text:
    DIXIE MOTOR COACH CORPORATION v. SWANSON et al.
    No. 12462.
    Court of Civil Appeals of Texas. Fort Worth.
    May 30, 1931.
    Leachman, Gardere & Bailey, of Dallas, and Raymond E. Buck, of Fort Worth, for appellant.
    Callaway & Wade, of Fort Worth, for ap-pellees.
   CONNER, C. J.

Mrs. Bessie Swanson, for herself and as next friend for her children, Aubrey Lee, Albert, Jr., Billie, Harold, and J. W. Swanson, all minors, the wife and children respectively of A. L. Swanson, deceased, and I-I. S. Swanson, the father of the deceased, brought this suit in the district court of Tarrant county against the Dixie Motor Coach Corporation to recover damages alleged to have resulted from the death of A. L. Swanson, which occurred on April 22, 1929, in an automobile accident.

The accident occurred near the intersection of the Fort Wortli-Denton state highway and the Birdville graveled road. The highway is a paved road, and runs in a general north and south direction; the Birdville road is graveled, and runs in a general east and west direction, the west end terminating in the highway.

A coach or bus belonging to appellant was traveling from Fort Worth to Denton, loaded with passengers. A gravel truck, which at the time was being driven by Mr. Swanson, loaded with gravel, was traveling in a westerly direction on the Birdville road; the purpose of Swanson being to enter the highway, turn to the left, and proceed south in the direction of Fort Worth. A short distance south of the junction of- the two roads was a concrete bridge over a small ravine; just south of the Birdville road at the point where it entered the highway was a gas and oil filling station; a short distance north of the junction of the two roads' on the left or opposite side of the paved highway was another filling station.

The plaintiffs alleged that the deceased entered the paved highway with the purpose of crossing its center line 'to the west side and turning south in continuation of his journey; that the bus on the highway, soon after crossing the concrete bridge, turned to the left and proceeded north on the left-hand side, when the two cars collided. The truck struck the bus a short distance behind the front wheel, with the result that the truck was turned over and Swanson killed.

The plaintiffs alleged that the bus was owned by the defendant Dixie Motor Coach Corporation, and at the time was being operated by its employee 'in the conduct of its business.

It was further alleged that the driver of the bus was negligent in a number of particulars, including a failure to keep a proper lookout; in operating the bus at an unlawful and dangerous rate of speed; and in turning to the left and assuming a position on the left-hand side of the highway.

The defendant pleaded a general denial and contributory negligence on the part of the driver of the truck in a number of particulars not thought to be necessary to mention.

Upon the conclusion of the evidence, the case was submitted to a jury upon 33 special issues. We think it sufficient to say that the issues of negligence on the part of the driver of the bus, as above detailed, were found in favor of the plaintiffs; and that the defensive issues of contributory negligence, etc., were found against the defendant, damages being assessed in the aggregate sum of $16,-000, for which, apportioned as the jury had directed, the court entered its judgment in favor of the plaintiffs. From this judgment the defendant has appealed.

As noted, in the beginning, the plaintiffs alleged that the bus involved in the accident was owned by the defendant, Dixie Motor Ooach Corporation and was at the time being operated by its agent, servant, or employee, while acting within the scope of his employment. Rut these issues were neither submitted.nor requested; nor is there a jury finding supporting these allegations; and the appellant corporation in its amended motion for new trial complained of the action of the trial court in rendering its judgment against the appellant because there was no finding by the jury that appellant owned the bus in question; and also because there was no finding by the jury that the bus in question was being driven at the time by one of its agents, servants, or employees acting within the scope of his employment. The motion for new trial was overruled, and error is assigned to the action of the court in rendering judgment in the absence of such findings.

While it is true, as appellant insists, that there was neither a request for nor a finding to the effect that the bus in question was owned by the appellant corporation, or that the driver was at the time in its employment and acting within the scope of his employment, yet we think it should be stated that the undisputed evidence shows that the bus was owned by, and was being used in the business of, appellant corporation, and that at the time of the accident it- was being operated by one Joe Pittman in the course of his employment as a servant of appeliant. Appellees accordingly insist that, under the operation of article 2190, Rev. Statutes of 1925, as construed in the case of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, we should imply a finding by the court in favor of plaintiffs upon the submitted issues. The statute referred to, in so far as necessary to state, reads: “When the court submits a case upon special issues, he shall submit all the issues made by the pleading. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining -of the judgment. Upon appeal or writ of error, an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment if there is evidence to sustain such finding. * * * ”

The case of Gause-Ware Funeral Home v. McGinley, 41 S.W.(2d) 433, recently decided by this court, opinion not yet published [in State reports], was one in which McGinley sued to recover damages alleged to have resulted from a collision with an ambulance operated by an agent of the Gause-Ware Funeral Home. The petition of plaintiff, however, failed to allege that the driver of the ambulance was at the particular time of the collision “engaged in the performance of his 'employer’s business,” and we held that the petition was subject to the demurrer urged against it. Among others, we cited the case of Hall v. Jackson, 3 Tex. 305, which holds that facts not alleged, though proven, will not support a judgment. We further held that it was certainly necessary to prove that the driver of the ambulance “was at the particular time of the collision engaged in the'performance of his employer’s business,” citing the following cases: International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039; Van Cleave v. Walker (Tex. Civ. App.) 210 S. W. 767; Miller v. Pettigrew (Tex. Civ. App.) 10 S.W.(2d) 168; Rew v. Stoddard (Tex. Civ. App.) 225 S. W. 836; Cole v. Wright (Tex. Civ. App.) 18 S.W.(2d) 242; Langford v. El Paso Baking Co. (Tex. Civ. App.) 1 S.W.(2d) 476.

Plaintiffs’ allegations in the case before us that the bus was owned by the appellant corporation and was -at the time being driven and operated by one of its servants during the course of his employment were essential allegations; they lie at the very foundation of the plaintiffs’ ease, which, as we think, is well established by the authorities, and must be established in the way and by the -agencies the law designates. Our Supreme Court in the case of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, construed article 2190 in connection with its related statutes, and concluded, quoting from the headnotes, that: “Where ease 'is tried to jury on special issues, unrequested and unsubmitted issues may be deemed as found by court in favor of judgment, when there is evidence to sustain findings, only if omitted issues are correlative, in accord with, and supplemental or incidental to, and in support of, issues submitted, and not if omitted issues constitute complete, independent ground of recovery or defense, under Rev. St. 1925, art. 2190, in view of articles 2185, 2186; ‘special issues’ submitted to jury are 'separate and distinct questions or issues of fact, germane and material to cause or causes of action on which plaintiff relies for recovery or defendant for defense.”

In Texas Employers’ Ins. Ass’n v. Wright, 4 S.W.(2d) 31, it was held by Section B of our Commission of Appeals, in a case under the Workmen’s Compensation Law, that, where a case was submitted to a jury upon special issues, and where the issue of right to a lump sum payment was not submitted nor requested by either party, the issue, quoting from the headnote, “was waived by plaintiff, and trial court had no authority to render judgment for lump sum upon the hearing for judgment after jury had been discharged.”

The same section of tlie Commission of Ap-' peals in the case of Montrief & Montrief v. Port Worth Gas Co., 4 S.W.(2d) 964, held that it was error for the trial court to render judgment -on a cross-action where the basic issue was not submitted to, and finding made thereon by, the jury.

In Norwich Union Ins. Co. v. Chancellor, 5 S.W.(2d) 494, 495, by Section B of the Commission of Appeals, it was alleged that Chancellor, who was suing to recover under the Workmen’s Compensation Law as an employee under one Wattinger,' had the burden of proving that he, Chancellor, was an employee of Wattinger, and it was there said: “This vital issue of whether or not defendant in error was an employee of Wattinger was not submitted by the court, nor was it requested by either party to be submitted. Under these circumstances, such issue was waived, and the presumption cannot be indulged that the trial court found it in such way as to support his judgment”—citing Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, and Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591.

In Stuard v. Vick, 9 S.W.(2d) 494, by the Eastland Court of Civil Appeals, it was held that the ground alleged for the cancellation of a deed based on fraud through undue influence was waived by the plaintiff, where no request to have such ground submitted to a jury was made.

Of like judicial effect, we think, are the cases of Travelers’ Ins. Co. v. Washington, 5 S.W.(2d) 783, by the Beaumont Court of Civil Appeals; Maryland Casualty Co. v. Long, 9 S.W.(2d) 458, by the Texarkana Court of Civil Appeals; Risinger v. Pirst State Bank of Abernathy, 12 S.W.(2d) 242, by the Amarillo Court of Civil Appeals; Simpson & Co. v. City of Lubbock (Tex. Civ. App.) 17 S.W.(2d) 163; Zurich Gen. Accident & Liability Ins. Co. v. Thompson, 19 S.W.(2d) 153, by the Amarillo Court of Civil Appeals; Mayor v. Breeding, 24 S.W.(2d) 542, by the San Antonio Court of Civil Appeals; Griffin v. Burrus, 24 S.W.(2d) 805, by the Amarillo Court of Appeals.

As before indicated, the plaintiffs below and appellees here had no cause of action whatever against the appellant corporation, in the absence of allegation and proof, not only that the driver of the bus was guilty of acts of negligence charged, but also that such driver was an employee of the corporation, and as such engaged in the performance of his master’s business. In Texas Jurisprudence, vol. 1, p. 622, it is said, in defining the term “cause of action,” that: “Pacts showing the plaintiff’s primary right are as much a part of the cause of action as those showing a violation of the right” — citing the eases of Mercantile Bank & Trust Co. v. Schubart; 115 Tex. 114, 277 S. W. 621; Watson v. Jackson (Tex. Civ. App.) 264 S. W. 603, 608; Pittman & Harrison Co. v. Boatenhamer (Tex. Civ. App.) 210 S. W. 972; Planters’ Cotton Oil Co. v. Whitesboro Cotton Oil Co. (Tex. Civ. App.) 146 S. W. 225.

In the early case of Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881, it was said, quoting from the headnotes, that: “The court, on a trial by jury, has no power to enter judgment upon facts well pleaded and indisputably proved, unless the issue presented and proved has been found by the verdict in favor of the party for whom judgment is rendered.”

Under the authorities, we can but feel that w.e must sustain appellant’s first proposition, based on its assignments of error 92 and 93, complaining of error in the judgment of the trial court rendered for the plaintiffs, in the absence of a finding by the jury on the issues above discussed.

Appellant under its tenth proposition, based on assignments 73 and 74, complains of the action of the court in refusing to submit the following timely requested issues, to wit:

“Do you find from a preponderance of the evidence that immediately prior to the time the bus driver swerved to his left, that it reasonably appeared to him that a collision with the gravel truck was imminent, and that said bus driver swerved or turned his car over to the left hand side of the road to prevent or avert a collision with the gravel truck?”
“Do you find from a preponderance of the evidence that said bus driver, in swerving or turning immediately to his left, after believing that a collision was imminent and for the purpose of avoiding or preventing an accident, if you have so found, did that which an ordinarily prudent person would have done under the same or similar circumstances?”

We think the evidence undoubtedly raised the issues presented in the special .issues refused. Indeed, it is not contended otherwise in behalf of appellees. The contention is that the court’s charge sufficiently submitted the issues requested. In the main charge the court did submit, as appellees insist, issues 4, 5, and 6. The inquiry in special issue No. 4 was whether the bus driver just prior to the collision was driving on the left side of the center of the highway; and issue No. 5 was whether the bus driver was guilty of negligence in driving on the left side of the highway ; and issue No. 6, if No. 5 was answered “Xes,” was whether such negligence was the proximate cause of the collision. We think the court’s issues failed to present that distinct and affirmative presentation of defendant’s defense and reply to plaintiffs’ charge of negligence on the, .part of the driver, contemplated by the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, and numerous cases following it.

It is suggested that in' driving on the left-hand side of the road the bus driver violated a statutory regulation, and hence that under no circumstances could appellant escape the results of actionable negligence. But the cases of Taber v. Smith (Tex. Civ. App.) 26 S. W.(2d) 722, 725, and Hicks v. Morgan Co. (Tex. Civ. App.) 259 S. W. 263, seem opposed to giving effect to the suggestion. In the case of Taber v. Smith, a truck was being operated at night without lights, in violation of article 798 of the Penal Code. The owner pleaded and proved as an excuse therefor that the ignition system had been in good repair; that he did not know of, and had no reason to expect, any defect; that the lights went out suddenly on the road, where he could get no relief from a garage to repair the lights or pull the car in; that under these circumstances the driver drove slowly and carefully on the right-hand side of the road to a garage to have the lights repaired. He then requested an issue as to whether, under the explanations and reasons given as to why the truck was being operated without lights, such was negligence, which the court refused. On appeal, the Amarillo Court of Civil Appeals had this to say: “Proof that the truck was being operated in violation of a statute or ordinance, does not conclusively establish actionable negligence on the part of the defendants or their deliveryman, in driving the truck slowly, although without lights. Though he was acting technically in violation of the state law, nevertheless, if the evidence tended to show that he was using such a degree of care as an ordinarily diligent and careful person would exercise under the same or similar circumstances, the, issue of negligence was one of fact and the defendants’ special issue No. 2 should have been given. Co-operative F. Co. v. Southern Surety Co. (Tex. Civ. App.) 264 S. W. 201; 45 C. J. 731, § 121; 5 Tex. Jur. 689; 42 C. J. 887.”

The case of Hicks v. Morgan, 259 S. W. 263, 265, by the Beaumont Court of Civil Appeals, involved an accident similar to the one in this case. The pleading of defendant was substantially the same as in the one before us on the excuse for swerving to the left. The trial court there, as here, refused to submit the issue to the jury, and the same was held to be error; the language of the court being as follows: “But be that as it may, we feel certain that the court was in error in declining to give, at appellant’s request, a special instruction which was, in substance, that if, as the two cars approached, appellant was on his right-hand side of the road and appellee, was on his left-hand side of the road at the time, 'and the two cars continued to so approach each other, and did so approach each other until it reasonably appeared to appellant that they would come in collision, and that acting upon such appearance, if he did, appellant in order to prevent a collision, suddenly swerved or turned his car to the left, and that in doing so he did what an ordinarily prudent person would have done under the same or similar circumstances, appellant would not be guilty of negligence, and that in making their answer on that point they would bear such instruction in mind. Appellant had fully pleaded the facts as a basis for this instruction, and the evidence adduced by him amply sustained the allegation.- This being true, it was appellant’s right to have the issues submitted, and the court erred in declining to do so. There was nothing anywhere in the court’s charge to inform the jury that appellant would not be guilty of negligence in bringing about the collision if the facts were as submitted in this special instruction. If, immediately before the actual collision of the cars, appellant was traveling on his right-hand side of the road, as the law required, and if the appellee was traveling on his left-hand side of the road, as appellant had alleged and introduced evidence to prove, and if it reasonably appeared to appellant that it was necessary, in order to avert a collision of the cars, for him to swerve his car to the left, and if in doing so he did that which an ordinarily prudent person would have done under the same or similar circumstances, he certainly was not guilty of negligence in that respect. It seems to us that without proper instruction from the court in this connection the jury had no guide by which to determine appellant’s negligence, if he was negligent, on the vital point in the case.”

We sustain the propositions and assignments of error here discussed.

A number of other questions we think may be disposed of briefly. Bor instance, the court in submitting the issues to the jury inquired whether the acts of negligence submitted in the issues constituted “a proximate cause or did it proximately contribute to cause the collision.” The court defined the term “proximate cause” in approved terms, but failed to define the term “proximately contribute,” and the following cases seem to indicate that this should have been done, appellant having objected to the charge for not having done so: See Dallas Ry. Co. v. Warlick (Tex. Com. App.) 285 S. W. 302; Blanch v. Villiva (Tex. Civ. App.) 22 S.W. (2d) 490; Robertson v. Holden (Tex. Com. App.) 1 S.W. (2d) 570; Thomas v. Goulette (Tex. Civ. App.) 12 S.AV. (2d) 829; Linn Bros. Motor Co. v. Williams (Tex. Civ. App.) 293 S. W. 658; Rio Bravo Oil Co. v. Daniel (Tex. Civ. App.) 20 S.W.(2d) 369, 373; Jones v. Gibson (Tex. Civ. App.) 18 S.W.(2d) 744.

So, too, we think, the court in submitting issue No. 5 of whether the bus driver was guilty of negligence in driving on the left-hand side of the center of the highway should have confined the inquiry to the allegations of the plaintiffs’ petition; in other words, the inquiry should have been as to whether the driver was guilty of negligence in driving on ilie left-hand side of the center of the road under any one or all of the many circumstances alleged, by the plaintiffs as constituting such act of negligence. The issue as submitted seems subject to the objection that the jury in answering the issue was permitted to go beyond the scope of the pleadings relating thereto.

Numerous assignments of error are presented, urging objection to arguments of counsel for plaintiffs- in presenting the evidence to the jury, but, in view of the criticisms made, we think it hardly probable that the same arguments will again be presented, and that we hence need not discuss the numerous assignments referred to. We may say in passing, however, that the decisions of our higher court have gone to great length, as it seems to us, in confining counsel in argument strictly to the record as required by the rule relating to that subject. Some of the argument presented seems to have been founded upon evidence presented or provoked by counsel on the other side; some, perhaps objectionable, such as that on the part of one of counsel tending to draw an unfavorable distinction between the lawyers and jurors of Dallas and Tarrant counties, and especially that which appealed to the jurors, in effect, to place themselves in the situation of the plaintiffs and to do unto them as they would have done to their wives and children. Language to this effect has been expressly condemned. See Brown Cracker Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 453; S. W. Tel. & Tel. Co. v. Andrews (Tex. Civ. App.) 169 S. W. 218. Rule 39 for the district and county courts provides that arguments on the facts should be addressed to the jury when one is impaneled in a case that is being tried under the supervision of the court; counsel is required to confine the argument strictly to th.e evidence and to the arguments of the opposing counsel.

In speaking of improper argument in a personal injury damage suit, or a death case, the Court of Civil Appeals in the case of. Gulf, C. & S. F. Ry. Co. v. Younger, 10 Tex. Civ. App. 141, 29 S. W. 948, 950, had this to say: “We desire to say that in cases of this character, where the law does not determine or establish any fixed measure of damages, so far as the amount that may be recovered is concerned, counsel, in their remarks to the jury, ought to be very careful in keeping within the record, in discussing the facts, and in abstaining from dealing in argument that would be calculated to call the jury’s' attention to facts not properly in evidence. The policy of this court is to condemn any argument that is not within the facts, and in cases of this character, sounding in uncertain damages, it has been frequently held that remarks of counsel, outside of the record, may have influenced the verdict of the jury, when such ruling would not have been made in cases of a different character.”

We think we have sufficiently disposed of the controlling questions presented on this appeal, and conclude that for the reasons stated the judgment below should be reversed and the cause remanded.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    PANTHER OIL & GREASE MFG. CO. v. GARDNER.
    No. 12444.
    Court of Civil Appeals of Texas. Fort Worth.
    March 21, 1931.
    Motion Denied April 18, 1931.
    Alva W. Bounds and Cecil A. Morgan, bath of Fort Worth, for' appellant.
    W. L. Coley, Ira Whittenberg, and L. R. Swanger, all of Ft. Worth, for appellee.
   BUCK, J.

This is an appeal from a judgment in the county court at law No. 2, Tarrant county, in the case of Panther Oil & Grease Manufacturing Company v. P. E. Gardner. Plaintiff alleged that on December 1, 1926, it employed the defendant as a sales agent under an oral contract, by the terms of which the defendant promised and agreed with the plaintiff that he would sell the goods, wares, and merchandise offered by the plaintiff for sale upon a commission basis; that is, that the defendant was to receive a certain per cent, of the money obtained from sales of plaintiff’s goods made by him. Said contract further provided that defendant was to receive no salary, but plaintiff promised and agreed to advance to defendant, against commissions earned by him or to be earned by him, sums of money as might be required by him; that at the request of defendant, plaintiff advanced certain sums of money, to wit, on 11/8/26, $50; 11/16/26, $75; 11/27/26, $75; 12/3/26, $75; 12/13/26, $75; 12/24/27 [26?], $75; 12/31/27 [26?], $100; 1/15/27, $50.

That during the period of the employment of the defendant by the plaintiff, the defendant sold goods and earned commissions as follows, which were credited upon the books of the company to the defendant, to wit: 12/30/26, $18123; 12/31/26, ' $155.17; 1/31/27, $7.29.

That on or about the first day of February, 1927, the defendant left the employment of plaintiff, and the contract of employment was thereupon in all things terminated; that as appears from the statement of the advancements made by the plaintiff to the defendant and the commissions earned by him at the date of the termination of said employment, the defendant was indebted to the plaintiff in the sum of $231.31; that plaintiff has made repeated demands upon plaintiff to pay said indebtedness, but the defendant has failed and refused to pay the same or any part thereof. Plaintiff further alleged that said account was mutual as between plaintiff and defendant.

In defendant’s first amended original answer, he interposed the two-year statute of limitation, because it appeared that the defendant had quit the employment of plaintiff on January 31, 1927. Suit was filed November 20, 1929. Appellant urges that under article 5527, subd. 3, Rev. Civ. Statutes, the period of limitation is for four years. This statute reads:

“There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description. * * *
“3. Actions by one partner against his co-partner for a settlement of the partnership accounts, or upon mutual and current accounts concerning the trade of merchandise between merchant and merchant, their factors or agents; and the cause of action shall be considered as having accrued on a cessation of the dealings in-which they were interested together.”

The trial court concluded that said subdivision 3 of article 5527 did not apply, but that the indebtedness sued on was controlled by the usual two-year statute of limitation. From a judgment for defendant, the plaintiff has appealed.

Opinion.

In Dwight, Skinner & Co. v. Matthews, Miller & Co., 94 Tex. 533, 62 S. W. 1052, 1053, cited by both appellant and appellee, the court said: “The question remains, is it not an action upon a ‘mutual and current account concerning the trade of merchandise between merchant and merchant, their factors and agents,’ within the third subdivision of the same article? If so, the period of four years applies, and the action was not barred when the original petition was filed, nor when the amended petition was filed, March 14, 1898, since, under the provision referred to, limitation did not begin until ‘the cessation of the dealings in which they were interested together,’ and the petition showed that such cessation took place in 1895. We think the account, judging from the allegations, is one of the character defined in the statute to which we have referred. The character of the business of the parties 'was such as the statute requires, since they were firms of merchants', and one was the factor of the other. By such firms, in their dealings with each other, the draft was drawn and paid, and the wool consigned and sold and accounted for; and in these transactions all of the items of the account originated. It therefore appears to be one concerning the trade of merchandise. It consists of items of debt and credit in favor of and against each party, extends through a considerable period of time, and has never been agreed upon so as to become a stated account. Consequently it is an open, mutual, and current account, and has every element required by the decisions in this state for such an account. Whittlesey v. Spofford, 47 Tex. 13; Richardson v. Vaughan, 86 Tex. 95, 23 S. W. 640; Guichard v. Superveile, 11 Tex. 522; Judd v. Sampson & Co., 13 Tex. 19; Leavitt v. Gooch, 12 Tex. 95. The draft was drawn by defendant firm, engaged in a mercantile business, on the plaintiffs, also a firm engaged in such business, and so the wool Was consigned and received. This sufficiently shows the character of the dealings, and that they were done in the trade of merchandise, to meet the demurrer urging two years’ limitation; and four years had not elapsed after limitation commenced.”

Appellee urges that it is not shown that the defendant ever had possession of the goods sold, and he was certainly not a merchant or a factor, nor was he an agent, as the term is used in article 5527, subcl. 3, but' was merely an employee of plaintiff below, working on a commission basis, and in reply to tbe appellant’s argument, that there was a confidential relation created in the instant case in the trade of the merchandise, appellee urges that there was no more confidential relation or trust in the instant case than any other advancement or loan to be repaid out of earnings of an employee, whether in the trade of merchandise or not.

In the case of Mitchell-Greer Co. v. Mitchell, 246 S. W. 690, 691, by Chief Justice. Conner of this court, it is said:

“We conclude that the court did not err in sustaining the general and special exceptions to the petition. The original petition, made oart of the record before us, contains allegations to the effect that after the inventory above mentioned had been taken the capital stock of the company had been reduced to $100,000, and there is no contention that any part of the capital stock subscribed for by the defendant Mitchell is unpaid, except it is Insisted that the $1,194 at which the goods on ''ommission was valued must be construed as an unpaid part of the written subscription of ihe defendant Mitchell, but we think this cannot properly be so construed. This error in the inventory was discovered in February, 1914, and there is no allegation that thereupon Mitchell was called upon to complete his subscription by the payment of a further sum. On the contrary, the matter was treated as an error in the inventory, and the amount charged to Mitchell on the books of the company. * * ⅜ It would thus seem to conclusively appear from the allegations as a whole that the item of $1,194 is but a mere balance of the account existing between the defendant Mitchell and the plaintiff corporation, and hence but a simple debt instead of an unpaid part of a written obligation. If so, the indebtedness and the cause of action arising therefrom certainly existed as early as November, 1914, at which time Mitchell severed his connection with the corporation. ⅜ * * jj. ¡s true that both Greer and Mitchell were merchants, but Mitchell, as president of the corporation, was but its agent, and the items with which he is charged, for the most part, consist merely of such items of credit and debit as generally arise between an ordinary employer and employee. It is true that the $1,194 item appears placed in the account of Mitchell-Greer Company, but this does not change the suit or character of the item so placed. Appellant’s cause of action, based upon the item of $1,194, is, we think, either a suit for money had and received as a result of an error, or else a suit to recover for failure of title to part of the goods sold. In so far as the suit is based on the item of $1,388.17, jit seems a clear case of suit for debt against an agent for money had and received which he collected and wrongfully refused to pay over to his principal.
“In McCamant v. Batsell, 59 Tex. 363, our Supreme Court said:
“ ‘As used in the statutes of this state, in act above referred to [referring to act relating to verified accounts], we believe that the word “account” is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing, and that it does not mean one or more isolated transactions resting upon special contract.’ ”

In Dillard v. Dugger Grocery Co., 232 S. W. 360, 361, the Austin Court of Civil Appeals said:

“To give the holder of an open account the benefit of the four-year statute of limitation, it is not enough that the transactions should be between merchant and merchant. The other necessary elements of the statute are that there must be ‘mutual and current accounts concerning the trade of merchandise.’ Here is where the appellee’s case fails. If the isolated instances in which some bottles and cases were turned in for credit could be considered to have been between merchant and merchant, there was no evidence whatever that there were ever any existing mutual or current accounts between the parties. These transactions were but payments on account. There was never but one account. The exception to the two-year statute does not apply where the items of the account are unilateral, as in this case.
“We do not hold that the mere failure of appellant to keep books or to charge appellee with the items of credit would control the question. Our holding is that the undisputed evidence shows there was no occasion to do so. There was no open running account on both sides, with mutual credits, but simply a few instances of payment on account by merchandise, by one party only. The principles announced in the following cases are deemed decisive of the questions,” citing cases.

In Guichard v. Superveile, 11 Tex. 522, it is said: “We have seen from the facts in this case, although the sale of the goods may have been from one merchant to another, yet it was not an account current, of mutual and reciprocal demands, and therefore not within the exception to the statute of two years limitation, that barred open accounts.” See Handel v. Macdonell (Tex. Civ. App.) 25 S. W. 133.

We conclude that the trial court did not err in sustaining the two-year statute of limitation, and in dismissing the suit.


author: BLAIR, J.

text:
    BELL et al. v. KIRKLAND et al.
    No. 7647.
    Court of Civil Appeals of Texas. Austin.
    May 27, 1931.
    Rehearing Denied June 10, 1931.
    J. A. Thomas, Louis D.’ Gayer, and Lloyd' Kerr, all of San Angelo, for appellants.
    ■Chas. Gibbs and J. W. Stovall, both of San Angelo, for appellees.
   BLAIR, J.

This appeal is from an order refusing to dissolve a temporary 'injunction restraining the county school trustees of Coke county from forming a rural high school district comprising an area of more than 100 square miles, by grouping Bronte independent school district, having less than 250 scholastics, with four small common school districts, having less than 400 scholastics; a majority of the qualified voters of the proposed district having approved same at an election called for that purpose.

Article 2922a, as amended in 1927 (Vernon’s Ann. Civ. St. art. 2922a), provides two methods by which county school trustees may form rural high school districts, as follows:

1. “The county school trustees shall have the authority to form one or more rural high school districts, by grouping contiguous common school districts having less than four hundred scholastic population and independent school districts having less than two hundred and fifty scholastic population for the purpose of establishing and operating rural _ high schools.”

2. “Provided also that the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred and fifty scholastic population to a common school district having four hundred or more scholastic population or to an independent district having two hundred and fifty or more scholastic population upon the approval of the board of trustees of each school district affected.” .

The district in the instant case was formed by “grouping” under the first method, as distinguished from “annexation” under the second method. The trial court held that the provisions of the Second method requiring “the approval of the 'board of trustees of each district affected” applied alike to the first method of forming school districts by grouping, and enjoined the county school trustee's from forming the district in question, because the trustees of each district affected had not approved the proposed district. In the case of Beard v. Marshall (Tex. Civ. App.) 32 S.W.(2d) 496, it is held that county school trustees may form rural high school districts by “grouping” independent school districts having less than 250 schol-astics with common school districts having less than 400 scholastics, without the approval of the trustees of each district affected. The only limitation upon the authority of the county school trustees to form the district in question was that imposed by article 2922c, which provides that county school trustees may not form rural high school districts, as provided in article 2922a, comprising an area of more than 100 square miles, except upon a majority of the qualified voters of the proposed district approving same at an election held for that purpose. A majority of the qualified voters of the district in question approved same at an election called for that purpose, and the district was therefore legally created. County Board of School Trustees v. Wilson (Tex. Civ. App.) 5 S.W.(2d) 805; Canon v. Rasbury (Tex. Civ. App.) 21 S.W. (2d) 76.

The appellees insist that by amending article 2922a in 1927, so as to allow county school trustees to group independent school districts having less than 250 scholastics with common school districts having less than 400 scholastics instead of 150 scholastics allowed by this article prior to its amendment, the Legislature thereby repealed article 2922c by implication.

Prior to its amendment in 1927, article 2922a authorized a “grouping” of school districts only where the independent district had less than 150 scholastics. The amendment increased and authorized a “grouping” where the independent district had less than 250 scholastics. Appellees therefore contend that, since article 2922c referred to article 2922a before amendment, it continued to refer to the old article after its amendment, because article 2922c was merely a “reference” statute and was not itself amended so as to refer to article 2922a, as amended in 1927. The contention is without merit. These articles are a part of the articles of chapter 19A, title 49, R. S. 1925 (as amended [Vernon’s Ann. Civ. St. art. 2922a et seq.]), relating to formation of rural high schools. Article 2922c uses the word “herein” vhich obviously refers to the chapter 19A of which it is a part, and the word “herein” as used is sufficient reference to include any and all amendments to that chapter or any of its various parts. There can be no question but that the Legislature intended that rural high school districts formed after the 1927 amendment of article 2922a should be formed under the provisions where applicable of both articles 2922a and 2922c as they now exist. Such was the holding of this court in the recent case of Bell v. Ditmore, 38 S.W.(2d) 397. But, even if appellees were correct in this contention, which we do not concede, they have not been injured by reason of the election being held, because the orders of the county school trustees sufficiently established the district independent of the election.

Nor do we sustain the remaining contention of appellees in support of the injunction that there was raised an issue of fact as to whether the Bronte independent school district had more than 250 scholastics at the date of the grouping in question. It was necessary for the county school trustees before entering their order grouping the school districts in question to determine the scholastic population of the independent district as well as the scholastic population of the common school districts incorporated in the group. Likewise was it the duty of the county judge before ordering the election to approve the proposed district to determine the scholastic population of the districts affected. It is settled law in matters of this kind that, where the county judge or the county school trustees determine the facts necessary to the calling of an election or grouping of school districts, then, in absence of fraud, such facts established in that manner are things adjudicated and are not open to controversy. State v. Goowin, 69 Tex. 55, 5 S. W. 678; Scarbrough v. Eubank, 93 Tex. 106, 53 S. W. 573; State v. Town of Clyde (Tex. Civ. App.) 18 S.W. (2d) 202; Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W.(2d) 91; City of Tyler v. Tyler B. & L. Ass’n, 98 Tex. 69, 81 S. W. 2; Bowen v. Board of School Trustees of Panola County (Tex. Civ. App.) 16 S. W.(2d) 424; Smith v. City of Dallas (Tex. Civ. App.) 36 S.W.(2d) 547, 552.

The order appealed from is set aside and the temporary injunction dissclved.

Order set aside, and temporary injunction dissolved.


author: RANDOLPH, J.

text:
    WEATHERLY INDEPENDENT SCHOOL DIST. et al. v. HUGHES et al.
    No. 3590.
    Court of Civil Appeals of Texas. Amarillo.
    July 8, 1931.
    Williams & Bell, of Childress, and W. A. McIntosh, of Gilmer, for appellants. '
    Small & Brown, of Wellington, for appel-lees.
   RANDOLPH, J.

This suit was brought by appellees as plaintiffs against appellants as defendants, and the parties will hereinafter be styled as in the trial court. The defendant Weatherly independent school district is sued as a school incorporation, and the other defendants are sued as its trustees.

The plaintiffs’ petition seeks an injunction restraining the collection of taxes by said defendants upon 18,237 acres of land belonging to the plaintiffs in Hall county, Tex. The original petition was presented to the judge of the one hundredth district on January 28, 1930, at which time a temporary restraining order was granted. The case was tried on its merits before the court without a jury on September 25, 1930, and the court permanently enjoined thq defendants from collecting taxes on said land at a higher valuation than $5 per acre, a total tax of $969.18, which tax ■had been tendered into court by the plaintiffs.

Up to May 6, 1929, the lands of the plaintiffs were located in Weatherly consolidated common school district No. 19. On that day the county board of trustees of Hall county held a meeting and attempted to incorporate the territory comprising the common school district into the independent district, under the authority conferred by chapter 8⅛, Acts First Called Session, 40th Legislature (1927) see Vernon’s Ann. Civ. St. art. 2742b. An election for trustees in the said independent district was held on May 22, 1929, and the result of said election was declared on June 23, 1929. Thereafter the district attempted to function as an independent school district.

The lands of plaintiffs were rendered in Hall county for taxes for the year 1929 in the usual manner. The rendition sheet, when delivered to the tax assessor, did not have the valuation of the lands on it. The assessor himself placed-a valuation of $5 per acre on each tract in the district, and this valuation was approved by the commissioners’ court as a board of equalization on June 17, 1929, after equalizing the tax renditions for the year 1929, including a tax of $1 on the $100 valuation of all taxable property located in the Weatherly district. In making up the taxes for Hall county, the school tax for the Weath-erly district was not carried forward into the roll. The Weatherly district caused a tax assessor to be appointed, and it appears that he rendered the plaintiffs’ land for $12 per acre and that the board of equalization appointed by the school board of the Weatherly independent district lowered this rendition to $10 per acre, notwithstanding’ the fact that the commissioners’ court had placed a valuation of $o per acre on the land for 'both county and school purposes, levied the tax, and ordered the collector to place the same on the tax rolls for the year 1929 at that value. This order was made on July 2, 1929. When the tax became due and before February 1, 1930, the agent of plaintiffs tendered to J. H. Smith, who was the collector for both the county and the common school district, the amount of taxes due on the county valuation and the rate fixed by the1 commissioners’ court, which was the same rate fixed by the school board. This tender was refused. At this time J. H. Smith had in his possession what he termed a tax roll for the Weatherly independent school district. Smith testified that there was nothing with this tax roll to show that it had ever been approved by the board of trustees of any school district or by any board of equalization; that is, the roll under which he attempted to collect $1,820.50 from the plaintiffs. On February 24th, it appears that the tax assessor certified to the roll and the board of equalization approved same and later, on the 11th of April, 1930, the school board approved the roll; this was after taxes had become delinquent and the tender of taxes had been made.

On February 12, 1930, the law under which the defendant district attempted to incorporate was declared unconstitutional. Pyote Ind. School Dist. v. Dyer (Tex. Com. App.) 24 S.W.(2d) 37. The Forty-First Legislature (1929), by H. B. 216, chapter 50, Acts Reg. Session (Vernon’s Ann. Civ. St. art. 2742d), attempted to validate all districts created under the Acts of the Fortieth Legislature, but this act did not and could not validate the appellant district, as it was not then in existence.

By S. B. 19, chapter 5, Acts of the 5th Called Session of the 41st Legislature of Texas (1930),' page 117 (Vernon’s Ann. Civ. St. art. 2742j), the Legislature validated the district here in question, its organization, and acts of its officers, including the levying of taxes. It was held in the ease of Pyote Independent School District v. Dyer (Tex. Com. App.) 34 S.W.(2d) 578, that the act did validate all such districts and that the act so validating the districts related back to its inception. However, the questions raised by virtue of this validation, as discussed in that case, as to the collection of the taxes under the levy by the commissioners’ court of Hall county, and the attempted levy by the trustees of the independent school district, need not be discussed here, as the judgment of the trial court must be sustained upon another ground which renders such discussion unnecessary.

The trial judge concluded upon the facts found by him that the valuation placed upon the land by the assessor and board of equalization of the independent school district was a discrimination as against the plaintiffs. If this conclusion is supported by the evidence, the trial court’s judgment must .be affirmed, as that court also found the true valuation of the land for taxation purposes.

The record, in our view of the ease, shows fully a discrimination in the independent school district’s valuation, in this: The valuation placed on plaintiffs’ land by the independent school district board was $10 per acre and the land was taxed 100 per cent. It appears clear from the evidence before the trial court that the plaintiffs’ land was taxed upon such 100 per cent, valuation and that the lands of the witness who did testify as to the valuation of his land were taxed at much less than 50 per cent, of their value.

House, a member of the board of trustees-of the independent school district, testified 'that the major portion of his land was of the value of $50 pen acre and that one 'block was taxed at $8 per acre and other parts of his $50 land at $20 per acre, all of such taxable valuation being considerably less than 50 per cent, of its actual value.

The trial court placed the taxable valuation of plaintiffs’ land at $5 per acre and the board of trustees valued it for taxes at '$10 per acre; the $10 per acre, as stated, being the actual value of plaintiffs’ land. It will' therefore be seen that as between the valuation of plaintiffs’ land and that of House, a member of the board of trustees for the school district, there is such a wide divergence as on the face of the evidence shows a discrimination against the plaintiffs. .

The levying of a tax upon the plaintiffs’ land by which they are discriminated against is a taking of their property without due process of law. This amounts to legal fraud and justifies the issuance of an injunction against the collection of such illegal tax. Such a discrimination violates plaintiffs’ right to have the tax uniformly levied against their property, and equal with those of other tax payers.

Imposition of a tax upon citizens to meet a debt incurred in an illegal attempt to incorporate is, in effect, a taking of property without due process of law. Ewing v. Commissioners’ Court, 83 Tex. 663, 19 S. W. 2S0.

Where property of individuals in a county is assessed at two-thirds of its real value, deliberately, and the intangible assets of a railroad company at full value, such assessment is violative of Federal Constitutional Amendment 14, § 1, as denying to the railroad company the equal protection of the constitution and laws of the state. Lively v. Mo., etc., Ry. Co., 102 Tex. 545, 120 S. W. 852, 856.

Taxes are “equal and uniform” within the Constitution when no person or class of persons in the territory taxed, is taxed at a higher rate than others in the same district upon the same values or thing and when the objects of taxes are the same by whomsoever owned or whatever they be. Norris v. City of Waco, 57 Tex. 685; Adair v. Robinson, 6 Tex. Civ. App. 275, 25 S. W. 734, writ denied. “The standard of uniformity prescribed by the Constitution being the value of the property, taxation cannot be in the same proportion to the value of the property, unless the value of all property is ascertained by the same standard.” Lively v. Mo., etc., Ry. Co., supra. “The intention with which the acts were done is. of no consequence. Such deliberate action on the part of officers charged with the enforcement of the law must be held to be the act of the state, and the appellee was entitled to relief against the enforcement of the excessive assessment.” Id.

The rule laid down that taxes shall be equal and uniform applies to municipal as well as state taxes. City of Austin v. Austin Gas-Light, etc., Co., 69 Tex. 180, 187, 7 S. W. 200.

Being of the opinion that the evidence sustains the trial court’s judgment upon the ground of discrimination against the plaintiffs, we affirm the judgment of the trial court.

HALL, O. J., not sitting.