*1 569 reciting contempt.” thus that the Relator was Relator was “still parte 80, process Hill, 52 not accorded Ex 122 Texas due law. summarily punish 2d for 367. are without S.W. Courts parte contempt Pyle, presence not in Ex 134 of the court. 148, oppor- Texas 133 2d must notice and an S.W. 565. There tunity together heard, to be heard the court to evidence judgment parte 155, contempt. White, sustain its Ex Texas 2d 1002. Moreover, the record before us does not disclose written pursuant order of commitment either docket entries to the judgment contempt 5, entered It is well December 1960. warrant, settled that a commitment, written order of is the process by order or which a court directs a ministerial officer person take requisite jail there, pre and to detain him is an essential imprisonment parte person contempt. of a Ex Martinez, 328, 209; parte Puckitt, Ex 331 S.W. 2d 597; parte 159 Texas Arapis, Ex S.W. 2d 157 Texas 884; parte 306 398; 2d Ex Smart, 152 Texas 256 S.W. 2d parte Ex Palmateer, 160; Ex 243 S.W. parte Eager, Rep. 97, 136; parte 128 Texas Cr. Ex 79 S.W. Ray, Rep. 432, 709; parte Alderete, Cr. Ex Rep. 358, Texas Cr. 203 S.W. 763. discharged. Relator is ordered

Opinion February 22,1961. delivered Hilley.

Pearl v. Garland January 25, No. A-7563. Decided 1961. Rehearing Overruled March (342 565) S.W. 2d Series *2 Dunnam, Waco, petitioner. Dunnam & for Beard, Waco, respondent. Beard, Kultgen & opinion Court. delivered Mr. Justice Walker to determine declaratory judgment This an action for is- funds and corporate purchased whether stock joint tenants with and wife “as sued in names of the husband constitutes right community not as tenants in common” belongs estate to the wife as stock is The trial court held the husband’s death. Appeals property, affirmed. and the Court of Civil judgment of the Court Civil affirm We Appeals. Hilley, petitioner, Pearl were married

Mrs. E.W. *3 together until his death in in and lived and husband wife Hilley purchased, 1956. At the time the was E. instructed stock W. petitioner’s presence in certificates issued the broker to have the joint in manner that the names and in such and form belong death of the survivor. The either the securities would accepted by certificates and contained as delivered to the husband language kept quoted They safety the thereafter in a above. were deposit joint wife, box carried in the names of the husband and provision survivorship the contract but with with the bank contains no to the its of reference box or contents. Each the had key a the box and was authorized to same will. enter Hilley, intestate, by petitioner W. E. who died was survived Hilley, respondent. Garland latter of E. The is the son W.

by marriage. a former 1925,1 provided Texas Rev. Civ. that where Stat. persons jointly two or more estate held an the interest of who one legal representa died before severance vest in his heirs would or joint tives and not other It survive to the owners. was held in Kountze, App., (wr. ref.), v. Chandler Texas Civ. S.W. joint including relationship tenancy, that while of the doctrine survivorship, thereby was abolished situations in where law, same would otherwise have been created the statute did prevent grantees making agree a not deed from an effective among conveyed ment pass that themselves should to and vest in the survivor as at common written law. A survivor- ship covering joint upheld contract a bank account also was Jones, App., (no writ). Adams Civ. Article 2580 carried

When into and Section became 46 of Except as otherwise indicated all statutes are referred to article number 1.— they appear under which in Vernon’s Annotated Texas Statutes. Civil preserved Code, language of the earlier statute was

Probate writing joint agreement proviso “by express with dies any joint owner property, who owners the interest owners, joint joint made survive to owner or agreement fact that mere no inferred from the but the shall be pur- ownership.” is held in We assume given to the pose opinion of the instructions this view presence, the issuance and the husband in the wife’s broker acceptance joint tenants

of the stock in their names as certificates agreement survivorship within constitutes a written meaning statute. and Adams cases did involve Chandler wife, survivorship between directly or decisions but indirectly are number of Texas which bear Deaton, presented. here on Shroff writ), community (no 2d 489 funds Civ. savings deposited pursuant were in a and loan association to an signed by optional subscription share the husband provided It wife. the stock was association for held survivorship, their account as and the tenants trial court also found as a his death fact that short time before pass the husband delivered gift made a book to the valid Ap- to her of all his of Civil the stock. Court expressed peals that the should view fraud, influence, enforced absence undue mistake or infirmity, pointed but then out that if conclusion was this finding gift shortly trial erroneous the court’s of a valid made *4 husband’s before the death would still stand determinative of the whole case. substantially considered

An same form was the (no writ), Reed, App., in Reed 2d 311 Texas Civ. and the and statutes court concluded that under our Constitution community power the and wife no convert their husband have separate by property estate the of survivor con- into the Pollard, years tract. Three later in Steffens v. Texas Civ. pending (affirmed ground, now 319 S.W. 2d 447 on motion on another but 234,]) rehearing, [161 au- same thority and held on court refused to follow Reed case Smith, in Ricks of our decision building that and with com- loan shares munity of funds vested in the wife her husband’s death because survivorship provision in the certificates. Savings pur- Bonds case Ricks involved United States payable by funds chased husband having predeceased her without husband or wife as co-owners. He controversy toas her death a arose cashed the bonds and after regulations applic- ownership Treasury of the securities. The surviving shall provide that co-owner able to bonds so issued affirming recognized thereof. In as the sole and absolute owner holding judgment Appeals of of that the bonds the Court Civil death, said: vested in at her this Court the wife husband’s “* * * pur- agree Appeals that the we with the Court Civil property by chase the bonds was contract which created a right, merely a payment method of for the convenience —not Treasury Department. sanctity the property There is no give supremacy types law that of other law. To above regulations community property to Federal than laws of descent and more affects law no prop- The solution as distribution. erty rights of the co-owner of ‘or’ rests in con- bonds tract, part and that contract decisions becomes a of the bonds. The jurisdiction opinion Ap- in this cited in the of the Court of Civil peals, deciding precise question presented, while not are here certainly harmony majority by with the rule followed that therefore, We, holding.” approve court. power husband wife to com- transmute munity property spouses into held ten- ancy recognized has other com- been munity property jurisdictions question where arisen. See has Annotation pointed later, 30 A.L.R. 2d we 1241. As will out are partners inclined to the view that the marital also have Texas, but here is be decided whether they may accomplish by purchasing this result securities or other having conveyed the same or transferred to them as survivorship. tenants with XVI, Constitution, Section Article 4614 of or separate property the statutes define the wife’s as that owned marriage claimed before and that afterward gift, devise or descent. The de husband’s fined in similar provides terms Article 4613. Article 4619 property acquired by all riage, except during either the mar separate property that which either, is the shall *5 community property. be deemed separate property All marital is thus either community. marriage or acquired If by before method, marriage by gift, descent, or after separate; devise or it is community. otherwise it only exceptions. is Property There are two separate separate, Robertson, funds is Love v. 6, 41, community property partitioned 7 Texas 56 Am. Dec. and 881a-23, provided in the manner in Articles 4624a and becomes separate property. acquired by purchase

The dur stock involved in this case was ing marriage, by community property unless and definition became provision the survivorship the in the certificates with inserted knowledge converted and consent of the husband death. separate property husband’s same into the her latter’s result, pointed out in parties clearly as The intended that but Trice, whether Kellett v. “the 95 Texas depend upon community particular separate property must is or which, by facts, the rules the existence or non-existence of the law, give stipulations that it, merely upon character to not spouse belong Thus, when one it shall passes to one class or the other. property, it gift separate by to

to the other his her title or community both, law property could not because become separate property acquired declares that so shall be donee; gift by of his interest and a the husband the wife community separate property in would become acquired the donee for the And so same reason. gift, by during marriage, spouse than name of either otherwise would, descent, exchange property, separate or or devise by statute, that in community property. It is true force of the may give all acquisition the wife or afterwards husband hers; by gift, property, thus, it but his interest at law make only in the the defined

last this would be true because facts through exist, gift, separate right and the derived having also estate.” full over See Miller, Tittle, In Cox Tittle v. 148 Texas 2d 637. make a it was said that while the husband gift separate property direct estate his or the change wife, spouses his a mere cannot property owned character and nature of the prescribed by acquired them from that law. petitioner and her hus- made XVI, partition Section is not effective as under band because it is not subscribed and spouses acknowledged by both did required clear that the securities in Article 4624a. It also is descent, pass petitioner by and no interest or devise or nothing There therein was funds. gift praesenti suggest his in- of all that Mr. made intend that same terest in did not should the stock. immediately pass petitioner separate property. Instead as her agreed spouses would held the securities

575 and then in the survivor owners while both lived vest death of either. agreement regarded that the as an to If long parties community property as stock both would remain separate property pass lived and then to and become the intending survivor, clearly to Article Persons contravenes making marry prohibited which are there from legal wording alter the literal would order descent. While ante-nuptial agreements, applies only the courts the statute to agreements post-nuptial matter have extended terms as a its public Crowther, policy. Texas 301 See Weidner v. 157 disregard if S.W. and authorities cited. we Even provisions apply or hold that its do not agreements, petitioner inception the title which in asserts had its the contract she made with her deemed is therefore during marriage purpose acquired have been for deter mining separate Alexander, community its or status. Colden 328; Briscoe, Creamer v. 154, S.W. Rep. 869; 17 A.L.R. Am. N.S. MacRae St. (wr. MacRae, ref.) v. petitioner If Civ. 2d 320 separate property,

now owns the stock as it must her theory acquired be the that when the she same was gift ripened a from her husband the or interest therein which ownership upon into absolute his death. gift gratui voluntarily

A is a transfer of made tously. inter When an vivos transfer is made either or both during marriage, spouses community or character by looking given is determined consideration exchange Any right, acquired for it. title interest a valu or paid community necessarily able consideration out becomes community property, and this is so whether the transfer made person partners some third one the marital to the other. agree petitioner merely here did not would survived; stipulated own the securities event she it was also that the petitioner stock would vest in the husband if died first. making agreement, Prior to the spouse each a this owned com- munity money one-half interest in the used to the stock. If made, had not each been would have similar interest in the stock powers with all of the in- cident or dispose thereto. Each would have had the of his permit pass interest will or to vest in same to accordance with the statutes of descent and distribution. Under the terms of effective, if their contract the same is each relin- quished legal at least some of incidents of owner- absolute to become

ship in lieu thereof and received contracting party. she the other he or survived owner the event joint tenants, transaction it is virtue of If became exchange for the each surrendered *7 life ex- that their joint from the fact of a tenant. Aside interest by right might same, or interest pectancies the not be the by that received the wife. no less valuable than the husband is by greater the is that suffered the husband no than detriment to a sur- gift attempted transfer of is then an wife. There vivorship no but a spouse to the other for from each by paid is each the consideration valuable consideration. Since estate, communitly or interest which the derived from the necessarily part that estate. expected acquire to remains each materially respect not different from this their Bank, Texas the deed v. Lubbock National involved Pevehouse Community writ). (no land was Civ. conveyed by relin- of her the husband to his wife consideration rights community property. It held that quishing all to was other convey purported remained the com- the land which the to deed munity property parties, of the and the court said: gift by “This a the husband instrument does not evidence wife, ‘gift’ voluntary transfer the since means a a party If con- one consideration. to another without transfer, parties trnas- sideration for the the of the of contracts. action are the law contractual determined 691; (Texas App.), Kearse v. al. Kearse et Com. * ** (Texas instru- App.) Brito This v. Slack 25 S.W. 2d 881. Civ. ment constituted an husband and wife between the partition community property there- divide or and create which, long each, a as continue from estate for so relation, their marital is not authorized law.” Although regulations supremacy mentioned of Federal holding majority opinion, of the Ricks case is based the the pur- premise on a funds to the husband who uses Savings names chase S. Bonds and has the same issued in the U. gov- thereby spouses a the co-owners makes contract with party, It stems from ernment for of a third wife. benefit Mitchell, A.L.R. Edds v. “p. d.” a life tenant where o. bonds opinion disposition policy insurance. The were likened a of life policy for the benefit case a life insurance Edds states that a perhaps illustration of another is best parties beneficiary, of the the situation and that of donee benefit substantially the same under consideration was bonds then parties policy. as that of the insurance question, are convinced we After further consideration provisions Ricks reconciled with decision cannot be pur- which a our “contract” Constitution and statutes. The simply pro- government chaser of does bonds makes with co-

vide that the securities of the shall become co- purchaser’s if stipulates owner It either at the death. recognized dies, sole owner co-owner shall be nothing and absolute owner. This is more than agreement although contracting pur- usually are government chaser and the rather than co-owners. Under the two provisions Code, of the the interest of owner Probate by agreement only who dies be made to survive writing. applied community property, owners in means that the As statute *8 spouse of cannot survive to the other one except by of an the husband and wife. Such contracting when parties, made is for the mutual benefit of the gift though party and there is no of a third semblance even some agree recognize also the survivor as absolute owner. person transaction, fact that a third is as involved in the either grantor, transferor, issuing borrower, corporation, depository, or otherwise, legal consequence. Dealings is thus of no awith third party give cannot rise a survivorship interest unless the owners have the tract so to and do effective written con- make providing. saying spouses There is no for basis attempted have even buys to make such an when one government knowledge bonds without or consent of other. regulations It is clear that the Federal do not our local override private purely ownership laws matters of interests where the the United America States are not involved. Bank of National Savings 29, Parnell, 119, Trust Sup. & Ass’n. v. 352 U.S. 77 Ct. might L.1 Ed. 2d 93. to treat We continue “or” bonds community though analogous with legally funds as were a life insurance contract and look to the insurance decisions precedents determiinng ownership of after such securities ap the death of one equally co-owner. This or some unrealistic proach overruling only seems to be alternative to the Ricks case if title to is vest in the Be husband when wife dies first. fore provide “property” Article 23 was amended that the word as policies used the statutes would include life insurance thereof, generally the effects it held was absence proceeds spouse policy fraud the of a on the life of one became designated although benficiary premiums were policy so where community This was even

paid funds. with reasoned her The courts husband. the wife’s life in favor insured policy and that property, an insurance contract insured death of the proceeds paid after the sep- marriage during became his and therefore were not manager as the husband property. arate It was said that com- community with the contract authorized to with his no munity interference funds and that there should be in fraud of statutory exercised unless was control 567, rights. McAllister, 94 Texas wife’s Martin v. See Hardin, 145 624, 585; Life Ins. Co. L.R.A. Volunteer State Haynes, 337; A.L.R. Warthan S.W. cash hand the 2d 481. 155 Texas On S.W. community funds was policy purchased surrender value of Womack, regarded community property. as Womack v. proceeds as policy were treated And the purposes. Blackmon v. tax for inheritance Hansen, 140 2d 962. en the difficulties that were The decided cases demonstrate recognize property as once the courts refused to

countered pects between life material difference insurance. There no types any departure from property, and “or” and other bonds dealing principles law in established uncertainty certainly lead the same will almost to confusion particular cases. results in inconsistent or undesirable well pro suggest can that the wife’s estate insurance decisions husband, it will tected when she has usually defrauded but been impossible actual fraud and we difficult to establish *9 anticipate do fraud will defined with such not that constructive be clarity satisfactory provide that will insure even standard reasonably partners and their es fair treatment of the marital may tates in the arise. These considerations various situations that overruled, lead us to the conclusion that Ricks case should be “or” we will not follow the same where bonds are community spouses as with funds issued in the names of the co-owners. Culpepper, See 222 La. 64 2d Slater So. 1216; Estate, Re 37 A.L.R. 2d In Allen’s 2d Wash. Pac. 2d 867. holdings require

This does not that of Chamberlain Robinson, (wr. ref.), App., or Civ. 305 S.W. (wr. Phillips, McFarland v. Civ. 253 S.W. n.r.e.) Community property apparently ref. be disturbed. legal cases, impedi- not involved in those and there seems to be no recognition party ment to third of a contract for the benefit purchaser’s separate acquired funds. when are with the the bonds spouse purchased by with com- are one case which bonds munity and that of some funds or her name and issued in his person third arises. as co-owners will be decided when amending in Legislature We do think separate owner modify provide that tended to statutes and might ship does not meet from a transaction which result requirements 4613, 4614, 4619, 4624a and 881a-23. of Articles place, any attempt far the first could not be effectual so Constitution, property as the wife is concerned. Under during by gift, marriage any acquires she manner other than devise, funds, descent, separate partition purchase or with 881a-23, authorized Articles does not and cannot 4624a Leonard, separate property. be made constitute her Arnold v. place In the second and while we attempt question here, do not our to decide the it seems that Con already whereby provide stitution and statutes a method spouses may arrange part for which once constituted necessary vest if estate to in the survivor Community may partitioned formalities are observed. provided 4624a, portion apart manner in Article and the set spouse thereupon separate to each becomes his or her estate. provides twenty-one Article years wife, that if she is least age therein, and elects in the set manner out shall have management, the sole erty, disposition separate prop her control and in joinder connection therewith contract without the her acquires power husband. If thus the wife regarding separate estate, apparently her is no legal saying they reason for that cannot make an effective sur vivorship covering separately owned either or both. Under such circumstances the or in acquired making terest each at the time of contract would by gift purchase be property. paid consideration out of suggests An amicus curiae brief should be presumed might intervening steps to have intended to take necessary accomplish result desired. are We urged say gave Mr. first funds to petitioner separate property and that the latter then used thus tenancy the stock and create a *10 argument, her already husband. This been which has answered opinion Trice, recognizes supra, implicitly in Kellett v. present upheld resorting only by case can be legal party fiction. A each transaction receives some- ear- relinquished thing has none of for that which of value legal given effect as successive cannot be the same marks of and Appeals gifts. agree and unrelated with the Court Civil We becoming property petitioner’s that instead of ,the passed stock and vested accordance husband’s death community prop- applicable laws descent distribution issuing protected erty. corporation will The whether stock notice that when it deals with survivor without presented or decided. purchased with funds is not Appeals judgment is affirmed. of the of Civil Court Steakley sitting. not Associate Justice January 25, Opinion delivered Norvell, joined

Mr. Justices and Cul- Justice Griffin ver, dissenting. logical agree proposition a Ricks

I with the court as Smith, if be overruled 439 should Appeals judgment to be affirmed. of the of Civil Court held that “the

In the Ricks case this Court Savings) (United a which created bonds was States payment right, merely con- a a method of for the —not sanctity Treasury Department. of the There is no venience community give types law. property law that of other To above regulations supremacy to Federal no more affects than laws of descent and distribution. solution law ‘or’ co-owner of bonds as contract, part rests in and that contract becomes bonds.” present dispute, (mutual cer- fund case the securities in Hilley tificates) and Pearl were issued E. “W. com- full and not as tenants in tenants with mon.” overruling case, However, re- the Ricks I would instead being judgment Appeals con-

verse the of the Court of Civil trary thereto. writing opposition overrules decision which

When said case which is considered sound there is much regrets departure departed. than that one Ricks my supported prin- speaks opinion Smith itself. In it was

581 823, 2d Mitchell, ciple 143 Texas Edds v. S.W, Deaton, App., 2d 470; Shroff v. Texas Civ. A.L.R. Phillips, hist., 253 S.W. and McFarland v. Civ. no wr. weight n.r.e., of Ameri- is in ref. accord with wr. report following authority point. can on the In the annotation the Ameri- Culpepper, La. So. Slater Reports 1216) is said (37 A.L.R. 2d it that: can Law courts, frequently by majority of “The rule followed rights ‘majority rule,’ respect United States called the savings registered in the names two individuals bonds co-owners, alternative, upon surviving is that the death of one of the ownership in such co-owner is vested with the sole bonds, inequitable con- least in the absence fraud (37 part 1223). on duct of the survivor.” A.L.R. 2d following majority rule Texas is listed one of the states along California, community property another state. argument upon

One well rest the authorities men- his along suggested tioned relating with the observation in one of the briefs

to the before us: family modern social Under conditions there now exists a true upon wherein the wife the death of the husband suc- family ceeds to competency the head of the and is conceded the family holding to handle the finances. The of securities under the relationship contractual here involved offers a means for the mod- family pool ern keep husband’s and wife’s resources and during marriage them a flexible state for use and at the providing passage same time for unfettered of title of the whole to family head of public policy unit. is no There arrangement infringe. which such an fact, public could policy should be procedures. to foster such Hilley purchased issuing

Mr. and Mrs. corpora- shares in the rights tions which carried with them certain contract ac- which rights crued to them as certificate holders. The ac- quired by purchase contract and were similar to those held owners of the tenancy, notably common law estate of survivorship. agreements attempt- While at law common ing legal to “alter sanctioned, orders of descent” were not Schroeder, Protzel 292, 294, never was agreements giving considered that rise tenancies were comprehended by the rule. arose with acquisition title, expectancies of the deflected, were parties may have had as the heirs of either of the consequences incident to speak, contractual so to the contractual

part acquired. While estate, law common not a technical *12 that right clearly expressed is survivorship of right of sur- here The with which are concerned. matter we marriage by upon property dissolution of vivor to take the purchase. genesis in the contract of death had its and arose from arrangement no accept property under such To receive and things than community property of scheme more violative of the the For a would be. of life estate with funds fee it in property to essential that be held it is not be person simple. who dies required It interest of the is not that the testamentary pass heirs, a first his or her valid should absent supports provision. import case these state- clear of the Ricks with an en- I and in accordance ments. believe them sound lightened persons policy allow of fraud would which the absence freely species of and choose the possess. action in Accordingly, I the court’s wish to dissent from overruling Ricks Smith. holding disagreement

I am the court its further in with complying with the that between husband and provisions tjasis insufficient as a the Probate Code is of Article com-

for a munity funds. Kountze,

In Chandler v. Texas Civ. Company ref., con appeared it Land & Cattle wr. that Texas veyed Luther L. various of land to T Kountze and tracts Charles joint including tenants, Kountze the survivorship.” of such tenants “as all common law Appeals held that: Court Civil wording legislative 2580 indicates a of Article “While relationship joint tenancy

intent to abolish the would where by law, including created common-law otherwise have been survivorship, nothing subject doctrine of matter would, opinion, justify presumption act which our legislature thereby prevent a intended to con- among tract, will, conveyance, providing from or deed them- pass selves should to and vest in as at survivor common law.” consideration of au-

After rather exhaustive the American relating sur- provisions thorities, that the the court concluded statute, being vivorship void as in contravention were not clearly, provisions valid and enforcible “but are contracting parties.” expressed intention desires its sound- the case and court a writ error in This refused court, ness, has applied before the the factual situation then questioned. never been 46 of appears in Article

The substance of Article 2580 now Code, the Probate viz: real, personal, estate, persons more hold an two ore “Where mixed, severance, joint jointly,

or before his and one owner dies remaining in said estate shall survive to, joint in, owners, shall vested owner but descend legal representatives joint owner the heirs or of such deceased *13 in the same manner as if been severed and as- his had agreement Provided, by writing however, certained. joint that an of property, any joint owners the interest oioner who dies of of may joint owner, joint surviving be made to survive to owners, agreement but no shall the mere be inferred from property joint ownership.” that is held in fact proviso above italicized was the time of added adoption of the Probate Code. adopting Legislature undoubtedly proviso, this had in legislated regard mind the decision in Chandler v. Kountze and wording proviso joint may pro- thereto. The vide is owners that by engagement writing any an joint that the interest of owner dies who be made to survive disputed title; owner. It inception at the of of here that time agreement providing was that the mutual fund shares subject survivorship”

involved should be held to the “full of surviving joint of the direct owner. It seems therefore that have we statutory authority security for the issuance of of the form in this involved case. position holding It is the of the court that of while Chand-

ler proviso quoted may Kountze and the of statute above apply properties purchased by using monies from estates, they applied properties pur- cannot be chased with funds. It contended that a husband and partition community property, wife must first Article permitted by 16, 4624a, section 15 Constitution Article Ver- Stats., may purchase securities non’s Ann. Texas before type carrying a contractual involved, namely here those valid survivorship. provision holding the use court’s seems way interfere purchase survivorship funds to contracts in some Stats., 4610, provisions Texas with Article Vernon’s altering legal agreements expressly proscribes pre-nuptial post-nuptial by implication invalid orders of agreements render descent which would have effect. Despite 4610, provisions has held that Article this Court State, in

mutual contract are in this wills based on enforceable 621, Crowther, this Texas Weidner 301 S.W. court said: Hugo Sophie

“The not ren- mutual will Weidner dignity equal dered with Article 4610 is invalid Article 4610. Of pro- permits competent every person, under the statute which thereof, by will, dispose visions Probate of his Code, Revised sec. Article Civil Statutes V.A.T.S. 1925, repealed adoption Probate Code.” also, Graser, See 2d 867. Graser v. logic equal Can it not be said with that written providing reference to for contractual dignity equal is not rendered Of invalid 4610? permits joint Article 4610 is the statute which owners of writing provide the interest of *14 owner who dies be made survive owner or statutory owners. I believe can would so construe as the rule enactments involved. On well this basis Smith, agreements upheld. Ricks should be forth, respectfully For the reasons I from the set dissent order Appeals. affirming judgment Court Civil Opinion January 25,1961. delivered Rehearing 1,1961. March overruled