author: RANDOLPH, J.

text:
    WESTERN NAT. BANK OF HEREFORD v. STEELE et al.
    No. 3368.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1931.
    Rehearing Denied March 4, 1931.
    Carl Gilliland, of Hereford, for appellant.
    . Morgan, Culton, Morgan & Britain, of Amarillo, for appellees.
   RANDOLPH, J.

This suit was instituted by the appellant bank in the district court of Deaf Smith county, as plaintiff, against appellees George H. Guinn and M. L. Steele as defendants. From an adverse judgment the plaintiff appeals.

On June 4, 1918, the plaintiff, in the district court of Deaf Smith county, recovered a judgment in causé No. 1122, entitled the Western National Bank of Hereford v. George H. Guinn, against the said George H. Guinn, for the sum of $6,669.87, with interest and costs. An execution was duly issued on said judgment on the 25tii of February, 1919, which was returned by the sheriff of that county nulla bona.

On the 17th of May, 1928, M. L. Steele was the owner of certain steers which he sold to the said Guinn for the sum of $52.50 per head. At the time of the sale of said steers, a note was executed by Guinn to Steele for the sum of $3,000; $2,500 of this sum was the down payment on the purchase price of the steers and $500 was for cash advanced by Steele for Guinn to buy feed for the steers. The balance of the purchase money was $21,000. In May of the same year Steele wrote Guinn and inclosed him a note for $21,000 for liis signature. It took the $21,000 note and $2,500 of the $3,000 note to make the total purchase price for which Steele sold the steers, and Steele testifies that he did not include the entire purchase price in the $21,000 note because Guinn had told him he would pay the $2,500 and take up that note. Steele then suggested to Guinn that as he could not pay the $2,500 note, they had better rewrite the mortgage, but Guinn said to just let it go for a day or two and that he was going to have to have another $500 to pay for feed. Steele then loaned him $500 and took his note for that sum. On May 17, 1928, Guinn executed a chattel mortgage upon the following described steer cattle, to wit: 413 dehorned white face steer yearlings; 35 head dehorned white face heifer yearlings. This mortgage was given to Steele to secure him in the payment of the $21,000 note and contained other provisions which will be noticed later.

The mortgage describes a $21,000 note here in controversy and also contains this provision :

“Whereas, party of the first part may desire hereafter.to procure from party of the second part further loans of money from time to time, which loans, if consented to and made by second party, may be evidenced by the promissory note or notes of the said first party to the said second party or order;
“Now, Therefore, it is expressly agreed that ⅜11 of the indebtedness so as aforesaid now existing, or which may at any time hereafter be created and outstanding as hereinbefore recited, with the interest thereon, shall be equally secured as a first and prior lien upon all and singular the cattle, live stock, chattels and personal property hereinbefore described, and that said security and lien shall extend, apply and continue as to any renewal or renewals or extensions of said notes which may be made by consent of the second party and which may be evidenced by the execution of a new note, or notes in place of the original notes.”

These steers included in the mortgage were located in a pasture operated by Guinn west of the town of Hereford.

The note for $3,000, which' includes the $2,500 down payment, and the sum of $500 advanced by Steele to Guin to buy feed, was incorporated with a further sum of $1,500 advanced by Steele, and all such sums were renewed and placed into a note for $4,500, which is one of the notes here in controversy.

The steers described in thé mortgage, and which were the same steers sold by Steele to Guinn, were sold by Guinn to one Wilkinson, who appears to have been purchasing them for Lee Bivins.

The bill of sale executed by Guinn in the transaction with Bivins was delivered to Steele by Guinn pending the delivery of the cattle and the payment by Bivins of the purchase price. Subsequent to these transactions the plaintiff had an alias execution issued on the judgment in its favor in cause No. 1122 against Guinn and same was placed in the hands of the sheriff of Deaf Smith county. Whether or not this execution was levied .upon the steers is a crucial point in de- . termining whether or not the plaintiff was entitled to require the defendant to marshal securities. Hence, we will now give the material evidence bearing upon that question.

The sheriff of Deaf Smith county testified, in párt:

“After I received the execution I drove out to Mr. Guinn’s place and got there about 11:30 o’clock. He was not there, and I stayed at the camp about an hour and he still didn’t come home, and then I went out in the south pasture and I counted the cattle. I first drove back into the north pasture and didn’t find any steers. I found a bunch of heifers up there. I went back to the south pasture and counted 390 head of steers and then drove back to the camp, and went over to his son’s house and made inquiry about him, and he said he had gone to Friona. Then I went south' to the little school house and I met him there. I told him my business there. I don’t know that I read the execution to him but 1 showed it to him. I found some steers out in the pasture and counted them. About 39U. That is all the steers I saw there. That is all of them. I did not pen them up. I did not drive them around the pasture. I do not know whether thfey are the steers that Mr. Guinn had bought from Mr. M. L. Steele along about February, 1928, or not.
“I did not see Mr. Guinn before I counted the steers. I saw him afterwards, and I never saw the steers after I saw Mr. Guinn. I told him, Mr. Guian, that I would like to make arrangements to leave them there, and he said that they were Steele’s cattle, and that he had nothing to do with them. I did not go and put somebody in charge of the cattle after that— I never saw them any more.
“When I returned to Hereford I went to Carl Gilliland’s office and told him word for word what Mr. Guinn had said and he said that he would make the returns himself, and I left the execution in his office. I never made any returns on the execution as I remember of. I did not put the typewriting under the caption ‘Sheriff’s return,’ and X never signed it as I know of, and the return is not signed by me. I never made any return into court myself, as I remember of.
“Q. Did Mr. Guinn tell you anything about selling the cattle or contracting for them, with Lee Bivins? A. No, he said that the cattle had been sold. I do not know how the cattle were branded. Mr. Guinn told me that I could leave the cattle in his pasture; it seemed to be satisfactory to just leave them stay there. These cattle were all in the inclosure there. I couldn’t see that they were all in one brand; I noticed that the first cattle we struck had that brand and the rest of them, and I did not know for sure that they were the cattle until I drove over south of there. The cattle I counted were on Guinn’s ranch. They were in one inclosure, the south pasture of Guinn’s place.
“After I had the conversation with Guinn we separated and I came back to Hereford and took the execution to your (Gilliland’s) office. I don’t know if you told me that you could not make a complete return on the return until after I sold the cattle. When I remember being said there in your office is that I went into conversation with you and I told you just what I had done and you said you would make my returns; and you, at that time, from what I told you, wrote this (witness referring to a part of the typewritten portion of the returns on the execution) on it, and said that that was part of the return, and that it would be finished when the cattle were sold.”

The sheriff’s returns referred to are as follows :

“Sheriff's Return.
“Game to hand the 11th day of September, 1928, and executed the 11th day of September, 1928, by levying on and talcing into my possession in Deaf Smith County, Texas, as the property of the defendant, Geo. H. Guinn four hundred ten head of white faced dehorned steers, which iverb yearlings m the spring of 1928 and branded (giving brand) on the left thigh. Located about thirty-five miles west of Hereford.”

The typewritten portions being italics, and the remaining portions being printed, except the brand, and it was made with ink; and the part of the typewritten portion referred to began with the words, “levying on and taking into my possession,” and ending with the words “and located about thirty-five miles west of Hereford.”

“Q. You knew at the time that I wspte this on the return; you knew what was on it? A. At the time; you did not write nothing, but you took it down on a piece of paper. It was getting late.
“Q. Was I not sitting there in the front room of my office and I called my stenographer and she wrote this? A. No; I don’t think so; because we went ahead; I knew some words that was passed between Mr. Guinn and myself that I said took place out there, that I would not have said before a lady. I gave you the number of the steers and the description of the steers; we went into a conversation; just what took place, you said it was all right; that you would make my return. As I remember, you wrote it down with a pen or pencil.
“Q. You had not finished executing the writ up that time; You had just done part of it? A. Yes sir.
“Q. And your returns were not ready to be completed? A. No, I guess not.”
“Q. Did you intend to sell these steers when you came back to town? A. I intended to do just what Carl Gilliland told me.
“Q. Did he tell you to sell them? A. No sir.
“Q. He told you to go out and get them? A. He told me to go out there and to execute that writ; that execution, and to do it that day, or right away.
“Q. Nothing was ever said to you about selling these steers? A. No; that really was not said; what was said about selling, — we all understood the cattle were sold and that they just meant to let that sale go on through. I cautioned them that morning, if I levied on these cattle, about where I would put these cattle. I did not agree to pay Guinn any pasturage for the cattle from the day I counted them. I never offered to pay him anything. I intended to go right ahead right there with what that thing said to do (witness referring to the execution read in evidence). They never called on me to do anything else. There was something said between me and Mr. Gilli-land in reference to an indemnity bond. I asked Carl Gilliland if he had his bonds made and he said no, that if I had to have a bond that the Western National Bank of Hereford would make the bond, and it has never made a bond as I know of.
“Q. Would you have gone out there and taken possession of these cattle and sold them; without an indemnity bond? A. Mr. Gilliland guaranteed if I had to make the bond that they would make it; no sir, I would not have done that.”
“These steers were in the south pasture. They were yearling steers. After I got back to town, nothing was said direct to me at all about them. I thought the thing was settled. I did not advertise the steers for sale under the execution, but left them there. The date the execution was delivered to me was the day I went out there and did what I did do toward making the levy, but didn’t really know the date it really was, and couldn’t say that that was the day it was issued. After they commenced talking to me I would not have sold the cattle unless an indemnity bond had been given to me. That was after I went out there.
“Q. You never called on me to give an indemnity bond? A. Yes sir, only that one day, Mr. Gilliland.
“Q. I said that if you wanted an indemnity bond I would give it any time you demanded it? A. You told me, Mr. Gilliland, that the Western National Bank would. Then I went on and did what I did do toward levying the writ. I talked to Mr. Guinn about those steers after I went out there and saw him there, and told him about the steers I had levied upon. He did not tell me that they were the steers he had sold Lee Bivins. He said that they were Mr. Steele’s steers. That they were sold to Henry Wilkinson, and I don’t know whether these same steers were ever delivered to Lee Bivins, or not.”

It was also shown by the evidence that there were steers in the same pasture,that belonged to other parties.

The plaintiff claiming it had a lien on the steers by reason of the levy above testified to, Bivins, the purchaser, demanded some security or an agreement for his protection in the paying of the purchase money, and for that reason an agreement was entered into by the various parties concerned, to wit: The Western National Bank of Hereford by G. A. E. Parker, president, George H. Guinn, and M. L. Steele by S. A. L. Morgan, agent. By the terms of this agreement, Lee Bivins was to pay, and did pay, to Steele when the steers were delivered to him the sum of $205, to McFarland and Wilkinson (their sales commission) and to M. L. Steele the sum of $18,950, and the balance of the consideration he was to hold as stakeholder in accordance with said contract then executed. The contract provided for Bivins to hold the balance of the money subject to the following clause thereof:

“It is further agreed by and between all parties hereto- that in case the heirs or legal representatives of the said O. S. Hart, (who died after said contract for the purchase of said heifers was entered into, and before the consummation thereof), should carry out and perform said contract and pay for the said heifers, the said payment shall be made to the said M. L. Steele. And in case they should fail to do so, then the said Steele shall sell said heifers on the market, at the market price, -and the price for which they are sold shall be paid to him, the said Steele. And if the Bank is correct in its contention as above recited, that the said Steele should marshal its security on the said heifers and apply the proceeds of the sale of them to the payment of the said $21,000.00 note before going onto and selling the said steers for the payment of the said $21,000.00 note, then that the said Steele shall pay to the said Bank, to be credited on its said judgment against the said Guinn, the said amount for which the said heifers are finally sold, whether the sale be a consummation of the said contract entered into between the said Guinn and the said C. S. Hart, or whether the sale be one made by the said Steele at the market price of said heifers, as hereinabove provided.
“It being also agreed by and between the parties hereto that the title to the said heifers shall, on the execution of this agreement, pass to, vest in, and be held by the said M. L. Steele for the aforesaid purposes, subject however, to the said contract made by the said Guinn and the said Hart.
“It is understood by and between all parties that neither the said Steele nor the said Bank waives their respective contentions as to whether or not the said bank has the right to compel the said marshaling of said securities by it, and hereinabove set out; and this agreement on the part of said bank, that the entire $21,000.00 net shall be paid out of the proceeds of the sale of the said steers to the said Bivins, is made in consideration of the agreement on the part of the said Steele and the said Guinn that the said proceeds of the sale of the said heifers shall be paid to the said bank and applied on its said judgment in case the said bank under its said levy has a legal right to require the said Steele to so marshal his said securities -and sell the said heifers, and require the proceeds of the sale of said heifers to be first applied to the payment of his said $21,000.00 note before selling said steers for the said purpose, or before causing the proceeds of the sale of said steers to be applied on the payment of said $21,000.-00 note; and it is contemplated by and between the parties hereto that when the proceeds of the sale of said heifers are paid to the said Steele the said Bank shall institute suit against the said Steele in a court of competent jurisdiction or said Steele shall institute suit against said Bank, in order to judicially determine the respective rights of the parties to the said proceeds of the sale of said heifers.”

As to the fund held by Lee Bivins, at his death, which occurred shortly afterwards, his estate paid over to Steele under an agreem'ent betwen the parties the money held by Lee Bivins as stakeholder; Steele to become liable for its payment provided the judgment of the court should find the plaintiff to be entitled to a marshaling of the securities.

There is one clause in the contract providing that Bivins should hold the balance of the purchase money, which will be quoted here •also, because material to a question before us:

“And whereas, thereafter on the 11th day of Sept., 192S, the Clerk of said Court duly and legally issued an alias execution out of 'said court on said judgment, directed to the sheriff- or any constable of said Deaf Smith County, commanding him that of the goods and chattels, lands and tenements of the said George H. Guinn, he cause to be made said sum of $6,-669.87 with interest thereon at the rate of ten per cent, per annum and the said sum of $5.-30 costs, which said execution was on the said 11th day of September, 1928, delivered to Claude Benton, the Stíeriff of Deaf Smith County, Texas, and was by him on said date duly and legally executed in Deaf Smith County, Texas, by levying on and taking into his possession as the property of the said defendant George H. Guinn, 410 head of white faced dehorned steers, which were yearlings in the Spring of 1928 (giving brand), located about 35 miles west of Hereford, which said steers are how in the possession of said Sheriff under said levy.”

It is apparent from the evidence of the sheriff that he never took actual possession of the steers under the claimed levy. He only rode out among them, counting them. He could testify only to a few head having the brand on them; he did not drive them or segregate them from the other stegrs in the pasture. He made no arrangements to put any one in charge as caretaker, made no arrangements for their continued pasturage. When he told Guinn he would like to make arrangements to leave the steers there, Guinn told him that they were Steele’s cattle and he had nothing to do with them.

Can a levy made on live stock be made by the sheriff riding out among them and counting them and then leaving them where he found them, without making any arrangements with anyone to take charge of them? We think not. The sheriff’s acts did not constitute the taking into his possession of the steers as required by article 289, R. C. S. If he had taken the steers into his actual possession, he certainly abandoned that possession, when he failed to make any arange-ments for their continuance under the levy.

This court has heretofore, in the case of Osborn v. Paul, 27 S.W.(2d) 572, discussed the requirements of a valid levy, and we refer to that case and the authorities therein cited to support our holding that there was no valid levy.

The appellant relies on the case of Burch v. Mounts (Tex. Civ. App.) 185 S'. W, 889, to support its contention that the levy was a legal levy. That case has several distinctive features which render it not in point in this case. In the first place, in that case the sheriff took actual possession of the steers by driving them up out of the creek where he could count them, but he returned later and took them to another pasture. We think this distinction is sufficient; but be that as it may, we do not feel that we ought to extend the holding in'that case any further so as to include as a valid levy the acts of the sheriff in this case.

The appellant contends that the agreement between -the parties that Bivins was to hold the money as stakeholder by the recital, “which said execution was on the 11th day of September, 1928, delivered to Claude Benton, the Sheriff of Deaf Smith County, Texas, andi was by him on said date duly and legally executed in Deaf Smith County, Texas, by levying on and taking into his possession as the property of said defendant George H. Guinn, 410 head of white faced dehorned steer yearlings,” etc., estopped the defendant Steele from attacking the legality of the levy upon the steers. In reply to this, the defendant Steele expressly pleads as to the contract, as follows:

“That the real agreement, reached and arrived at between the plaintiff and the defendant, at the time the said contract was made, was that said sale to Lee Bivins for the sale of the said steers and the sale of the heifers referred to in the said contract to C. S1. Hart or the estate of C. S. Hart, be consummated, and that after the payments and 'the commissions and the said note for $21,000.00 held by this defendant be paid; that the balance of the money received from the sale of said steers and heifers be held by the stakeholders referred to therein, subject to whatever liens or equities plaintiff and this defendant, or either of them, might have to the said cattle; in other words, that such proceeds for said cattle and the existing liens and equities of the plaintiff and the defendant be enforced against said money in the hands of the stakeholders interested in enforcing said liens and equities against said cattle.
“That there was no agreement on the part of the said M. L. Steele, to waive any rights, nor was there any agreement on the part of the plaintiff to waive any rights, and if said contract as claimed by plaintiff contains any such provision, said provision does not reflect the agreement and the facts and it renders said contract ambiguous and susceptible of construction requiring proof to disclose its real purpose and meaning.
“That if said contract should perchance he construed to have meant an apparent waiver by this defendant of any claim that the plaintiff did not hold a valid execution lien against said steers, that such agreement was without consideration; in this, that the plaintiff lost no rights by virtue of the making of said contract, that any rights it had against said steers or heifers, or against this defendant were not given up or surrendered by virtue of the making of said contract.
“That in truth and in fact, the plaintiff had no rights as against said steers or the said heifers, or any interest, to require this defendant to surrender the proceeds received from the sale of said heifers, as claimed by the plaintiff in its petition herein filed, for this reason, that no levy had been made of any execution upon, the said 413 head of steers as represented by plaintiff to the defendant and as recited in the introductory clauses in the said contract.
“That the Sheriff of the said Oounty never took the said cattle into his possession, nor did he ever interfere with the possession of the said George H. Guinn with said cattle; that no act had been proclaimed by the Sheriff amounting to a trespass, but that said execution, if any return was made of such, or by such officer, showing him levying upon the said cattle, and no -lien, right, title or equity of any kind or character was ever fixed or established by the plaintiff against said cattle, and the rights being asserted by the plaintiff at the time of the signed date of the contract attached to the plaintiff’s petition, marked “Exhibit B”, to this defendant and the said Lee Bivins, were not founded upon any valid lien, equity, right, title or estate, and there was in fact no basis for any bona fide claim on the part of the plaintiff to a lien against the said cattle.
“That by virtue of the facts as hereinafter set forth, said contract should be construed to mean that the rights of the parties were held in statu quo, and that the money, to-wit: the sum of $4,620.00 now in controversy, be held in lieu of said cattle until the rights of the plaintiff and this defendant be litigated.
“This defendant further represents that in the making of this said'contract this defendant through his attorney S. A. L. Morgan, of Amarillo, accepted the statement of the attorney of record for the plaintiff, i. e., that a valid levy of said execution had been made on the said 413 head of steers; and believed said representation to be true, and but for hfe belief in said representation, which he after-wards learned was unfounded and without foundation in fact, this defendant through his attorney would not -have entered into said contract; by reason of which this defendant in no event should be bound by any recitation contained in said contract, by which the plaintiff 'seeks to bolster up its claim to the said cattle.”

The defendant abundantly sustained this pleading by the evidence, and the trial court in his findings of fact with reference to said clause in the stakeholder contract found as follows:

“I find that in introductory clause in said contract it was recited that .the execution delivered to Claude Benton, Sheriff, was on the 11th day of September, 1928, ‘duly and legally executed in Deaf Smith County, Texas, by levying on and taking into his possession as the property of said, defendant said Geo. H. Guinn, 410 head of white face dehorned steers which were yearlings in the spring of 1928, and branded on the left thigh.’ I find that the context of said contract however, discloses nc intention on the part of the defendants M. L. ' Steele and Geo. H. Guinn to waive any rights against the plaintiff and that the context of said contract discloses no intention on the part of the plaintiff to waive any right against the defendants M. L. Steele and Geo. Guinn but that it was the intention of all parties to said contract merely to substitute said re? spective sums of $2920.00 and $1700.00 for the steer yearlings and the heifer yearlings heretofore referred to pending the outcome of the litigation of the respective claims of the plaintiff and the said M. L. Steele under the claim of plaintiff that it had an execution lien on said steers and that the claim of said Steele that he had a chattel mortgage lien on said steers superior to any execution lien, if any. And I find that if said context in said contract was intended to waive and admit that there was a levy of an execution by the sheriff that the .same was of no foree or effect as no execution lien can he established by the agreement of parties or by the waiver of levying an execution but the same must be levied as provided by the statutes of this State.”

There being abundant evidence to sustain this finding, this court has no power to set same aside. Hence the question as to whether or not a legal levy was made is not concluded by the signing of said agreement.

But should we be in error in this holding, there is another proposition urged by the defendant Steele for our consideration that we think is decisive of this appeal.

It is evident, and we think beyond controversy, that the note for $2,500, which was later incorporated in the $4,500 note, was a part, of the purchase money paid for the cattle. It will be remembered that $500 of the $4,500 was loaned to Guinn by Steele to buy feed. This was loaned to him after the execution of the mortgage but before the delivery of the steers. The $1,500 making up the balance of the $4,500 note was loaned to Guinn after the execution and delivery of the' mortgage. •

The facts in the case establish that the plaintiff bank had, some years before the transaction of the taking'of the lien by defendant Steele, obtained a valid judgment against the defendant Guinn, and after the steers then owned by Steele had been sold by him to Guinn, and after the sale of the same steers to Bivins and Hart, and pending the delivery of same to Bivins, had the attempted levy made. Therefore, the plaintiff, regardless of the levy, is not in position of innocent creditor in good faith.

The defendant Guinn having delivered to defendant Steele the bill of sale which he had executed to Bivins and which was to be turned over to Bivins when he received the steers and paid the purchase money, the evidence clearly shows Guinn's intention to transf er the rights under said bill of sale and all payments thereunder to Steele. While this bill of sale was a written instrument, it was not necessary that it be registered to entitle Steele to all interest in the proceeds of the sale. First National Bank v. Harkness, 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408.

Where proceeds of a contract were assigned, such assignment is not a chattel mortgage and is superior to a writ of garnishment or, as in this case, a writ of execution. Hall v. Terra Cotta Co., 97 Kan. 103, 154 P. 210, L. R. A. 1916D, page 361, Ann. Cas. 1918D, 605.

An assignment of 'a debt or fund secures it ■ against attachment or garnishment for a debt of the assignor. 5 Tex. Jur. 39, § 31.

The sale by Guinn to Bivins, as stated above, was evidenced by a part of the purchase money being paid, the residue to be paid by Bivins upon delivery of the steers. This being true, the delivery by Guinn to Steele of the bill of sale from him to Bivins with the intention on his part of vesting in Steele the right to collect the residue from Bivins (the cash payment having been turned over to Steele) was. an assignment of such fund and record or other notice was not required to have been given to the plaintiff.

There are other questions raised and discussed by both parties in their briefs, but as our decision of the questions above discussed disposes of the case, we do not deem it necessary to discuss them here.

We therefore affirm the judgment of the trial court.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    GATZ et al. v. CITY OF KERRVILLE et al.
    No. 8525.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 7, 1931.
    Rehearing Granted and Judgment Affirmed Feb. 18, 1931.
    Rehearing Overruled March 11, 1931.
    E. B. & Howell Ward, of Corpus Christi, for appellants.
    W. C. Baker, of Kerrville, and Morriss & Morriss and Reed Cozart, all of San Antonio, for appellees.
   SMITH, J.

The city of Kerrville, which operates its own municipal waterworks system, maintains a water meter box in the center of the paved sidewalk on its principal business street. The top or lid of the box lies flush with the surface of the sidewalk, and has been so situated for six years or more, although, in the meantime, the meter had been removed from the box, which was therefore left empty. During all that period pedestrian traffic has passed constantly back and forth over this contraption, without mishap. Mrs. Lula Gatz, appellant herein and a resident of the city, had frequently walked over it prior to the accident here involved. But on this occasion, on December 13, 1928, she stepped upon the lid, which tilted or moved out of place, and her foot and leg went down into the meter box, whereby ¿he was injured. Joined by her husband, she sued the city for damages for such injuries, but upon the ensuing trial the court directed a verdict against her, and she has appealed from the resulting adverse judgment.

The record affords no satisfactory explanation of the accident, or of the cause of it. It was shown that the meter box lid had been previously broken, leaving a “nick,” one by one and one-half inches in size. But this defect had existed for two years or more prior to the accident, and there was no evidence from which it could be inferred that it caused or contributed in any degree to the accident. There was no evidence from which it could be inferred that any part of appel-lee’s shoe caught or could have caught in the small nick, or that that defect impaired the security of the lid, or the safety of its posi-1 tion. There was no evidence that the lid was out of place or in any other respect insecure at the moment of or prior to the accident. The evidence showed simply, hut no more than, that appellee stepped upon, or that her foot struck, tlie lid, moving it out of the place in which it had securely lain for more than six years, thus rendering possible the accident which could not have happened otherwise.

The lid was not provided with any device designed to hold it securely in place as a cover to the meter hox, other than a “lip” fitting over the rim of the box, to prevent it from loosely sliding about laterally. Iti is inferable from the evidence, however, that it could have been held more securely in place by catches pr clips to prevent its removal except by manipulation, rendering it proof against displacement from causes normally incident to the passage of pedestrian trafile over it; that such device would tend to render it safer and more secure against accidents such as occurred to appellee.

We are of the opinion that a jury would have been warranted in finding that it was the duty of the municipality to provide some such device, that the failure to make such provision was negligence, and that such negligence was the proximate cause of appellee’s injury.

When the city elected to place and maintain the meter box in a much traveled sidewalk, it assumed the duty of using at least ordinary care to equip and secure it with such safeguards as were reasonably necessary to prevent injury to persons lawfully using this public way.

Whether the municipality failed to use such care, and whether such failure was the proximate cause of the accident, are questions of fact, and in our opinion the evidence was sufficient in this case to take those questions to the jury. The trial court therefore erred in directing a verdict against appellee.

Accordingly, the judgment is reversed and the cause remanded.

On Motion for Rehearing.

Upon further consideration we have concluded that the record supports the judgment, and does not warrant reversal. The evidence raises no more than, if as much as, a mere surmise that the lid of the meter box was negligently constructed or maintained, and there is nothing in the evidence to raise an inference that any act or omission of the city proximately caused appellant’s injuries. Appellant, habitually walking back and forth over and upon the meter box, stopped in its vicinity one day to greet arid converse with friends sitting in a car parked at the curb. While appellant was so engaged, and while she was standing upon or moving about on and off the meter box, the lid thereof was in some way displaced, and her foot went down in the opening thus made. Apparently the lid was intact when she paused thereat, and it, was some minutes later that the accident happened. How it happened is not explained in the record. Always theretofore, so far as the record discloses, the lid was kept intact, and could not be displaced except through intentional manipulation, and while it must be assumed, as a matter of course, that appellant did not intentionally displace the lid, there is nothing in the evidence to warrant an inference that its position was rendered insecure, or that it got out of position on this occasion, by reason of faulty construction or negligent’ maintenance. The record being in this condition, this court would not be justified in holding that the trial court erred in directing a verdict for appellant, but must affirm the judgment rendered upon that verdict.

Appellees’ motion for rehearing is granted, and the judgment of the trial court affirmed.


author: FLY, C. J.

text:
    McDANIELS v. SCHMALSTIEG et al.
    No. 8536.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1931.
    Rehearing Denied March 11, 1931.

      H. S. Bonham and J. D. Todd, both of Corpus Christi, and J. C. Russell, of Sinton, for appellant.
    J. G. Cook, of Sinton, for appellees.
   FLY, C. J.

This suit was instituted by appellant against appellees to dissolve a partnership engaged in ginning cotton and the sale of cottonseed, and asking for a receiver to take charge of the' partnership, sell the property, and distribute the proceeds among the partners according to their individual interests. The court granted the prayer of appellant and appointed a receiver, who afterwards made a report, to which appellant excepted. The exceptions were overruled, and the report was approved. It was decreed that the sale of the property of the partnership by the receiver for $13,000 be approved, and it was found that there was a fund of $25,945.33 comprising the whole of the assets of the partnership. After deducting all expenses the assets amounted to $19,305.78, which was distributed to the partners according to their individual interests. The partnership was dissolved. Appellant alone expressed dissatisfaction and prosecutes his appeal.

There is but one proposition, as follows: “The contract of the partners and particularly the 6th division thereof was not void as being in violation of the anti-trust Statutes of the State of Texas, and the trial court, therefore, erred in so holding and in rendering judgment denying to plaintiff the recoveries he would have been entitled to or under and by virtue of said 6th division of said contract.”

It is not apparent to this court what appellant would gain if the proposition were sustained. We are of opinion that the contract between the parties was not illegal, as was held as to contracts in the case of Texas Farm Bureau v. Stovall, 113 Tex. 273, 253 S. W. 1101. The distinction between this case and' the case cited is clear. In this case there was no sale of the cottonseed to the partnership organization, but it was fully expressed that the seed were placed in the hands of the organization to be sold “through” it, or by an agent appointed by it. The contract merely created an agency for the sale of the cottonseed. The partners contributed to buy the necessary machinery and other necessary material to operate a gin, and of course each had an interest in the property in proportion to the amount contributed, whether he placed any cottonseed with the organization for sale or not. None of the parties to the contract sold any seed to the organization, and consequently owned no interest in the amounts arising from a sale of the seed except the amount received for seed placed in the hands of the sales agency. The parties to the contract were of course expected to patronize the agency, but, if any one did not, he incurred no liability to the participating parties. Under the terms of the contract every member was to receive the amount realized from his farm products through the agency. If a member had his cotton sold by the agency, he was entitled to his proportion of the sums realized, whether he had the cottonseed sold by the association or not. •

The facts indicate that the auditor allowed appellant a sum in excess of the amounts contributed by him to the association, and that he was given all to which he was entitled. If his theories were correct, the organization was in defiance of the statute on trusts and contrary to the decision cited by him, herein referred to.

We think the court was wrong in holding that the organization was obnoxious to the trust statute, but in spite of that we believe he rendered the proper judgment under the facts.

íhe judgment is affirmed.


author: COBBS, J.

text:
    GORMAN et al. v. GAUSE et al.
    No. 8542.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    Rehearing Denied March 11, 1931.

      C. O. Gillespie, of Memphis, Tenn., Neal A. Brown, of Edinburg, and Seabury, George & Taylor, of Brownsville, for appellants.
    R. M. Bounds, of McAllen, and Jas. A. Graham, of Brownsville, for appellees.
   COBBS, J.

Appellants sued appellees to determine their several interests in the estate of John P. Gause, deceased, who was a leading lawyer in Mercedes, Tex., and a practitioner at the bar of this court, for whom we all had the highest regard on account of his knowledge of the law and his enviable character.

On April 29, 1918, John P. Gause and Mamie Cato, contemplating marriage, entered 'into a purported antenuptial contract, making disposition of the property, separate and community, belonging to and to be acquired by each other.

Mr. Gause had been previously married. This agreement was to divide his property in three ways, one-third going to Mrs. Mamie Cato Gause.and two-thirds going to John P. Gause, the husband, now deceased, and to his heirs.

The facts show that at the time of the marriage he possessed in his own name about $8,000 worth of property, and she owned in her own name about $8,000 worth of property. During the marriage and up to the time of the death of John P. Gause, by their joint efforts, they accumulated property amounting to about $70,000. On the 7th day of March, 1928, John P. Gause, deceased, and his wife. Mamie C. Gause, executed what purported to be a joint and mutual will, which, in substance, revoked the purported prenuptial contract, and substituted the provisions in the will in its stead. The will provided that all property then outstanding in the name of John P. Gause, now deceased, should be his separate property, and all property outstanding in the name of Mamie C. Gause should be her separate property. All property accumulated by the community, with the exception of an apartment house, was taken in the name of John P. Gause.

John P. Gause died on June 11, 1929. Thereafter Robt. E. Kirkpatrick, executor under the will, offered the purported joint and mutual will for probate as the last will of John P. Gause, deceased, but before the same was finally probated Mamie C. Gause, the surviving' wife and appellee herein, appeared in open court and announced that she was not claiming under the will, but that she elected to take her property under the statutes and laws of the state of Texas, and filed a written notice to that effect.

The estate was probated, and appellants were adjudicated the heirs of John P. Gapse, deceased, and filed this suit in the nature of trespass to try title, asking for title and possession of all property listed by the executor as community property of said John P. Gause, deceased, and his surviving wife."

During the marriage, John P. Gause, through a trustee, conveyed the apartment house property, which was then community property, to Mamie G. Gause, appellee, and took in payment therefor a vendor’s lien note for the full value of the property, and this note was listed as a part of the community assets belonging to the estate. In the final judgment, however, all transactions in regard to the apartment house were canceled and set aside. The court denied the recovery asked by appellants, and granted the prayer of Mamie O. Gause for the. partition of the property, and appointed commissioners for that purpose, who proceeded with that work until superseded by this appeal.

No contract that has for its effect the denying of the wife of her interest in the future earnings of the community is valid and enforceable. It is against public policy and contrary to article 4610, R. S. And any division of community property made by husband and wife during marriage, except in contemplation of separation, is void and unenforceable.

The contract here provided that all properties then belonging to either spouse, and all properties acquired' by the union, should be placed in a common pool' and divided three-ways, one-third to go to Mamie O. Gause, or her heirs, and two-thirds to go to John P. Gause and his heirs, and specifically set at naught the community property laws of the state of Texas and the statutes of descent and distribution.

The leading case applicable here is Groesbeck v. Groesbeck, 78 Tex. 664, 14 S. W. 792. This case has been much cited and approved. It seems to make no difference whether the contract was executed prior to marriage or subsequent thereto, it is contrary to the laws of this state.

So far as the will was concerned, it was revocable by either party at any time by doing the things the law requires in such cases. There are no acts shown on the part of Mrs. Gause that would estop her from denying the enforceability of the will, and it is not enforceable against Mrs. Gause in any respect. She timely filed a written election not to take under the will, but to take her property rights under the statutes and laws of the state of Texas. She had tÉat right, and no one could prevent her from so doing.

She had other property in her own name in Mercedes, acquired before her marriage.

In discussing and disposing of the question of joint and mutual wills, we think it sufficient to refer to the case of Wyche v. Clapp, 43 Tex. 543, where the whole question is discussed. It has been cited and followed. We know of no rule that would estop Mrs. Gause from revoking the will, and we have fully considered the facts claimed to estop her and find none.

■ There was offered in evidence, without objection, the inventory and appraisement filed in the Hidalgo county probate .court by the executor and approved by the court, and no other evidence of any other property was offered.

The only property in the record standing in Mrs. Gause’s name, which could be classified as community, property, was tht apartment house, and this was tendered into court by appellee Mrs. Gause, and ordered partitioned as community property along with the balance of the estate. It was not incumbent upon Mrs. Gause to show anything upon the trial of the case, for the reason that appellants had pleaded and proved all of the facts necessary to make all property then before the court community property, unless some additional facts were shown that would take the property out of that class. These facts were not shown, and the court clearly committed no error in partitioning the property.

Mrs. Gause tendered the apartment house property into court as community property, and rendered a full and complete accounting for the rents, revenues, and profits collected by her, and the court made no error in rescinding the contract and canceling the note that was given for the consideration. Kellett v. Trice, 95 Tex. 170, 66 S. W. 51; Groesbeck v. Groesbeck, 78 Tex. 669, 14 S. W. 792; Cox v. Miller, 54 Tex. 16; Speer on Marital Rights, p. 67.-

The contract regarding the apartment house was a contract whereby John P. Gause, now deceased, through the intermediary of a trustee, conveyed community property to Mamie C. Gause, appellee herein, and retained a vendor’s lien note in favor of the community estate for the full value of the property thus conveyed, which note was listed among the community assets; and thus under that statement the only legal conclusion that can be reached is that all of their actions in regard to the apartment house were void and revocable by Mamie C. Gause at any time, and she did revoke the same and tender back full and complete restitution and the court granted complete restitution.

When the community property laws of this state were enacted by the Congress of the republic of Texas, the writer of these statutes had definitely in mind that the wife was no longer a slave or a hireling, but, in so far as property rights were concerned, she was a partner with her husband in his business undertakings, and for that reason enacted the community property laws of this state, which provide that the wife shall own one-half of the earnings of the husband and to permit the husband and wife, either before or after marriage, to make a simple contract which would nullify and hold for naught the community property laws of this state, would he striking right at the basic principles of the very social institutions upon which our government is founded, and would allow the husband and wife to return to the old order of things wherein the wife was no more nor less than a slave or a hireling, and that would be so contrary to the very basic principles of our government and so repugnant to our modern ideas of civilization that no court in the land would enforce, any such a contract,, and for that reason these contracts and dealings are absolutely void and are not binding on any of the parties thereto.

In order to estop a person from claiming their just rights it is necessary that they do some act, or accept some benefits, that would place the opposite party to a disadvantage. In this case Mamie O. Gause, ap-pellee, has been guilty of no act that would mislead the appellants, or their ancestors, in any manner.

Though the briefs and arguments of counsel are very lengthy, we have gained pleasure and information from their discussions.

We find no error assigned that should cause a reversal, and the judgment is affirmed.


author: WILLSON, O. J.

text:
    GIRARD FIRE & MARINE INS. CO. v. FARMER.
    No. 3928.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 10, 1931.
    Rehearing Denied Feb. 12, 1931.

      E. G. Senter and M. H. Baughn, both of Dallas, for plaintiff in error.
    Geo. S. Wright and Coffman & Hill, all of Dallas, for defendant in error.
   WILLSON, O. J.

(after stating the case as above).

The policies issued to Collins became void as to him when he conveyed the property they covered to Mrs. Farmer; but each of them contained a stipulation (in harmony with article 4931, R. S. 1925) that as to the mortgage it should not “be invalidated (quoting) by any act or neglect of the mortgagor or owner of the within described property * * * nor by any change in the interest, title or possession of the property,” and therefore remained valid and effective in favor of the Gaulding Mortgage Company.

At the trial the Girard Fire & Marine Insurance Company, while denying that the policy it issued became effective as to the mortgage company, m open court admitted same was effective as to Mrs. Farmer, and that it was liable to her for the difference between the mortgage debt and the amount of the loss to her by the fire.

There is no doubt, we think, if that policy never became effective in favor of the mortgage company, when the fire occurred the Girard Company became bound to pay the full amount of the policy to Mrs. Farmer, and the companies issuing the policies to Collins became bound to pay the full amount of the mortgage indebtedness to the mortgage company. It. would follow, in that event, that Mrs. Farmer alone would be entitled, on the showing in the record, to complain because part of the sum which should have t>een adjudged to her was, instead, adjudged to the trustee; What recourse, if any, the trustee of the companies issuing the policies to Collins, having paid the mortgage debt and taken a transfer thereof to himself, would have as against Mrs. Farmer, need not be determined, as it is not a matter that concerns the Girard Company.

As we view the record, there is only one theory upon which it could be held that the Girard Fire & Marine Insurance Company has a right to complain of the judgment, and that one is that the policy it issued to Mrs.' Farmer was effective in favor of said mortgage company at the time the fire occurred. In that event, the Girard policy and 'the policies issued to Collins made the case one of double insurance so far as the mortgagee was concerned, and the doctrine of contribution applied as between the insurance companies, according to which the companies issuing the policies to Collins, and their trustee, would be entitled to recover of the Girard Company only a proportional part, to wit, $1,-635.46, of the mortgage debt. We do not think this view of the matter is affected by the fact that the trustee of the companies issuing the policies to Collins paid the mortgage debt and took a transfer thereof to himself. The only effect of such transfer, we think, was to confer upon' the trustee the right the mortgage company had to look to the Girard Company for a pro rata part of the mortgage debt. Each of the policies issued to Collins and the policy issued to Mrs. Farmer as well contained a stipulation that, if there was other insurance on the property, it should not be liable for a greater proportion of any loss “than' the sum (quoting) hereby insured bears to the whole amount of insurance on said property, payable to, held by or consented to by said mortgagee (trustee).”

Contrary to the view which the Girard Company seems to entertain, we think the policy it issued did take effect in favor of the mortgage company, and therefore that the judgment as to it is erroneous, in that it should have been in the trustee’s favor against it for a pro rata part of the mortgage debt, to wit, said sum of $1,635.46, instead of for the full amount of said debt, to wit, the sum of $.3,048.84. The judgment will be reformed accordingly in that respect, and, as reformed, will be affirmed.

On Motion for Rehearing.

Among contentions urged in the motions is one by the appellee George S. Wright, trustee, that this court erred when it held that he and Mrs. Parmer together were not entitled to recover of appellant the full amount of the policy it issued to her. We think the contention should be sustained.

The error was caused by the failure of this court to give the effect it was entitled to to a stipulation in each of the Collins policies as follows:

“On payment to such mortgagee (or trustee) of any sum for loss or damage hereunder, if this Company shall claim that as to the mortgagor or owner, no liability existed, it shall to the extent of such payment be subrogated to the mortgagee’s (or trustee’s) right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee’s (or trustee’s) right to sue, or it may pay the mortgage debt and require an assignment thereof and of the mortgage.”

It (the error of this court) was due primarily to the failure of the writer to more carefully examine the record- than he did.

It appeared in the record that the companies issuing the policies to Collins were not, and claimed they were not, liable to him, and that they paid the mortgage debt and took an assignment thereof and of the mortgage. By such payment and assignment said companies became the owners of the mortgage debt, and, as such, were entitled to look to Mrs. Parmer for payment thereof. Alamo Ins. Co. v. Davis, 25 Tex. Civ. App. 342, 60 S. W. 802; Mosby v. Ins. Co., 285 Mo. 242, 225 S. W. 715; Milwaukee Mechanics’ Ins. Co. v. Ramsey, 76 Or. 570, 149 P. 542, Ann. Cas. 1917B, 1132, L. R. A. 1916A, note page 562. It appeared, further, that, after the fire, Mrs: Parmer transferred to the mortgage company as security for the debt she owed it tire claim she had against appellant on account of the policy it had issued to her; and it appeared, further, that thereafter, in consideration of the amount due upon the mortgage, the mortgage company transferred to appellee Wright, as trustee for the companies issuing the policies to Collins, the indebtedness of Mrs. Parmer to it and the mortgage securing same, “and all claims (quoting) that it might have against the Girard Pire & Marine Insurance Company under its policy.” It appears in the statement of facts that appellant in open court stated it made no claim “that its policy of insurance (quoting) was'void, but that its position was that the companies carrying the policies in the name of Collins were liable to the mortgagee to the extent of the mortgage debt, and that the Girard Pire & Marine Insurance Company was responsible to Mrs. Gladys Parmer only for the difference between the mortgage debt and the amount of loss and damage.” So, it seems, the real question on the appeal was not one as to liability of appellant on the policy it issued, for that was admitted, but was one as to the amount of its liability and as to who was entitled to enforce same. We do not think it appeared that appellant’s liability was “secondary,” or that it was for a sum less than the policy, for any of the reasons urged by it. It appeared the loss by fire amounted to a sum greater than the amount of the policy sued upon. Therefore, we think, the liability of appellant was for the full amount of the policy.

The motion of appellant will be overruled, and the motion of Mrs. Parmer and the trustee will be granted, and the judgment heretofore rendered by this court will be set aside, and the judgment of the court below will be affirmed.


author: PLY, O. J.

text:
    SOVEREIGN CAMP, W. O. W., v. NASH et al.
    No. 8556.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1931.
    Rehearing Denied March 18, 1931.
    Henry, Bickett & Biqkett, of San Antonio, for appellant.
    Horace E. Wilson, of San Antonio, for ap-pellees. .
   PLY, O. J.

This is a suit on a certificate of insurance obtained by William T. Nash, in appellant’s fraternal benefit society, on December 10, 1918, in tbe sum of $1,000, instituted by Bessie Nasb and Eva La Rue, joined by ber husband, Clarence La Rue, against appellant. It.was alleged that appellees were daughters of William T. Nash, who departed this life on February 23, 1919; that the beneficiaries in the certificate should have been Marion Nash, wife of said William T. Nash, and his daughters by a former marriage, Bessie and Eva, but through the negligence of appellant only' the name “Marion E. B. Nash” was inserted in the certificate, and after death of their father the whole Of $1,000 was paid by appellant to Marion Nash, the stepmother of appellees. They sought. a recovery of two-thirds of the $1,000. The court sustained exceptions to the action of Eva La Rue, on the ground that it was barred by limitation, and rendered judgment in favor of Bessie Nash for $333.33, with 6 per cent, interest thereon from February 23, 1919, to date of Judgment, July 7, 1930; the aggregate sum of the judgment being $559.85. This appeal is prosecuted by appellant, Mrs. La Rue offering no complaint as to the judgment against her.

The facts are that William T. Nash was a member of the fraternal benefit organization and filed an application for insurance in which he set forth the beneficiaries as follows: “Marion, Eva, Bessie Nash, Age — 36, 13, 11 years. Relation to Applicant, Wife & Daughters.” That application was approved and issuance of certificate recommended by the duly authorized “deputy” of appellant, who in common parlance would be called an agent of appellant. He was fully acquainted, as indicated by the language of his approval, with "all the terms of the application. However, instead of naming Marion, Eva, and Bessie Nash as the beneficiaries, Marion E. B. Nash was named as the beneficiary, and the policy was delivered to William T. Nash, who died in less than three months thereafter.

The statute in terms makes the application, among other matters, part of the policy. Rev. Stats, art. 483L The evidence showed negligence in preparing the policy, and we do not think appellant can escape liability to Bessie Nash on the ground that the insured was negligent in not discovering the mistake. He had done all that was incumbent on him as to the beneficiaries and had under the law, so far as he could, written the designation into the policy. His designation was a part of the policy and no duty rested on him to read the policy in order to discover the mistake of- appellant. He had exercised his statutory right of selecting the beneficiaries of the insurance on his life, and that selection could not be changed by the insurer.

Appellant relies upon the Pennsylvania ease of Burt v. Burt, 218 Pa. 198, 67 A. 210, 11 Ann. Cas. 708, to shift its negligence upon the insured; but whatever force that decision may have had was totally destroyed by a different opinion in the same ease, in the same court, by the same judge. In the last opinion the insurer was held liable, under similar facts, to beneficiaries named in the application. Burt v. Burt, 221 Pa. 171, 70 A. 710.

The judgment will be affirmed.

SMITH, J., entered his disqualification, not sitting.


author: BAROUS, J.

text:
    GULF REFINING CO. et al v. CITY OF FORT WORTH.
    No. 992.
    Court of Civil Appeals of Texas. Waco.
    Feb. 5, 1931.
    Rehearing Denied March 12, 1931.

      David Proctor and John E. Green, Jr., both of -Houston, David W. Stephens and Iloutchens & Houtchens, all of Port Worth, and P. O. Settle, of Houston, for appellants.
    R. E. Rouer, J. M. Ployd, and R. B. Young, all of Fort Worth, for appellee.
   BAROUS, J.

The only issue for determination in this appeal, is the right of appellee to collect an annual charge of $24 from each of the appellants who own and operate what is known as “Drive-In” gasoline filling stations in the city of Port Worth. The facts are practically without dispute. There were, at the time this cause was tried,' approximately seven hundred such gasoline stations in Port Worth. This suit was instituted by the owners of fifty of said stations for the purpose of obtaining a permanent injunction against appellee restraining it from collecting the annpal charge of $24 against each station as provided by Ordinance 591, which was passed by appellee in 1917. The first section of said ordinance prohibits gasoline ■ filling stations from being installed or operated on certain named streets. Sections 2, 3, and 5 read:

“See. 2: That an annual charge of $24.00 is here made against each and every gasoline station installed and making use of any street or sidewalk or any portion thereof within the city of Port Worth.
“Sec. 3: It shall be the duty of all persons, firms or corporations .desiring a permit to establish and use a gasoline station on any street or sidewalk or any part thereof or where any part of any sidewalk is used for ■the purpose of ingress or egress in connection with such gasoline station within the city of Port Worth to apply to the tax collector of the city of Port Worth therefor and to pay the annual charge provided for herein -to said tax collector.”
•“Sec. 5: Any and all persons making use of any of the streets and sidewalks or any portion thereof within the corporate limits of the city of Port Worth as a gasoline station, as provided for herein, without paying the charges provided for herein * * * shall, upon conviction thereof be fined in any sum not exceeding $50.01), and each day of such obstruction shall constitute a separate offense.”

Appellee enacted a separate ordinance which requires every person before erecting a gasoline filling station to make application therefor to the proper authority and pay a $5 fee and obtain a permit. Each of the -appellants, before they erected and installed their respective gasoline filling stations, did, under said ordinance, pay said $5 fee and obtain the permit to erect and install their respective stations and same were at said time inspected by the proper officials of appellee. Each of said filling stations are built entirely on the private property of the individual owner. No portion thereof is built on the street or in the sidewalk. The only use appellants, or either of them, make of the sidewalk is for ingress and egress to their respective stations.

Appellants contend that appellee is. not entitled to collect the $24 per year charge as provided in said ordinance because same is in effect an occupation tax. They further contend that appellee has no right or authority to tax them as private individuals for the use of the public streets or sidewalks in using same as a driveway from their private property; their contention being that, being the owners of the property and the gasoline stations being located on their private property, they have, as a matter of vested property right, the right to use the sidewalks and streets for ingress and egress to their respective properties. They further contend that the $24 per year charge is discriminatory and in violation of the state and federal constitutions, which requires taxes to be equal and uniform. They further contend that if ap-pellee has a right to regulate filling stations that said charge is unreasonable.

As we view the case it is not necessary for us to discuss separately each of appellants’ contentions. Prom a careful reading of the ordinance in question it seams to apply only to gasoline filling stations that are constructed where a portion of the sidewalk or street is used in installing same. Leaving out all unnecessary verbiage, the sections quoted would read:

“An annual charge of $24.00 is made against each gasoline station installed and making use of any street or sidewalk, or any portion thereof. * * * All persons desiring a permit to establish and use a gasoline station on any street or sidewalk ⅞ * s: or where any part of any sidewalk is used for the purpose of ingress or egress in connection with such gasoline station:”

The import of said ordinance, as a whole, indicates that appellee was attempting to pass an ordinance whereby it would charge private individuals for conducting gasoline filling stations where a portion of the street or sidewalk was used for its installation. We think the words, “such gasoline station,” used in the last line of the above quotation, refer to, and could only mean, gasoline stations that are constructed on either the street or sidewalk. Since the record Shows affirmatively that each of the gasoline stations owned by appellants is built on private property and no portion thereof is built on either the sidewalk or the street, appellee is not entitled to collect from them the charge of $24 per year as provided under the terms of said ordinance.

If appellants had erected their respective gasoline stations, or either of them, on a portion of the street or sidewalk, we would have an entirely different question to determine. Our courts have uniformly held that a municipal corporation may grant the use of its sidewalks or streets to persons for private use and charge a fee therefor, provided same does not interfere with the use of the general public therein. City of St. Louis v. Western Union Telegraph Company, 148 U. S. 92, 13 S. Ct. 485, 37 L. Ed. 380; 19 R. C. L. 783, and authorities there cited.

If we are in error in our construction of said ordinance and if same can be construed to mean that appellee is entitled to collect from each of the appellants $24 per year for the privilege of operating or running a gasoline filling station on their private property after they 'have obtained a permit therefor from appellee, we think same is unconstitutional and void. Gulf Refining Co. v. City of Dallas (Tex. Civ. App.) 10 S.W.(2d) 151 (error dismissed); Ex parte Smythe (Tex. Cr. App.) 28 S.W.(2d) 161; City of Shawnee v. Robbins Bros. Tire Co., 134 Okl. 142, 272 P. 457, 66 A. L. R. 1047; Donovan v. Pennsylvania Co., 199. U. S. 279, 26 S. Ct. 91, 50 L. Ed. 192; Brownlow v. O’Donoghue Bros., 51 App. D. C. 114, 276 F. 636, 22 A. L. R. 939; Goodfellow Tire Co. v. City of Detroit, 163 Mich. 249, 128 N. W. 410, 30 L. R. A. (N. S.) 1074; McQuillen-Municipal Corporations, 2207, 17 R. C. L. 543.

It is well settled that the owner of property abutting the street has a right of ingress and egress to his property, and neither the legislative bodies nor the courts can take said right away, neither can they unreasonably abridge same. Whether appel-lee could forbid any of the appellants from operating a' station at the designated place, or could have refused to grant them a permit for the gasoline station to have been erected at the time same was given, are not involved in this litigation. Each of the appellants, in conformity with the city ordinance, enacted by appellee, did make application to the proper authorities and paid the required fee of $5 and obtained a permit to erect their respective gasoline filling stations, and same have been built in conformity with the ordinances of appellee.

In Gulf Refining Company v. City of Dallas, supra, the court, in a well-considered case, held that after the city of Dallas had given a permit to the oil company to erect a filling station at a designated place, it could not, after same had been erected, revoke said permit, unless new conditions had arisen that would authorize or justify same. In the case at bar appellee does not contend that any new conditions have arisen since ■it granted appellants, and each of them, the right to erect their respective gasoline stations, and in fact appellee is not seeking to revoke any of said permits. In Brownlow v. O’Donoghue Bros., supra, the court held that the commissioners in the District of Columbia could not deny the owners of a gasoline station the use of the driveway across the sidewalk. In City of Shawnee v. Robbins Bros. Tire Co., supra, the Supreme Court of Oklahoma had for determination the constitutionality of an ordinance passed by the city of Shawnee which required that every person using any portion of the sidewalk for a drive-in space should pay $1 per foot for the sidewalk so used. Said court in a well-considered case, where many authorities were collated and discussed, held said ordinance void.

The only use appellants are making of the sidewalks and streets as shown by the record is for ingress and egress, and if appellee is entitled to collect said charge of $24 per year, ■it would have the effect of charging appellants said sum for said privilege. This we think appellee has no authority or power to do.

Appellee contends that it is entitled to collect the $24 annual fee or charge provided for by said ordinance as a reasonable police regulatory measure. We do not agree with this contention. Each of the appellants, before they installed their respective gasoline stations, made application to and obtained a permit therefor and paid th'e inspection fee required by appellee. There is nothing in the record which would authorize appellee to or justify it in collecting from appellants or either of them said fee of $24 as a regulatory measure. As property owners, taxpayers, and citizens of the municipality, they and each of them are entitled to the same police surveillance as other citizens, and the general public are entitled to have the gasoline ■filling stations policed in the same way that, other business concerns in the heavy traffic territory are policed. Under the testimony as given by the police authorities, no more police surveillance was given to or required of appellants than that afforded or given to or required of other business concerns in the congested traffic territory. The municipality has no authority to tax one class of citizens for police regulation in such a discriminatory method as is attempted by the ordinance in question.

We further think the ordinance is void because it in effect levies ah occupation tax against appellants for the operation of a gasoline filling station, and since no occupation tax is levied by the state government, the. municipality has no power or authority to levy same.

We think the trial court was in error in refusing to grant appellants the injunctive relief asked, and since the case is fully developed, the judgment of the trial court is reversed, and judgment is here rendered enjoining appellee from collecting the annual charge from appellants, or prosecuting them criminally for failure to pay same, as provided in said ordinance.


author: JACKSON, J.

text:
    SAFETY FIRST BUS CO. v. SKIBINSKI et al.
    No. 3512.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1931.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.
    Cook, Smith & Teed, of Pampa, for ap-pellees.
   JACKSON, J.

This suit was instituted in the district court of Gray county, Tex., by the plaintiff T. S. Skibinski to recover $816 in his individual capacity for damages to his automobile and Evangaline Skibinski, who, by her father as next friend, sued to recover the sum of $5,-000 for personal injuries she sustained, all of which are alleged to have been occasioned by the negligence of the defendant, the Safety First Bus Company, a corporation.

Plaintiffs alleged:

That T, S. Skibinski is the father of the minor plaintiff Evangaline Skibinski, who is a girl seventeen years of age. That on June 21, 1929, T. S. Skibinski was the owner of a new Chevrolet sedan, and on said day his wife, Belle Skibinski, and his daughter Irene Ski-binski were in the front seat of said sedan, and Margaret Skibinski and the minor plaintiff were seated in the back seat of said sedan. That his daughter Irene Skibinski was driving the sedan on the main-traveled highway in Gray county, Tex., between Pampa and Kingsmill, at a reasonable rate of speed and on the right side of the road in an easterly direction toward the town of Pampa. That a large bus, owned by defendant and operated by its agent at an excessive rate of speed, about 50 miles per bour, ran into tbe rear of the Chevrolet sedan with such force as to completely demolish and destroy the sedan. 'That, .as a result of such collision, the minor plaintiff Evangaline Skibinski had the principal bone in her right leg between the knee and ankle broken, which caused her excruciating pain and suffering, and as a result thereof from the day of the accident to the day of the filing of this suit she has been unable to use her leg or to perform any services whatever, and by reason of such injuries has been damaged in the sum of $5,000.

That the automobile immediately before the accident was of the reasonable market value of $816, and immediately after the accident was worthless.

That by the exercise of reasonable care and caution the defendant’s agent driving its bus could have avoided the accident, and that the injuries and damages herein complained of were proximately caused by the negligence of the defendant, its agents and servants, in driving said bus into plaintiff’s automobile under the conditions and circumstances herein alleged, and in failing to use ordinary care to avoid the damages to the car and the-personal injuries to the minor plaintiff.

The defendant answered by general demurrer, special exception, general denial and alleged:

That on June 21, 1929, just before the collision alleged in plaintiff’s petition, the wife and daughters of T. S. Skibinski, with his permission, were in said Chevrolet sedan which was being driven by the minor daughter Irene Skibinski, and were all engaged in a common purpose of business or pleasure in which they were all interested. That the minor plaintiff, with the other occupants of the car, just prior to the collision in question, were traveling on a side road in a southerly direction toward its intersection with the state highway running between Kingsmill and Pampa. That said side road intersected said state highway very nearly at right angles. That the Panhandle & Santa F6 Bailway Company’s tracks, built on a slight elevation, extend parallel with and north of said state highway and said intersection, and the Chevrolet sedan, with its occupants traveling said side road, passed over the railroad track about 75 feet from the intersection of the side road and the state highway. That the approach to said intersection was clear and unobstructed, and the driver of said sedan could, by looking, see said intersection, the highway, and the traffic traveling thereon. That the defendant’s bus, going in an easterly direction on the highway toward Pampa, was approaching said intersection at a speed of about 35 miles per hour. That, traveling in a westerly direction on said highway, a truck was approaching said intersection. That said truck, defendant’s bus, and the Chevrolet sedan would, at the apparent speed each was traveling, reach the intersection about the same time. That the defendant’s bus had the right of way over the Chevrolet sedan, because it was approaching said intersection from the right of said sedan. That the driver of the sedan slowed down as she crossed the railroad track and approached said intersection, leading defendant’s bus driver to believe she would allow the bus to pass. That the sedan at the speed it was traveling as it neared and reached said intersection could have, by the exercise of ordi-. nary care, been stopped in a distance of 4 or 5 feet. That the driver of. the sedan and its occupants knew that the bus and the truck were approaching said intersection from opposite directions. That, notwithstanding these facts, all of which the minor plaintiff and the other occupants of the sedan knew, the driver thereof suddenly ran the sedan onto the intersection just ahead of the- truck going west, and turned to the left in front of defendant’s bus going east. That the driver of the bus had it under full control, and promptly applied the brakes, and succeeded in reducing his machine to a speed of some' 15 or 20 miles per hour before ¡the collision, but, in spite of his best and most diligent efforts, the collision occurred. That the driver of the sedan and the minor plaintiff negligently ran onto the state highway, and negligently turned said sedan in front of the bus. That the minor plaintiff and the driver of the sedan and other occupants thereof were guilty of negligence in failing and refusing to yield the right of way to the defendant’s bus; in leading the driver of the defendant’s bus to believe from their acts and conduct that they intended to allow the bus to pass; and in failing to stop the sedan just before or as it entered said intersection.

That the plaintiff T. S. Skibinski was guilty of negligence in allowing his minor daughter Irene Skibinski to ‘drive’ said sedan, because she was inexperienced, nervous, and excitable, and without sufficient judgment to act calmly, coolly, and .with discretion under circumstances of emergency such as are apt to be encountered in operating an automobile in general traffic upon a highway.

In response to special issues submitted by the court, the jury found, in effect, that the driver of defendant’s bus, just prior to and at the time it struck the sedan, failed to exercise ordinary care to prevent the collision; that such failure on the part of the driver was a proximate cause of the collision; that the bus as it approached the intersection was traveling 45 miles per hour; that at the time and immediately preceding the accident it was traveling 30 miles per hour; that the rate of speed at which the bus was traveling as it approached the intersection and the rate of speed it was traveling immediately preceding the accident were proximate causes of the' collision ; that the minor plaintiff was damaged in the sum of $3,000; that the automobile was damaged in the sum of $666;' that T. S. Skibinski was not guilty of negligence in permitting Irene Skibinski to drive and operate the sedan; that the minor plaintiff, at the time and just prior to the collision, exercised ordinary care for her own safety; that the driver of the sedan, Irene Skibinski, was not guilty of negligence in driving onto the highway at the time and under the conditions in which she did drive onto said highway; that the driver of the sedan, Irene Ski-binski, used ordinary care in driving and handling the sedan after entering upon the state highway.

On these findings judgment was entered in favor of T. S. Skibinski in the sum of $666, with interest at the rate of 6 per cent, per annum, and in favor of the minor plaintiff Evangaline Skibinski in the sum of $3,000, with interest from date at the rate of 6 per cent, per annum, from which judgments this appeal is prosecuted.

The appellant presents as error the action of the trial court in refusing to peremptorily direct a verdict in its favor, because, under the undisputed testimony, the bus had the right of way, and the failure of the driver of the sedan and the minor plaintiff to yield the right of way, as a matter of law, constituted negligence which was the proximate cause of the injury.

The testimony shows: That the side road and the state highway intersect nearly at right angles. That the bus was traveling easterly toward Pampa on the highway, and the sedan was 'traveling southerly on the side road until it entered the highway and circled to the left toward Pampa. That the railroad tracks extend parallel with and from 50 to 100 feet north of the road intersection. That the traveled portion of the highway at the intersection was 30 -to 45 feet wide, and the traveled portion of the side road was from 25 to 35 feet wide. That the sedan was struck on the rear at the right-hand side thereof. The witnesses did not agree' as to where the collision occurred, some placing it in the intersection, some in the east line, and some 30 to 35 feet farther east.- That T. S. Skibin-ski was the owner of the sedan, and furnished it to the family to be used for both business and pleasure, and it was being so used at the time of the collision.

Thé driver of the sedan testified, in effect, that the defendant’s bus was approaching the intersection from her right; that the view to the intersection was unobstructed; that as she crossed the railroad she saw the bus, which was 150 feet from the intersection, coming very fast, a speed of 50 miles per hour; that she also saw the truck coming toward the intersection from th,e east, traveling about 35 miles per hour, but the truck was a little farther from the intersection than the bus; that she knew the bus had the right of way, but thought she had plenty of time to pass ahead of it; that she was traveling about 15 miles per hour when she crossed the railroad, and continued that speed until she got on the highway, when she speeded up and circled to the left, going toward the south side of the intersection; that, if her mother or the minor plaintiff had advised her to stop, she would have heeded such advice; that she could have stopped the sedan at the speed she was going in 4 or 5 feet; that the minor plaintiff said: “There comes a bus” and she replied: “I see it,” but that none of the occupants of the ear either advised or requested her to stop.

The mother testified that, when they crossed the railroad, they saw the truck, and she told the driver to be careful; that they also' saw the bus coming very fast about 150' feet from the intersection; that just before they drove onto the highway they slowed down.

The minor plaintiff testified, in substance, as did the'mother and the driver of the sedan, except she stated she saw the bus coming as they crossed the railroad, and as they started onto the highway the bus was 150 feet away, coming very fast, and she told her sister the bus was coming.

The driver of the bus testified, in effect, that as he approached within 100 feet of the intersection he saw the sedan approaching 50 or 60 feet therefrom; that at the speed the sedan and the bus were each traveling they would reach the intersection about the same time; that, from the action of the driver of the sedan, he thought they intended to allow him to pass; that, when he was within 30 or 40 feet of the intersection, the sedan came into the highway and crossed to the left in front of the bus; that he put on the brakes just before he reached the intersection and slowed down his speed; that he could not pass the sedan on the right on account of the borrow pit, and could not pass on the left because of the truck going west¡ and, in spite of what he could do, the collision occurred.

Article 801, subd. E, Penal Code, reads, in part, as follows :

“The operator of a vehicle approaching an intersection on the public highway shall yield the right-of-way to a vehicle approaching such intersection from the right of such first named vehicle.”

The penalty for a violation of this provision is a fine not exceeding $100.

In construing this provision, it has been held that:

“The statute must be given a reasonable interpretation, and should be interpreted to mean that, if one approaching an intersection from the left finds no one approaching it on the other street from the right within such distance as reasonably to indicate danger of collision, he is under no obligation to stop and wait, but may proceed in the exercise of reasonable care.” Jimmie Guest Motor Co. et al. v. Olcott (Tex. Civ. App.) 26 S.W.(2d) 373, 376, and authorities cited.

See, also, George Heidle et al. v. Flossie Baldwin, 118 Ohio St. 375, 161 N. E. 44, 58 A. L. R. 1186, and annotations beginning on page 1197.

While the testimony indicates that the driver of the sedan and the other occupants thereof thought they could drive onto the highway ahead of the bus without danger, this would not relieve them from exercising ordinary care, and would not be a defense if they were guilty of negligence. Alamo Iron Works v. Prado (Tex. Civ. App.) 220 S. W. 282.

Under the findings of the jury, the bus driver was guilty of negligence per se in driving at a speed of 45 miles per hour, and, und'er all the facts and circumstances, it is our opinion that the court did not commit error in refusing to direct a verdict in favor of the defendant. 5 Tex. Jur. 68S, § 92.

The appellant challenges as error the action of the trial court "in submitting to the jury whether or not the driver of the bus, just prior to and at the time of the collision, failed to exercise ordinary care to prevent it, because such issue was not raised by the pleadings, and was tantamount to presenting a question of discovered peril.

In determining whether an issue submitted is supported by the pleadings, the court should consider the allegations in the pleadings' of both parties. Ormsby et al. v. Ratcliff et al. (Tex. Civ. App.) 22 S.W.(2d) 504; Ray v. Barrington (Tex. Civ. App.) 297 S. W. 781, and authorities cited. In our opinion, the pleadings of the appellees, in connection with the pleadings of appellant, were sufficient to authorize the court to submit the issue complained of, and this assignment is overruled.

The appellant by several assignments assails as error the action of the court in admitting certain testimony and in excluding certain testimony, but these assignments are not considered, because the statement of facts discloses that the evidence, the exclusion of which is complained of, is.in the record, and the testimony to which exceptions were taken and urged here as error is not in the statement of facts. 3 Tex. Jur. 794, § 564.

The appellant by several assignments assails as error the action of the trial court in refusing to sustain its objections to special issues Nos. 10 and 16 submitted by the court, for the reason that such issues were too gen-sral, and failed to submit separately and affirmatively the specific acts of negligence alleged against the driver of the sedan, and in refusing to give special issues requested by appellant presenting to the jury separately and affirmatively the negligent acts charged against such party.

Issue No. 10 is, in substance, whether or not the driver of the sedan was guilty of negligence in driving on the highway at the time and under the conditions existing. Issue No. 16 is, in substance, whether or not the driver of the sedan failed to exercise ordinary care in driving and handling the sedan after it entered upon the highway and just prior to the accident.

The appellant, in addition to its exceptions and objections to such issues, requested the court to submit special issues which are, in substance, Should the driver of the sedan, in the exercise of ordinary care, have known that the driver of the bus would probably act upon the belief that she would yield the right of way? Was the failure of the driver of the sedan to yield the right of way at the intersection negligence? Could the driver of the sedan have stopped it as it started on the highway in time to have prevented the collision and whether it was negligence for her to fail to do so?

Appellant also asked issues presenting whether or not any of these acts, if negligence, was a proximate cause of the damage to the sedan and the injury sustained by the minor plaintiff.

Article 2189, R. C. S., in part, provides;

“In all jury cases, the court may submit said cause upon special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the case. Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately.”

In Hallas Hotel Co. v. Fox (Tex. Civ. App.) 196 S. W. 647, 652, the court submitted the negligence of the plaintiff in an issue reading as follows:

“Was Alexander Fox guilty of contributory negligence in his conduct in, around, or about the said elevator or the shaft thereof prior to or at the time he was injured?”

The appellant had pleaded that Fox had been guilty of contributory negligence:

“(a) In putting part of his body underneath the elevator; (b) in failing to operate the elevator up and down until the sticking, if any, was overcome; (c) in failing to lock the elevator in place by closing the outlet water valve before going under the elevator; (d) in putting part of his body under the elevator without having locked it in position; and (e) in not getting entirely in the elevator pit if he was going to get under the elevator at all.”

Judge Hall of -this court lield tliat tlie failure of tlie trial judge to submit the specific acts of negligence pleaded distinctly and separately was error.

In affirming this holding, the Supreme Court in 111 Tex. 461, 240 S. W. 517, 522, after discussing the duty of the trial court under the statute, said:

“Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error’s suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her' to recover, which she pleaded and proved. * ⅞ * In submitting either negligence or contributory negligence, special issues should be restricted to specific acts of negligence alleged and proven. * * * After erring by intermingling in one question- all the contributory negligence issues by asking whether Fox was ‘guilty of contributory negligence in his conduct in, around, or about the elevator, or the shaft thereof, prior to or at the .time he was injured/ the court further erred in refusing certain special charges asked by defendant in error which might have rendered the first error harmless. Bach of these charges directed the jury to answer the general question against plaintiff in error if the evidence established a specified group of facts constituting a defense to plaintiff in error’s suit, under the law of contributory negligence. * * * The right of a party plaintiff or defendant to have all fact issues submitted to, and determined by, a jury which he has pleaded and proven, depends in no wise on whether judgment is to be entered on a special or general verdict. The language of the statute is too plain’to admit of doubt on this point.”

See, also, Darden v. Denison (Tex. Civ. App.) 3 S.W.(2d) 137; Bonin v. A. C. Horn Co. et al. (Tex. Civ. App.) 6 S.W.(2d) 816; Ft. W. & R. G. R. Co. v. Sageser et al. (Tex. Civ. App.) 18 S.W.(2d) 246; St. L., B. & M. Ry. Co. v. Tijerina (Tex. Civ. App.) 18 S.W.(2d) 727; Adams v. Le Sage (Tex. Civ. App.) 25 S.W.(2d) 207.

There is testimony tending to show that the sedan and bus at the rate' each was traveling would reach the intersection approximately at the same time; that the sedan, just before it entered the highway, slowed down; that this caused the appellant’s driver to believe the sedan was going to let him pass. The testimony is uncontroverted that appellant’s bus had the right of way and that the driver of the sedan could have stopped it in 4 or 5 feet at the speed she was traveling. The exceptions and objections of the appellant to the general issues as submitted and the special issues requested were sufficient to require the court to submit to the jury the special acts of negligence alleged by appellant as a defense separately and distinctly.

These assignments are sustained.

The assignments challenging as error the action of the court in refusing to submit certain other special issues requested by the appellant we deem it unnecessary to discuss, because what we have said disposes of such requested issues of contributory negligence presented by the allegations and proof as would have defeated the appellees’ causes of action.

The judgment is reversed, and the cause remanded.