author: COBBS, J. SMITH, X ELY, C. J.

text:
    WEST et al. v. FIRST BAPTIST CHURCH OF TAFT et al.
    No. 8631.
    Court of Civil Appeals of Texas. San Antonio.
    June 24, 1931.
    Rehearing Granted July 31, 1931.
    Rehearing Overruled Nov. 4, 1931.
    Milling, Godchaux, Saal & Milling, of New Orleans, La., and Jno. C. North, of Corpus Christi, for plaintiffs in error.
    Boqne & Raymer, of Corpus Christi, and Templeton, Brooks, Napier & Brown, of San Antonio, for defendants in error.
   COBBS, J.

This suit is brought by the First Baptist Church of Taft, defendant in error, against Southern Mortgage Company, a corporation, Mortgage & Securities Company, a corporation, Guy Hopkins, as receiver of Mortgage & Securities Company, James F. Holliday, individually and as trustee, Mrs. Ethelyn West, Mrs. Margaret West Morris, Mrs. Dorothy West Barham, and Walter P. Napier, May N. Green Watson, John W. Hunt, Edward N. Tutt, and A. C. Tutt, as independent executors and trustees of the estate of Joseph F. Green, deceased, and the Taft Bank, unincorporated, to cancel two certain deeds of trust and the notes secured by same, executed by the plaintiff to the Southern Mortgage Company and recorded in the deed of trust records of San Patricio county, Tex., on May 2, 1929.

“The Bank also filed a cross action setting up its indebtedness and asked judgment and the establishment and a foreclosure of lien.

“The defendants Mrs. West, et al, answered the answer and cross action of defendant Taft Bank, pleading general and special exceptions. General Denial. By special answer after describing the §20,000.00 series of notes, they alleged that said deed of trust was acknowledged on May 2, 1929, and filed for record in the office of the County Clerk of San Patricio County on the same day at 4:30 p. m. and recorded in- Volume 31, pages 1-5 in the Deed of Trust Records of said county; that same fully described said §20,000.00 series of notes and the land securing same, and expressly stipulated that it covered the buildings, furniture, fixtures, furnishings and equipment located, or' to be thereafter located on. said land. That about June 25, 1929, they purchased said notes without notice of any claim of the said defendant, Bank; paying the full value thereof, and were innocent purchasers of said notes and deed of trust; that any agreement made with reference to the furnishing of money by the Taft Bank to pay for labor’ and material was made long after the deed of trust and notes had been executed and said deed of trust placed of record, and said defendant Bank had notice that said deed of trust and its provisions including the provision that it covered all the improvements then on said land, or to be placed thereon at any time thereafter, and that if the defendant Taft Bank had any lien on said land, which was expressly denied, then any such lien is second and inferior to the lien securing these defendants in the payment of their notes.

“The case was tried before the Court and judgment rendered on July 4, 1930, for plaintiff against the defendant, Mrs. Ethelyn West, Mrs. Margaret West Morris and Mrs. Dorothy West Barham, cancelling and setting aside the twenty-two promissory notes aggregating §20,000.00 held by these defendants, and the deed of trust, and record thereof securing said notes, and against said defendants and the Southern Mortgage Company for all costs incurred in the cancellation of said notes and deed of trust, and judgment for plaintiff against the defendant, Southern Mortgage Company, Mortgage and Securities Company, and Guy Hopkins, Receiver, cancelling the two §500.00 notes, and second lien deed of trust securing same, and that defendants, Mrs. Margaret West Morris, et al, recover nothing on their cross action asking judgment on their series of §20,000.00 notes. The Court further rendered judgment for the defendant Walter P. Napier, et al, and Taft.Bank against plaintiff for the sum of §22,300.00 with eight per cent interest and all costs, and established a lien in favor of the Taft Bank against plaintiff on the land and premises owned by plaintiff and described in its petition, situated in Taft, Texas, to.secure the payment of said sum, foreclosing said lien against all of the defendants as well as plaintiff, in favor of Walter P. Napier, et al, and the Taft Bank against the defendants Mrs. Ethelyn West, et al, on their cross action. Against plaintiff on its alternative action against the Southern Mortgage Company. The defendants, Mrs. Ethelyn West, et al, excepted to the ruling of the Co'urt in open court.”

Some time during the year 1929, the First Baptist Church of Taft negotiated with Southern Mortgage Company for a loan of §20,000 for the purpose of erecting a church building. A written application was made for this loan by the church, acting by R. O. Tackett, president of the board of trustees, and a finance committee, composed of Ben C. Ivey, W. C. Binford, and T. V. Arhabrannen. This application contained a full description of the property and of the church to be built. It recited that a deed of trust was to be executed on this property to secure the §20,-000 loan, and that the deed of trust was to be a first lien. On the 20th day of April, 1929, the board of trustees of the First Baptist Church passed the required resolution authorizing its president, R. O. Tackett, to- borrow the §20,000 from the Southern Mortgage Company and to execute notes, and execute, acknowledge, and deliver to James F. Holliday, trustee, a deed of trust to secure said notes. The resolution further authorized R. O. Tackett to execute a second deed of trust and series of notes and deliver same to James F. Holliday, and it further expressly authorized R. O. Tackett, as president of its board of directors, to execute, acknowledge, and deliver any and all other papers and documents required in connection with said loan, and provided that the deeds of trust, notes, and interest coupons shall bear date as of March 9, 1929.

The first series of notes, 22 in number, aggregating §20,000, and a deed of trust securing them, were executed by R. O. Tackett, as president of the board of trustees, and dated March 9,1929. The deed of trust was filed for record on May 2, 1929. At the same time R. O. Tackett, acting for the church, executed the second series of notes, aggregating only §1,-000, and secured by a deed of trust, reciting that it was a second lien to the §20,000 notes.

R. O. Tackett, acting for the First Baptist Church, after having these deeds of trust and the resolution of the board of trustees included in a supplemental abstract, sent this abstract, together with the two series of notes, to the Southern Mortgage Company at Abilene, Tex., on May 8,1929.

Upon receipt of these notes by the Southern Mortgage Company, they were immediately forwarded to the Mortgage & Securities Company on May 9, 1929. It is contended- that neither Mrs. Ethelyn West nor her sisters ever visited .Taft, Tex., and none of them were acquainted with any one in Taft. But plaintiff contended that there was sufficient data in the papers submitted to Mrs. West at the time the salesman for the Mortgage & Securities Company was negotiating the sale of these notes to her to put her on notice and require her to investigate and ascértain the conditions under which plaintiff claims the notes were executed and delivered.

Mrs. Ethelyn West and her sisters lived in Louisiana all of their lives, and had frequently purchased notes, bonds, and other negotiable securities from the Mortgage & Securities Company, as well as other such concerns in New Orleans, but they had no knowledge, express or implied, concerning the transaction with the church or the bank.

After the notes were received by the Mortgage & Securities Company, Mr. Frank Wood, a salesman for that company, undertook the sale of the $20,000 series of first lien notes to Mrs. Ethelyn West. After considering the matter, she decided to purchase the notes. The application for loan submitted to Mrs. West, for her examination at the time these notes were submitted to her for purchase, stated that the church was to be completed on or before July 1, 1929, and it was represented to her by the Mortgage & Securities Company that the notes were ready for delivery and sale, and, as she had known this to be a large and reliable concern at all times, and had had dealings with them before, she relied upon such representations and purchased the notes and paid the full value for same.

The application for loan by the First Baptist Church of Taft, submitted to Mrs. West for examination, contained a provision that the net proceeds of the loan shall be paid out by the Southern Mortgage Company as construction proceeds, such payments to begin after the church had been completed to a point where the $20,000 would finish same, and providing that such payments yvere to be made by the Southern Mortgage Company monthly as construction proceeds, and neither Mrs. West nor her sisters ever had any notice or knowledge of the fact that this condition was not being complied with, and never knew that the Southern Mortgage Company was not advancing the money under this loan with which to complete the building.

At the time these notes were executed for the First Baptist Church and delivered to the Southern Mortgage Company in Abilene, an agreement was made by the church and the Taft Bank whereby the Taft Bank agreed to loan the church, or advance to the church, the money with which to construct this building and to look to this loan for a repayment of same. At the time of making this agreement, the bank knew that the deeds of trust had been placed of record, or could have known this fact, as they were of record in San Patricio county at the time the agreement was made. After this agreement, the Taft Bank did advance to the church certain money that was used by the church in paying for the material used in the construction of this church and labor on same, and also for furniture for the church. The matter was handled some time by a note being given by the church to the bank and credit given the church for the amount, then checked out by the pastor of the church, who was also a member of the building committee, by voucher checks given to various parties for labor or material used in the church. Sometimes these checks would be cashed, and apparently an overdraft created, and the church would come down, through Rev. Binford, thereafter, and execute a note, but all payments made by the church for labor or material used under the oral agreement were by cheeks given as above stated. Neither Mrs. West nor her sister had any notice or knowledge of this agreement, or any notice or knowledge of the fact that the bank was advancing any money at any time, and there was no record of any sort of same until long after they had purchased and paid for the notes involved in this suit.

After plaintiff filed this suit, E. N. Tutt attempted to create a lien on the church property by filing an affidavit in the contractors’ lien records of San Patricio county, stating that the Taft Bank was due $16,806.39 on account of labor and material furnished in the erection of the church building. On September 15, 1929, Cage Hardware & Furniture Company assigned to the Taft Bank an account due it by the First Baptist Church in the sum of $520.45. Thereafter, on various dates, the Conibear-Jackson Company, the Garnett Church Furniture Company, the Pittsburgh Plate Glass Company, and Jack Wheatley gave the Taft Bank certain assignments of accounts due them for material furnished and used in the erection of the church, the account due to the Garnett Furniture Company being for furniture for the church. None of these had been filed by the parties as materialman’s liens, being simply assignments of accounts, but the Taft Bank nevertheless caused them to be recorded in the office of the county clerk in the mechanic lien records of San Patricio county. These various assignments are shown in the statement of facts, pp. 217 to 242.

The court rendered a judgment in favor of the Taft Bank for all of the money advanced to the church by it, and foreclosed it as a first lien on the church property.

James F. Holliday was dismissed, and the court rendered judgment for plaintiff against the defendants Mrs. Ethelyn West and her sister, canceling the $20,000 series of notes purchased by them, and the deed of trust given' to secure same, and also against the Mortgage & Securities Company and Guy Hopkins, receiver, canceling the two notes and the second deed of trust and a judgment in favor of the Taft Bank against plaintiff, the First Baptist Church of Taft, for the sum of $22,300, and declaring, establishing, and foreclosing a lien on the property belonging to the church as a first and superior lien, and this appeal is by the defendants Mrs. Ethelyn West and her sisters attacking the court’s judgment canceling their notes, and also its judgment establishing a lien in favor of the Taft Bank as a first lien for any money advanced by it.

Under the facts in this case, plaintiffs were good-faith purchasers of said notes secured by deed of trust. It was a completed transaction. The church had the right to enter in such a contract for the erection of its church building, and the contract it made with the bank to finance the same was likewise valid.

There is not any evidence in this case that the plaintiffs in error are charged with any fraud or bad faith, but they are innocent purchasers of the notes, for value, before maturity, evidenced by a very complete building contract. It is not clear whether the building contract was completed or not at the time the purchase was made, but that is not important, since all the preliminary steps had been taken and proper papers made and filed for record, fixing the lien. Vernon’s Ann. Tex. Stats, art. 5935; Mountjoy Parts Co. v. San Antonio National Bank (Tex. Civ. App.) 12 S.W.(2d) 609; Hamilton-Turner Gro. Co. v. Hander et al. (Tex. Civ. App.) 253 S. .W. 833; Forster v. Enid, O. & W. R. Co. et al. (Tex. Civ. App.) 176 S. W. 788; Wilson v. Denton, 82 Tex. 531, 18 S. W. 620, 27 Am. St. Rep. 908; First Nat. Bank of Aubrey v. Chapman (Tex. Civ. App.) 164 S. W. 900; Campbell v. Rosenow (Tex. Civ. App.) 32 S.W.(2d) 372; Commercial Guaranty State Bank v. Crews (Tex. Civ. App.) 196 S. W. 901; Goolsby v. Manning (Tex. Civ. App.) 270 S. W. 936; Spurlock v. Zaring (Tex. Civ. App.) 270 S. W. 1099; Daniel v. Spaeth (Tex. Civ. App.) 168 S. W. 509; Carpenter v. Longan, 16 Wall. (83 U. S.) 271, 21 L. Ed. 313; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72.

They were good-faith purchasers for value without any notice of any vice or other illegal acts in the notes, and there were none. Section 52 of article 5935, R. S. Sections 56 and 59 of the same article. These notes were made payable at the Mortgage & Securities Company in New Orleans, La., and bore interest from date, with interest coupons attached, and it was known by R. O. Tackett and all of the parties involved in this suit connected with the First Baptist Church of Taft, or the Bank of Taft, that the notes were to be sold and negotiated by the payee, and that the money to be paid to the church .was to be procured in that manner. It was not the duty of Mrs. West to ascertain that the money was to be used in the erection of the building or that it had been completed. She had the right to rely upon the contract as made between the bank and the church. She had the perfect right to rely upon the fact that the contract would be carried out and the church completed and the money paid over. The notes were indorsed by the payee and offered to her by the banking institution where they were made payable, and at the time of the actual delivery it was represented to her that they were ready for delivery and represented as a completed transaction. The rule of law is very clear that a mortgage made in pursuance of a previous agreement of the parties to place a mortgage on the specific property which the mortgagee has agreed to accept, then the act of the mortgagor in filing it for record in the proper office is a sufficient delivery of it. Such an agreement existed here. The deed of trust was in fact prepared by the Southern Mortgage Company and sent to the First Baptist Church, with the request that it be placed of record for the Southern Mortgage Company and then included in the abstract and returned to the Southern Mortgage Company.

The affidavit attempting to create a lien in favor of Taft Bank was dated August 28, 1929. It states; “E. N. Tutt, acting herein as the duly authorized officer of the Taft Bank, makes oath,” etc. It does not contain any itemized account or statement, gnd is not in statutory form, and shows on its face that it is executed by Tutt for the ba'nk, $16,-806.39, and only attempts to create a lien on the five lots described in the deed of trust as “First Tract,” but does not cover the three lots described therein as “Second Tract.” It was filed in the contractors’ lien records, in volume 1, pp. 9 and 10, “Prior to the institution of this suit I never heard of either Mrs. Ethelyn West, Mrs. Margaret West Morris or Mrs. Dorothy West Barham. I have never at any time had any communication from either of them, nor have I ever talked with them personally at any time, never have met them. No one acting for them has ever communicated with me, either verbally or in writing, over the phone or by telegraph.”

On cross-examination he testified: “At the time we made the agreement to advance this money the church had on deposit there in our bank, in its building account, something around approximately $12,000.00. The money was continued to be carried on in that same account. They were already using this form of check or order at the time we made the arrangement with them to advance the additional money with which to complete the church, and we agreed just to continue the use of this same form of checks — the church used up all of the money they had on hand, and then the church began giving us notes. They gave us a note for $5,000.00 on June 4th. It is true that these transfers and assignments were paid out of an entirely different fund from this building fund — the money paid out on these transfers and assignments had been collected and paid bach to us and is represented by those notes.”

In this case, the bank could not have an equitable lien by virtue of the oral agreement made to furnish money to the church with which to pay for the labor and material to be used in its completion, consequently any lien must be under the materialman’s lien statute, or Constitution, which is impossible.

We think the court erred in its judgment against plaintiffs in error, and the cause will be reversed and remanded for another trial.

Reversed and remanded.

On Motion for Rehearing.

SMITH, X

The note in controversy was executed by the church officials for a consideration no part of which was ever paid, and which therefore wholly failed. It was payable according to its terms to the Mortgage Company, which assigned it to the Securities Company, which in turn assigned it to appellants, who brought this suit against the makers to recover thereon. The trial court found, and such finding is not attacked by any assignment of error urged by appellant on this appeal, that:

“At the time the notes were sent by Southern Mortgage Company of Abilene, Texas, from Abilene, Texas, to and received by Mortgage & Securities Company at New Orleans, Louisiana, and at all times hereinafter in this and subsequent paragraphs of these findings, the officers of both Southern Mortgage Company and Mortgage & Securities Company knew the conditions upon which said notes had been sent to and were held by Southern Mortgage Company, knew the purpose of which plaintiff had applied for the loan; that said conditions had not been complied with, that said notes were not to be negotiated and were not negotiable, and would not be ready for negotiation until the building had been completed, inspected and accepted by Southern Mortgage Company, as erected, completed and finished in acordanee with said plans and specifications for the same, and the proceeds of said notes received by plaintiff; and said Southern Mortgage Company and Mortgage & Securities Company, and the officers thereof, knew at the times aforesaid, that said building had not been completed, that it was still in process of construction, and that it would be some time before the same would be completed, and knew that plaintiff had not received any money or anything of value for said notes.”

Appellants knew, nearly two months before they purchased the note, that it was given in consideration of a construction loan, to be made in the future at uncertain intervals, in uncertain amounts, upon uncertain contingencies. They knew the conditions upon which the note was given and enforceable. They were, in short, in possession of all the facts known to the payee and then holder affecting its negotiability. They knew that the then holder had no right to negotiate it, that the consideration for it had not been paid, and was not payable and would not be paid except upon the happening of uncertain future contingencies, and that its failure would render the obligation subject to defeat upon that ground. They were definitely advised that the note was not “ready for delivery,” because the consideration for it had not been paid, and that the loan was not a “good loan” until it was “ready for delivery,” and admitted that they would not have purchased the note had they known that the conditions of the loan had not been completed “and the money paid.” All this information was in the actual possession of appellants for nearly two months prior to the time they purchased the note and paid for it. They finally took it solely upon the verbal statement of the selling agent from whom they purchased it that the instrument was “ready for delivery.” In the face of all their knowledge of the conditions and uncertainties and future contingencies affecting the negotiability of the note, that the holder had obtained possession of it before the consideration for it had been paid, before it was negotiable, before it was ready for delivery, appellants made no effort to ascertain the true facts, paid no heed to the danger signals flying all about them, and were content to proceed upon the verbal assurance of the broker with whom they were dealing, and upon whom they “relied,” that the note was “ready for delivery.”

It is true that the rule which puts a prospective purchaser upon inquiry has no application to the purchaser of a negotiable instrument, generally. But, when the maker asserts, as in this case, that the purchase was not made in good faith or in due course, the burden is thereby shifted to the purchaser to show affirmatively that he had purchased in due course and under circumstances which do not amount to bad faith, which raises an issue of fact triable by the judge or jury, to be determined from all the facts and circumstances in evidence, including the conduct of the purchaser in closing his eyes to facts reasonably calculated to induce a careful or bona fide purchaser to inquire into the true facts affecting the negotiability of the instrument. And where, as in this case, the purchaser acquires specific knowledge that the instrument is not at the time negotiable, and proceeds to purchase in spite of that knowledge and without making reasonable investigation to ascertain if the known infirmities have been removed from the obligation, the court trying the case may properly resolve the issue against the purchaser, as the trial court did in this case.

A majority of this court have concluded upon rehearing that the finding of the trial court in this ease upon the issue does not disclose such abuse of the discretion lodged in that court as to warrant reversal thereof by this court, and that the judgment should be affirmed. Associate Justice COBBS does not concur in this conclusion.

Appellees’ motion for rehearing will be granted, and the judgment affirmed.

ELY, C. J.

I concur in the foregoing opinion on rehearing.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    WALTER et al. v. HAMMONDS et al.
    No. 4081.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 8, 1931.

      O. F. Wencker, of Dallas, for appellants.
    Scott, Oasey, Hall & McHaney, of. Long-view, for appellees.
   LEVY, J.

(after stating the case as above).

The pertinent points presented by the appeal are that (1) there was no sufficient grounds for injunction set forth in the ap-pellee’s petition, ancl (2) the title and possession of the particular acreage in controversy was in the appellants and not in the appellee.

It is believed there is sufficiently alleged in the appellee’s petition the existence and the nature of the right which is claimed to be entitled to protection by injunction. There was made to appear affirmatively in the appellee the right to prospect and bore wells for gas and oil on the land, with the right to a part of all the oil and gas discovered. The lease, creating the right, was upon the entire acreage within the field notes of the land, as set out in the written instrument. The defendants are “making claim to the leasehold rights to the land or a portion thereof covered by the plaintiff’s lease.” And there was averment of threatened substantial injury, “The defendants, or some of them, are about to enter upon said premises and install machinery for the purpose of exploring for the minerals thereunder and to appropriate the same to their own use and benefit.” That is more in the nature of the statement of a fact than mere conjecture of threatened injury. The applicable rule is that “if such injury is threatened and impending to property rights an injunction will be granted.” 32 O. J. p. 42.

As to whether the title and possession of the 26 acres claimed as excess acreage should be held to be in appellant and not ap-pellee would be entirely dependent upon the evidence in the case. That question cannot be determined until a final hearing be had on the merits. If the 26 acres were within the lease of appellee, as seemingly is, she would be entitled to the exclusive right to explore the premises for oil and gas and any infringement of that right by active drilling would be an act prejudicial to her. In virtue of that lease the apparent right in and constructive possession of all the described acreage the field notes would actually include, would be regarded in appellee for the purpose of an interlocutory injunction. An interlocutory injunction is merely a provisional remedy granted before a hearing on the merits to preserve the subject in controversy in its then existing condition and, without determining any question of right, merely to prevent the doing of any act whereby the right in controversy may be injured or endangered. 32 0. J. p. 20.

The order is affirmed.


author: SELLERS, J.

text:
    WALTER et al. v. HAMMONDS et al.
    No. 4082.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 8, 1931.

      O. E. Weneker, of Dallas, for appellants.
    Scott, Casey, Hall' & MeHaney, of Long-view, for appellees.
   SELLERS, J.

This is an appeal from an order of the district court of Gregg county, Tex., overruling the plea of privilege of appellants to be sued in the county of their residence, to wit, Dallas county.

The plaintiffs’ petition in the suit out of which this appeal grew alleges that Mrs. O. O. Hammonds was the absolute owner of a valid oil and gas lease on 320. acres of land, more or less, of the B. W. Witcher survey located in Gregg county, Tex., and described in said petition by metes and bounds. The petition further alleges: “Plaintiffs show the Court that they are informed and believe and here allege that the defendants herein, or some of them, have made some kind of contract or agreement with their co-defendant, J. O. McFarland, by the terms of which they have attempted to execute a lease covering certain portions of the lands now covered by plaintiffs’ lease, being the South part of said lands, or some other portion not exactly known to plaintiffs, and that these defendants; or some of them, are threatening to enter upon said lands or a portion thereof and dispossess these plaintiffs of their leasehold rights therein and are preparing to file certain instruments of record in the office of the County Clerk of Gregg County, Texas, or elsewhere in said County, the effect of which will be to cast a cloud on the plaintiffs’ title to said leasehold rights and prevent the full, free, peaceable and uninterrupted use by the plaintiffs of said premises and- that defendants, or some of them, are about to enter upon said premises and install machinery for the purpose of exploring for the minerals thereunder and to appropriate same to their own use and benefit, thereby depriving the plaintiffs of the value thereof, and are wil-fully, fraudulently and for the express purpose of casting a cloud upon. plaintiffs’ title, asserting some character of claim to the leasehold rights which the plaintiffs own, and are wilfully and maliciously making claim to the leasehold rights to the lands or a portion thereof covered by the plaintiffs’ lease, they well knowing that they have no lawful and valid claim thereto, the effect thereof being that a cloud is thereby cast on the title to plaintiffs’ property, doing great and irreparable injury thereto.” The petition closes with a prayer for injunction and for general and special relief.

The appellants filed their pleas of privilege in due form to be sued in the county of their residence, which pleas were controverted by the appellee as follows:

Said Edwin B. Hopkins, W. P. Luse, and Eva Marie Miller, co-defendants of O. E. Weneker and N. O. Walter, actually reside in Gregg County, Texas, and the lands described in plaintiffs’ petition, and the title to which formed the basis to this action, are located in said Gregg County, Texas.

“This Court has venue of this suit, because said Edwin B. Hopkins, W. P. Luse, and Eva Mario Miller reside in Gregg County, Texas, and because the lands involved in this suit are wholly within Gregg County.”

We are called upon, first, to determine whether a controverting affidavit which does not set out under which section or sections of article 1995 it is sought to hold venue is fatally defective. This question was before the Waco Court of Civil Appeals in the case of Sims v. Trinity Farm Construction Co., 28 S.W.(2d) 856, and it was there held, we think correctly so, that plaintiff was not required in its controverting affidavit to the plea of privilege to plead the language of the particular subdivision of venue article relied upon nor specifically refer thereto.

The next question presented is whether plaintiffs’ petition is susceptible of a construction which will bring it within the provision of subdivision 14 of article 1995, which subdivision is as follows: “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, pi-to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.” After careful consideration of this question, it is believed that the petition, which may always be looked to in determining the character of the cause of action, Wood v. Tandy (Tex. Civ. App.) 299 S. W. 282,. 283, may be fairly construed as coming within provisions of subdivision 14, article 1995, R. S. of Texas. In the case of Breeding v. Ritterhoff, 126 Okl. 225, 259 P. 227, 228, it was held: “When, under an oil and gas lease, production is reached, the income ceases to he rents and profits and the fee is impaired and diminished to the extent of the value of the oil and gas which is reduced to possession. Such, conversion of the fee pro tanto constitutes ‘waste.’ ” In the light of the above definition of “waste,” and in view of the allegations in plaintiffs’ petition to the effect that defendants were about to enter upon her premises and install machinery thereon for the purpose exploring for the minerals thereunder and to appropriate same to their own use and benefit, and praying for a restraining order to prevent such, brings the venue in this cause clearly within the provision of subdivision 14 of article 1996, which provides that all suits to prevent waste to real estate shall be brought in the county where the land lies.

But it is insisted that appellee wholly failed to mate the necessary proof upon the hearing had upon the plea of privilege to authorize the court to retain venue of this cause.

With this contention we do not agree. It would seem that in suits of this character, that is, suits pertaining to real estate in such of subdivision 14 of article 1995, that the only fact question necessary to be alleged in the controverting affidavit and to be established on the hearing of the plea is that the land is located within the county where the suit is brought. Dees v. McDonald (Tex. Civ. App.) 36 S.W.(2d) 301. This fact having been established, the proof was sufficient.

Finding no error in the record, the judgment of the trial court will be affirmed.


author: McClendon, C. J.

text:
    WEBB-NORTH MOTOR CO. v. ROSS.
    No. 7618.
    Court of Civil Appeals of Texas. Austin.
    Oct. 7, 1931.
    Rehearing Denied Nov. 4, 1931.
    Woodruff & Holloway, of Brownwood, for appellant.
    Callaway & Callaway, of Brownwood, for appellee.
   McClendon, C. J.

Appellee sued appellant for damages to a motorbus the result of a collision on the public highway between the bus and a Buick car owned by appellant and operated at the time by one Wages, an employee of appellant. Judgment upon a special issue verdict was rendered in favor of appellee, from which this appeal was taken.

The principally contested issue in the case was whether Wages, at the time of the collision, was engaged in his employer’s business, or upon a private mission of his own; and the leading assignments of error complain of the admission of Wages’ statements in this regard, one made to appellee shortly after the collision and the other made to Mr. Webb, vice president of appellant, a day or two later. Other assignments concern the measure of damages.

Appellant was engaged in selling new and used ears, and had a branch establishment, at Dublin, Tex., which was in charge of Wages. The collision occurred about 9:20 o’clock on Sunday night, December 29, 1928, about nine miles east of Brownwood, on the highway extending from Brownwood through Dublin to Stephenville. The bus was traveling west to Brownwood and the Buick car was traveling in the opposite direction.

After the accident Wages was in a dazed or stunned condition, and while he was being driven into Brownwood he made the statement objected to which is embodied in the following quotation from appellee’s testimony: “When he (Wages) seemed to get at himself, he told me that his name was H. M. Wages, and that he was employed by the Webb-North Motor Company. * * * He said that he had been over here to Brown-wood trying to sell a used car. He said he had been over here to sell a used car.”

A few days later Mr. Webb, in company with Mr. North, was in Brownwood in the interest of appellant investigating the accident. Appellee testified to the following conversation on that occasion: “I told them that Mr. Wages had told me that he was over here to see if he could sell a used car, and that he had gotten sick and had started back home, and Mr. Webb told me that that was what he had told him. Mr. Webb said that that was what Mr. Wages had told him as to how it came about.”

These statements of Wages, as to the purpose of his mission to Brownwood, were objected to as being hearsay, incompetent, and not binding upon appellant.

We have reached the conclusion the objections were improperly overruled.

Neither agency, the authority of the agent, nor the fact that he was acting within the scope of his employment can be proved by the declarations of the agent. Nor are such declarations admissible as primary evidence of the facts they detail.

There is a line of authority, however, to the effect that where the agency is otherwise proved prima facie, and the declarations are made in connection with the transaction for which the principal is sought to be held or as a part of the res gestas, they will be admitted as primary corroborating proof. Germania Fire Ins. Co. v. Grain & Elevator Co. (Tex. Civ. App.) 271 S. W. 256; Park v. Sullivan (Tex. Civ. App.) 12 S.W.(2d) 265; 2 Tex. Jur., p. 527, § 127, and,cited cases.

The authorities upon this subject are by no means uniform. In reason and upon respectable authority we think the rule, in any event, should be limited to those cases in which the declarations of the agent are, by evidence aliunde, brought within the general rule that to be admissible they must have been made in a transaction in which the agent is shown to have had authority to bind his principal in the matter of the declarations themselves. This would limit the rule to cases in which the declarations were made in the course of and were pertinent to the business of the principal which the agent was transacting; which limitation would probably confine the application of the rule to matters of contract.

Conceding the rule to the extent above stated, we do not believe it can fairly be said that the facts of the case at bar bring it within its purview. The statement of Wages to appellee was uttered neither in the course of the transaction in suit, nor as a part of the res gestas of that transaction. It related to the purpose of his mission in going to Brown-wood, a matter prior in time and in no proper sense connected with the transaction in suit which was the collision. The following quotation from Gulf, C. & S. F. Ry. Co. v. York, 74 Tex. 364,12 S. W. 68, 70, is expressive of this view: ’

“There can be no doubt, we think, that the objections to all of this testimony should have been sustained. It certainly did not constitute a part of the res gestee, tested by the most liberal construction applied to that character of evidence. It was not descriptive or illustrative of the particular way in which the collision occurred. It was not admissible because made by an agent in such manner as would bind his principal. To have had that effect it must have been made within the scope of the agent’s authority with respect to the transaction in which the declaration or admission was made, and must have formed part of the res gestae.
“The threats or declarations are not shown by the proof to have been made while the engineer was in the discharge or performance of any duty in which he was authorized to act for the defendant. They were obviously made after the infliction of the injury, and not, therefore, a part of the res gestae. The length of time in this case would not, however of itself, have rendered them inadmissible had they related to the nature or cause of the accident and been otherwise competent.”

In this connection appellee cited Reid Auto Co. v. Gorsezya (Tex. Civ. App.) 144 S. W. 688. The opinion does not show what the statement objected to was; and we are unable to determine whether the case is in point.

The testimony of appellee that Mr. Webb admitted that Wages had later made the same statement to him was clearly hearsay and inadmissible for any primary purpose. Woodward-Wanger Co. v. Nelson (Tex. Civ. App.) 11 S.W.(2d) 371, is directly in point.

Appellant contends that with this evidence excluded, a prima facie ease was not presented and judgment should be here rendered in its favor. The record does not disclose that the case has been fully developed in this regard, and the proper practice in such case is to remand the cause. In view of another trial we think it best not to discuss the evidence, which would be necessary in passing upon its sufficiency as a matter of law to establish the fact that Wages was at the time of the collision engaged in appellant’s business.

The remaining points relate to the measure of damages. Testimony as ’to the reasonable value of the bus when new was improperly admitted, in the absence of a showing that it had no market value at the time of the collision. Galveston, H. & S. A. Ry. Co. v. Levy, 45 Tex. Civ. App. 373, 100 S. W. 195.

Complaint is made of the court’s charge in authorizing the jury to consider “the reasonable value of the use of the bus during such time as was necessarily required to repair the same.” The testimony upon this issue was that appellant hired another bus for 16 days at $20 per day. Our views upon the several points made in this regard follow:

Where the measure of damages submitted was the reasonable cost of repair, the reasonable rental cost of another like article for the time reasonably necessary for such repair was a proper element of damage. From such rental value, however, should be deducted the reasonable amount of depreciation during such period; for, should the owner rent his own article to another, he would receive the rental but would suffer the depreciation to his property arising from the use during the rental period; and should he hire another article for his own use, he would save the amount of such depreciation to his own property during that period. These elements should be established by competent proof and properly delineated to the jury.

Complaint is made that the charge authorized double damages in including the value of wheels destroyed in addition to the reasonable expense of repair, in that one of the items of such repair was the cost of another chassis which included wheels. It is manifest that appellee would not be entitled to the cost of another chassis including the wheels and the value also of wheels destroyed ; and this consequence should be avoided upon another trial.

Where the cost of another chassis was allowed as an item of repair, the salvage value, if any, of the old chassis should be allowed as a credit. And where, as here, the evidence conflicts as to whether there was any such salvage value, the issue should be submitted to the jury.

The trial court’s judgment is reversed, and the cause remanded.

Reversed and remanded.


author: McClendon, c. j.

text:
    COMMONWEALTH INS. CO. v. EVANS.
    No. 7640.
    Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1931.
    Rehearing Denied Nov. 4, 1931.

      Thompson, Knight, Baker & Harris, Will C. Thompson, and Robert Lee Guthrie, all of Dallas, for appellant.
    Collins, Jackson & Snodgrass, of San Angelo, for appellee.
   McClendon, c. j.

Suit by Evans against the Insurance Company upon a fire insurance, policy covering an automobile. The insurance company defended upon the allegation that the policy was void by reason of the existence of a prior policy issued by the St. Paul Company in violation of an express provision of the policy in suit. Evans recovered upon a special issue verdict, and the Insurance Company has appealed.

The St. Paul policy was taken out by Chain Investment Company, who held a chattel mortgage upon the automobile, and it was Evans’ contention (which the jury findings sustained) that it was taken out without his authority, knowledge, or consent, and was therefore not additional insurance within the stipulation relied upon.

We hold the evidence sufficient to support the following fact findings:

The car was purchased in 1928, and as part of the consideration Evans gave a chattel mortgage for $1,400, which was carried by John W. Six Motor Company. There was a policy covering the car held by the Six Company which appears either to have expired or to have been canceled on May 27, 1929. On that day the mortgage debt was refinanced by Chain Investment Company, of which Horton and Xaggy (who were also local agents for the St. Paul Company) were officers. Horton conducted the negotiations with Evans in which it was understood there should be no insurance written. A new note and chattel mortgage were executed. This note was for $1,481.05, which amount 'Was made up of $1,396.22 paid to the Six Company and $84.83 “service charges.” The books of the Chain Company showed that this latter amount included an item of $16.80 to cover premium on fire and theft insurance, which was inserted under these circumstances: The papers in the transaction were passed to Taggy’s desk, who did not know the understanding between Evans and Horton, and according to his custom he issued the St. Paul policy which was in favor of Evans, with loss payable clause to the Chain Company; and he included the premium in the service charges. Evans paid off the mortgage in September, 1929, and all the papers in connection with the loan, including the policy, were mailed to him. He, however, did not look through the papers to ascertain their contents; and had no actual knowledge of the existence of the policy until after the fire, when he was informed by appellant’s adjuster that there was another policy on the property; and at the request of the adjuster he looked through the papers and discovered the St. Paul policy among them. Some time in November or December, 1929, after the Chain Company’s mortgage had been paid off, Evans had a conversation with the bookkeeper of the Six. Company, with a. view of making a new loan on the car. At Evans’ request, the bookkeeper rang up Horton and inquired whether there was a policy on the car, and was informed by Horton that there was not. The policy in suit was written February 5, 1930, and the loss occurred February 17, 1930.

The evidence is somewhat obscure in some respects, and isolated portions of Evans’ testimony present some apparent conflicts with other portions of his testimony. Appellant contends, in this connection, that it is apparent that Evans knew of the St. Paul policy either at the time it was issued or thereafter and before the fire; and he therefore ratified its issuance by not repudiating it. Evans’ testimony is positive and unequivocal that he had no knowledge of the existence of the St. Paul policy until after the fire, and his testimony as a whole is not inconsistent with this statement. The issues raised in this regard concern the credibility and weight of testimony, which lie exclusively within the province of the jury, and have no bearing upon the probative force of the evidence.

The authorities quite uniformly hold that: “If additional insurance is taken out on property, without the consent or knowledge of the insured, and there is no acquies-cenee in or ratification of it by him, such insurance is not a violation of a clause in the insurance policy making additional insurance a ground of forfeiture of the policy.” 14 R. C. L. 1137.

The following Texas cases are in point: Phoenix Ins. Co. v. Hague (Tex. Civ. App.) 34 S. W. 654; Ginners’ Mut. Underwriters v. Wiley & House (Tex. Civ. App.) 147 S. W. 629. See, also, 26 Corp. Jur. pp. 188, 189; 5 Ency. of Ins. Law, p. 3658, § 1049 ; 2 Cooley’s Brief on Insurance (2d Ed.) p. 2292.

Appellant contends that, regardless of Evans’ actual knowledge, the St. Paul policy was binding upon him because issued by his duly authorized agents under a stipulation in the mortgage whereby he agreed to keep the property insured with loss payable to mortgagee, “and in case said mortgagor shall neglect or refuse to obtain said insurance * * * then said mortgagee may at said mortgagor’s option obtain such insurance,” and charge the cost to the mortgagor.

In 1880 the New York Court of Appeals, in the well-considered case of Titus v. Glens Falls Ins. Co., 81 N. Y. 410, made the following holding: “It is true that Merrill’s [mortgagor’s] mortgage contained a clause providing that he should keep the mortgaged buildings insured, and assign the policy to the plaintiff [mortgagee], and that in case of default on his part, the plaintiff might procure such insurance at his expense and add the amount paid therefor to the mortgage. But that clause could not operate until there was default on the part of Merrill, and he could be put in default only upon refusal or neglect to procure the insurance after some sort of notice or demand.”

This case has been repeatedly followed. Cannon v. Ins. Co., 49 La. Ann. 1367, 22 So. 387; Clower v. Ins. Co., 220 Mo. App. 1112, 296 S. W. 257; Carpenter v. Ins. Co., 61 Mich. 635, 28 N. W. 749; Cowart v. Ins. Co., 114 Ala. 356, 22 So. 574.

We follow the holding as being both sound in principle and well sustained by high authority.

Here there was not only no neglect or refusal on Evans’ part; but there was an express understanding that no insurance was to be taken out. However, this understanding arose, whether from mistake or otherwise (no fraud being shown), the authority of the mortgagee to procure insurance binding upon Evans could not arise until after “some sort of notice or demand,” which was never given or made.

Of course, the Chain Company, independently of authority conferred in the mortgage, had the right to insure its own interest in the property as mortgagee. But that would not have constituted additional insurance within the meaning of the policy. Camden Fire Ins. Co. v. Sutherland (Tex. Civ. App.) 278 S. W. 997; Home Ins. Co. v. Koob, 113 Ky. 360, 68 S. W. 453, 58 L. R. A. 58, 101 Am..St. Rep. 354; 14 R. C. L. p. 1138, § 320; 5 Cyclopedia of Ins. p. 3634, § 1039, and p. 3665, § 1053. In so far, however, as the St. Paul policy covered Evans’ interest in the ear, it was, under the testimony and jury findings, unauthorized and not binding, and did not constitute other insurance within the meaning of the policy in suit.

Error is predicated upon admission of Evans’ testimony to the effect that in the telephone conversation above Horton told the Six Company’s bookkeeper there was no insurance on the car. Evans only heard what was said by the bookkeeper, and it was from what he reported at the time that Evans obtained his knowledge. The objection was that the evidence was hearsay. Since Horton himself gave the same testimony and there was no conflict in the evidence upon the subject, the error, if any, was harmless.

Evans testified that the cash value of the car immediately before the fire was $1,800. This evidence was objected to because it did not fix the place where the car had such value. In laying the predicate for this testimony, it clearly appears that Evans’ knowledge regarding value was limited to the vicinity where the loss occurred. Had there been substantial doubt upon the matter, appellant might readily have removed such doubt by cross-examination. Additionally, the evidence was only cumulative, and therefore harmless, since there was ample additional testimony from apparently disinterested witnesses to support the jury’s finding ($1,575) of value.

The above holdings dispose of all but two (fifth and sixth) of appellant’s assignments of error. These are manifestly without merit, and -we overrule them without discussion.

The trial court’s judgment is affirmed.

Affirmed.


author: BLAIR, J.

text:
    RAILROAD COMMISSION OF TEXAS et al. v. TEXAS & NEW ORLEANS R. CO. et al.
    No. 7625.
    Court of Civil Appeals of Texas. Austin.
    Oct. 14,1931.
    Rehearing Denied Nov. 4, 1931.

      Jas. Y. Allred, Atty. Gen., Elbert. Hooper, Asst. Atty. Gen., S. L. Staples, of Austin, and Luther Nickels, of Dallas, for appellants.
    Claude Pollard, of Austin, Adair Dyer, of Dallas, Thompson & Barwise and N. H. Las-siter, all of Fort Worth, Terry, Cavin & Mills, of Galveston, and Andrews, Streetman, Logue & Mobley and Baker, Botts, Andrews & Wharton, all of Houston, for appellees.
   BLAIR, J.

Appellees, certain railroad companies incorporated as steam railroads under the Acts of 1876, filed this suit, and on the hearing to the court without a jury obtained an order perpetually restraining appellants, the Railroad Commission of Texas, the Attorney General, and several district attorneys of Texas, from requiring them to maintain on their gasoline, electric, and gasoline-electric motor cars or trains, carrying passengers over their steam railroads, any particular number of men, or men of any particular name or designation, and particularly a fireman, under the terms of that portion of article 6380, R. S. 1925, which reads as follows;

“No railroad company or receiver of any railroad company doing business in this State shall run over its road, or part of its road, outside of the yard limits:
“1. Any passenger train with less than a full passenger crew consisting of four persons: one engineer, one fireman, one conductor and one brakeman. * * *
“Any such company or receiver which shall violate any provision of this article shall be liable to this State for a penalty of not less than one hundred nor more than one thousand dollars for each offense.”

The first Full Crew Law was enacted in 1907 (chapter 41) identical in language with article 6380, supra. This act was declared unconstitutional for defect in its caption. Missouri, K. & T. Ry. Co. v. State, 102 Tex. 153, 113 S. W. 916, 917. The statute was reenacted in 1909 (chapter 100) without change in language, but correcting the caption defect. On June 16, 1908, after passage of the 1907 act and prior to the passage of the 1909 act, in reply to a communication from Hon. Allison Mayfield, chairman of the Railroad Commission of Texas, the Attorney General’s department construed the first (act 1907) Full .Crew Law, and held that it “does not apply to the operation of gasoline motor cars.”

In 1911 the Legislature, in recodifying the laws, re-enacted the Full Crew Law without change in language. On April 2, 1913, in reply t.o an inquiry of the Hon. J. A. Starling, commissioner of labor of Texas, the Attorney General’s department, after quoting the language set out in article 6380, supra, held as follows: “We think therefore that when the legislature undertook to pass Senate Bill No. 240, it had in mind steam railroads and the regulation thereof, and that in the construction of the statute we should consider the term railroad company as used therein to mean a steam railroad company. This we believe is made conclusive by the use of the terms engineer and fireman in Sections 1, 2 and 3, and especially as used in Section 3 defining a full crew for a light engine. For the same reason, we believe that under a proper construction of the statute the legislative intent was to require a full crew on the trains and engines operated by steam power, and that the statute did not apply to a motor car operated by electric or gasoline power.”

On March 14, 1919, in reply to the inquiry of Hon. Allison Mayfield, chairman of the Railroad Commission, the Attorney General’s department, after quoting the statute, held as follows:

“ ‘In the operation of a gasoline motor car carrying passengers on a steam railroad, will you please advise if we are required to have more than a conductor and motorman in charge? If so, how many, and does it make any difference whether one car is operated single, or two cars coupled, as to the number of men in charge?’
“When this Act was first enacted by the legislature in 1909, and prior thereto, gasoline motor cars for carrying passengers were not then being operated; and in our opinion this statute ought to he construed as the conditions existed at the time of its passage and we believe that it refers to trains operated by steam engines’ on railroads and does not apply to gasoline motor cars carrying passengers on a steam railroad, since such gasoline cars were not in operation at the time said law was first enacted.”

In 1925 the Legislature in recodifying the statutes again re-enacted the Full Crew Law identical in language with all former acts and codifications. In 1925 the Legislature, in enacting chapter 154, Acts 39th Legislature, dealing with daily operations of passenger trains, declared in the emergency clause that the operation of a “gasoline or electric motor car ⅜ * « shan he deemed a train within the meaning of this Article.” Each Attorney General, district attorney, labor commissioner, and Railroad Commission of Texas either construed or acquiesced in the construction of the Full Crew Law from the date of the first act in 1907, as having no relation to gasoline, electric, or gasoline-electric motor cars or trains carrying passengers on steam railroads, until November 26, 1929, when, upon inquiry of Hon. Clarence E. Gilmore, chairman of the Railroad Commission, the Attorney General’s department construed the Full Crew Law for the fourth time, and held for the first time, in part, as follows:

“1. A motor car which runs on a railroad track or regular schedule and transports United States mail, baggage, and express and passengers, is a train.
“2. The Full Crew Law applies to all passenger trains, regardless of the form of energy employed to propel them.”

It was further held in that opinion, with respect to requiring a fireman on motor cars or trains carrying passengers, as follows: “It is my opinion that the Legislature intended to protect the traveling public and the train crew by placing every safe-guard around them that a full crew could afford. That a fireman does not have the same duties to perform on a motor driven locomotive that would be necessary on a steam propelled engine, is entirely probable and true. The same method of fueling the locomotive is not employed. The necessity, however, for performance of the same duties with reference to the safety of the traveling public exists. It is the duty of the fireman on all trains to keep a lookout for danger on the track, to keep and compare the correct time with the engineer, to familiarize himself with the orders governing the movement of trains, and keep check on the engineer as to the proper observance of said orders, to take charge of the engine in event of death or disability of the engineer, to blow the whistle, ring the bell and notify the engineer upon appearance of danger, to notify the conductor when the engineer fails or refuses to observe orders, and numerous other duties, all designed, in part at least, to protect the traveling public.”

On December 10, 1929, the Railroad Commission, acting upon the above opinion, ordered appellee railroad companies, incorporated as steam railroads, to comply with the terms of article 6380, supra, with respect to maintaining a full crew of four persons on their gasoline, electric, and gasoline-electric motorcars or trains carrying passengers, under threat of enforcement of the penalties prescribed in the act. Whereupon appellees filed this suit and obtained the restraining order above mentioned; hence this appeal.

The question presented is whether the trial court rightly construed article 6380, supra, as having no application to and as not requiring railroad companies incorporated as steam railroads to maintain on their gasoline, electric, and gasoline-electric motor cars or trains, carrying passengers over their steam railroads, any particular number of men, or men of any particular name or designation, and particularly a fireman as that term was used in the act. We have reached the conclusion that the trial court correctly constru'ed or interpreted the statute.

In construing a statute, the one and paramount rule is to ascertain the intention of the Legislature, which must govern in every instance. Board of Land Commissioners v. Weede, Dallam, Dig. 362; Cannon’s Adm’r v. Vaughan, 12 Tex. 402; Cain v. State, 20 Tex. 362; Runnels v. Belden, 51 Tex. 50; Mills County v. Lampasas County, 90 Tex. 606, 40 S. W. 403; Moorman v. Terrell, Comptroller, 109 Tex. 173, 202 S. W. 727. The intention of the Legislature must be gathered from the language of the statute construed as a whole, giving the words used their common and ordinarily accepted meaning; and, if the words employed are free from ambiguity and doubt, and express plainly, clearly, and distinctly the intent, according to the natural import of the language used, then no occasion arises to look elsewhere. State v. Delesdenier, 7 Tex. 106; Rosenberg v. Shaper, 51 Tex. 140; Hanrick v. Hanrick, 54 Tex. 110; Boon v. Chamberlain, 82 Tex. 482, 18 S. W. 656; Murray v. State, 21 Tex. App. 631, 2 S. W. 757, 57 Am. Rep. 623; Texas & P. Ry. Co. v. Railroad Commission of Texas, 105 Tex. 386, 150 S. W. 878; article 10, R. S. 1925. It may also be here noted that the statute under construction is not only remedial in its nature, but penal as well, and must be construed with at least a reasonable degree of strictness with respect to including anything beyond the immediate scope and object of the statute, even though within the spirit, and nothing can be added to the act by inference or intendment. State v. Duke, 104 Tex. 355, 137 S. W. 654, 138 S. W. 385; State v. International & G. N. Ry. Co., 107 Tex. 349, 179 S. W. 867; State v. Chicago & N. W. Ry. Co. (Wis.) 237 N. W. 132; 25 R. C. L. 1081, § 301.

Both parties insist that the language of the statute is plain, unambiguous and free from doubt with respect to the character of passenger train on which a full crew of four persons must be employed. Appellants insist that the term “any passenger train” is used generically in the statute, and is broad enough to require a full crew of four persons on all passenger trains whether operated in the past by steam, or in the present or future by gasoline or electricity, and that such was the manifest intention of the Legislature. Ap-pellees insist that it is manifest from the language of the statute that it has no application to the character of gasoline, electric, and gasoline-electric motor cars or trains now used in carrying passengers over their steam railroads, because the act not only provided for a full crew of four men, but for a particular kind and character of full crew, to wit, one engineer, one fireman, one conductor, and one brakeman, and at the time the act was passed the term “fireman” had and has ever since had a well-recognized meaning, both in common usage and in railroad circles, as one employed primarily to tend fires on a steam locomotive, so that the statute thus furnishes the key to its own proper construction.

Manifestly the effect of the general language, “any passenger train with less than a full crew consisting of four persons,” is limited by the language immediately following it, specifically naming and defining the kind and character of the four persons to be employed, to wit, one engineer, one fireman, one conductor, and one brakeman. The facts and common knowledge show that these four particularly named persons had specific duties to perform on steam-propelled passenger trains when the act was passed, thus indicating the kind or character of passenger train on which the Legislature intended a full crew of these four particular persons should be maintained. Clearly it is not, as contended by appellants, manifest from the language of the statute, standing alone, that the Legislature by unmistakable implication intended to extend the law beyond the immediate scope and' object of the statute as of the time of its enactment, so as to require steam railroad companies to now maintain, without regard to name or the difference in duties imposed, a full crew of four persons on their modem gasoline or electric motor cars carrying passengers over such steam railroads. At least such construction is very doubtful, and, when certain well-settled rules and aids of statutory construction are resorted to, it becomes apparent that the Legislature had no such intention.

The first of these rules “is that statutes are to be construed as they were in- • tended to be understood when enacted,” taking into consideration existing facts to which the law- was intended to apply, and giving to the words used the sense in- which they were understood at the time when the statute was enacted. 25 R. C. L. 959, § 215.

The facts are undisputed that, prior . to and at the time of the passage of the first full crew laws in 1907 and 1909, gasoline motor cars were practically unknown as a means of transporting passengers over steam railroads in this state. The steam locomotive with passenger coaches was the' exclusive method used. ■ Both the facts and common knowledge show that the gasoline, electric, and gasoline-electric motor car or train now used in carrying passengers over steam railroads differ very materially from the steam-drawn train existent at the time the statute in question was enacted. Both the facts and common knowledge show a steam locomotive to be a machine which derives its energy or power from steam produced by coal or oil fire applied to a boiler containing a sufficient quantity of water. The locomotive is composed of a chassis, a boiler, and fire box, and other necessary appurtenances. The operation of such locomotive required the constant attention of what were and are commonly and in railroad terminology known as an engineer and a fireman. The duty of the engineer was and is to operate the locomotive by mechanical levers and brakes, and to sit on the right-hand side of the cab near the rear end of the boiler, and keep a lookout to ascertain if the track is clear for passage of the locomotive; his view to the left being necessarily obstructed by the protruding boiler. Primarily, the duty of the fireman was and is to tend fires to make the necessary .steam power, and incidental to this duty •to sit on the left-hand side of the cab, opposite the engineer, and keep an outlook for clear passage of the locomotive, to aid the engineer in interpreting orders, and to act as flagman should it be necessary to do so. On the other hand, the operation of gasoline, electric, and gasoline-electric motor cars, either on the single unit ear or the motor car pulling additional coaches or trailers, is practically automatic. The motive power of such ears is either gas or distilled fuel. The gasoline or gasoline-electric motor car is propelled by a motor, the electric unit being used for operating the motor and generating power, and the starting and stopping apparatus is very much the same as was employed on the ordinary electric interurban in existence at the time the statute in question was enacted. •The duties of the engineer on a locomotive with respect to starting and stopping by mechanical apparatus is similar, although the mechanical structure of the steam locomotive and gasoline or electric motor is different and requires different knowledge and training for their safe operation. The engineer, or what is universally known as a motorman on the motor car, sits on the right-hand side in front of the generating motor unit, and has practically an unobstructed view on both sides and to the front, and his duties do not' interfere with his keeping a lookout and generally discharging all necessary functions required of both the engineer and fireman on a steam locomotive, for the safe operation of the motor car or train. The primary duties of the fireman of tending fires are' dispensed with on the motor car by mechanical devises; there being no boiler of water or fire to keep. All these duties and those of lubrication are done by mechanical devices on the motor car. One witness testified that he thought a man to take the place of the fireman with respect to performing the duties of keeping a lookout and otherwise aiding the engineer on a locomotive was as necessary on a motor ear. Several witnesses, as well qualified, testified, however, that such a man or person would not help, but rather interfere, by talking with the motorman, thereby attracting his attention from the safe operation of the ear. The evidence shows that on the single unit motor car a motorman and conductor, and in some instances a baggageman, are the only employees. On the motor cars drawing additional coaches, a motorman, a conductor, a baggage man, and a brakqman are. employed. Witnesses testified that these were sufficient.

It is obvious that the statute had two purposes in view, viz.: To employ at particular positions or places on steam-propelled passenger trains a sufficient number of men to properly operate 'them; and, as a safety' measure, to protect the person, property, and lives of the employees, the passengers, and the public. It is also obvious that these were the objects and remedy in view when the statute was passed, and that the act was only intended to apply to steam-operated passenger trains, because there were no other kind of passenger trains then in existence; and the kind and character of employees specifically named in the act were those employed on steam-operated passenger trains at the time; and there is nothing to indicate that the Legislature knew or had in mind any other power for operation of passenger trains than steam engine motive power. Erom these facts and circumstances attending the enactment of the statute we must assume that the Legislature was dealing with and acting upon existing facts within its knowledge, and not things that might possibly arise in the future. This conclusion by analogy finds support in the case of In Funk, Adm’r, v. St. Paul City R. Co., 61 Minn. 43S, 63 N. W. 1099, 1100, 29 L. R. A. 20S, 52 Am. St. Rep. 608, where it was held that for taxation purposes the term “railroads” should not be interpreted to include street railways not existent at the time of' the passage of the Railroad Taxing Act, the court holding as follows:

“It is claimed by the appellant’s counsel, and not denied by the counsel for the respondent, and such we believe to be fact, that on February 24, 1887, when the general law of that year was passed, there were no cable or electric street railways in existence in this state. If so, what was the legislative intent in using the' word ‘railroad’ in the law of 1887, to be deduced from the whole and every part of the statute taken together, upon the subject of railroads?

“ ‘When the words of a statute are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the object and remedy in view.’ ⅜ * * What was the mischief felt which resulted in the passage of this law? Was it a danger known, or one unknown? Was it a danger then felt and realized, or one that might possibly arise in the future? We must assume that it was dealing with, ancf acting upon, existing facts within its knowledge.”

In a case involving similar facts, the above case was cited by the Supreme Judicial Court of Maine, in State v. Boston & M. R. Co., 123 Me. 48, 121 A. 541, 545, and in which the following from 25 R. C. L. 959, was quoted with approval: “The true rule is that statutes are to be construed as they were understood when they were passed. * * * If the language used is broad enough to include unknown things which might spring into existence in the future, they would be deemed to come within, and be subject to, the evident meaning of the terms used, but it does not follow, when a newly discovered thing is called by a familiar word, which comes nearest expressing the new idea, that the thing so styled is really the thing formerly meant by the familiar word. Hence it lias been held that a statute passed at a time when there were no cable or electric street railways in existence in the state, and providing that every railroad corporation owning and operating a railroad in the state should be liable for damages sustained by an agent or servant by reason of the negligence of any other servant or agent, but not broad enough in words to include unknown things, is not applicable to a street railway corporation, although its line is operated by cable.”

This general rule of construction is especially applicable here where the facts show that the gasoline or electric motor now' in use as the motive power for 'passenger trains or steam railroads sprang into existence after the passage of the act, and where the Legislature could have only known of such newly invented motor power by prophetic vision, a power not often attributed to it.

But appellants insist in this connection that by enacting as early as 1876 that portion of what is now article 6341, R. S. 1925, giving steam railroads the right “to receive and convey persons and property on its railway by the power and force of steam, or by any mechanical power,” and by enacting in 1909, at the same session the Full Crew Law was enacted, the Ash Pan Law (article 6381, R. S. 1925), and providing that same “shall not apply to any locomotive upon which an ash pan is not necessary by reason of the use of oil, electricity or other such agency,” the Legislature anticipated that steam railroads might in the future operate nonsteam trains or motor cars, and that, although the Legislature had no actual thought of motor cars, such lack of knowledge of and the nonexistence of gasoline motor cars at the time would not exclude them from the range of the Pull Crew Law under the rule that “a general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but so long as it is expressed in gen- ' eral language the courts cannot, in absence of express restrictions, limit its application to those cases, but must apply to all cases that come within its terms and its general purpose and policy.” 25 R. C. L. 778.

The general rule quoted is well settled, but it has no application here:

First, because, as above pointed out, the general language “any passenger train” is so limited by the language immediately following it, specifically naming and defining the character of persons employed, as to indicate the legislative intent to restrict the operation of the law to those particularly named and to the operation of steam locomotive passenger trains upon which the character of persons named were employed at the time the act was passed. Even if it be conceded that the Legislature by the acts referred to may have possibly anticipated the future operation of nonsteam trains or motor cars by steam railroads, there is nothing in the language of those acts or the Full Crew Law to indicate that the Legislature knew or could have known the character of operatives that would be employed or necessary to a safe operation of such trains or motor cars, and for these reasons such matters were left for future legislation. The rule here invoked is well stated in 25 R. C. L. 971, as follows: “Although the language of a statute is general it may be limited in its operation to cases falling within the mischief intended to be remedied. It is to be presumed that the legislature does not intend' to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness ; and to give such effect to general words simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they were not really used. It is therefore an established rule of construction that general words and phrases, however wide and comprehensive in their literal sense, must be construed as strictly limited to the immediate objects of the act, and as not altering the general principles of the law.”

Second, since the purpose of the statute under construction is not only remedial in its nature, but penal as well, it must be construed with a reasonable degree of strictness. The rule need not be extended so as to exclude from the terms of the statute operations clearly within its scope and purpose and intended to be covered; but it must be- so applied ajs not to broaden the scope and to include operations not within the legislative intent; and, unless it is reasonably apparent from the language of the act that any given operation is an offense against the statute, persons performing such operation ought not be subjected to the penalties prescribed, or, as is said in 25 R. O. L. 1016: “Although a penal statute cannot be extended by construction, it should, if possible, receive such a construction as, when practically applied, will tend to suppress the evil which the legislature intended to prohibit. But, while a court in construing a penal statute is not required to shut its eyes to notorious mischiefs which it was intended to suppress, care must be observed not to extend the statute to offenses not embraced within its language, merely because they involve the' same mischief which the statute aimed to suppress. It is a well accepted rule that remedial statutes, seeking the correction of recognized errors and abuses in introducing some new regulation for the advancement of the public welfare, should be construed with regard to the former law, and the defects or evils sought to be cured, and the remedy provided.”

The rule finds support in the recent case of McBoyle v. U. S., 283 U. S. 25, 51 S. Ct. 349, 75 L. Ed. 816, opinion of Mr. Justice Holmes, where the question involved was whether the National Motor Vehicle Theft Act (18 USCA § 408), prohibiting transportation of “any other self-propelled vehicle not designed for running on rails,” applied to transportation of an' airplane. The Supreme Court, holding that the act did not apply even though the airplane was a self-propelled vehicle not running on rails, says:

“The question is the meaning of the word ‘vehicle’ in the phrase ‘any other self-propelled vehicle not designed for running on rails.’ No doubt etymologically it is possible to use tbe word to signify a conveyance working on land, water or air, and sometimes legislation extends tbe use in that direction, e. g., land and air, water being separately provided for, in tbe Tariff Act, September 21, 1922, c. 356, § 401 (b), 42 Stat. 858, 948 (19 USCA § 231 (b). But in everyday speech ‘vehicle’ calls up tbe picture of a thing moving on land. Thus in Rev. St. § 4 (1 USCA § 4) intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used ‘as a means of transportation on land.’ And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 497, § 401 (b), 46 Stat. 590, 708 (19 USCA § 1401). So here, the phrase under discussion calls up the popular picture. Eor after including automobile truck, automobile wagon and motor cycle, the words ‘any other self-propelled vehicle not designed for running on rails’ still indicate that a vehicle in the popular sense, that is a vehicle running on land is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919 when this statute was passed, but it is admitted that they were not mentioned in the reports or in the debates in Congress. It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.
“Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should he given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used. United States v. Bhagat Singh Thind, 261 U. S. 204, 209, 43 S. Ct. 338, 67 L. Ed. 616.”

The foregoing quotation finds application here from the fact that appellants insist that the term “any passenger train,” as used in the Eull Crew Law, is broad enough to include motor cars. But the passenger train, as above pointed out, that the Legislature had in mind, was one operated by a full crew of four persons, named and defined as one engineer, one fireman, one conductor, and one brakeman, which necessarily implied a passenger train propelled by a steam locomotive. If the Legislature had in mind a gasoline motor car or train, it could have easily said so, and we believe it would have done so by appropriate language, and in absence of which we will not extend the scope of the act to include motor ears of the character involved in this suit.

Another general rule of statutpry construction, or rule in aid thereof, is that the interpretation which has been placed upon a statute by the officers or governmental department charged with carrying out or enforcing the terms of the law will be accorded due consideration by the courts in construing the law. This rule, of course, presupposes doubt or ambiguity in the language of the statute, in which case courts may resort to contemporaneous construction which it has received from contemporary authority. 25 R. C. L. 957. This rule is often applied where it is not plain from the terms of the statute that it was intended to include an agency, thing, or enterprise not in existence at the date of its passage. The reason for the rule is stated in 25 R. C. L. 1043, as follows: “It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation as well as with the sense then attached to the legislative expression.”

We have stated above in detail the history of the statute in question, its interpretation by the Attorney General’s department for twenty-two years as having no application to passenger trains other than those operated •by steam locomotives, which construction has been at least acquiesced in by the state labor commissioner, the Railroad Commission’ and the various district attorneys in this state, all of whom are charged with the enforcement of the law, either as a remedial act or as a penal statute. It has also been noted that the Legislature passed the law at least three times without change in language, viz. in 1909, and in recodifying the statutes in 1911 and 1925. The departmental construction was uniform until 1929, when the Attorney General’s department construed the statute applicable to the gasoline, electric, and gasoline-electric motor cars involved here, precipitating this litigation. In view of the fact that the Legislature thrice re-enacted the law without change of language, and in the light of the uniform construction by all executive departments and officers charged with the enforcement of the law, we think the trial court correctly adopted that construction as conclusive of the intention of the Legislature with respect to the law being only applicable to steam-drawn passenger trains.

The Commission of Appeals in answering a certified question to the Supreme Court, in the recent case of Stephens County v. Hefner, 118 Tex. 397, 16 S.W.(2d) 804, 805, review the authority with respect to the contemporaneous rule of construction, as follows:

“In the interpretation of re-enacted statutes, Mr. Sutherland, in his excellent work on Statutory Construction, vol. 2, § 403, says: ‘The court will follow the construction which they receive when previously enforced. The Legislature will be presumed to know the effect which certain statutes originally had and by re-enactment to intend that they should again have the same effect.’
“In Johnson v. Hanseom, 90 Tex. 328, 38 S. W. 761, 763, our Supreme Court, speaking through Mr. Justice Gaines, announced a similar rule in this language: ‘It is to be presumed that the Legislature knew of the construction . that had been placed upon the text, and that if they were not satisfied with it they would have so changed the verbiage as to have shown clearly a contrary intention.’
“The rule so announced has been frequently held to apply to the re-enactment of a statute which has received a practical construction upon the part of those called on to execute it. Houston & T. C. R. Co. v. State of Texas, 95 Tex. 521, 68 S. W. 777; Galveston, H. & S. A. R. Co. v. State, 81 Tex. 602, 17 S. W. 67; Bloxham v. Consumers’ Electric Co., 36 Ela. 519, 18 So. 444, 29 L. R. A. 507, 51 Am. St. Rep. 44; Commonwealth v. Grand C. B. & L. Ass’n, 97 Ky. 325, 30 S. W. 626; State v. Moore, 50 Neb. 88, 69 N, W. 373, 61 Am. St. Rep. 538.
“It appears that the Attorney General’s department, in the discharge of its duty in advising county officers, with one exception, has uniformly construed article 3898 as having the effect of exempting all officers in counties of less than the number of inhabitants specified therein from the maximum salary provision of the fee bill. The rulings of that department have been acted upon by public officers throughout this state for practically a quarter of a century. The single exception to the rule was made by the Attorney General in 1914. An examination of that opinion, however, discloses an admission by the then Attorney General that the effect of section 17 of the Act of 1897 was to exempt officers in counties of less population than 15,000 from the maximum salary provision of the act. It was asserted by the Attorney General that the amendment of 1913 had the effect of placing said officers under the maximum salary provision. The opinion ■does not cite, and we are left to conjecture, what particular provision of the Act of 1913 had this effect. After a most careful consideration of this act, we do not find any provision which in our opinion sustains the ruling of the Attorney General. In the succeeding administrations of that department, this opinion was overruled and the uniform construction theretofore placed upon said act was resumed, and such construction continued up to the date of the repeal of article 3898 by the Act of 1919. After this repeal it was held by the Attorney General that by reason thereof all county officers named in the fee bill were subject to the maximum salary provision. When the Legislature in 1923 re-enacted article 3898, couched in the identical language in which it was a part of the statutes of this state for 22 years, it did so with presumptive knowledge of the fact that, the latest ruling by the executive department of the state was that the effect of said provision was to exempt certain officers from the maximum salary provision, and that under the practical construction placed upon said article county officers in several hundred counties were retaining all of the fees collected .by them on the theory that they were permitted to do so by such article; hence it must be assumed that the Legislature intended by the re-enactment of article 3898, .unchanged in verbiage, that it should be given. the construction theretofore placed upon it by public officials throughout the State. If it had been intended that the re-enac.ted article should have a different effect, the Legislature no doubt would have used language too clear and plain to be misunderstood to indicate such intention.”

The above quotation is also in point here with respect to the effect to be given the reenactment of the Full Crew Law by the Legislature in the light of the long-continued con- . struction placed upon it by the executive department of the government, and from which “the legislature will be presumed to know the effect which certain statutes originally had and by re-enactment to intend that they should again have the same effect.”

In this connection appellants contend that the statement in the Hefner Case that .“the legislature will be presumed to know the effect that certain statutes originally had and by re-enactment to intend that they should again have the same effect” is too broad, and that no such knowledge on the part of the Legislature can be presumed. We do not concede the correctness of this contention, but, aside from the rule stated, it is clear that the Legislature was aware at least in 1925, when it recodified the statutes, that numerous gasoline or gasoline-electric motor cars were being operated daily over many steam railroads in this state without the aid of a fireman. Such railroads and their operations have been under supervision of state authority since 1876. The operations of motor cars have not been a secretive undertaking. As above pointed out, the matter of the application of the Full Crew Law to motor cars has been called to the attention and obtained the rulings of the executive departments charged with the enforcement of the law for a long period of time, all of which was well calculated to direct the attention of the Legislature to the matter, and indicates that the Legislature did not intend that motor cars should be included within the term “any passenger train.” Furthermore, the fact that the Legislature did not intend that the Full Crew Law should not or did not apply to motor cars is made conclusive by the enactment in 1925 of Chapter 154, Acts 39th Legislature, dealing with daily operations, of passenger trains, where it was declared in the emergency clause that the operation of “a gasoline or electric motor car * * ⅜ shall be deemed a train within the meaning of this Article.” The reasonable conclusion to be drawn from this language is that as late as 1925 the Legislature did not consider motor ears as passenger trains within the meaning of the Full Crew Law, and from this it is manifest that the Legislature never at any time intended to include them within the prohibition of that law against the operation of a passenger train without a full crew of four persons consisting of one engineer, one fireman, one conductor, and one brakeman.

The judgment of the trial court will be affirmed.

Affirmed.