E. T. Miller, J. N. Browning, L. C. Barrett, and Marvin Jones, all of Amarillo, for plaintiff in error.

The distinguishing element in the two casMadden, Trulove, Ryburn & Pipkin, of

es is the failure in the instant case to pay

the dollar, We have the views of the SuAmarillo, for defendant in error.

preme Court upon the question thus present

ed, expressed in the following language: McCLENDON, J. C. I. Fitts, the plaintiff, recovered judgment against the Panhandle &

"Since the recited consideration of $1 in the Santa Fé Railway Company, defendant, for release in this case was not paid, it is our the loss of his eye, alleged to have been opinion that the release was wholly without

consideration. It seems to us that a mere caused by the actionable negligence of de promise to re-employ for one day, paying for fendant. Among other defenses to the suit, the work done for that one day no more than defendant pleaded a release in full, the re- the ordinary or customary rate of wages, concited consideration whereof being: “An order ferred, in practical effect, no benefit upon the on the treasurer of said company for $1, the plaintiff, and the railway company thereby sufreceipt of which is hereby acknowledged,” | fered no detriment, since inevitably it was to and "the promise of said company to employ receive the day's work for the re-employment." me for one day as trucker at the usual rate of pay, the execution thereof being conclusive We conclude that the judgment of the evidence that said company has made me Court of Civil Appeals should be reversed, such promise.” Plaintiit alleged the invalid- and that of the district court affirmed. ity of said release upon several grounds, one of which was that it was without considera- PHILLIPS, C. J. We approve the judg. tion. Upon the trial, plaintiff having testi-ment recommended in this case.


Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(222 S.W.)

the court might determine"; the allegation TEXAS EMPLOYERS' INS. ASS'N v. relied upon as warranting its enforcement

ROACH et ux. (No. 142–3073.) being that the award is res judicata between (Commission of Appeals of Texas, Section A. defendants in error and the insurance assoMay 26, 1920.)


Defendants in error pleaded in the alterMaster and servant Om416–Right to sue on native that, if it should be held that they claim under Compensation Act does not de- were not entitled to the enforcement of the pend on notice of intent not to abide by award, they should recover judgment against award. Under Workmen's Compensation Act (Ver.) with the terms of the Liability Act. Defend

plaintiff in error on the facts in accordance non's Sayles' Ann. Civ. St. 1914, art. 52469), right to sue, or to require suit to be brought on ants in error joined the Pipe Line Company a claim for compensation, is not dependent on as a party defendant, and further pleaded a party, before final determination by the In- in the alternative against it for damages undustrial Accident Board, giving notice that he der the statutes and common law. does not consent to abide thereby; but the

A general demurrer on behalf of the Pipe board's decision is not conclusive, though the Line Company was sustained. Plaintiff in parties agree to submit the matters pertaining error's demurrer to the allegations that the to the injury to it, and the right to sue or require suit is by way of appeal.

award of the Industrial Accident Board was

res judicata was also sustained. The case Error to Court of Civil Appeals of Sixth was tried upon that count of the petition, Supreme Judicial District.

seeking a recovery of compensation on the

facts under the Liability Act. Action by T. W. Roach and wife against The court submitted to the jury only two the Texas Employers' Insurance Association issues, to wit: (1) Whether plaintiff in erand another. Judgment for defendants was ror's son was injured while in the employreversed as to the named defendant, by the ment of the Gulf Pipe Line Company; and Court of Civil Appeals (195 S. W. 328), and (2) whether the son's death was caused by said defendant brings error. Reversed and injuries so received. The jury found upon rernanded.

the first issue that the son was injured while Lawther, Pope & Mays, of Dallas, for in the employ of the company, but found plaintiff in error.

upon the second that his death was not due R. D. Allen, of Sulphur Springs, for de to the injuries received. Judgment was renfendants in error.

dered upon the findings in favor of both the

Pipe Line Company and plaintiff in error. TAYLOR, J. T. W. Roach and wife, de

The Court of Civil Appeals held that the fendants in error, filed this suit against the trial court did not err in sustaining the deTexas Employers' Insurance Association,

murrer as to the alleged cause of action plaintiff in error, for compensation under the against the Pipe Line Company, and as to it Employers' Liability Act of 1913 (Laws 1913, affirmed the judgment, but further held that c. 179 (Vernon's Sayles' Ann. Civ. St. 1914, the trial court was in error in sustaining the arts. 5246h-5246zzzz]), claimed to have

demurrer to that count of the petition alaccrued to them by reason of the death of leging that the award of the Industrial Actheir minor son. The son's death was al- cident Board was res judicata between the leged to have resulted from injuries received insurance association and defendants in while in the course of his employment as an

error. 195 S. W. 328. employé of the Gulf Pipe Line Company, a

Writ of error was granted upon applicasubscriber to the insurance association.

tion of the association referred to the comPrior to filing suit, defendants in error mittee of judges. Two grounds of error are filed their claim for compensation with the alleged in the application. The first relates Industrial Accident Board as provided by to the holding of the Court of Civil Appeals the Liability Act. Plaintiff in error and the on the question of res judicata, and the secGulf Pipe Line Company, outside of and in- ond to the question of whether the trial dependent of the act, agreed with defendants court had jurisdiction to try the case. in error to submit all matters pertaining to

The case turns upon the construction of the injuries of the deceased to the Industrial section 5, pt. 2, of the Employers' Liability Accident Board. Upon a hearing before the

Vernon's Sayles'

Act, incorporated into board, and by its final ruling and decision, Civil Statutes as article 5246q, which is as defendants in error, as beneficiaries of their

follows: son, secured an award of $5 per week for a

“All questions arising under this act, if not period of 360 weeks, against plaintiff in error. settled by agreement of the parties interested The main object of this suit (so stated to vided, be determined by the Industrial Acci

therein, shall, except as otherwise herein probe by defendants in error) was the enforce-dent Board. Any interested party who is not ment of the award by "mandainus, manda- willing, and does not consent to abide by the tory injunction, or weekly executions, as final ruling and decision of said board on any

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

disputed claim may sue on such claim or may | board to require injured claimants to subrequire suit to be brought thereon in some mit themselves before it, or some one acting court of competent jurisdiction, and the board under its authority, for examination. Sumshall proceed no further toward the adjust: mary process and procedure is authorized ; ment of such claim; provided, however, that whenever any such suit is brought, the rights and the board is given power to subpæda and liabilities of the parties thereto shall be witnesses, administer oaths, and to perform determined the provisions of this act, and those acts necessary to a determination of the suit of the injured employé, or persons su- all questions preliminary to the making of ing on account of the death of such employé, | final rulings and decisions on disputed shall be against the association, if the em- claims. Thus an administrative agency is ployer of such injured or deceased employé is created for carrying out the provisions of at the time of such injury or death a sub- the act. Id. 5246pp. The decision of the scriber, as defined in this act, in which case the recovery shall not exceed the maximum com

agency, or board, is not conclusive, nor does pensation allowed under the provisions of this the fact that the parties agree to submit the act, and the court shall determine the issues in matters pertaining to the injuries of the such cause instead of said board."

claimant to the board estop them from re

sorting to the courts. Under the express The Court of Civil Appeals in this case, provisions of the article quoted, if the claimas well as in Fidelity & Casualty Co. v.

ant “is not willing and does not consent to House, 191 S. W. 155, construe the article abide by the final ruling and decision of the quoted as providing that the parties at interest may have either the courts or the In. board,” he may sue on the claim; or if the

association is not willing to abide by the dedustrial Accident Board determine the mer

cision, it may require suit to be brought. its of the claim for compensation made un

The Court of Civil Appeals, in the House der the act, and that when claim is filed,

Case, supra, says: unless one of the interested parties, prior to the final decision of the board, gives notice “The right 'to sue on such claim' in the to the adverse party that he does not con- courts was intended to be made dependent upon sent to abide thereby, he shall not be entitled the want of consent or objection of either to sue or require suit to be brought on the party to the board's further acting and making claim. In other words, that under the terms before the board in the first instance, before the

'final ruling and decision' being made or entered of the article quoted, the right to sue or re- final ruling and decision is made." (Italics quire suit to be brought in the courts upon ours.) any disputed claim is not one by way of appeal from the final ruling of the board, but

There is no express provision in the act to is in the nature of an option, extended to any this effect; nor is there in the language of interested party, either to have the questions the act any clear implication that the right arising under the act determined by the to sue, or require suit to be brought, is deboard or have them litigated in the courts. pendent upon the interested party's giving This holding is followed in Southwestern notice prior to the rendering of a final deciSur. Ins. Co. v. Curtis et al., 200 S. W. 1162, sion of whether he will abide by it. In the and in Gen. Acc. Fire & Life Assur. Corp. absence of both such provision and implicaV. Evans, 201 S. W. 705.

tion there is no warrant for such limitation The Court of Civil Appeals in this case with respect to the right of suit. say:

Whether the right to require suit upon dis“When the parties at interest in the claim puted claims was, under the 1913 act, in the made under the act consent for the Industrial nature of an option to be exercised prior to Accident Board to take proceedings under the the final decision by the board, or was to be act and finally determine the claim for compen-exercised by way of appeal from such deci. sation under the act, and do not withdraw consent before there has been final ruling and de- sion, is, in our opinion, not an open question. cision by the said board upon such claim, then

Middleton v. Texas Power & Light Co., in virtue of the exercise by the parties of their 108 Tex. 96, 185 S. W. 559, states in clear option, the decision of said board upon the said and concise terms the purpose, operation, claim is, by the terms of the act, final."

and effect of the act. The following excerpts

from the opinion make clear that in the view We cannot concur in this conclusion of of the court it is not necessary as a prereqthe court. By the provisions of the Employ- uisite to suit under the act, that the interers' Liability Act, every employer within its ested party shall give notice in limine that terms is required to keep a record of all in- he is unwilling to abide by the final decision juries received by his employés in the course of the board: of their employment, and to make a report thereof to the Industrial Accident Board with its administration, a board of three mem

"There is also created by the act and charged within eight days after its occurrence. bers, whose duties are defined. In general, its Vernon's Sayles' Civ. Stats., art. 5246999. province is the determination of disputed claims The board is authorized to make rules for arising under the act. If its decision is not accarrying out and enforcing the provisions of cepted, suit may be brought upon the claim, or the act, and authority is conferred upon the / be required to be brought, against the associa




(222 S.W.) tion if the employer of the injured or deceased risdiction. It is therefore unnecessary, in employé was a subscriber at the time of his view of our holding that the award of the injury or death, in a court of competent juris board was not res judicata, to determine the diction, which, however, shall adjudicate the question raised by the second assignment of questions of liability and compensation according to the provisions of the act. *Nor does the act impair the right of trial by the Court of Civil Appeals present as their

Defendants in error in their brief filed in jury. Trial by jury cannot be claimed in an inquiry that is nonjudicial in its character, or

fifth assignment of error that the findings with respect to proceedings before an adminis- and verdict of the jury are contrary to the trative board. The Accident Board charged with great preponderance of the evidence. Inasthe administration of the act is, as we bave said, much as this and other assignments relating not a court. In its determination of disputed to the trial of the case on the facts were not claims there could be no right to a jury trial. passed upon by the Court of Civil Appeals, The act authorizes appeals from the decisions of the board to the courts, where a jury trial of that court for such action as may be deemed

we recommend that the cause be remanded to the matters in dispute, under the law as embodied in the act, may be bad. *

proper following its disposition of the assign

ments referred to. The view that the act requires notice in

PHILLIPS, C. J. limine as a prerequisite to suit is inconsist

We approve the judgent with that of the Supreme Court as to its ment recommended in this case, and the holdpurpose and operation. The right to sue

ing of the Commission on the question dis

cussed. is by way of an appeal, and until final decision is rendered by the board there is nothing from which an appeal can be prosecuted. Following the decision in the Middleton DURHAM et al. V. HOUSTON OIL CO. OF

TEXAS. (No. 151–3110.) Case, supra, the Thirty-Fifth Legislature (Vernon's Sayles' Civ. Stats. 1918 Supp. vol. (Commission of Appeals of Texas, Section B. 2. arts. 5264-5244) 'amended section 5 of the

May 26, 1920.) 1913 act above quoted so as to provide that

1. Injunction 35(2) Party having prior any interested party who does not consent

possession under deed may enjoin naked to abide by the final decision of the board

trespasses. shall, within 20 days after the rendition of

One having actual prior possession of land such decision, give notice to the adverse under a deed fully descriptive thereof, under party and to the board that he will not abide which it claimed title, was entitled to recover by the ruling, etc., and used the same lan- against naked trespassers in a suit for injuncguage in the amendment with respect to the tion to prevent trespasses and the cutting of consent of the parties as was used in the timber. amended act.

2. Adverse possession w98 Possession of The trial court was not in error in hold- improvements on league of land held not to ing that the award made by the Industrial extend beyond improvements. Accident Board was not res judicata between

•One taking possession of a league of land the parties, and the judgment of the Court of which 1542 acres were improved, and claimof Civil Appeals should, in our opinion, be ing an indefinite 640 acres not designated, but reversed.

not exercising any control over, or adverse posThe remaining assignment of error grows session of, any part of the league other than out of the suggestion in the opinion of the that covered by the actual improvements, acCourt of Civil Appeals that, inasmuch as de- quired no title by limitation to any part of the

league outside of the improved land. fendants in error were not entitled to recover the compensation sued for in a "lump sum,” 3. Adverse possession en 112 Presumption the trial court may not have had jurisdic

not indulged in support of party having bur.

den. tion to try the case. The suggestion was made under the view that defendants in er

Where the burden rests upon one asserting ror were entitled to recover on that count should not be indulged, especially when the evi

limitation, a presumption supporting the claim of the petition under which they sought to dence will not more certainly support a preenforce the award of the Industrial Accident sumption in consonance with the right than in Board, and that the amount thereof alleged derogation thereof. to be due at the rate of $5 per week was

4. Adverse possession Cm 85(3)- Evidence of less than $500.

taking possession under some sort of trade . In that count of the petition upon which

will not warrant finding of adverse possesthe case was tried, defendants in error al- sion. leged that compensation had accrued for a

Evidence that K. took possession of land period of more than 50 weeks at the rate of owned by S. under some sort of a trade, the $15 per week, the total sum alleged to be character of which is not shown, does not due being an amount within the court's ju- ) warrant the jury in finding that the possession

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digestis and Indexes
222 S.W.-11

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was taken under such circumstances as to set , except the undivided 640 acres which they in motion the bar of limitations, especially claimed under the 10-year statute of limitawhere K. subsequently abandoned any char- tion. The petition contains no description acter of occupancy for more than half a cen- of the 640 acres, further than that it should tury.

be so surveyed as to include the improve5. Adverse possession na 85(1) - Absence of ments.

party under whom another took possession On June 29, 1915, George Womack and and failure to claim raises no presumption of others intervened, claiming the same 610 adverse holding.

acres under George Keith. They later disWhere K.'s possession of land owned by S. missed their plea of intervention. was under some sort of a trade with S., S.'s absence and failure to assert his right in op- and the interveners Mary Stockholm et al.

August 2, 1915, the original defendants position to K. raised no presumption of K.'s filed their first amended answer and plea of adverse right.

intervention. After numerous exceptions, 6. Evidence en 219(1) Absence of vendor they specially alleged that the original de may be considered in proper case as evidence. fendants were in possession of the land as

Where K. took possession of S.'s land un- tenants and cotenants of such interveners, der some sort of a trade, the absence of S., and pleaded the title in themselves to 640 who asserted no right in opposition to K., acres of the league, to be so taken as to inmight be considered, in a proper case, by the clude the improvements of George Keith jury as tending to show payment of the pur- made on 1542 acres. They described the latchase money.

ter tract by metes and bounds as inclusive 7. Adverse possession am 60(4)—Possession by of the improvements. They pleaded not

consent remains such until repudiation guilty and general denial. They prayed for a brought home to owner.

recovery of the 640 acres out of the league, Where possession of land is taken with the and that the court have same surveyed so as consent of the owner, the possession is the to include the land on which the improveowner's possession until repudiation is brought

ments were alleged to have been situated. home to him.

August 2, 1915, the oil company filed its Error to Court of Civil Appeals of Ninth supplemental petition and answer to the

cross-action by these parties, wherein they Supreme Judicial District.

set up the 5 and 10 year statutes in bar. The Suit by the Houston Oil Company of Texas 10-year statute was asserted under recorded against Ralph Durham and others. A judg- memorandum describing the whole league. ment for plaintiff was affirmed by the Court The cause went to trial between the oil comof Civil Appeals (193 S. W. 211), and the de pany on one part and the original defendants fendants and certain interveners bring error. and first interveners on the other. After Affirmed.

hearing the evidence, the court gave a per

emptory instruction for the oil company, and C. W. Howth, W. R. Blain, R. L. Durham, upon verdict returned in its favor judgment and E. E. Easterling, all of Beaumont, for was accordingly rendered. The losing parplaintiffs in error.

ties appealed, and the judgment of the trial Parker & Kennerly, of Houston, for defend- court was affirmed. 193 S. W. 211. ant in error.

As the statement of the evidence given in

the opinion by the Court of Civil Appeals is SADLER, P. J. This suit was instituted sufficient to an understanding of the quesMay 18, 1914, by the Houston Oil Company tions discussed, we deem it unnecessary to of Texas against Rdlph Durham, C. F. restate it, further than attention may be Howth, W. S. Bruce, and L. G. Roberts, for called to it in the opinion. an injunction to prevent the defendants from The propositions which are presented by trespassing upon the A. W. Smith league of the plaintiffs in error are: First, that it was land in Hardin county, and to prohibit them error to peremptorily charge for the oil comfrom cutting or removing timber therefrom, pany, because the evidence wholly failed to or from procuring or conspiring with others show title by limitation in the company as to to do so.

the 640 acres claimed by plaintiffs in error; On September 3, 1914, Mary Stockholm et second, that there was error in not submital., as heirs of George Keith, intervened, set- ting to the jury the issue of title in the petiting up title in themselves to an undefined 640 tioners under the 10-year statute as to 640 acres of the league, and alleging that as such acres of the survey, because the facts showed owners they placed the original defendants that this ancestor bad perfected title to 640 in possession. They made Manor Hanks, s. acres prior to 1860, and the evidence wholly C. Hanks, J. S. Rice, and Hezekiah Rice de failed to show an invasion of petitioners' fendants, but later dismissed as to them. possession in support of limitation title in These interveners disclaimed all title to the the oil company to any part of the 610 acres ; league against the Houston Oil Company, and, third, that under any view of the record,

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