author: WALKER, J.

text:
    DAVIS v. DAVIS.
    No. 2077.
    Court of Civil Appeals of Texas. Beaumont.
    June 11, 1931.
    Rehearing Denied July 1, 1931.

      O. M. Lord and D. E. O’Fiel, both of Beaumont, for appellant.
    W. B. West and C. W. Wiedemann, both of Beaumont, for appellee.
   WALKER, J.

This was an action for divorce by appel-lee against appellant, praying for the dissolution of a common-law marriage and for partition of certain .property alleged to be thp community property of the marriage. The answer was by general and special demurrers and general denial. The trial was to the court without a jury, with judgment granting appellee divorce, as prayed for, and partitioning the property, as prayed for. The appeal is by appellant against that judgment. No issue is before us as to the property, that is, if the divorce was properly granted the judgment of partition was correct.

Appellant insists that the petition was subject to general demurrer on two- grounds: First, no common-law marriage was alleged; second, no ground for divorce was alleged. These contentions are without merit. The marriage was alleged as follows:

“Plaintiff has beefi an actual bona fide inhabitant of the State of Texas continuously for a period of more than twelve months next preceding the filing of this petition, and has resided in the said county of Jefferson continuously for a period of more than six months next preceding the filing of this petition that on said day and date of April 23, 1923 defendant obtained a divorce from plaintiff in Jefferson County, Texas, and plaintiff and defendant thereafter lived separate and apart for about two months at which time defendant came to plaintiff and told her that he wanted her to come and live with him again as his wife; that they could live together as husband and wife without the necessity of obtaining a marriage license and going through a marriage ceremony. Plaintiff then and there consented to so live with the defendant and did again take up her abode with defendant and they lived together in the same house, occupying the same room, and the same bed, as husband and wife, and representing to their friends and neighbors and to the world that they were husband and wife, and that such actions upon the part of the defendant constituted a common law marriage and that both plaintiff and defendant reiyognized that common law marriage ' as being binding upon each.
“3. Plaintiff further presents that said marriage relation between plaintiff and defendant began on or about June 23, 1923 and continued without any interruption until on or about January 18, 1930, defendant at all times during the said period represented to plaintiff that- they were legally husband a-nd wife.”

Appellant’s proposition is that to plead a common-law marriage: “It’s necessary that the pleadings show that the parties were competent to enter into the marital status, that they agreed to do so, that they lived and cohabited together as husband and wife and that they held themselves out to the world as husband and wife.” The allegations of the petition, as'" copied above, contain all the essential elements of a common-law marriage contract. ,

The second contention is that the trial court erred in finding that appellee was an actual bona fide inhabitant of Jefferson county, Tex., for the six months immediately preceding the institution of this suit. This finding has support. Thus appellee testified: “When Mr. Davis put me out of my home in January 1930 I went over in Orange County for a few days. I stayed over there for —let me see-^-two weeks. I was over in Orange County for two weeks. I did not go over there to live permanently; I only went over there to stay temporarily. I went over there for those few days because I didn’t have any other place to go and it was cold and my child was freezing. I had no other place to go. I only stayed over there two weeks.” With the exception of the two weeks appellee spent in Orange county, the issue was raised that the rest of the time for many years prior to the filing of this suit was spent in Jefferson county.

The third contention is that ,on the undisputed evidence appellee failed to establish a common-law marriage, and again that the great preponderance and weight of the testimony was against the finding on the issue of marriage. Both these contentions are denied. Every essential element of a common-law marriage was proven, not only to the satisfaction of the trial court, but also to the entire satisfaction of this court. It would serve no useful purpose to quote from the testimony of the witnesses on this issue, but we will say, in our judgment, it was of such a nature as to compel the finding of the marriage contract.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    WALKER COUNTY LUMBER CO. et al. v. SWEET et al.
    No. 2090.
    Court of Civil Appeals of Texas. Beaumont.
    June 25, 1931.
    Rehearing Denied July 1, 1931.

      Dean & Humphrey, of Huntsville, and O. J. Landram, of Houston, for appellants.
    Crawford & Crawford, of Conroe, for ap-pellees.
   WALKER, J.

This suit was by appellees, the surviving widow and children of Charlie Sweet, deceased, against appellant Walker County Lumber Company, to recover the value of certain timber cut and removed by Walker County Lumber Company from 140 acres of land, a part of the J. M. De la Garza 11-league grant in San Jacinto county. Appellees’ title to the land, as pleaded by them, rested entirely upon the ten years’ statute of limitation. The title to the land was not formally in issue under the pleading' — only the title to the timber. Walker County Lumber Company claimed the timber by purchase from the estate of Thomas S. Poster. Admittedly the legal title to the land was owned by the Poster estate, unless appellees had perfected title under the statute of ten years’ limitation. Walker County Lumber Company impleaded its grantor and asked judgment on its warranty if cast in the suit. Upon trial to the court without a jury, judgment was entered in favor of appellees for 294,500 feet of timber, the amount cut and removed from the land by Walker County Lumber Company, at $5 per thousand with interest at o per cent, per annum from the 30th day of July, 1928, and judgment in its favor against the Poster estate for $1,325.25 with 6 per cent, interest, the amount due under the warranty. The defendants have duly perfected their appeal from the judgment as entered.

Appellees make the following objections to appellants’ brief.

First. That it was prepared in violation of the rules of briefing prescribed by the Supreme Court for the Courts of Civil Appeals. Appellants have wholly failed to comply with rule 30, and but for the abrogation of that rule by recent legislation, enacted since this brief was filed, we would be compelled to strike the brief from the record. Nacogdoches Independent School District v. Adams (Tex. Civ. App.) 36 S.W.(2d) 567.

Second. Appellants filed no motion for new trial and did not request conclusions of fact and law, but duly excepted to the judgment, as entered, and gave notice of appeal in the manner provided by law. Appellants have presented their appeal upon assignments of error against the judgment of the court, filed after the' adjournment of the court, and which were in no way called to the attention of the lower court. Upon this statement, there being no motion for new trial nor conclusions of fact of law in the record, appellees assert that we are without jurisdiction to review appellants’ assignments that the judgment of the lower court was without support, in the evidence and so against the great weight and preponderance of the evidence as to he clearly wrong. This proposition is without merit. It requires no citation of authority to sustain appellants’ contention, in answer to appellees’ proposition, that where proper exceptions are reserved to the judgment, when rendered, and notice of appeal given to the Court of Civil Appeals, we have jurisdiction to review assignments attacking the application of the law by the lower court to the uncon-troverted facts; also, upon proper assignment, we have, jurisdiction to review the proposition that the judgment of the lower court is so against the great weight and preponderance of the evidence as to be clearly wrong.

We have given careful consideration to the fair and accurate summary made by appellants of the evidence offered by appellees. Prom appellants’ statement of the case, without citing the evidence, it is our conclusion that the following issues were raised: (a) Charlie Sweet and his surviving widow, one of the appellees herein, established their home upon the 140 acres of land in controversy about 1894 and within a short time thereafter had this 140 acres surveyed out by metes and bounds: (b) they entered upon this land for the purpose of maturing in themselves a title thereto by limitation, and lived continuously upon this land from the date of their entry and survey for eight years, that is, until 1902, at which'time they moved off the land and established their home in or near Austin, Tex.; during the time they lived upon this land they cleared a field of about 12 acres, used, occupied and enjoyed, and notoriously held the same adversely against the world: (c) immediately after moving off the land they put Jim Sweet, Charlie Sweet’s brother, in possession as their tenant, and he held the land for them continuously, cultivating, using and enjoying it, for eight consecutive years, that is, until 1910; during this time he occupied one of the houses on the land and cultivated the open land each year from 1902 to 1910, and held about 20 acres under fence as a pasture, which he fenced and used as a pasture continuously during the entire period of eiglit years; during this period of time he paid his brother, Charlie Sweet, $12 per year for rent for the use of the land and Charlie Sweet visited him upon the land once each year during the period of eight years for the purpose of collecting the rent. The.testimony upon these issues was sharply controverted, but there was evidence raising each of the conclusions as stated. Not only were the issues controverted, but appellants offered testimony impeaching appellees’ main witness, Jim Sweet, in this way: They offered in evidence a statement of facts in a case by Jim Sweet against the owners of an adjoining survey, in .which suit he recovered title by limitation to a certain tract of land against the record owners thereof. In the statement of facts it was shown that Jim Sweet testified to the facts that matured his title by limitation, which period covered the time that he claimed to be in possession of Charlie Sweet’s land as his tenant. He denied that he testified in that case.

Actual, open, visible, notorious, distinct, exclusive, and hostile possession continued for ten years under a claim of right is sufficient to mature title under the statute of ten years’ limitation (Rev. St. 1925, art. 5510). There was evidence, as appears from our statement above, raising issues to sustain every element of this proposition.

Appellants assert that appellees have no cause of action without the supporting testimony of Jim Sweet. For the purpose of this opinion we agree with that contention. In their oral argument, if we correctly understood them', but the proposition would be true independent of their concession, they Conceded that, on the face of Jim SwéEt’s testimony, if he could hold as tenant for his brother Charlie, it was sufficient to raise the issue of limitation. But they further insisted, on the record as a whole, that they had so impeached Jim Sweet that, as a matter of law, his testimony was without probative force. This proposition cannot be sustained. That appellants may have impeached Jim Sweet did not destroy his testimony, as a matter of law. .Where the trial is to the court without a jury, and there are inconsistencies in the testimony of a witness, the trial court’ may accept portions of his testimony and reject other portions, and may accept his testimony as true, regardless of the character of impeaching testimony offered against him. He is the exclusive judge of the credibility of the witness and of the weight to be given his testimony. That the witness was impeached is merely a circumstance to be considered 'by the trial court in determining his credibility.

Appellants strongly controverted every fact-offered by appellees on the issue of limitation, and, had the case been tried before us, we might have found in their favor. But that statement does not authorize us to set aside the judgment of the lower court. That court, and not this court, was the judge of the credibility of the witnesses and the weight to be given their testimony. We can set aside a fact finding of the lower court, or his judgment, when the case is tried to him without a jury, only when, in our judgment, the record is such that an honest mind, uninfluenced by bias or prejudice, would be impelled to a contrary decision. In other words, where there is some evidence to support the judgment, it must stand unless, weighed in the light of all the evidence, it is of such a nature as to shock the conscience of the appellate court.

It is our conclusion, after a review of the statement of facts, that the judgment of the lower court has support in the evidence, and that we should not set it aside as being against the great weight and preponderance of the evidence. • ,

But, giving all due weight to every circum.stance offered by appellees in support of their theory of limitation, appellants assert that the judgment of the lower court was wrong, as a matter of law; that is, conceding as true the testimony of all of appellees’ witnesses, the judgment was without support. This proposition is based upon the following facts: While Charlie Sweet was living upon this land in a house built by him for himself and family, he built another house near his home for the use of his old father and mother. Jim Sweet lived in that house with the father and mother. Subsequent to 1894 the suit of McManus et al. v. Andrews, et al. was filed in the district court of San Jacinto county, in trespass to try title, involving a large tract of the De .la Garza grant, including the 140 acres in controversy herein; That suit was by the record owners against a large number of squatters on this land. The 'judgment, as. rendered, was in favor of the plaintiffs, as record •owners, against' these squatters, including Jim Sweet, and the father of Charlie and Jim Sweet. That judgment was entered in 1901. Charlie Sweet was in no way a party to that suit. After that judgment became final, as above stated, Charlie ¡Sweet moved off his land and placed Jim in possession thereof as •his tenant. Appellants attack the judgment because, to quote from their brief: “The proof is insufficient to show that Charlie Sweet, the husband of plaintiff,- Mary Nancy Sweet, and the father of the other plaintiffs, was in the exclusive and open possession of the land described in plaintiff’s petition, and because the proof shows that not only the said Charlie Sweet and his family, but his father and mother and other members of said family were in possession .of said land and premises and were openly occupying and exercising control thereof to make them joint claimants with the said C. I>. Sweet and the judgment by default against one -or more of the parties so in possession was sufficient to interrupt the running of the statutes of limitations in favor of the others.” This proposition does not have support in the uneontroverted facts. The issue"was clearly raised that Jim Sweet and the father of Charlie and Jim Sweet had no claim whatever upon the land and never asserted any claim thereto and were merely living upon the land with Charlie, who, because of the feebleness and old age of .his parents, was supporting them. 1

Appellants further contend that because Jim Sweet was named as a defendant in the judgment rendered in McManus et al. v. Andrews et al., he was disqualified to become Charlie’s tenant, and that his possession, as a matter of law, was not notice to appellants of 'Charlie's adverse claim. ⅝- This proposition is denied. Jim Sweet was never in possession of the-land in his own- right, never asserted any claim thereto, and never committed a 'hostile act in his interest as.against the record owners. After his entry under his rental contract with his brother Charlie, he was in possession only as Charlie’s tenant, but as. notoriously as if -Charlie himself had remained in possession. He cultivated the land Charlie had cultivated, and in addition thereto fenced up and used as a pasture about 20 acres of land more than Charlie had used. We know* of no principle of law disqualifying Jim to hold the land as his brother’s tenant.

Upon-the whole record the issues presented to the lower court were issues of fact, and under well-recognized principles of law his judgment upon these facts should not be disturbed.

Appellants have other propositions which have had our careful consideration, but they are clearly without merit and require no de--tailed discussion. For the reasons stated the judgment of the lower court is in all things affirmed.

Affirmed.


author: COBBS, J.

text:
    STATE v. NEAL BROS. HARDWARE, Inc., et al.
    No. 8630.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1931.
    Rehearing Denied July 1, 1931.
    James V. Allred and Sidney Benbow, both of Austin, and George R. Gillette, of San Antonio, for the State.
    Wm. H. Russell, John James, and Leonard Brown, all of San Antonio, for appellees.
   COBBS, J.

The state of Texas, appellant, filed this suit against appellee Neal Bros. Hardware, Inc., to forfeit its charter for failure to make due payment of its capital stock, and prayed for judgment against defendant canceling and declaring null and void the charter of the defendant corporation. On November 27, 19-29, H. A. Neal and Ira E. Neal filed tbeir answer. On January 3, 1930, Neal Bros. Hardware, Inc., filed its original answer. About eleven months thereafter, H. D. Neal filed a plea in abatement and pleaded in his proper person a,nd as former president of Neal Bros. Hardware, Inc., a private corporation. It presented as grounds: “(1) The alleged voluntary dissolution of defendant corporation, which dissolution was purported to have been effected on November 23, 1929, and after the filing of plaintiff’s suit. (2) That on or about December 28, 1928, the corporation, Neal Brothers Hardware, Inc., filed-its. voluntary petition in bankruptcy in .the District Court of the United States; that thereupon said corporation was duly adjudged a bankrupt and by reason thereof the defendant was duly adjudged and ascertained to be insolvent, and, for such reason, was automatically dissolved.”

Appellant filed its first amended original petition on December 18, 1930, setting up practically the same allegations as the original petition, but omitting its alternative prayer for mere forfeiture and cancellation, and attached thereto a copy of the charter together with várious exhibits and affidavits.

■ On December 19, 1930, appellees’ plea in abatement came on for hearing, and the court sustained the plea and dismissed the suit.

It is recited in the judgment that the court heard the matters submitted in connection therewith, and sustained said plea. It will be presumed, in the absence of findings of fact or statement of facts, that the court had properly before it sufficient facts adduced in evidence to sustain the action of the trial court. Such was also-submitted in its motion for a new trial and again considered by the co-urt, who overruled • the same, conclusively showing sufficient facts were before the trial court to warrant his action.

We think all the questions involved in this case are moot. Prior to the time of filing this suit by the state to forfeit the charter of said company the corporation had voluntarily surrendered to the state its charter, besides the same had also been surrendered in a bankrupt proceeding. ■

We can see no good reason to continue this case by a reversal, which would mean that it be sent back for another trial for forfeiture, when that has been done voluntarily by the corporation#itself, as well as through the bankrupt proceeding. Courts do not do useless things.

The judgment of the trial court is affirmed.


author: WALTHALL, J.

text:
    FORT WORTH GRAIN & COTTON EXCHANGE v. SMITH BROS. GRAIN CO.
    No. 2540.
    Court of Civil Appeals of Texas. El Paso.
    May 21, 1931.
    Rehearing Denied June 11, 1931.
    Chas. Kassel, of Port Worth, for appellant.
    Myron A. Smith and Smith & Smith, all of Port Worth, for appellee.
   WALTHALL, J.

We adopt appellant’s statement of the nature and result of suit, which is as follows: This case was a garnishment instituted by appellee against appellant upon a judgment previously recovered against S. W. Gladney, seeking to reach shares of stock in appellant corporation, if any, in the name of said Glad-ney. Appellant answered that said Gladney owned no shares of stock in appellant’s corporation, which is a corporation without capital stock, but was the owner of a membership not subject to assignment or garnishment. Appellant likewise impleaded said Gladney, who set up that his membership was not subject to garnishment or assignment, not being property in that sense, and being subject to the approval of the membership committee of the exchange. The court upon trial without a jury adjudged that membership, was for all practical purposes a share of stock, and ordered the lien of the garnishment foreclosed by sale of the membership as under execution. Appellant filed motion for new trial, which was overruled by the court, and to this action appellant excepted and in open court gave notice of appeal.

- Findings of fact and conclusions of law were filed by the court, to which exceptions were filed by appellant, followed by assignments of error ¿nd cost bond on appeal.

We here briefly state in substance the trial court’s' findings and conclusions:

(1) On December 4, 1929, the plaintiff, Bert K. Smith, doing business in the trade-name of Smith Bros. Grain Company, recovered a judgment against S. W. Gladney in this court in cause No. 85176, in the sum of $1269.48, with interest from date, and court costs, and that no appeal was taken - from such judgment.

(2) On February 12, 1930, execution' was issued on such 'judgment to Tarrant county on which a nulla bona return was made by the sheriff on February 14th, 1930.

(3) On December 5, 1929, a writ of garnishment after judgment was duly issued and served on- the garnishee, Fort Worth Grain & Cotton Exchange.

(4) At the time of the issuance and service of the writ of garnishment, and at the times of filing the garnishee’s answer and the trial, the garnishee was a duly organized and acting Texas corporation, and that at all of such times S. W. Gladney was and now is the owner of an interest in such corporation, to wit, the owner of a membership therein, which membership is and was for all practical pitrposes a share of stock in said Fort Worth Grain & Cotton Exchange, garnishee.

(5) Such membership or share of stock of Gladney in garnishee corporation is transferable by Gladney to any member-or member elect of such garnishee, or to said garnishee itself.

(6) Such membership or share of stock of Gladney in garnishee corporation has an actual value of approximately $1,300, based on the cash assets of said corporation.

The court concluded that the membership or share of stock was subject to the writ of garnishment and may be sold as under execution.

The court entered judgment in favor of ap-pellee, and 'ordered a- foreclosure of the garnishment lien and an order of sale as under execution of the membership or share of stock in appellant company.

Opiniom

The record shows that appellant is a Texas corporation, and apparently organized under article 1302 of the statute, and subdivision 53 of that article, its purpose being: To organize a cotton exchange, Chamber of Commerce, and Board of Trade, with power to provide and maintain suitable rooms for the conduct of its business, and to establish and maintain uniformity in the commercial usages of the city and towns, to acquire, .preserve, and disseminate valuable information, and to adopt rules, regulations, and standards of classification, which shall govern all transactions connected with the cotton trade and with other commodities where standards and classifications are required, and generally to promote the interest of trade and increase the facilities of commercial transactions.

Appellant submits several propositions to the effect that a certificate of membership in a corporation without capital stock; and not organized for profit, is not subject to garnishment under the statutes of this state, and particularly is that true where the membership under the charter and by-laws do not partake of the nature of corporate stock and under the rules of the corporation is subject to forfeiture for breach of regulations and to attachment within the association itself for claims of the association, and of other members, and cannot be assigned by members except with the approval of the governing body of the corporation; that, even though subject to assignment to a member or member elect, the membership was not subject to garnishment, since no transfer or assignment was permitted to a member or member elect without discharge of all obligations to the exchange, the ascertainment by the exchange that there had been no willful violation of the rules, or fraudulent breach of contract, or other proceedings inconsistent with just and equitable principles of trade, or other misconduct, and the assignment in any event was subject to conditions rendering the interest of the member unliquidated, uncertain, and an equitable right merely not amenable to garnishment; that, even though in the abstract the membership was subject to garnishment, it was within the power and was the duty of the court in the particular instance to refuse an order of sale because a sale could pass no title which the exchange need recognize; that, even though such membership is subject to garnishment and an order of sale was proper, it was error to order sale under execution without qualification, but the judgment should have stipulated and the. writ of execution should have provided that the title to the membership at execution sale should be subject to the rights of the association as fixed by its by-laws and to the claims of the association and other members against the particular membership under the rules of the organization.

Appellant, under his propositions, quotes from the statement of facts provisions of its charter, constitution, and by-law’s. From its charter is quoted the purpose of the corporation, “the establishment of a grain and cotton exchange with power to provide and maintain suitable rooms for the conduct of its business and to establish and maintain uniformity in commercial usages of cities and towns, to acquire, preserve and disseminate valuable business information and to adopt rules, regulations and standards of classification which shall govern all transactions connected with the grain and cotton trade, and with other commodities where standards and classifications are required, and generally to promote the increase and facilities of commercial transactions:” that “said corporation shall have no capital stock, but membership therein shall be obtained and shall be conditioned upon compliance with the by-laws thereof.”

Quotation is made by appellant from its constitution and by-laws which state the object of the association as follows: “To promote uniformity in the customs and usages of merchants; to inculcate principles,of justice and equity in business; to facilitate the speedy adjustment. of business disputes; to insure confidence in the business methods and integrity of the members of the organization; to collect and disseminate valuable commercial and economic information; to prescribe rules for the grading and weighing of grain, seeds and hay and all products thereof, to adopt rules, regulations and standards of classifications which shall govern all transactions connected with the cotton trade; to organize and maintain a grain inspection department and a department for weighing carloads of grain, seeds and hay, and all products thereof, and to promote the general welfare of the cotton, grain and milling interests in Fort Worth.” •

Then follows provision for the government of the exchange by a board of directors; that each regular member should have one vote in person"; the qualification and method of selection of its membership; states the terms of the certificate of membership, that it is subject to the by-laws, contains the stipulation that the exchange holds a lien upon the certificate for dues and assessments, that the certificate is not transferable until all dues, assessments, and obligations are satisfied; states the limit of its membership, the obligations its members assume, and other matters which we need not further- state.

Appellee insists tliat tlie membership of Gladney in the garnishee, Fort Worth Grain & Cotton Exchange, having a money value, and the membership being transferable to any other member, member elect of the garnishee itself, is subject to the writ of garnishment and may be sold as under execution in satisfaction of appellee’s judgment against such judgment debtor.

The specific question presented by this appeal seems to be of first impression in the appellate courts of this state. Article 4091 of our statutes provides that, when the garnishee is an incorporated or joint-stock company, and the defendant is the owner of any shares of stock in such company, or any interest therein, the court shall render a decree ordering the sale under execution in favor of plaintiff against the defendant, of such shares or interest of the defendant in such company. Then follow articles of the statute directing that the manner of making such sales shall in all respects be as other sales of personal property under execution, and that such sales shall be valid and effectual to pass to the purchaser all right, title, and interest which the defendant .had in such stock.

Article 3795 of the statute provides that a levy on the stock of any corporation or joint-stock company is made by leaving á notice thereof with any officer of such company. Article 3798' of the statute provides that shares oí stock in any joint-stock or incorporated company may be sold on execution against the person owning such stock.

We find 'nothing in our statutes that exempts or in any way qualifies the provisions of the statute above referred to.

Appellant cites Price v. Brady, 21 Tex. 614, as sustaining its contention. Prior to the rendition of that opinion, shares of stock in incorporated companies were controlled by the common law, not subject to execution, and therefore not liable to garnishment. But the effect of that opinion has been destroyed by the passage of the Act of March 13, 1875 (General Laws, 2d Sess. p. 102), and now, in substance and effect, the articles of the present statute as above. Smith v. Traders’ Nat. Bank, 74 Tex. 457, 12 S. W. 113, in which it is held that, by reason of the statute, stock held as collateral security is subjett to garnishment. In Keating v. Stone & Sons LiveStock Co., 83 Tex. 467, 470, 18 S. W. 797, 29 Am. St. Rep. 670, it is said: “The Revised Statutes make provisions for reaching and subjecting to creditors shares in corporations both by writs of garnishment and execution.”

The specific question presented, however, is as to the application of our garnishment statutes to a certificate of membership in a corporation without capital stock, and not organized for profit, as in the instant case.

The certificate of stock held by Gladney in appellant, Fort Worth Grain & Cotton Exchange, amounted to a seat on garnishee stock exchange.

In vol. 23, Corpus Juris, p. 333, par. 58, it is there saidr “It has been held in some jurisdictions that a seat on a stock exchange is not property in the eye of the law, and cannot be seized in execution for the debts of the members; that it is the mere creation of the board, and to be held and enjoyed with all the limitations and restrictions which' the constitution of the board choose to put upon it.” As sustaining that view, the following cases are referred to under note 12: San Francisco v. Anderson, 103 Cal. 69, 36 P. 1034, 42 Am. St. Rep. 98; Lowenberg v. Greenebaum, 99 Cal. 162, 33 P. 794, 21 L. R. A. 399, 37 Am. St. Rep. 42; Barclay v. Smith, 107 Ill. 349, 47 Am. Rep. 437; Weaver v. Fisher, 110 Ill. 146; Eliot v. Merchants’ Exch., 14 Mo. App. 234; Pancoast v. Gowen, 93 Pa. 66; Thompson v. Adams, 93 Pa. 55.

Continuing the statement, it is said: “But by the weight of authority a seat or membership upon a stock exchange is property, and subject to execution in the sense that it may be reached by appropriate proceedings and applied, as other property of a debtor, to the payment of his just debts; such as by creditor’s suits or supplementary proceedings.” As sustaining the latter view, reference is made under note 13 to the following: Hyde v. Woods, 94 U. S. 523, 24 L. Ed. 264; Habenicht v. Lissak, 78 Cal. 351, 357, 20 P. 874, 5 L. R. A. 713, 12 Am. St. Rep. 63; Eliot v. Merchants’ Exchange, 14 Mo. 234; Powell v. Waldron, 89 N. Y. 328, 42 Am. Rep. 301; Ritterband v. Baggett, 42 N. Y. Super. Ct. 556: Leggett v. Waller, 39 Misc. Rep. 408, 80 N. Y. S. 13; Londheim v. White, 67 How. Prac. (N. Y.) 467; Grocers’ Bank v. Murphy, 60 How. Prac. (N. Y.) 426; London, etc., Co. v. Murphy, 10 Ont. 86.

A review of the cases disclose that they sustain the view stated under the paragraph in C. J. referred to. It would serve no good purpose to review them.

In the more recent case of Wagner v. Farmers’ Co-Op. Exchange Co., reported in 147 Minn. 376, 180 N. W. 231, 233, 14 A. L. R. 279, the Supreme Court of Minnesota, after referring to many of the above cases holding that a seat on a stock exchange is not subject to sale under a common writ of execution, said: '“Nevertheless, we reach the conclusion that such a seat or membership may be attached and appropriated to the payment of the owner’s debts. The membership is more than a privilege. It is personal property. It is transferable by the member during his lifetime. * ⅜ * It may be burdened by restrictions, but it is nevertheless valuable property; the membership in this instance having a market value. * * * It may be reached by creditors’ bill or by proceedings supplementary to execution.”

Tlie opinion then refers to many of tie cases 'noted from C. J., noting a few of tie ciaracteristics and attributes of tangible property mentioned, and says: “No good rea-, son suggests itself wiy it should not be reached by ordinary process such as attachment and execution. * * * Nearly all courts that have spoken on the subject are in accord that such a membership may be reached by creditors’ bill or in proceedings supplementary to execution. ⅜ * * The one in whom the title vests takes it subject to the reasonable regulations and restrictions of the Chamber.”

The court in that ease further said: “It is not necessary now to determine whether the court in which the judgment was rendered should have issued special execution, or whether there should be further orders or proceedings in aid of the execution. Those are matters for the court in which the action originated.”

In view of our statutes ' above quoted specifically authorizing and directing in garnishment proceedings, and without exception as to the character of the corporation or the paragraph of the article under which the incorporation is formed, that the court shall render a decree ordering the sale under execution of shares of stock in such incorporated company, we have concluded that the seat on the exchange was subject to garnishment.

We fully appreciate much that' is said by appellant in its brief, but, if the stock or membership held by Gladney is stock in the stock exchange, or represents an interest therein, though but a seat in the stock exchange, it is made subject to the garnishment by the very verbiage of our statute, and the courts may not put a construction on the statutes and make it mean something else. We have reviewed with much interest the cases referred to by appellant, and concur in appellant’s statement that this case presents a question of first impression in the appellate courts of this state. In addition to our own view of the disposition to be made of the case under our statutes, we concur in the holdings of the courts in what seems to be weight of authority in other states.

If a special direction is to be made in the order of sale as suggested by appellant, it is not within the province of this court to give such direction. Our statutes very clearly state what is to be done in executing an order of sale, and any special' direction given should not depart from, but conform to, the provisions of the statute; the purchaser thereat taking only such Interest in the seat on the exchange as Gladney had.

The case is affirmed.

On Motion for Rehearing.

Appellant has filed a strong and interesting motion for rehearing. Nothing appears therein, however, that is not found in its brief, other than a suggestion that, in the event this court does not set aside the judgment of the trial court and render judgment in its favor, the case be certified to the Supreme Court for decision. This court is in harmony in the disposition we think to make of the case, and, while the case is one of first impression in the appellate courts of this state, and for that and other reasons important, we have concluded not to certify, but let the Supreme Court review the case on writ of error.

While we discussed in our conference the effect of matters contained in appellant’s charter and by-laws, so largely referred to in appellant’s brief and in its motion, we concluded that matters contained in its charter and by-laws, whatever they were, while authorized to adopt rules and regulations governing its members, by the express provision of our statute, such rules and regulations could not have the effect to relieve the stock it had issued from execution, if such stock was otherwise subject to execution. Under article 1320, under general provisions applying to private corporations, such corporations, under paragraph 6 of said article, may make by-laws “not inconsistent with existing laws, for the management of its property, the regulation of its affairs and the transfer of its stock,” an incident of its existence, for its internal government in the management of its affairs as among its members. Here ap-pellee is not dealing with the corporation, or any of its members, so as to be affected by its by-laws. There is no action here upon any rule, regulation, or by-law of the corporation, and hence no occasion to discuss any provision of such rule, regulation or by-law.

If we understand appellant’s contention, it is to the effect that the garnishment could not apply, for the reason that under the rules of appellant exchange it held a lien on the stock certificate of the member for dues, assessments, and other obligations until such were discharged, and other rights of the exchange. There is no suggestion in the record that any dues or other obligations of the member were due and not discharged. But, however that„might be,- we tried to make it clear in the opinion that a purchaser of the stock took it subject to any just claim, rule, or regulation of the corporation existing at the time of the service of the garnishment, which in any way affected the share of stock as stock, as distinguished from the person of the holder of the stock. We need not discuss the personal relation the purchaser of the stock would sustain, if any, toward the exchange. We do not concur in the view of appellant that the burden is upon appellee to show the financial condition or standing of the share of stock at the time of the service of the garnishment, nor do we think the case of Downs v. Casop (Tex. Civ. App.) 250 S. W. 471, referred to, so holds. That case holds, as we understand it, that the burden would be upon one seeking to subject the assets of an estate, pending administration, to a garnishment to show that, after an entry of the final decree ordering the distribution of the estate, there then existed in the hands of the administrator, in favor of distributees, a part of such estate subject to garnishment. Such fact was not, as here, peculiarly within the knowledge of the administrator; it could readily be shown by such final report. The reason for the holding'is clearly stated in the cases referred to in the opinion in that case, and we need not review them.

After a review of the whole case, in considering the motion, we have concluded that the ease should be affirmed. The motion is overruled.


author: JONES, C. J.

text:
    AUTOMOBILE UNDERWRITERS’ INS. CO. v. MURRAH.
    No. 10832.
    Court of Civil Appeals of Texas. Dallas.
    May 23, 1931.
    Rehearing Denied June 20, 1931.
    R. G. Storey, of Dallas, for appellant.
    Henry P. Edwards and Willis & Madden, all of Dallas, for appellee.
   JONES, C. J.

In this suit appellee J. B. Murrah, by statutory garnishment proceedings, sought to have applied to a judgment he had recovered theretofore against O. E. Adair, an indebtedness alleged to be due Adair by appellant, the Automobile Underwriters’ Insurance Company. The trial of the garnishment proceedings in a district court of Dallas county resulted in a judgment in favor of appellee against appellant, as garnishee, in the sum of $5,000 as principal, and $375 as accrued interest. Prom this judgment, appellant has duly perfected an appeal. The facts necessary to a consideration of the questions raised are as follows:

C. E. Adair was the owner of a truck line .in the city' of Dallas and operated a number of trucks for service to the public. The Automobile Underwriters of America, on March 11, 1926, issued to Adair indemnity insurance for the purpose of insuring him against damages he might suffer, by reason of accidental injuries to others, while his trucks were being operated on the public highways. While this policy was in force, appellee received serious and permanent injuries caused by a collision of his automobile with one of Adair’s trucks, driven by an employee. Appellee instituted suit in a district court of Dallas county against Adair to recover the damages alleged to have been suffered through the negligence of the driver of Adair’s truck. While this suit was pending, the Automobile Underwriters of America was absorbed by appellant and, under the terms of the contract between the two companies, appellant became liable for all obligations to Adair under the policy forming the basis of this garnishment suit.

Ttie policy of insurance gave to 'appellee the right to take exclusive control of the suit instituted by. Murrah against Adair, and the sole right to compromise the claim of Mur-rah, if it desired so to do. The policy also contained a provision, to the effect that, if a collision or any other character of injury resulted while the truck was being operated by a driver when under the influence of intoxicating liqüor, oy when the truck was being operated in violation of law, no liability existed in favor of Adair. Therefore, under the terms of the policy, . if the driver of Adair’s truck at the time of the collision was under the influence of intoxicating liquor, or if the truck was being operated in violation of law, no obligation rested on appellant in favor of Adair, unless appellant waived such defensive provisions of the policy, or by its conduct estopped itself from asserting them. The policy in question also contained a clause, to the effect that no suit could be maintained on the policy, except by Adair himself, and that he could maintain no such suit unless he had paid the judgment that had been awarded against him in favor of the injured' party. The maximum liability of appellant on the policy is $5,000 for the injury of a single person.

The policy required Adair to aid in every way that appellant would consider necessary in the investigation, preparation, and trial of the case. The trial court found as a fact that Adair performed all duties resting upon him in this respect, and such finding, being clearly supported by the evidence, is made the finding of this court. All of the terms of the policy in reference to notice and other conditions to make the insurer liable were performed by Adair, so that the only defenses urged were the conditions of the policy above stated. When the suit was instituted by appellee against Adair, the Automobile Underwriters of America exercised its right to take exclusive control of the litigation, and to employ its own attorneys to conduct Adair’s defense. When such company was taken over by appellant pending the suit, it also took exclusive control of the litigation, and employed another firm of attorneys to represent it and to conduct the litigation in behalf of Adair. In each instance, exclusiva control of the suit was taken without any character of reservation as to the right to assert against Adair the defenses of intoxication of the driver, or of the operation of the truck at an unlawful rate of speed'.

The original petition in the Murrah-Adair suit was very general in its allegations of negligence, and did not specifically charge intoxication on the part of tne driver of Adair’s truck, nor" did it charge that the truck was being operated at an unlawful rate of speed. On May 18, 1928, after appellant had taken exclusive management of Adair’s defense, appellee filed an amended petition, in which, among other grounds of negligence, it alleged that, on the occasion of the collision between appellee’s car and Adair’s truck, the driver of the truck was under the influence of intoxicating liquor, and also that the driver was operating the truck at a rate of speed in excess "of the limit fixed by law. The ease went to trial in the district court on October 18, 1928, five months after the filing of this amended petition.

Appellant’s secretary-treasurer, 0. Perry, and its attorneys of record, knew of these charges against Adair’s truck driver from the date of the filing of the amended petition; that is, for a period of'five months before the case was tried. Notwithstanding this knowledge, appellant continued in exclusive control of Adair’s defense to the suit, conducted the trial in his behalf, cross-examined all witnesses, including those who testified that Adaii-⅛ truck driver was intoxicated at the time of the collision, and filed two motions for a new trial, before asserting any right under said clauses of the policy, and withdrawing from the case. During this time, appellant made no' reservations to Adair in reference to its liability on the policy, in the event the issue as to the said grounds of negligence should be decided adversely to Adair, until nearly two months after the verdict of the jury on these two contested issues. The verdict of the jury in the suit of Murrah against Adair was returned October 23, 1928, and contained findings to the effect, that Adair’s driver was guilty of negligence' in driving the truck while in a state of intoxication, and was also guilty of negligence in operating the truck at a greater rate of speed than was permitted by law, and that each of these negligent acts was a proximate cause of the injury to Murrah. On November 24, 1928, judgment was rendered on the findings of the jury in favor of Murrah against Adair in the sum of $13.500.

Until December 20, 1928, Adair gave no direction to the attorneys employed by appellant in reference to the management or' control of the case, and whatever action was taken by the attorneys, previous to said date, was taken under their employment by appellant, to whom they looked alone for direction as to the management of the case, and to whom they were alone responsible. These attorneys, without request or direction from Adair, on October 30, 1928, filed an original motion for a new trial in said cause, and on December 4, 1928, without any direction from Adair, filed an amended motion for a new trial. On December 19, 1928, subsequent to the filing of the above motions, a letter was written by appellant to Adair, in which appellant, in effect, denied liability to Adair under the policy, because of the verdict of the jury establishing the fact that the driver of the truck, at the time of the collision in question, was intoxicated, and that they would henceforth exercise no control over the case, but would leave its further disposition in his hands. This letter was signed “Automobile Underwriters Insurance Company, C. Perry, Secretary-Treasurer.”

On December 20, 1928, Adair wrote to the attorneys who had theretofore conducted the litigation in his behalf at the instance of appellant, informed them of appellant’s then attitude, and requested them to continue to represent him in the litigation, and in performance of this request the attorneys filed, on December 22, 1928, another motion for a new trial. No contract of employment was entered into between the parties, and these motions for a new trial were overruled by operation of law. The case was never appealed, and the judgment in favor of appel-lee became final.

The pleadings of the parties in this suit present the following issues: (a) Did appellant become unconditionally indebted to Adair to the amount of the indemnity insurance by reason of the fact that, in the suit against- Adair, it assumed exclusive control of such litigation without reserving to itself any right to assert the said defensive clauses in the indemnity policy, in the event the controverted issues of the intoxication of the driver of the offending truck, and its operation at a greater speed than allowed by law, should be decided adversely to Adair, appellant having full knowledge that these issues were in the case long before trial; (b) if it be determined that such unconditional indebtedness to Adair exists, is appellant subject to garnishment by appellee to satisfy the judgment against Adair?

The trial court decided these issues favorably to appellee and filed very complete findings of fact, which sustains the judgment rendered. While these findings of fact were' duly excepted to by appellant, on the ground that they are not supported by evidence, we are of opinion that such exceptions cannot be sustained, and that the evidence amply warrants the findings. These findings are adopted as the findings of this court.

0. Perry, secretary-treasurer of appellant, had full control for his company of the liti-. gation against Adair, and on what we conceive to be the paramount issue in the ease, he testified that he “had full knowledge and information that the plaintiff (appellee) was alleging and contending, and' had set forth in his pleadings that the driver, Hopkins, was under the influence of intoxicating liquor at the time of the accident. At no time prior to the returning of the jury verdict in the case of Murrah against Adair did the Automobile Underwriters Insurance Company deny liability to Mr. Adair or reserve the right to deny liability to Adair if Murrah’s contention that the driver of the truck was exceeding the speed limit or under the in-, fluence of intoxicating liquor was proven true. * * * I did not deny liability then, but at that time I had knowledge that the plaintiff was contending that the driver was drunk.”

This evidence brings the instant case clearly within the case of American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633, decided by our Supreme Court, the opinion being written by Chief Justice Cureton. This opinion is so comprehensive and complete as to all the.issues of this case that we shall not attempt to enlarge upon the reasoning in that case, but simply hold that it is decisive of the case at bar, in that, it decides all of the main issues of this case adversely to appellant.

We therefore conclude that when appellant, with full knowledge of the issues to be tried in the suit against Adair, took exclusive control and management of Adair’s defense in such suit, introduced all of the evidence that was before the court on such defense, filed all of the pleadings that were filed for Adair, examined and cross-examined all witnesses, it thereby waived the defensive clauses in the policy of insurance and admitted an unconditional indebtedness of $5,-000 in favor of Adair, and became unconditionally indebted to Adair in that amount. All assignments of error in respect to such issues are overruled.

Appellant contends that the eourt erred in not rendering judgment for its attorney’s fee claimed in its answer and shown by the evidence to be ,the sum of $500. We overrule this contention. Article 4100, R. O. S., allows a reasonable attorney fee where the garnishee is discharged on its answer. In the instant case, appellee was not discharged on its answer, but denied liability to Adair in any amount. Having taken this position and thereby becoming an active litigant in the case, it is not entitled to the attorney’s fee. The case of Zimmerman Land & Irrig. Co. v. Rooney M. Co. (Tex. Civ. App.) 195 S. W. 201, holds that a garnishee is not entitled to attorney’s fee where it erroneously denied its indebtedness. See, also, the following authorities: R. S. 1925, art. 4100; Zimmerman Land, etc., Co. v. Rooney Merc. Co. (Tex. Civ. App.) 195 S. W. 201; Moursund v. Priess, 84 Tex. 554, 19 S. W. 775; Presnall v. Bank (Tex. Civ. App.) 151 S. W. 873; Patterson v. Seeton, 19 Tex. Civ. App. 430, 47 S. W. 732; Reid v. Walsh (Tex. Civ. App.). 63 S. W. 940.

We have carefully examined all assignments of error, with the result that we have concluded that none of them present reversible error, and are of opinion that the judgment of the trial court should be affirmed.

Affirmed.


author: JACKSON, J.

text:
    JOY v. COLVIN, Mayor, et al.
    No. 3544.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 28, 1931.
    Rehearing Denied Feb. 18, 1931.
    J. W. Chancellor, of Bowie, and Moss & Deaver, of Memphis, for appellant.
    Hamilton, Fitzgerald & Grundy, of Memphis, for appellees.
   JACKSON, J.

The plaintiff, M. A. Joy, instituted this suit in the district court of Hall county, Tex., against the defendants T. L. Colvin, as mayor, J. R. Miller and J. A. Lacy, as commissioners, and Miss Edna Wallace as tax assessor and collector of the town of.Turkey, in said county,- to compel them to adjust the boundary lines of the town of Turkey so as to eliminate therefrom certain land, and to restrain them from levying and collecting municipal taxes for said town on the value of said land.

The plaintiff alleges that about May 8,1926, the town of Turkey was incorporated for municipal purposes under and by virtue of article 1133, chapter 11, title 28, R. C. S., and the governing authority of the corporation was placed in a mayor and board of aldermen, who were required to perform their official duties in accordance with and subject to chapters 1 to 11, inclusive, and especially in compliance with article 970 of chapter 1 of said statutes.

That about March 27, 1928, said town, in compliance with article 1154, chapter 12 of the Revised Statutes, adopted the commission form of government, and thereby vested the governing authority of the town in a mayor and commissioners, and by virtue of art. 1163 of chapter 12, the authorities and duties of the mayor and commissioners continued to be controlled by and subject to chapters 1 to 11, and especially article 970 of chapter 1 of the statutes.

That under the authority delegated, and the duties imposed by the statutes under and by virtue of which said town was organized and governed, it was and is the duty of the mayor and aldermen and of the mayor and commissioners within one year after the town was incorporated, or as soon thereafter as practicable, and before any taxes were levied, to adjust the boundary lines of said town so as to discontinue any territory included within the corporate limits amounting tó more than ten acres of contiguous, uninhabited land, adjoining the boundary line of the town.

Plaintiff alleges that on the date of the incorporation óf the town of Turkey, and at all times thereafter, he owned a tract ,of 20.16 acres of contiguous, uninhabited land, which he sufficiently describes, situated within the corporate limits of said town and adjoining the boundary line thereof.

That said town has been incorporated and operating as a municipality for more than one year and a reasonable time has elapsed for the defendants to adjust the boundaries of said town and eliminate his land as a part thereof. That the defendants have failed and refused to do so and have undertaken and attempted to levy and collect taxes on his land for municipal purposes, and that the defendants and their successors will, in the future, continue to levy and collect municipal taxes against such land, unless the court grants him the relief sought. That including his land within the corporate limits of the town, and the failure of the defendants to adjust the boundaries and eliminate his land from the corporate limits, and levying and assessing taxes against his land, all of which is illegal, creates a cloud upon his title.

Plaintiff prays that a writ of mandamus issue requiring defendants to adjust the boundary lines of the town of Turkey so as to eliminate his land from the corporate limits, and that they and their successors be perpetually enjoined from levying or attempting to levy or collect any taxes for municipal purposes for the past, present, or future, upon his said land, or any part thereof.

The defendants answered by general demurrer, s'pecial exceptions, and general denial.

The court sustained the defendants’ genera] demurrer to plaintiff’s petition, and, on his declining to amend, the case was dismissed, from which action of the court the plaintift prosecutes this appeal.

Appellant contends that article 070, chapter 1, R. O. S., imposes upon the appellees the mandatory duty of adjusting the boundary lines of the town of Turkey so as to discontinue his land as a part of the municipality, since he owns a tract of contiguous, uninhabited land consisting of more than ten acres, situated within the corporate limits and adjacent to the boundary line.

If we concede that the language of said article is mandatory, it imposes no duty on appellees, because, according to appellant’s petition, the tqwn of Turkey was first incorporated in May, 1926.

Articles 967, 968, 969, and 970, were enacted in 1917 for the purposes, among other things, of empowering the council of any city, town, or village that had been incorporated under any law of the republic of Texas, to accept the provisions of certain laws and alter, change, and redefine the corporate limits of such towns, to comply with the requirements of article 777, passed in 1895 (now article 971, R. O. S.). See caption, Senate bill No. 238, 17 Gammers Laws of Texas, 85, Acts of the 35th Legislature, c. 48.

Article 967, reads, in part: “Any city, town or village, within this State, incorporated under any law, general or special, of the Republic of Texas, regardless of the extent of the boundaries thereof, or the number of its population, may accept the provisions of Chapters 1 to 10, both inclusive, of this title, in lieu of any existing charter created by any such law of the Republic of Texas, by a two-thirds vote of the council of such city, town or village. * * * ”

It is then provided when- and how the- action pf -the council-shall be taken, repeals the pre-existing laws under which such town was incorporated, and confers upon such town all the “rights, powers, privileges, immunities and franchises” conferred by the provisions of chapters 1 to 10, inclusive.

Article 968 provides that the inhabitants of each city, town, or village, accepting the provisions of chapters 1 to 10 of title 28, shall continue to be a body corporate with perpetual succession, retain its name, and enjoy all the •rights, immunities, powers, privileges, and franchises possessed and enjoyed by said city, town, or village at the time of the acceptance of the provisions of said title, and subject to all the duties and obligations incumbent on the corporation at the time of such acceptance, etc.

Article 969 provides that the title to all the property of every kind belonging to such city, town, or village so incorporated under and by virtue of the laws of the republic of Texas, is vested in the corporation thus created, with power to sell, alienate, appropriate the proceeds, and maintain and operate water, sewer, gas, and electric light and power systems.

Article 970 provides, in part: “Whenever there shall exist within the boundaries of any such city, town or village accepting said provisions, territory to the extent of at least ten acres contiguous, uninhabited and adjoining the lines of such city or town, the mayor and council of such city or town shall, within one year from the filing in the office of the county clerk of the action of the council accepting the provisions of this law, or as soon thereafter as practicable, and before they shall levy any taxes for said city or town by ordinance duly passed, discontinue said territory as a part of said city' or town and shall redefine the bounds and limits of such city or town so that they shall conform as nearly as practicable to the requirements of article 971, and when said ordinance has been duly passed, the clerk shall enter an order to that effect on the minutes or records of the city or town council; and from and after the entry o'f such order, said territory shall cease to be a part of said city or town. * * * ”

The language “such city, town or village accepting said provisions” and “shall redefine the bounds and limits of such city or town” clearly refers to such municipalities as were incorporated under the laws'of the republic of Texas, and which accept the provisions of chapters 1 to 10.

The provisions of these articles manifestly have to do with and are limited to cities, towns, and villages incorporated under the laws of the republic of Texas.. In addition to what is revealed in the caption-.of the act and the articles themselves, this construction is emphasized by section 5 of the. .act, which ■states, in effect, that since-there is-no provision whereby citiés, ’towife;' ah’d villages created by the laws of the republic of Texas, containing a superficial area greater than allowed in article 777 [now Art. 971, Rev. Civ. St.], can comply therewith, and no provision whereby such cities, towns, and villages may amend their charter, etc., an emergency exists for the immediate passage of the act.

The town of Turkey, having been incorporated under and by virtue of article 1133 in May, 1926,-and having, in March, 1928, in compliance with article 1154-, adopted the commission form of government, the appellees are not subject to the provisions of article 970, but their duties as to the territorial boundaries of the town are provided in articles 971 to 975, chapter 1, R. C. S., inclusive.

The appellant in his petition describes by metes and bounds the territory incorporated ■as the town of Turkey. This description discloses that the city has within its corporate limits but 480 acres of land. He does not attack the validity of the municipal corporation because of its area or on account of the number of inhabitants, or for the reason that it contains a greater per cent, of agricultural or pasture lands than is permitted under the law.

The judgment is affirmed.


text:
    WESTERN NAT. BANK OF HEREFORD v. DUNLAP et al.
    No. 3615.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1931.
    Rehearing Denied June 10, 1931.
    Cooper & Lumpkin, of Amarillo, for appellant.
    W. H. Russell, of Hereford, for appellees.
   JACKSON, J.

The Western National Bank, the plaintiff, instituted this suit in the county court of Deaf Smith county, Tex., against the defendants W. E. Dunlap and L. W. Hough, to recover the sum of $364.74, with interest and attorney fees, evidenced by a note dated February 21, 1928, executed by W. E. Dunlap and payable to L. W. Hough.

Plaintiff alleges that this note was given in extension of a balance due on a note signed by W. E. Dunlap, dated March 1, 1927, payable in monthly installments on the 1st day of each month. That by mistake the note sued on did_ not provide for monthly payments, but that such was the mutual agreement and understanding of the parties. That after the execution and delivery of the original note and before its maturity, the defendant L. W. Hough, for a valuable consideration and in due course, sold and indorsed said note to the plaintiff, and it became the legal and equitable owner and holder thereof and is the owner of the renewal note sued on. That said note was given as part of the purchase price for a Chrysler automobile sold by the defendant Hough to the defendant Dunlap, which note was secured by a chattel mortgage against said automobile. The plaintiff sufficiently alleged default, the agreement for the payment of attorney fees, etc.

The defendants answered, admitting that L. W. Hough had sold and delivered a Chrysler automobile to the defendant W. E. Dunlap, who executed the note and mortgage described in plaintiff’s original petition. That about thirty days after said transaction, the plaintiff and defendants entered into an agreement by the terms of which the automobile was sold to C. M. Watson for $1,200. That Watson executed his three promissory notes in part payment of said automobile, each in the sum of $315, payable July 1,1927, October 1, 1927, and January 1, 1928. That it was agreed that the plaintiff would qccept the Watson notes in lieu of the note executed by the defendant Dunlap and that when the Watson notes were paid or settled, such payment or settlement would be applied to the discharge of the Dunlap note. That on or about the date of the renejval note sued on, the plaintiff advised the defendant Dunlap that the Watson notes had not been paid and, for the purpose of beeping the bank’s records so as not to show any past-due paper when the hank examiner appeared, reguested W. E. Dunlap to execute the note sued on; that the Watson notes were held as collateral to said renewal note and when paid would discharge said renewal note. That relying on such statements, the defendant Dunlap executed the note sued on. That the Watson notes have been paid and thereby the defendants were not liable to the plaintiff in any sum.

The plaintiff in a supplemental petition, in reply to the defendants’ answer, pleaded general and special denials and alleged that the defendant Dunlap knew that the note he had given to D. W. Hough had been sold and transferred to the plaintiff for a valuable consideration and knew that D. W. Hough could not release said note without payment thereof. That it did not accept the Watson notes in lieu of or in payment of the note of the defendant Dunlap, but that the Dunlap note and the Watson notes were both purchased for value by the plaintiff.

In response to one special issue submitted by the court in his main charge, the jury found that the plaintiff agreed to accept the notes given by Watson as the purchase price of the car he received from L. W. Hough in lieu of and in substitution of the note given by defendant W. E. Dunlap to defendant. L. W. Hough and transferred to the plaintiff.

On this finding, the court rendered judgment that the plaintiff take nothing by its suit and that the defendants be discharged with their costs, from which judgment this appeal is prosecuted.

The appellant challenges as error the action of the trial court in refusing to direct a verdict in its behalf and rendering judgment against it, because under the pleading and testimony there was no issue to submit to the jury.

The defendant L. W. Hough testified that he sold' the first note given to him by the defendant Dunlap for the automobile, to the plaintiff and received the money therefor. That thereafter he advised the plaintiff that he could resell the ear purchased by Dunlap and if he did he would want to substitute the notes received from the second purchaser for the note of Dunlap. That thereafter he sold the car to O. M. Watson, received notes aggregating the sum of $945, took them to the plaintiff, and the notes were transferred to it. That he was present when the president of the bank advised the defendant Dunlap that the Watson notes had not been paid but when they were paid they would discharge his note. That he knew at the time that he had cashed the Watson notes and gotten the money on them and that they had' not been placed with the bank as collateral and not substituted for the Dunlap note. The records of the bank disclose that the transaction between it and defendant Hough was a sale and purchase of the Watson notes and that they were not substituted for the Dunlap note. The testimony of the officers of the bank is to the effect that the transaction relative to the Watson notes was a sale and purchase and not a substitution. That they had theretofore purchased from defendant Hough the Dunlap note and paid him therefor. Mr. Dunlap testifies that he never had any conversation with any bank official or any one connected with the bank relative to the substitution of the Watson notes for his note, but his discussions were all with defendant Hough, until his conversation with the president of the bank at the time he executed the renewal note sued on, at which time he was advised that the Watson notes had not been paid but when collected they would discharge the renewal note. .The record shows without contradiction that the Dunlap note was not delivered to him or any one for him at the time it is claimed the Watson notes were substituted for the Dunlap note. That after the transaction with defendant Hough and the bank relative to the Watson notes, no notice of nonpayment or demand for payment was made on Mr. Dunlap until he executed the renewal note, but that defendant Hough had paid the installments on the Dunlap note until the renewal note was given.

There is no contention that the note sued on has ever been paid unless it was discharged by the payment of the W atson notes, which it is admitted had been satisfied. The record is uncontroverted that defendant Hough received from the bank the money on the Dunlap note and also the money on the Watson notes, and the hourt was manifestly in error in failing to direct a verdict against the defendant. Hough in favor of the bank. The defendants alleged an express contract between them and the bank for the substitution of the Watson notes for the Dunlap note, and having failed to prove such express agreement, Dunlap was not entitled to recover, not having pleaded implied contract, fraud, or estoppel against the bank.

The judgment is reversed, and the cause remanded.


author: FLY, C. J.

text:
    SANCHEZ v. AMERICAN NAT. INS. CO.
    No. 8628.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1931.
    Rehearing Denied July 8, 1931.
    Harry B. Berry, of San Antonio, for plaintiff in error.
    Carter & Carter, of San Antonio, for defendant in error.
   FLY, C. J.

Plaintiff in error, herein styled plaintiff, sued defendant in error, styled" defendant, to recover on an insurance policy to recover insurance, penalty, and attorney’s fees. The court, after hearing the evidence, instructed a verdict for defendant.

The facts show that the life of Julian Sanchez-was, on April 18, 1929, insured fffr $1,-000. The policy provided for payment of premiums quarterly; the first being payable in advance. That payment was made. The second payment was due on July 18, 1929, but the insured, under the law and terms of the policy, had until August 18 in which to pay the premium. Two minor children of Julian Sanchez, who died on August 26, 1929, swore that an agent of the defendant stated that he would get the company to grant another week in which to pay the premium. It was not paid. The following provision is included in the policy: “All premiums under this Policy are payable in advance either at the Home Office or to any agent upon delivery of a receipt signed by the President, Vice-President, Secretary or Actuary -of the Company. No officer other than those stated and no Agent has the power to make or to modify this or any other contract of the Company in any respect whatever, and the Company is not responsible for, and shall not be bound by, any promises or representations made by any other than the officers named, and then not unless said promises or representations are in writing and signed by one of the officers stated.”

The policy, as indicated, prohibits any change in the terms of the policy by any agent of the company, and the statutes of the state as emphatically deny any such authority. Article 5063, Revised Statutes. It is provided in that statute that no “agent shall have the power to waive, change or alter any of the terms or conditions of the application or policy.” The agent is positively forbidden to make any such agreement as the two minors swore he made.

The court properly instructed a verdict for defendant. The judgment is affirmed.


author: FLY, O. J.

text:
    SCHUBERT v. FIRST NAT. BANK OF RAYMONDVILLE.
    No. 8636.
    Court of Civil Appeals of Texas. San Antonio.
    June 17, 1931.
    Jesse G. Foster, of Raymondville, for appellant.
    Davis E. Decker, of Raymondville, for ap-pellee.
   FLY, O. J.

This is a suit on a promissory note for $612 instituted by appellee against appellant. A jury was instructed to return a verdict for the debt, interest, attorney’s fees, and costs in favor of appellee, and, upon the verdict so rendered, judgment was given for appellee.

The note was executed by appellant to the San Perlita Development Company, and the defense was that the note was obtained by fraud, and that appellee knew of the fraud when it obtained the note, and consequently was not an innocent purchaser. Evidently the court did not think there was any testimony sustaining the defense, and the action of this Court must be based on the evidence disclosed by the statement of facts. There is no evidence tending to show that appellee had notice of any fraud in obtaining the execution of the note by appellant. The note was bought and paid for by appellee before it was due, and without any notice of any defects in it. It was a negotiable instrument, and value was paid for it. There was no evidence tending to show that the note was not bought in good faith, for value, without notice.

The application for a continuance to make parties, on appearance day, to show that fraud had been used' to obtain execution of the note, was properly overruled. It was not essential to the defense of appellant that he have the payees of the note as parties to the suit. The evidence of appellant failed to show any fraud upon the part of the payees, or any default made in performing any part of the sale of the land to appellant. The note was executed September 2, 1929, before the great financial depression had begun to be felt, and the note became due in September, 1930, when the depression was in full swing, and there may or may not be connection between those facts and the disinclination of appellant to pay his note. However that may be, the evidence showed, without the slightest contradiction, that appellee was an innocent purchaser of the note.

The judgment is affirmed.


author: COBBS, J. FLY, C. J.

text:
    CITY OF McALLEN v. HUMPHREYS et ux.
    No. 8612.
    Court of Civil Appeals of Texas. San Antonio.
    May 20, 1931.
    Rehearing Denied June 24, 1931.
    ■ E. A. McDaniel, of McAllen, for appellant.
    W. R. Blalock, of Mission, Griffin & Kim-brough, of McAllen, for appellees.
   COBBS, J.

I. D. Humphreys and wife, Laura A. Humphreys, appellees, sued the city of Mc-Allen, appellant, to recover damages for personal injuries and injury to property. It wa's alleged that they suffered damage to a certain one-story two-room brick building, used by appellees as their residence, in North Mc-Allen, Hidalgo county, Tex., in the sum of $500; that Mrs. Humphreys suffered damages in the sum of $2,500, mental suffering, pain, and distress; that I. D. Humphreys suffered damages in the sum of $2,500, mental suffering, pain, and distress; a doctor’s bill of $25; and $10,000 exemplary damages.

The property in controversy was situated in a blind alley, and appellees alleged that they purchased and owned it, and they, and those under whom they claimed, had held the same for more than ten years.

The court overruled all exceptions, and the case was tried to a jury.

It is not disputed that the house is in tne alley and\ the title to the* land is not in ap-pellees, but in the city. If the improvements were owned by tbe city, it bad tbe right to use tbe lot free from any claim of appellees. This gave tbe right to tbe city to said property.

Ordinarily a city may by force remove obstructions in the streets and alleys of a city, but in doing so it cannot injure or destroy private property without being held for the value of the property thus destroyed or injured.

This is tbe second appeal, of this case. (Tex. Oiv. App.) 29 S.W.(2d) 420. While it is ■the same case, it comes up in a little different shape. There tbe title was in the city; here it is not. The special issues set out are unimportant except as to those which submit the question of damages by reason of threats made to Mrs. Humphreys, and except as to damage done to the property.

It was shown that appellees purchased the house from the Yalley Lumber Company on December 24, 1927; that they had been living in the house at the time of purchase, and lived there for about a year, until it was demolished by appellant. The city laid a sewer line through the house, which made it uninhabitable. Laura A. Humphreys testified that she was visited by certain city officials, including the mayor and a policeman, who told her that they were going to put the sewer ■through the house and that she would have to move out. The city of McAllen, during September, 1928, constructed a sewer system with plans to show that this property was covered by it, and all the claimed unlawful acts were committed by the city in arranging for and in carrying out its plans therefor, during its construction thereof, and in pursuance of one of its governmental functions.

Any house or building, constructed in the street or alley in any city constitutes a nuisance, and may be summarily abated by the city, subject to any damage done to the property in the exercise of such a right or power, for the doctrine of eminent domain in the interest of the public is superior to the rights of the individual.

The rule of law to the effect that the performance of an act entirely legal within itself may nevertheless be made unlawful by the manner in which such act is performed is too elementary to require citation of authorities. For example, if it should be conceded in this case, for the sake of argument, that the house in question was situated in an alley which was a public passageway, and that it constituted such a nuisance as would justify its summary abatement by the city, certainly the act constituting the summary abatement would have to be performed in a lawful manner. If it be true, that the performance of the act was harsh and destructive of the rights of another, then the other party would be entitled to damages. We do not think the court erred in not submitting to the jury as an element of damages the actual damage to the house and refused to submit to the jury an element of damages such as the impairment of Laura A. Humphreys’ health, because of the destruction of the house and the manner of its destruction, and further element of damage of the alleged threats made at the time appellant was threatening to destroy the house and embarrassing plaintiff thereby. The court confined the element of damages to mental suffering. The city of McAllen constructed the sewer system within its corporate limits under a certain plan which provided for sewer lines across the property where the house in question was situated. The construction of a, sewer system after the plans for same have been agreed upon is nothing more or less than a ministerial function. There is nothing in the evidence to show that the city ever so much as thought about the matter of summary abatement of a nuisance until this suit was filed. On the contrary, it is expressly shown that all the acts which were done were done for the purpose of permitting the city to construct its sewer line across the property in question.

It is true, as said in this case reported in 29 S.W.(2d) 420, a municipality “has no more authority to invade the legal rights of the citizen than an individual. If the house was on land [as it was not] which belonged to an alley, appellee had no authority to send its agents and forcibly tear down the building and insult and threaten a delicate woman.” The city still in such a case had the undoubted right of removal, and at the same time would be responsible to appellees for consequences flowing from any wrongful acts. We have held in the foregoing case that appellant was liable for all illegal acts committed in the removal of the property. A municipality has the inherent right and power to remove obstructions and objects that close its streets and alleys, provided it be done with reasonable care and prudence. Radford Grocery Co. v. City of Abilene (Tex. Civ. App.) 20 S.W.(2d) 255.

The rule is well stated in 46 Corpus Juris at page 759, where it is said: “The state may, in the exercise of its police power, authorize public officials summarily to abate public nuisances. ⅜ * . * The power must be reasonably exercised, without doing unnecessary damage or injury to property. * * * It has been held that the power of local public officers to abate a public nuisance without statutory or judicial imocess stands upon the 'same footing as the power of a citizen.”

There is no testimony in the record that Frank Freeland, or any one else, threatened to arrest Mrs. Laura A. Humphreys, and no testimony in the record that any one threatened to turn the fire hose on the building occupied by Mrs. Laura A. Humphreys. There is no testimony in the record showing that Mrs. Laura A. Humphreys suffered any great mental pain or distress, but, on the contrary, the plaintiffs’ own witness testified that such acts would not cause any great mental pain or distress. The undisputed facts show that Mrs. Laura A. Humphreys and I. D. Hum-phreys had no claim in and to said alley, were naked trespassers therein, and, if there was any injury, the same was caused by their own acts in refusing to vacate said alley upon notice. There is no testimony in the record that the plaintiff I. D. Humphreys was ever informed of any such threats or statements as alleged to have been made to Mrs. Laura A. Humphreys, and there is no testimony showing that he suffered any such great mental pain or distress by reason thereof.

There were no acts of violence, malice, or force that require the condemnation of the parties in damages. The alley admittedly belonged to the city, and it had the right to force its removal.

The motion for a new trial should have been granted. The judgment of the trial court is reversed, and judgment here rendered for appellant.

FLY, C. J.

I agree to the result but cannot agree to the process of reasoning by which such result is reached.


author: COBBS, J. PER CURIAM.

text:
    FALLIN et al. v. WILLIAMSON CADILLAC CO.
    No. 3619.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1931.
    Rehearing Denied July 8, 1931.
    E. B. & Howell Ward, of Corpus Christi, for appellants.
    John A. Mobley, of Corpus Christi, for ap-pellee.
   COBBS, J.

Appellee sued appellants for $588.40, an alleged balance due on the purchase price of a Cadillac automobile purchased by Mrs. R. E. Fallin, the wife of R. E. Fallin. It was alleged that the automobile was purchased by the wife as a necessity and was therefore binding upon her separate estate.

The trial court overruled appellants’ exceptions and rendered judgment against defendants for $555.32 and $122.40 attorney’s fees, interest, and costs.

The contention was that there was no testimony of an agreement to bind the separate estate of appellant Mrs. Fallin, or that the automobile purchased was a necessary. The court filed his findings of fact and conclusions of law, and concluded the wife was responsible and personally liable for the debt.

The contract here was signed by both appellants, but nowhere binds the separate estate of the wife. The automobile was sold to the wife, to whom appellee looked for payment, and did not look to the husband at all for payment., Her obligation to pay the same is valid, notwithstanding she may have or not signed the contract which of itself does not charge her separate estate, for her signature to the contract raises no legal presumption of liability. Harris v. Finberg, 46 Tex. 79; Mills v. Frost Nat. Bank (Tex. Civ. App.) 208 S. W. 698; Schenck v. Foster, etc., Co. (Tex. Civ. App.) 215 S. W. 877; Menard v. Schneider (Tex. Civ. App.) 48 S. W. 761; Long v. Crutchfield (Tex. Civ. App.) 295 S. W. 625, 627.

See Schenck v. Foster Bldg. & Realty Co. (Tex. Civ. App.) 215 S. W. 877, 880, in which case Judge Brooke states the rule, saying in part: “It has been held uniformly by all the courts of this state who have passed upon the question, that a note or other document executed by the wife, not joined by the husband, is a nullity.”

This car was sold directly to the wife, and under the evidence she was compelled to purchase it for herself because the seller refused credit to the husband.

Though the proof does not clearly show that the wife ever said she would pay for the car out of her separate estate, that is apparent from all the surrounding circumstances; from the contract itself; from statements made by the president of the plaintiff corporation that they sold the car to her and looked to her for payment. She executed the contract as purchaser, they having refused to sell to her husband.

The court was justified in finding from the evidence that the automobile was a necessity for the wife. That being the case, the wife was empowered to contract for necessities. Hollis v. Francois, 5 Tex. 195, 51 Am. Dec. 760; Milburn v. Walker, 11 Tex. 329; Booth v. Cotton, 13 Tex. 359 ; Magee v. White, 23 Tex. 180; Hild v. Hellmar (Tex. Civ. App.) 90 S. W. 44; Trammell v. Neiman-Marcus Co. (Tex. Civ. App.) 179 S. W. 271; Burleson v. Graves (Tex. Civ. App.) 255 S. W. 1013; Snyder-Bell Grocery Co. v. Hamilton (Tex. Civ. App.) 276 S. W. 752.

“The wife herself will be the judge of what are her necessities subject to the condition that it must appear to the satisfaction of the court and jury that they were reasonable and proper.” Speer on Marital Rights, Third Ed. p. 234; Milbur v. Walker, 11 Tex. 329; Walling v. Hannig, 73 Tex. 580, 11 S. W. 547; Desmond v. Dockery (Tex. Civ. App.) 116 S. W. 114; McKee v. Popular Dry Goods Co. (Tex. Civ. App.) 240 S. W. 567.

The liability of the wife is personal, and does not, depend upon the refusal or inability of the husband to supply her. Von Carlowitz v. Bernstein, 2S Tex. Civ. App. 8, 66 S. W. 464. The guide as to what are necessities is not a thing that is settled. What is a necessity for one family' would be a luxury for another. The needs of the family with reference to social position, wealth, surrounding circumstances, etc., are the determining factors. It has been held that an automobile for the use of the wife is a necessity. Speer on Marital Rights (3d Ed.) p. 236; Guaranty State Bank v. Franklin Fire Ins. Co. (Tex. Civ. App.) 262 ⅛. W. 769.

The judgment is reformed so as to support an execution directed against the community property of the husband and wife, as well as the separate estate of the wife, and, as reformed,. will be affirmed.

On, Motion for Rehearing.

PER CURIAM.

The judgment of the trial court will be modified so as to provide that execution may issue against the community property of both appellants, or the separate property of appellant Mrs. R. E. Fallin, at the discretion of appellee, and, as so modified, the judgment will be affirmed, in accordance with the original opinion.

With this modification, appellants’ motion for rehearing is overruled.


author: OOBBS, JJ SMITH, J.

text:
    BROWN & ROOT, Inc., v. DUNCAN.
    No. 8632.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1931.
    Rehearing Denied July 1, 1931.
    Roberts, Monteith, Baring & Wilson, of Houston, for appellant.
    W. B. Moss, of Sinton, for appellee.
   OOBBS, JJ

Appellee sued appellant in the county court of San Patricio county to recover $950, the alleged damages to his automobile caused by the negligence of defendant in leaving the road roller upon a public highway in the course of construction by defendant, without maintaining lights upon said roller in the nighttime, resulting in the collision of plaintiff’s car with said roller. Defendant answered by exceptions and that plaintiff was guilty of contributory negligence, and pleaded that the injuries complained of were the result of an unavoidable accident.

The objections were overruled, and special issues submitted to the jury, upon the return of which in favor of appellee, a judgment was entered in behalf of appellee.

The facts are that plaintiff was driving an automobile at night at a speed of from thirty to forty miles per hour on a narrow hard-surfaced road on which the glare of approaching automobile -lights had the effect of blinding him, and, while passing another car going in the opposite direction, he drove his car into the hack of the road roller, causing the damage to his car. Plaintiff did not slow down' his speed to a speed not in excess of fifteen miles an hour while passing another car, and, because of being blinded i>y the lights of the passing car, he did not see the road roller standing on the side of the road, which he would otherwise have seen, and his failure to slow down his speed to fifteen miles an hour was the proximate cause of his injuries and the injuries to his car. The road roller was on the caliche, five or six feet from the shoulder of the road. The plaintiff stated he was traveling about thirty-five miles an hour when he saw the roller and swerved to the left to keep from hitting the roller, and the rear wheel of the car swerved or swung around into the back of the roller. He passed the other car about ten to forty feet before he struck the roller, and when he first saw it he began to turn to the left as soon as his presence of mind told him what to do. He testified:

“The first car whose lights blinded me, passed me about ten feet before I hit the roller. It was about the same time that I first saw the roller. I don’t think I was going over 35 miles per hour when I first saw the roller. I could not have been going 40 miles per hour. I didn’t have occasion to examine my speedometer about that time but I am not a fast driver.”
“Question: Well, then, you were going between 30 or 40 miles per hour when you passed the first car about 10 feet before you struck the roller? Answer: Tes, sir. The reason I didn’t see the roller was that the lights of the first car blinded me. If there had been no car passing when it did, I would have seen the roller in time to avoid striking it.”

Now the foregoing statement of the facts is a sufficient basis for us to pass upon the question.

We have a ease now before us to determine whose negligence constituted the proximate cause of the injury. In the first instance the appellant was guilty in leaving the roller on a public traveled road in the nighttime without a light to warn of its presence, and, in the second place, appellee was guilty of negligence in driving his car in the nighttime at a greater rate of speed than the law allows.

As we understand the law in such cases, though the injured person may have to some extent slightly contributed to his own injury by his negligence, yet, if the defendant was grossly negligent, a recovery is allowed. Olearly, to leave a road roller standing on a public traveled road, without any light on it, or other thing to warn the public of its presence, is gross negligence. The testimony showed that appellee had passed the car going in the opposite direction about forty feet before he struck the roller, and he shot the gas to the car about forty feet before he reached the roller, so that the passing car with the glaring lights was eliminated to some extent, whose lights had prevented him from seeing the road roller earlier. No doubt if the roller had a light on it, as such obstructions upon the public road require, appellee would have easily seen the same. Appellee was not in the act of passing another car at the time of the accident, but had already passed the same some ten to forty feet, and had begun to speed up when he discovered the unlighted roller. The trial court recognized this fact by stating the special requested charges of defendant were given in the main charge of the court. In refusing defendant’s special requested issues Nos. 2, 3, and 4, in his qualification of defendant’s bill of exception No. 3, the court stated:

“This issue was refused because there was no evidence introduced in the trial of the case tending to show that Plaintiff was passing another automobile at the time of injury, the undisputed evidence showing that the other car had already passed before the injury occurred.”

And in refusing defendant’s bill of exceptions No. 4, he stated: “This Requested Issue was in effect given and covered in the main charge of the Court.”

In refusing defendant’s special requested issue No. 8, in his qualification to defendant’s bill of exception No. 5, the court stated: “Said issue was refused on the ground that the evidence introduced on the trial of this cause did not raise the issue of the ‘unavoidable accident.’ ”

Clearly, the action of the court, in view of the evidence, was proper. An issue of fact was raised as to whether the appellee was engaged in passing another car at the time of the collision. The jury found that Duncan was keeping a reasonable lookout for existing objects on or near the highway, and further found that the defendant’s negligence in failing to provide the roller with lights sufficient to warn the traveling public was the “proximate cause” of the injury to plaintiff’s car.

We do not think the evidence sufficiently supports any issue of intoxication on the part of appellee at the time of the accident. Driving a car while under the influence of liquor is against all good law and common decency. There are too many acts of negligence whereby many people are daily injured, and surely the courts will not pass unnoticed the negligent act of one who is under the- influence of liquor, which the law denounces as a crime of itself.

It is the opinion of the majority of this court that the appellee was clearly violating the law when he passed the passing automobile. He admits he was passing the moving car at the rate of thirty or forty miles per hour when he struck the road roller, and that he struck the road roller about forty feet beyond where he passed the automobile.

The judgment is reversed, and the cause remanded for another trial.

On Motion for Rehearing.

SMITH, J.

It is conceded that appellee was guilty of negligence, as a matter of law, in passing an on-coming fellow motorist at an unlawful rate of speed, an instant before the accident.

So is it conceded that appellant was guilty of negligence, as a matter of law, in' leaving its unlighted steam roller upon the highway, in the nighttime.

While it is true that appellee’s act of negligence was completed before the accident occurred, yet nevertheless its commission had projected him into a position of peril from which he did not extricate himself.

,On the other hand, appellant’s act of negligence was continuous throughout the transaction, and was a flagrant ope at that.

It whs the prerogative of the jury, exclusively, to determine what was the proximate cause of the accident, whether it was caused by the negligence of appellant, or of appellee, or of both, or of neither.

The doctrine of comparative negligence has no place in the case of course.

The jury found that the admitted negligence of appellant was a proximate cause of appellee’s injury, and the evidence was ample to support the finding. But the trial court refused to submit to the jury the correlated issue of whether the admitted negligence of appellee was likewise a proximate cause of the injury, although the evidence clearly raised the issue. In this we conclude the court erred, and it is upon this error the judgment should be reversed and the cause remanded for another trial. The appellant is entitled to have that defense submitted to a jury, since it was properly pleaded and was supported by cogent evidence. '

, If the issue of whether appellee was under the influence of intoxicating liquor is submitted upon another trial, it should be submitted in the language of the statute upon the subject.

With these modifications of the original opinion, the motions of both parties for rehearing are overruled.