FITTS v. PANHANDLE & S. F. RY. CO. (No. 139-3053.) fied that he never received the $1 recited in the release, the court declined to admit the release in evidence. The Court of Civil Appeals 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.) Release 13(6)-Promise to employ and to pay $1 not consideration where mohey not paid. Plaintiff's release of liability for personal injuries, made on a recited consideration of $1 and defendant's promise to employ plaintiff as a trucker for one day at the usual rate of pay, was without consideration where the $1 was not paid, and was properly excluded in plaintiff's action. 528. Writ of error was granted by the Committee of Judges, in the view that the Court of Civil Appeals committed error in this holding. The full review and discussion by the Court of Civil Appeals of the authorities upon the question at issue renders unnecessary any extended observations thereupon. The release in question is identical in its language with that in the case of Quebe v. Railway, 98 Tex. 6, 81 S. W. 20, 66 L. R. A. 734, 4 Ann. Cas. 545, 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 bar it was not paid. In the Quebe Case the Supreme Court, speaking through Judge Williams, says: Action by C. I. Fitts against the Panhandle & Santa Fé Railway Company. From judgment for plaintiff, defendant appealed to the 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 release." E. T. Miller, J. N. Browning, L. C. Barrett, and Marvin Jones, all of Amarillo, for plaintiff in error. Madden, Trulove, Ryburn & Pipkin, of Amarillo, for defendant in error. The distinguishing element in the two cases is the failure in the instant case to pay the dollar. We have the views of the Supreme Court upon the question thus presented, expressed in the following language: MCCLENDON, J. C. I. Fitts, the plaintiff, recovered judgment against the Panhandle & Santa Fé Railway Company, defendant, for the loss of his eye, alleged to have been caused by the actionable negligence of defendant. Among other defenses to the suit, defendant pleaded a release in full, the recited consideration whereof being: "An order on the treasurer of said company for $1, the receipt of which is hereby acknowledged," and "the promise of said company to employ me for one day as trucker at the usual rate of pay, the execution thereof being conclusive evidence that said company has made me such promise." Plaintif alleged the invalidity of said release upon several grounds, one of which was that it was without consideration. Upon the trial, plaintiff having testiFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Since the recited consideration of $1 in the release in this case was not paid, it is our opinion that the release was wholly without consideration. It seems to us that a mere promise to re-employ for one day, paying for the work done for that one day no more than the ordinary or customary rate of wages, conferred, in practical effect, no benefit upon the plaintiff, and the railway company thereby suffered no detriment, since inevitably it was to receive the day's work for the re-employment." We conclude that the judgment of the Court of Civil Appeals should be reversed, and that of the district court affirmed. PHILLIPS, C. J. We approve the Judg. ment recommended in this case. (222 S.W.) TEXAS EMPLOYERS' INS. ASS'N v. the court might determine"; the allegation relied upon as warranting its enforcement being that the award is res judicata between (Commission of Appeals of Texas, Section A. defendants in error and the insurance asso May 26, 1920.) Under Workmen's Compensation Act (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246q), right to sue, or to require suit to be brought on a claim for compensation, is not dependent on a party, before final determination by the Industrial Accident Board, giving notice that he does not consent to abide thereby; but the board's decision is not conclusive, though the parties agree to submit the matters pertaining to the injury to it, and the right to sue or require suit is by way of appeal. ciation. Defendants in error pleaded in the alternative that, if it should be held that they were not entitled to the enforcement of the award, they should recover judgment against plaintiff in error on the facts in accordance with the terms of the Liability Act. Defendants in error joined the Pipe Line Company as a party defendant, and further pleaded in the alternative against it for damages under the statutes and common law. A general demurrer on behalf of the Pipe Line Company was sustained. Plaintiff in error's demurrer to the allegations that the 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. Action by T. W. Roach and wife against the Texas Employers' Insurance Association and another. Judgment for defendants was reversed as to the named defendant, by the Court of Civil Appeals (195 S. W. 328), and said defendant brings error. Reversed and remanded. Lawther, Pope & Mays, of Dallas, plaintiff in error. R. D. Allen, of Sulphur Springs, for fendants in error. for de TAYLOR, J. T. W. Roach and wife, defendants in error, filed this suit against the Texas Employers' Insurance Association, plaintiff in error, for compensation under the Employers' Liability Act of 1913 (Laws 1913, c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), claimed accrued to them by reason of the death of their minor son. The son's death was alleged to have resulted from injuries received while in the course of his employment as an employé of the Gulf Pipe Line Company, a subscriber to the insurance association. to have Prior to filing suit, defendants in error filed their claim for compensation with the Industrial Accident Board as provided by the Liability Act. Plaintiff in error and the Gulf Pipe Line Company, outside of and independent of the act, agreed with defendants in error to submit all matters pertaining to the injuries of the deceased to the Industrial Accident Board. Upon a hearing before the board, and by its final ruling and decision, defendants in error, as beneficiaries of their son, secured an award of $5 per week for a period of 360 weeks, against plaintiff in error. The main object of this suit (so stated to be by defendants in error) was the enforcement of the award by "mandamus, mandatory injunction, or weekly executions, as seeking a recovery of compensation on the facts under the Liability Act. The court submitted to the jury only two issues, to wit: (1) Whether plaintiff in error's son was injured while in the employment of the Gulf Pipe Line Company; and (2) whether the son's death was caused by injuries so received. The jury found upon the first issue that the son was injured while in the employ of the company, but found upon the second that his death was not due to the injuries received. Judgment was rendered upon the findings in favor of both the Pipe Line Company and plaintiff in error. The Court of Civil Appeals held that the trial court did not err in sustaining the demurrer as to the alleged cause of action against the Pipe Line Company, and as to it affirmed the judgment, but further held that the trial court was in error in sustaining the demurrer to that count of the petition alleging that the award of the Industrial Accident Board was res judicata between the insurance association and defendants in error. 195 S. W. 328. Writ of error was granted upon application of the association referred to the committee of judges. Two grounds of error are alleged in the application. The first relates to the holding of the Court of Civil Appeals on the question of res judicata, and the second to the question of whether the trial court had jurisdiction to try the case. The case turns upon the construction of section 5, pt. 2, of the Employers' Liability Vernon's Sayles' Act, incorporated into Civil Statutes as article 5246q, which is as follows: "All questions arising under this act, if not settled by agreement of the parties interested therein, shall, except as otherwise herein provided, be determined by the Industrial Accident Board. Any interested party who is not willing, and does not consent to abide by the 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 adjustment of such claim; provided, however, that mary process and procedure is authorized; whenever any such suit is brought, the rights and the board is given power to subpœna and liabilities of the parties thereto shall be witnesses, administer oaths, and to perform determined by 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 subthe act. Id. 5246pp. The decision of the scriber, as defined in this act, in which case the recovery shall not exceed the maximum comagency, 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 resorting 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 dustrial Accident Board determine the mer-cision, it may require suit to be brought. association is not willing to abide by the deits of the claim for compensation made under the act, and that when claim is filed, unless one of the interested parties, prior to the final decision of the board, gives notice to the adverse party that he does not consent to abide thereby, he shall not be entitled to sue or require suit to be brought on the claim. In other words, that under the terms of the article quoted, the right to sue or require suit to be brought in the courts upon any disputed claim is not one by way of appeal from the final ruling of the board, but is in the nature of an option, extended to any interested party, either to have the questions arising under the act determined by the board or have them litigated in the courts. This holding is followed in Southwestern Sur. Ins. Co. v. Curtis et al., 200 S. W. 1162, and in Gen. Acc. Fire & Life Assur. Corp. v. Evans, 201 S. W. 705. The Court of Civil Appeals, in the House Case, supra, says: "The right 'to sue on such claim' in the courts was intended to be made dependent upon the want of consent or objection of either party to the board's further acting and making before the board in the first instance, before the 'final ruling and decision' being made or entered final ruling and decision is made." (Italics ours.) There is no express provision in the act to this effect; nor is there in the language of the act any clear implication that the right to sue, or require suit to be brought, is dependent upon the interested party's giving notice prior to the rendering of a final decision of whether he will abide by it. In the absence of both such provision and implication there is no warrant for such limitation The Court of Civil Appeals in this case with respect to the right of suit. say: "When the parties at interest in the claim made under the act consent for the Industrial Accident Board to take proceedings under the act and finally determine the claim for compensation under the act, and do not withdraw con sent before there has been final ruling and decision by the said board upon such claim, then in virtue of the exercise by the parties of their option, the decision of said board upon the said claim is, by the terms of the act, final." Whether the right to require suit upon disputed claims was, under the 1913 act, in the nature of an option to be exercised prior to the final decision by the board, or was to be exercised by way of appeal from such decision, is, in our opinion, not an open question. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 559, states in clear and concise terms the purpose, operation, 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 within eight days after its occurrence. Vernon's Sayles' Civ. Stats., art. 5246qqq. The board is authorized to make rules for carrying out and enforcing the provisions of the act, and authority is conferred upon the "There is also created by the act and charged with its administration, a board of three members, whose duties are defined. In general, its province is the determination of disputed claims arising under the act. If its decision is not accepted, suit may be brought upon the claim, or be required to be brought, against the associa (222 S.W.) tion if the employer of the injured or deceased employé was a subscriber at the time of his injury or death, in a court of competent jurisdiction, which, however, shall adjudicate the questions of liability and compensation according to the provisions of the act. "Nor does the act impair the right of trial by jury. Trial by jury cannot be claimed in an inquiry that is nonjudicial in its character, or with respect to proceedings before an administrative board. The Accident Board charged with the administration of the act is, as we have said, not a court. In its determination of disputed claims there could be no right to a jury trial. The act authorizes appeals from the decisions of the board to the courts, where a jury trial of the matters in dispute, under the law as embodied in the act, may be had. * * The view that the act requires notice in limine as a prerequisite to suit is inconsistent with that of the Supreme Court as to its purpose and operation. The right to sue 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 Case, supra, the Thirty-Fifth Legislature (Vernon's Sayles' Civ. Stats. 1918 Supp. vol. 2, arts. 5264-5244) amended section 5 of the 1913 act above quoted so as to provide that any interested party who does not consent to abide by the final decision of the board shall, within 20 days after the rendition of such decision, give notice to the adverse party and to the board that he will not abide by the ruling, etc., and used the same language in the amendment with respect to the consent of the parties as was used in the amended act. risdiction. It is therefore unnecessary, in view of our holding that the award of the board was not res judicata, to determine the question raised by the second assignment of error. the Court of Civil Appeals present as their Defendants in error in their brief filed in fifth assignment of error that the findings and verdict of the jury are contrary to the great preponderance of the evidence. Inasmuch as this and other assignments relating to the trial of the case on the facts were not passed upon by the Court of Civil Appeals, that court for such action as may be deemed we recommend that the cause be remanded to proper following its disposition of the assignments referred to. ment recommended in this case, and the holdPHILLIPS, C. J. We approve the judging of the Commission on the question dis cussed. - 2. Adverse possession 98 Possession of improvements on league of land held not to extend beyond improvements. The trial court was not in error in holding that the award made by the Industrial 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 152 acres were improved, and claimof Civil Appeals should, in our opinion, being an indefinite 640 acres not designated, but reversed. The remaining assignment of error grows out of the suggestion in the opinion of the Court of Civil Appeals that, inasmuch as defendants in error were not entitled to recover the compensation sued for in a "lump sum," the trial court may not have had jurisdiction to try the case. The suggestion was made under the view that defendants in er ror were entitled to recover on that count of the petition under which they sought to enforce the award of the Industrial Accident Board, and that the amount thereof alleged to be due at the rate of $5 per week was less than $500. In that count of the petition upon which the case was tried, defendants in error alleged that compensation had accrued for a period of more than 50 weeks at the rate of $15 per week, the total sum alleged to be due being an amount within the court's ju not exercising any control over, or adverse pos- Where the burden rests upon one asserting limitation, a presumption supporting the claim dence will not more certainly support a preshould not be indulged, especially when the evisumption in consonance with the right than in derogation thereof. 4. Adverse possession 85(3)-Evidence of taking possession under some sort of trade will not warrant finding of adverse possession. owned by S. under some sort of a trade, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 improvements. 5. Adverse possession 85(1) Absence of party under whom another took possession and failure to claim raises no presumption of adverse holding. Where K.'s possession of land owned by S. was under some sort of a trade with S., S.'s absence and failure to assert his right in opposition to K. raised no presumption of K.'s adverse right. 6. Evidence 219(1) Absence of vendor may be considered in proper case as evidence. Where K. took possession of S.'s land under some sort of a trade, the absence of S., who asserted no right in opposition to K., might be considered, in a proper case, by the jury as tending to show payment of the pur chase money. 7. Adverse possession 60 (4)-Possession by consent remains such until repudiation brought home to owner. On June 29, 1915, George Womack and others intervened, claiming the same 640 acres under George Keith. They later dismissed their plea of intervention. August 2, 1915, the original defendants and the interveners Mary Stockholm et al. filed their first amended answer and plea of intervention. After numerous exceptions, they specially alleged that the original defendants were in possession of the land as tenants and cotenants of such interveners, and pleaded the title in themselves to 640 acres of the league, to be so taken as to include the improvements of George Keith made on 15 acres. They described the lat ter tract by metes and bounds as inclusive of the improvements, They pleaded not guilty and general denial. They prayed for a recovery of the 640 acres out of the league, and that the court have same surveyed so as to include the land on which the improvements were alleged to have been situated. August 2, 1915, the oil company filed its supplemental petition and answer to the Error to Court of Civil Appeals of Ninth cross-action by these parties, wherein they Supreme Judicial District. Where possession of land is taken with the consent of the owner, the possession is the owner's possession until repudiation is brought home to him. 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 of Civil Appeals (193 S. W. 211), and the defendants and certain interveners bring error. Affirmed. C. W. Howth, W. R. Blain, R. L. Durham, and E. E. Easterling, all of Beaumont, for plaintiffs in error. Parker & Kennerly, of Houston, for defendant in error. SADLER, P. J. This suit was instituted May 18, 1914, by the Houston Oil Company of Texas against Ralph Durham, C. F. Howth, W. S. Bruce, and L. G. Roberts, for an injunction to prevent the defendants from trespassing upon the A. W. Smith league of land in Hardin county, and to prohibit them from cutting or removing timber therefrom, or from procuring or conspiring with others to do so. The cause went to trial between the oil company on one part and the original defendants and first interveners on the other. After hearing the evidence, the court gave a peremptory instruction for the oil company, and upon verdict returned in its favor judgment was accordingly rendered. The losing parties appealed, and the judgment of the trial court was affirmed. 193 S. W. 211. As the statement of the evidence given in the opinion by the Court of Civil Appeals is sufficient to an understanding of the questions discussed, we deem it unnecessary to restate it, further than attention may be called to it in the opinion. The propositions which are presented by the plaintiffs in error are: First, that it was error to peremptorily charge for the oil company, because the evidence wholly failed to show title by limitation in the company as to 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 had 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 640 acres ; league against the Houston Oil Company, | and, third, that under any view of the record, |