author: WALKER, J.

text:
    BROUN v. COLLIER.
    No. 2050.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 25, 1931.
    Rehearing Denied March 4, 1931.

      A. D. Lipscomb, of Beaumont, for appellant.
    Howell & Howell, of Beaumont, for appel-lee.
   WALKER, J.

On September 25, 1928, appellee was employed by appellant as sales director or manager of his brokerage department. The contract was evidenced by the following letter written by appellant to appellee;

“Beaumont, Texas. September 25th, 1928.
“Mr. Arthur J. Collier, City.
“Dear Sir ¡-Effective October 1st your salary or drawing account will be One Hundred and Fifty ($150.00) Dollars per month with this • additional provision, that in consideration of your services as Sales Director or Manager you are to receive a credit of 1% overriding commission on all sales made through the brokerage department of our business including any sales made by you and any month that the net amount of the commission computed on this basis exceeds the sum of One Hundred Fifty ($150.00) Dollars you are to receive this additional amount, and should the commissions not reach the amount of your salary or drawing account, in this event the $150.00 will be only charged as a salary.
“This agreement may be canceled by either you or ourselves on fifteen days written notice, and in ease you should leave our employ before December 31,1928, you would not participate in any bonus.
“Yours very truly,
“ECB/e E. Conway Broun Company
“O. K. By E. Conway Broun
“Arthur J. Collier.”

Appellee sued appellant upon this contract, alleging that the sales through his department amounted to $414,306. He attached to his petition an itemized statement of all sales claimed by him. He further pleaded all payments made to him by appellant and also that he was due appellant certain promissory notes which he listed as credits against his claim. The total of these credits amounted to $3,302.21. The prayer was for the balance due in the sum of $840.85.

By his answer appellant raised the issues that appellee was not entitled to commission on the following character of sales: (a) Repairs and construction work; (b) appellant’s own property; (c) sales made by appellant personally; (d) substitute sales, that is, sales where one purchaser surrendered a sale contract to another purchaser; (e) exchange of appellant’s property for other property; (f) sales that were not fully consummated, through no fault of appellant; (g) sales made by other parties without intervention of appellant’s brokerage department. He also pleaded that appellee waived his commission on certain sales. Appellant also pleaded by way of cross-action the notes listed by appel-lee, and prayed for judgment thereon with attorney’s fees. Appellee did not specially answer the cross-action.

The trial was to the court without a jury, with judgment for appellee for the amounts sued for. Conclusions of law and fact were filed fully supporting the judgment.

Opinion.

It. was an issue of fact as to what sales and what character of sales were “made through the brokerage department.” Under the evidence offered by appellee, every sale listed by him was made through the brokerage department and finally consummated. There was nothing in the contract saying that ap-pellee should not have commissions on sales for repairs and construction work. His testimony was that the materials for repairs and construction work were sold through his department. His testimony was further to the effect that appellant’s own property was listed with and sold through the brokerage department; that the sales claimed by appellant personally' were listed with the brokerage department; that the substitute sales, that is, where one purchaser was substituted for another, were handled through the brokerage department; that exchanges of property were handled through the brokerage department; that he had listed no sale in his account against appellant that was not fully consummated. This testimony fully supported the conclusions of fact in favor of appellee.

The court did not err in refusing attorney’s fees on the notes sued on by appellant’s cross-action. Before these notes were placed in the hands of an attorney, appellee’s debt against appellant had accrued and he had tendered appellant a settlement by allowing him credit on his account against these notes, and in his suit against appellee had allowed appellant full credit therefor.

The issues in this case were merely fact issues, and appellant is bound by the decision of the trial court thereon.

Affirmed.


source: Caselaw Access Project

author: WABKER, J.

license: Public Domain

text:
    SWINDELL et al. v. STEPHENS et al.
    No. 2039.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 29, 1931.
    Rehearing Denied Feb. 25, 1931.
    David E. O’Fiel, of Beaumont, and Jas. F. Parker, of Kountze, for appellants.
    Smith, Crawford & ■ Combs, of Beaumont, for appellees.
   WABKER, J.

For convenience the parties to this appeal will be designated appellants and appellees.

In January, 1925, appellants, Mrs. Mary V. Swindell, surviving wife of L. L. Sherman, deceased, joined by her husband, C. C. Swin-dell, Mollie Wiggins, joined by her husband. J. O. Wiggins, Myrtle Trail, joined by her husband, J. J. Trail, and Atly Sherman, joined by his wife, Florence Sherman, executed to appellees, A. D. Wilkins and R. R. Stephens, .a mineral lease upon the following described tract of land:

“Being twenty-five (25) acres off of a Ninety (90) acre tract of land out of the Thomas D. Yoacum Survey in said Jefferson County, Texas, conveyed by A. D. Lipscomb to L. L. Sherman on the 1st day of December, 1923, by deed duly recorded in Volume 140 on Page 306 of the Deed Records to which Deed and the records thereof reference is hereby made for a more particular description thereof.
“The Twenty-five acres herein leased is to run from the East to the West line of said Survey and is to lie immediately north and adjacent to a Twenty-five (25) acre tract off of said survey leased by 'the Lessors herein to W. J. Pendergrass.”

The'following are the recitations in the lease detailing the consideration therefor:

“That the said, lessors for and in consideration of the sum of $259.00 to them cash in hand paid, receipt of which is herein confessed, and the sum of Twenty-five Hundred ¡($2,500.00) Dollars to - paid six (6) months from .this date, or sooner, if the lessees herein shall go upon and enter said land for the purpose of drilling for oil, gas or other minerals thereon, and of the covenants and agreements hereinafter contained on the part of the lessees, to be paid, kept and performed, h.ave granted, demised, leased and let and by these presents do grant; lease and let unto the said lessees for the sole and only purpose of mining and operating for oil and gas, etc. ■* * * If no well be commenced on the said land on or before six (6) months .from the final execution of this lease, or if said Twenty Five Hundred ($2,500.00) Dollars is not paid as’ hereinbefore provided, this lease shall terminate as to both parties and become null and void without any action in the courts thereon.”

Three minor children of Mrs. Swindell by her marriage to L. L. Sherman are not named in the lease and did not join in its execution. This suit was brought by Mrs. Swindell and the other appellants against appellees to recover the $2,500 named in the lease on the theory that the promise to pay this sum was absolute; and not having been paid, appellees were liable on the stipulations of the lease for that sum. Appellees denied liability on the following allegations: First, general denial; second, on the express language of the lease they were not liable unless they entered upen the lease for the purpose of developing the land for oil, which they did not do; third, if mistaken in the construction of the express language of the lease, then they plead it was ambiguous and that the real contract of the parties was that the $2,500 was not to be paid unless appel-lees entered upon the land for the purpose of developing it and that a mistake was made in writing the lease; fourth, appellants represented that they owned the ninety acres by specific metes and bounds, when in fact they 'owned only an undivided interest of ninety acres in a larger tract; fifth, appellants represented that no other persons were interested in the title of the land, which representation was false in that three minor children of Mrs. Swindell also had an interest in the land. On ithese allegations they prayed 'that appellants recover nothing against them and that they recover against appellants the $250 which in fact was paid when the lease was executed and delivered. Answering these allegations, appellants pleaded general denial, .that appellees knew the facts both as to the existence of the minor children and as to the title to the land when they accepted the lease, and if they did not know the existence of the minor children^ when the lease was executed, they afterwards acquired this information and with this information elected to hold the lease. They further pleaded that the land leased was the community property of Mrs. Swindell and her deceased husband, L. L. Sherman; that the community owed debts, and as survivor Mrs. Swindell had the right to make the lease' in question.

The additional facts are: (a) The ninety-acre tract referred to in the lease was only an undivided interest in a larger tract, which fact was not known to appellees when they accepted the lease; ' (b) whether or not ap-pellees knew of the existence of the minor children when the lease was executed was a disputed fact; (c) the community estate of Mrs. Swindell and her deceased husband, L. L. Sherman, owed debts on the date of the execution of the lease to the amount of about $1,700, which Mrs. Swindell swore she intended to pay from the $2,500 consideration named in the lease; (d) some time after the execution of the lease, but before the expiration of the six months’ period named therein, appellees were informed of the existence of the minor children; upon receiving this information they demanded of Sirs. Swindell that she perfect their title by granting them the interest of the minors which she promised to do but did not do; the issue was raised that appellees relied upon this promise of Mrs. Swindell and continued holding the lease until the expiration of the six months’ period, believing that she would perfect their title; (e) on the expiration of the time limit named in the lease, the title thereto not having been perfected, appellees executed a release back to appellants against any claim on their part to the land in controversy.

At the time this release back to appellants was executed by appellees, the lease was worthless. • On the theory that the lease was ambiguous, the trial court permitted appellants to offer evidence as to the intent of ■the parties in executing the same. On this issue appellee-A. D. Wilkins testified:

“I did not make them an unconditional promise or agreement to pay them $2500.00 or $100.00 an acre unconditionally. I could have leased it for $25.00 cash. That is the way they were leasing to Pendergrass. That is the same way they were leasing to him. But I told them I would give them $10.00 an acre cash, and then, if they got any oil in the well, any showing, and I went on it with a drilling rig and drilled it, I would pay them an additional $2500.00, or an additional $100.00 per acre; but if I did not go on it I would not pay them anything, and was to return it to them in six months. X told them to have it drawn up in the lease, and they went to Beaumont and had some lawyer fix it. When they brought it back to me, in accepting the lease I thought it embodied the-terms I had agreed upon.”

The following issues were submitted to the jury, answered as indicated:

“Special Issue No. 1. Was it the understanding and agreement between the plaintiff Mary B. Swindell and the defendants, R. R. Stephens and A. D. Wilkins, at the time of the execution and delivery of the oil, gas and mineral lease in evidence, dated January 31, 1925, that the payment of the $2,-500.00 therein mentioned was to be made by the said Stephens and Wilkins six months from said date or sooner if said lessees should go upon the land for the purpose' of drilling for oil, gas or other minerals and only to be paid in such event?” Answer: “Yes.”
“Special Issue No. 2.' Did plaintiff Mary V. Swindell at the time of the execution and delivery of the lease in evidence to the defendants and prior thereto represent to the defendants that the persons who signed said lease were the only persons who had an interest in the land covered by said lease?” Answer: “Yes.”
“Special Issue No. 3. If in answer to the foregoing question you have answered ‘yes,’ then you will answer the following question: Did the defendant A. D. Wilkins rely upon such representations and accept said lease as tendered to him, believing in good faith that all persons having an interest in the land covered in said lease had signed the same?” Answer: “Yes.”
“Special Issue No. 4. Did the defendants, A. D. Wilkins and R. R. Stephens, after learning that all parties owning an interest in the land covered by the lease in evidence Rad not signed or executed such lease, elect to retain such rights as were conveyed under 'the leasé as actually executed?” Answer.: “No.”

On the theory that the promise to pay the |2,500 was absolute and unambiguous, and that, on the undisputed evidence, appel-lees knew of the existence of the minor children at the time of the execution of the lease, or, in any event, after acquiring that information elected to hold the lease, and that there was no misrepresentation as to the character of the title to the leased premises and that there was no evidence raising any of the issues submitted to the jury, appellants assert the proposition that, as a matter of law, they were entitled to an instructed verdict. There is no assignment that the findings of the jury were against the great weight and preponderance of the evidence. Appellants simply assert that there was no evidence to take the issues to the jury.

Opinion.

Giving effect to all the language of the lease, we believe it is unambiguous and by its express terms appellees were not liable on the promise to pay the $2,500 unless they entered upon the land “for the purpose of drilling for oil, gas or other minerals.” We do not see what other construction could be given that portion of the lease which stipulated “if no well be commenced on the said land on or before six months from the final execution of this lease, or if said $2,500.00 is not paid as hereinbefore provided, this lease shall terminate as to both parties and become null and void without any action in the courts thereon.” The failure to pay the $2,500 under this express language terminated the lease and rendered it absolutely void. If the lease was void, then ap-pellees had no interest in the leased premises and appellants had no obligation against appellees to recover the $2,500; for if there was a liability on the part of appellees to pay the $2,500, then the lease was not void. The only language of the lease that could render this construction doubtful are the words “or sooner” just before the language of the lease “if the lessees herein shall go upon and enter said, land for the purpose of drilling,” etc. Appellants contend that by this language the $2,500 was to be paid at the end of six months or it was to be paid sooner if appellees entered upon the land before the expiration of the six months. With this explanation of the language, they give no meaning whatever to the further clause providing for the cancellation of the lease if the $2,500 was -not paid or if no well was commenced within six months. Further, they do not undertake to say at what time the $2,500 would have become due had appel-lees entered upon the land within the six months’ time for the purpose of dpilling it for oil.

If the construction we have given the lease is not correct, then it must be said that the language of the lease is ambiguous and that the court properly received evidence as to its meaning. Under the testimony of Mr. Wilkins copied above, the issue was raised that appellees were not to pay the $2,500 unless they entered upon the land for the purpose of drilling it for oil, etc. This testimony fully supports the jury’s-answer to question No. 1.

From what has been said it follows that the judgment of the trial court must be affirmed, and it is accordingly so ordered.


author: PELPHRET, C. J.

text:
    TEXAS INDEMNITY INS. CO. v. BEAL.
    No. 2485.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 22, 1931.
    Rehearing Denied Feb. 12, 1931.
    Walter Barnes and Don Emery, both of Amarillo, and T. L. Dyer, of Breekenridge, for appellant.
    Thomas & Shapard, of Anson, and Ferrell & Yates, of Roby, for appellee.
   PELPHRET, C. J.

Appellee, Fred Beal, on January 29, 1929, while in the employ of the Phillips Petroleum Company, suffered an injury by having a truck belonging to said Phillips Petroleum Company turn over on him. The Phillips Petroleum Company was the holder of a policy of insurance with appellant, providing for the payment of compensation to injured employees of said Phillips Petroleum Company under the terms and provisions of the Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended). Appellee, in his petition, alleged that, in accordance with the terms and provisions of the Compensation Act, he gave due notice of his injury to the Industrial Accident Board, the Phillips Petroleum Company, and to appellant; that on August 30, 1930, the Industrial Accident Board made its award on his claim; that within twenty days from the date of the award he gave due notice to the Industrial Accident Board and to appellant of his unwillingness to abide by the award, and of his intention to file suit in the district court of Jones county, Tex., to 'have said award set aside; that within the twenty days he did file his suit; that at the time of his injury he was receiving as compensation for his services the sum of $126 per calender month, and was being furnished without charge by the Phillips Petroleum Company water and gas for domestic use of the reasonable value of $4.50 per month; that he suffered total and permanent disability by reason ■ of such injury; and that facts existed which entitled him to a lump sum settlement.

He prayed that the award be set aside and for judgment for compensation for 401 weeks at the rate of $18.06 per week, in a lump sum, less a reasonable discount.

Appellant answered by general and special exceptions, general denial, and specially pleaded that the disability, if total, was only temporary, denied that the injury alleged was the proximate cause of appellee’s disability, but that said disability, which appellant denied to exist, was caused by diseases extraneous to the operation and attendant results of the injury.

The jury, in response to special issues, found that appellee was permanently and totally disabled by the injury; that it would be a manifest hardship on appellee for the compensation to be paid in weekly installments; that the disability was not caused by pneumonia, but that the pneumonia result-ted from the injury; and that the disability was not caused by any disease suffered by appellee prior to the date of the injury.

Upon the above findings, the court rendered judgment in favor of appellee for $6,878.71, less a discount of $1,519.32, leaving $5,359.39. From such judgment this appeal has been perfected.

Opinion.

Appellant presents nine propositions upon which it asks for reversal, but, in view of the fact that we think the judgment must be reversed because of the court’s action on appellant’s general demurrer, we will later discuss such of them as we deem necessary in view of another trial.

Appellee’s petition contains the following allegations of jurisdictional facts:

“That in accordance with the terms and provisions of the said Texas Workmen’s Compensation Act, as amended, that plaintiff gave due notice to both the Industrial Accident Board and to the said Texas Indemnity Insurance Company, and to said Phillips Petroleum Company, of said injury, and that said Phillips Petroleum Company, and said defendant, Texas Indemnity Insurance Company, had actual notice of said injury within thirty days from the date thereof, and that within six months thereof the plaintiff herein made due claim before the Industrial Accident Board of the State of Texas, and to the said defendant, for compensation under the terms of said Workmen’s Compensation Act, as amended, and the said defendant has heretofore acknowledged liability by paying this plaintiff several sums appropriating sixty per cent of his average weekly wage for a period of several weeks.
“7. That heretofore, to-wit, on or about August 30th, 1929, the Industrial Accident Board made its. final ruling and decision in said cause, a copy of which said ruling and award is filed with the papers, of this cause for jurisdictional purposes, and which said ruling and award reads substantially as follows, to-wit:”

Without quoting the award, it recites that the board considered appellee’s claim for compensation; that he suffered total incapacity for the total period of 26 weeks and was entitled to recover from appellant compensation at the rate of $14.37 per week for 26 weeks, or' $373.62.

Appellee further alleged: “8. That within less than twenty days from the date of making said ruling and decision by the said Industrial Accident Board, the said plaintiff herein, gave due notice to the said Industrial Accident Board and to the Texas Indemnity Insurance Company, defendant herein, that he would not abide by the said ruling and decision and would within twenty days from the date of said notice file a suit in the District Court of Jones County, Texas, to set said ruling, award, and decision^ aside; and that within twenty dáys from the date of said notice plaintiff did file a suit in said court for said purpose, being the cause hereby presented and filed.”

A reading of the above-quoted pleadings will reveal that nowhere did appellee allege the amount of his claim before the Accident Board, and appellant now contends that Ms petition was subject to general demurrer for that omission. The Supreme Court, in the case of Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1089, in discussing the question of the jurisdiction of the courts to entertain appeals from awards made by the Industrial Accident Board, used this language: “A proceeding of this type is a special one brought under statutory power to enforce a statutory cause of action in derogation of the common law, and there can he no presumption .of jurisdiction. Jurisdictional allegations are an integral and necessary part of the case, without the statement of which there is no cause of action.”

In Travelers’ Ins. Co. v. Peters et al., 14 S.W.(2d) 1007, Section B of the Commission of Appeals held that it was necessary to describe the award appealed fi’om in order that the court could determine whether it had jurisdiction of the subject-matter under the claim as made before the board, and reversed the judgment of the trial court for overruling the general demurrer filed by appellant.

The ¡holding of the Commission on the question was expressly approved by the Supreme Court. On rehearing [17 S.W.(2d) 457] the Commission receded from their original opinion, but did so in view of the peculiar facts of the case.

In their opinion on rehearing, the Commission had this to say: “We conclude that we Were in error in holding that the general demurrer to defendant in error’s petition should have been sustained. Our holding was based upon the proposition that the petition did not contain sufficient allegations- to show that their claim presented to the Industrial Accident Board involved an amount within the jurisdiction of the district court. * ⅜ * As this was an action for injuries resulting in death, the statute fixed the specific compensation to be recovered therefor. The allegation that the claim made to th'e board was in accordance with law is in effect an averment that it was made for the amount provided by the statute in such cases.”

The principle laid down in the original opinion would seem to apply to the case at bar, and we must sustain the assignment.

Objection was also made to the manner in which the special issues were submitted; appellant contending that the charge on the burden of proof called the jury’s attention to the effect their answers would have on the judgment to be rendered.

There seems to be considerable confusion among the courts as to .just when a charge upon the burden of proof in a special issue case will constitute reversible error. From a reading of the authorities, we have reached the conclusion that it would be a better practice for the court to .require the jury to answer th'e issues as they find the preponderance of the evidence to be and to refrain from giving any charge as to which party had the burden of proof.

The statute (Rev. 8t. 1925, art. 8307, § 8) providing that in case of vacancy th'e remaining member or members could exercise all the powers of the board, we think the court was entitled to presume that the member who certified to the proceedings before the 'board was acting lawfully, and, in the absence of any showing to the contrary, that th'e contingency had arisen wMch entitled him to act alone. If this be true then the instruments objected to were admissible.

The matters covered by the sixth, seventh, and ninth propositions will probably not arise on another trial, and we shall not discuss them here.

We are also of the opinion that the method used by the trial court in computing the compensation to be allowed appellee was the proper one under the facts here. Howard et al. v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 292 S. W. 529.

For the reason above stated, the judgment will be reversed, and the cause remanded.


author: PELPHREY, O. J.

text:
    SHELL PIPE LINE CORPORATION v. COSTON.
    No. 2491.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1931.

      Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., and R. H. Whilden, of Dallas, for appellant.
    Eeall, Beall & Beall, of Sweetwater, for ap-pellee.
   PELPHREY, O. J.

The Shell Pipe Line Corporation has appealed from judgment rendered against it for damages in favor of R. M. Coston, which Coston claimed arose from the construction of a pipe line and telephone line across his land under an easement.

The written instrument granting the easement conferred upon the pipe line company a “right of way from time to time to lay, construct, reconstruct, replace, renew, maintain, repair, change the size of and remove pipes and pipe lines for the transportation of oil, petroleum, or any of its products, gas, water and other substances, or any thereof, and to erect, maintain, operate and remove upon a single line of poles with necessary anchorage and appurtenances, telephone and telegraph line, or either of them, over, through, upon, under and across our land situated in the County of Scurry, State of Texas, said tract being described as follows, to-wit: (Here follows description of land.)

“Together with rights of ingress and egress to-and from said line or lines or any of them, for the purpose aforesaid.”

'It specially reserved to Coston the right to use and fully enjoy the premises, except as to the rights granted, and contained the following provisions as to damages: .“And the grantee hereby agrees to pay any damages which may arise to Crops, timber; fences, or. building of said Grantor’s from the exercise of the rights herein granted.”

The items of damage alleged by' appellee were: (1) The placing by appellant of one pole in the small field west of the railroad in violation.of its agreement not to do so; (2) that one guy wire on one of appellant’s poles was so ill constructed and unnecessarily placed as to render useless one-fourth of an acre of land; (3) that appellee’s land was packed and hardened by the unnecessary passing over'it of appellant’s teams, wagons, and trucks, thereby injuring the land; (4) that the soil of his farm was packed and hardened by reason of appellant cutting a ditch across a highway in the vicinity of his land, tearing down ahd making openings through his fences, thereby diverting the travel along said highway across his land; and (5) by reason of having his land poisoned with Johnson grass seed deposited thereon from the excrement from' appellant’s teams which it camped on his land at noons.

Appellee, in his brief, appears to take the position, as apparently did the trial court, that appellant was liable under the above contract for any .damages which might arise.

We think this position is untenable. Appellant in the contract agreed to be liable for damages to crops, timber, fences, and buildings and by so specifying denied its liability for other damage.

This being true, then appellee’s right to recover the damages alleged would depend upon whether. appellant had used ordinary care in the manner in which it constructed the lines. Texas Pipe Line Co. v. Higgs (Tex. Civ. App.) 248 S. W. 633, 637 (writ refused); Gulf Pipe Line Co. v. Watson et ux. (Tex. Civ. App.) 8 S.W.(2d) 957.

As said in the case of Texas Pipe Line Co. v. Higgs, supra: “The compensation received by the plaintiff for that right of way included compensation for such damages to his land and would • necessarily result from the construction of the pipe line with ordinary care.”

In the present case appellant would not have been liable to appellee for any damage which would necessarily have resulted from the construction of the lines in a proper man-’ ner, except for the agreement to pay for damages to’crops, timber, fences, and buildings. By such agreement it became liable for damages to them whether the damages necessarily resulted from the construction of the lines in a proper manner or not, but damages, other than those specified, could only be recovered by a showing that they did not arise necessarily from the construction of the lines in a proper manner.

The issue submitted by the court as to the damages 'to appellee’s land did not limit the damages which might be found to those which were caused by the unreasonable or unnecessary acts of appellant, and their submission was therefore error.

The overruling of appellant’s special exceptions to appellee’s supplemental petition, in view of the jury’s finding that appellee and his wife did not execute the receipt or release, if error, was harmless, appellant not having-shown itself prejudiced thereby. 3 Tex. .Tur. p. 1255.

Appellee introduced,” over the objection oí appellant, testimony of several witnesses to- the effect that the reputation of appellee and his wife for truth and veracity, in the community in which they lived, was good.

Under the facts here we.think the testimony was erroneously admitted. No effort was made to impeach appellee and his wife, and therefore testimony as to their reputation for truth and veracity was inadmissible. A mere contradiction between witnesses does not authorize the introduction of such evidence. Texas & P. Ry. Co. v. Raney, 86 Tex. 363, 25 S. W. 11; Jones-O’Neal Furniture Co. v. Jones (Tex. Civ. App.) 269 S. W. 180; Louisville & N. R. Co. v. Bryant (Tex. Civ. App.) 252 S. W. 322.

In view of the fact that handwriting may be proved by comparison with that of other papers in the case, we think the use of a microscope by an expert, in explaining the reasons for his opinion, should be permitted.

The evidence as to what was said about placing a pole in the small field west of the railroad,' there being nothing in the written contract relative thereto, was improperly admitted. This was in violation of the parol evidence rule.

The evidence showing that there were three guy wires on one pole, the submission of special issue No. 5 as to the amount appel-lee was damaged by the placing of guy wires and supports on said poles should not have been submitted.

The trial court submitted the following two issues as to the damages sustained by appellee from having his land infested with Johnson gr'ass:

“Special Issue No. 9: Do you find from a preponderance of the evidence that during the process of the construction of said pipe line and telephone line through the premises of the plaintiff R. M. Coston, the servants and employees of the defendant camped upon the land of the plaintiff and fed Johnson grass to the defendant’s team or teams in its employ, causing said Johnson grass to be propagated and grown upon said premises?
“Special Issue No. 10: Do you find from a preponderance of the evidence that the feeding of Johnson grass to the teams of the defendant or in its employ during the time of the construction of said pipe line and telephone line through the premises of the plaintiff R. M. Coston, as alleged, was the proximate cause of the propagation and growing of Johnson grass upon the premises of the said R. M. Coston?”

Appellant contends that these issues should not have been submitted, because there is no positive evidence that appellant’s servants fed Johnson grass to its team or teams.

Appellee testified that appellant had fourteen head of stock, and that around where the stock were fed Johnson grass sprang the next spring after the pipe line was constructed; that Johnson grass sprang up pretty well all along wherever they went; that it came up all around where they camped along each side of the pipe line where the teams were; that he had no Johnson grass before, and that there was none in that vicinity that would have spread the seed wliere he found the grass.

These circumstances, we think, were sufficient to justify the submission of the issues.

Upon another trial, if special issues are submitted, questions should be submitted separately.

Under appellant’s general denial and the evidence that Johnson grass was growing along the railroad right of way and county highway near appellee’s place, the requested issue as to what part of the Johnson grass on appellee’s premises was caused therefrom should have been submitted.

Tlie definition of proximate cause as given by tbe trial court was insufficient, St. Louis, S. F. & T. R. Oo. v. Mullins (Tex. Oiv. App.) 23 S.W.(2d) 489, and eases cited, and tbe court should have charged the jury on the measure of damages.

Por the reasons above stated the judgment must be reversed and the cause remanded.


author: JACKSON, J.

text:
    TRADERS’ SECURITY CO. v. GAYLOR.
    No. 3550.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 11, 1931.
    Slough, Gibson & Slough, of Amarillo, for appellant.
    Hoover, Hoover & Cussen, of Canadian, for appellee.
   JACKSON, J.

The appellant, Traders’ Security Company, instituted this suit in justice court, precinct No. 1, Hemphill county, Tex., against the ap-pellee, A. C. Gaylor, to recover on trade acceptances aggregating the sum of $178.80.

On April 24, 1929, there was a trial of the case in justice court, which resulted in a judgment that appellant take nothing by his suit and that appellee go hence without day with his costs. The appellant excepted to this judgment obtained in the justice court and gave notice of appeal to the county court, and the justice of the peace prepared a purported transcript which was forwarded to the county court and filed with the clerk of said county court on May 11, 1929.

The case was continued on the docket of the county court by agreement of the attorneys representing the appellant and appellee, until the September term of said court, 1930, at which term the appellee made a mo.tion to dismiss appellant’s appeal from the justice court to the county court, because the transcript filed May 11th was defective and the appellant had negligently failed to perform its duty in seeing that a proper transcript was filed in the county court and negligently failed to prosecute his appeal as required by law.

At the same term of court, the appellant, by a proper motion, sought to file a transcript of the proceedings of the justice court, which transcript was attached to and made a part of its motion.

The court denied appellant’s motion, sustained appellee’s motion, and entered judgment dismissing the appeal for the reason that the appellant had negligently failed to have filed in the county court a proper transcript and prosecute its appeal from justice court as and within the time required by the statute, from which action of the court this appeal is prosecuted.

The record discloses that the county court of Hemphill county convenes on the first Mondays in March, Júne, September, and December of each year. That at each term of the county court, after the defective transcript was filed, the case was continued on the docket of the county court by agreement of the attorneys, and that at the September term, 1929, and the March and June terms, 1930, the case was continued at the request of appellee’s lawyers. That appellant’s attorneys did not discover the defective condition of, the transcript until the motion filed by the appellee to dismiss the appeal from justice court. The letters written to appellant’s attorneys by appellee’s attorneys indicate that appellant’s attorneys reside in Amarillo, Potter county, Tex., and appellee’s attorneys reside in Canadian, Hemphill county, Tex.

In Leshikar v. First National Bank of Smithville, 15 S.W.(2d) 1113, the Court of Civil Appeals at Austin, in passing upon a question presenting similar conditions to those urged here by appellant, says it is contended:

“That the trial court erred in sustaining appellee’s motion to require the justice of the peace to file' a corrected transcript on appeal to the county court more than one year after the appeal was perfected, but should' have dismissed the appeal on appellant’s motion for want of prosecution.
“The record shows that the transcript-and papers were filed within the proper time on appeal to the county court, after which the case was continued by agreement of the parties and ‘without prejudice’ for the next succeeding four terms of the county court. Ap-pellee then discovered for the first time that the transcript was defective in several particulars, and moved to have the justice of the peace correct same. Appellant then filed his motion to dismiss the appeal for want of prosecution, which.was overruled.
"Appellant, háving agreed to four continuances of the case after the appeal was perfected, must be held to have waived the defective manner of the appeal” — citing authorities.

In our opinion, the court should have permitted the appellant to have filed its amended transcript from the justice court to the county court. Merrill et al. v. Dickerson et ux. (Tex. Civ. App.) 300 S. W. 188.

The judgment is reversed and the cause remanded, with instructions to permit the appellant to file its amended transcript from the justice court in the county court and proceed with the trial of the case on its merits.


author: HIGGINS, J.

text:
    AMERICAN NAT. INS. CO. v. VAL VERDE.
    No. 2492.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1931.
    Isaacks & Lattner, of El Paso, for appellant.
    • Fryer & Cunningham, of El Paso, for ap-pellee.
   HIGGINS, J.

Plaintiff in error issued a policy of insurance upon the life of Maria J. Val Verde, dated July 23, 1928. The assured died September 4, 1928. This is a suit by appellee, the beneficiary named in the policy. All issues submitted were found in favor of defendant in error, and judgment rendered for the amount of the policy, with penalty and attorney’s fees.

This writ of error is presented upon two propositions as follows:

First. “Appellee could not recover in any event in view of the recitations in the contract — both in the application and in the policy — that the policy should not become effective unless insured was in sound health on the date of the policy (June 23rd), and in view of the fact that insured died' of tuberculosis within 43 days (Sept. 4th) from the date of the policy, and in view of the fact that the proof of death furnished by appel-lee to appellant showed by the affidavit of insured’s attending physician that insured had been afflicted with tuberculosis over a period of 3 months and 2 days, or at least a period of approximately fifty (50)-days before the date of the policy.”
Second. “In no event could appellee recover statutory penalty and attorney’s fees in view of the proof of death furnished appellant by appellee, which proof of death showed by the affidavit of insured’s attending physician that insured had been afflicted with tuberculosis a long time prior to the date of the policy, and on said proof of death appellant was justified in refusing payment, and could not b'e penalized for such failure, even though it might afterwards have been shown that the • statement of the attending physician was untrue.”

The jury found that assured was in sound health on July 23, 1928, and the evidence supports the finding. It would serve no purpose to quote or discuss the same at length. The only evidence to show she died of tuberculosis is the doctor’s certificate which accompanied the proof of death, and that, of course, is not conclusive. The doctor was present at the trial, but was not called to testify, and the testimony-of various witnesses amply supports .the view that assured was in good health until very shortly before her death, and died after an illness of just a few days.

Nor is there any merit in the second proposition. As stated, the physician’s certificate as to death from tuberculosis and that assured had been afflicted with the disease for about fifty days was by no means conclusive

When demand was made for payment, plaintiff in error was put upon notice that the validity of the policy was asserted by defendant in error, and under the statute (article 4736, R. S.) plaintiff in error became liable for. attorney’s fees and penalty if it failed to pay within thirty days after such demand. To sustain the second proposition would be to ingraft upon the statute an exception which the Legislature did not 'see fit to make.

A case might arise where the beneficiary would be estopped to claim the penalty and attorney’s fees, but such an estoppel does not arise simply because the certificate of a physician accompanying the proof of death is incorrect. Plaintiff, in error had ample time to inquire and ascertain the true cause of death and that the certificate was erroneous. The demand for payment placed plaintiff in error upon such inquiry. It apparently made none.

In argument it is urged the pleadings of defendant in error are insufficient to support recovery of the penalty and attorney’s fees. This presents a question of fundamental error and entitled to consideration, though not assigned as error.

It was alleged: “On or about the 27th day of' October, A. D. 1928, plaintiff gave to defendant due notice and proof of death of said Maria J. Yal Verde, as aforesaid, and duly de.manded from defendant payment of the said sum of Five Hundred Dollars, ($500.00) the amount of said policy; but defendant has failed and refused and still fails and refuses to pay the same or any part thereof.” The petition was filed December 4, 1928. The file mark upon the petition speaks for itself. Liberty Life Ins. Co. v. Moore (Tex. Civ. App.) 10 S.W. (2d) 178; National, etc., v. Taree (Tex. Civ. App.) 8 S.W.(2d) 291.

The file mark and allegations quoted show failure to pay within thirty days after demand. The pleadings are sufficient to support recovery of the penalty and attorney’s fees. First, etc., v. Long (Tex. Civ. App.) 28 S.W.(2d) 220. Great Southern, etc., v. Johnson (Tex. Civ. App.) 13 S.W. (2d) 424, and Id. (Tex. Com. App.) 25 S.W.(2d). 1093. Also see the Moore and Taree Oases cited above.

Affirmed.


author: SMITH, J.

text:
    TUTTLE et al. v. WOOD et al.
    No. 8485.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 5, 1930.
    Rehearing Denied Feb. 25, 1931.

      J. D. Todd, of Corpus Christi, for appellants.
    Robert Lee Bobbitt and Jack Blalock, both of Austin, for appellees.
   SMITH, J.

This action brings into question the validity of statutes regulating, and in certain cases prohibiting, the exploitation of fish and shrimp in certain waters along the coast of Aransas, San Patricio and Nueces counties, for commercial purposes. We regret that, although the questions raised are quite important, appellees have filed no brief in the case. The legislative acts assailed are chapter 118, Acts Reg. Sess. 41st Leg. (1929) p. 265 (Vernon’s Ann. P. O. art. 978f); chapter 119, Id., p. 269 (Vernon’s Ann. P. O. art. 941); chapter 75, 2d Called Sess., 41st Leg. (1929) p. 150 (Vernon’s Ann. P. O. art. 952Z— 3). The acts will be hereinafter referred to by their chapter numbers. The case went off! on general demurrer which the trial court sustained against appellants’ amended petition, the averments of which must be taken as true in so far as they state specific facts.

It was alleged in the stricken pleading that the petitioners, appellants herein, are citizens of this state, as distinguished from aliens, engaged in catching and marketing fish and shrimp from the waters off the coast of Aransas, San Patricio and Nueces counties ; that for these purposes appellants “have fully and satisfactorily complied with all the laws and statutory requirements regulating the use of seines and nets and that their seines and nets and other equipment have been duly inspected and approved by the proper officers and found to conform in all particulars thereto, and that plaintiffs are now lawfully engaged in fishing and shrimping with seines, nets and other equipment aforesaid in the waters hereinafter specifically named and described, as market fishermen and dealers therein.”

It was alleged that the officials of the State Game, Pish and Oyster Commission, and the law enforcing officers of the named counties, are attempting and threatening to enforce said acts against appellants, and that such enforcement will have the effect of destroying appellants’ said business and will render valueless the supplies, equipment, boats, and buildings which appellants have accumulated in the lawful establishment and prosecution of their business, of the value of $500,000.

By the provisions'of chapter 118, the office of Game, Pish and Oyster Commissioner was abolished, and the powers and functions of such office were merged into the Game, Pish and Oyster Commission, thereby created. Those powers and functions are prescribed in that act, in great detail.

Chapter 119 is a penal statute, which provides that it shall be unlawful for any person, under the penalty therein prescribed, to use any seine or similar device for catching fish and shrimp, or to have such devices in his possession, without a permit issued by said commission, within certain waters along said coast line. The act contains certain exceptions not necessary to set out here, fixes certain penalties for violation of said provisions, anduxurcTudes with this'provision: “That the Game, Pish and Oyster Commissioner of Texas or his deputy shall have the power and right to seize and hold nets, seines or other tackle in his possession as evidence until after the trial of defendant and no suit shall be maintained against, him therefor.”

The later act, chapter 75, containing provisions, prohibitions, and penalties similar to those in chapter 119, was made to apply to certain other waters not necessary to describe herein.

It is contended by appellants that neither the Game, Pish and Oyster Commission, nor its executive secretary, has been given any authority to enforce the game, fish, and oyster laws; that previously that authority was lodged in the Game, Pish and Oyster Commissioner, but that since the latter office was abolished by express provisions of chapter 118, no official has the power to enforce the provisions of said acts. It is true that the single office was abolished as contended, but it was further expressly provided in the abolishing act that the powers, duties, and functions theretofore exercised by the commissioner should thenceforth he exercised by the commission, acting directly or through its executive secretary therein provided for. Appellants’ contention is therefore without merit.

It is next contended, in effect, that because hppellants were pursuing their business in accordance with prior laws, and under licenses issued to them by the proper state authorities under those laws, the Legislature had no power to impose additional or more stringent regulations and prohibitions, whereby appellants’ rights under prior laws were further restricted. It must be conceded that the state has the inherent power, to be exercised through the Legislature, to regulate the taking of fish and shrimp from its public waters, and to prohibit from time to time such taking, in order to conserve those natural resources for the ultimate benefit of all the people. So long as that power is reasonably exercised by the legislative authority, no other branch of the government may interfere therewith. Ordinarily, the necessity or reasonableness of regulation or prohibition in specific cases, for the time being, are left to the discretion of the Legislature, whose determination thereof, in the exercise of a sound discretion, is conclusive upon the courts. The power to originate such legislation carries with it the further power to change existing laws, including . regulation and prohibition, to meet changing conditions, and this power is not lost simply because those affected have been licensed to operate under and by virtue of the conditions of prior laws. They were charged with notice that under the grant of power the Legislature could further legislate upon the subject.

So may it be said that the Legislature may separate the rights of those engaged in the wholesale business of taking and marketing tile products of public waters, from tbe rights of the individual members of the public, and may exclude the former from, while admitting the latter to, the privilege of fishing in those waters, as is sought to be done by the statutes here in question. The rights of the general public are paramount to the rights of those who would commercialize those resources for profit.

These observations, although general in their nature and effect, lead to the conclusion that appellants’ petition did not assert a cause of action sufficient to warrant a judicial declaration against the validity of the acts in question, and we are therefore of the opinion that the trial court did not err in sustaining the general demurrer.

The judgment is affirmed.

On Motion for Rehearing.

.In their motion for rehearing appellants complain of the failure of this court to specifically dispose of all of the many questions raised in their pleadings. In deference to this complaint we will discuss those questions not directly disposed of in the original opinion.

By an act effective September 1, 1929, the Legislature abolished the office of Game, Eish and Oyster Commissioner, and by the same act “created the Game, Eish and Oyster Commission which shall have the authority, powers, duties and functions heretofore vested in the Game, Eish and Oyster Commissioner, except where in conflict with this Act.” Chapter 118, Acts Reg. Sess. 41st Leg. (1929) p.1 265 (Vernon’s Ann. P. C. art. 978f). This commission was made to consist of six members; with power to appoint an executive, secretary, to act as its “chief executive officer,” through whom the “Commission may perform its duties,” and “may delegate to him such executive duties” as the commission “shall deem proper.” The act contains other provisions not deemed necessary to be set out here.

It is provided in an act approved June 29, 1929 (chapter 75, Acts 41st Leg., 2d Called Sess., p. 150 [Vernon’s Ann. P. C. art. 9521 — ■ 3]), that: “It shall be unlawful for any person to place, set, use or drag any seine, net or other device for catching fish or shrimp other than the ordinary pole and line, easting rod and reel, artificial bait, trot line, set line, or east net or minnow seine of more than twenty feet in length for catching bait, or have in his possession any seine, net or trawl in or on the waters of the Gulf shore line one-fourth mile from mean low tide from the South end of Padre Island to a point on Mustang Island two miles north of Corpus Christi Pass,” and appropriate penalties are prescribed for violation of said provisions. •

As amended by an act effective January 1, 1930 (chapter 119, Gen. Laws 41st Leg. [1929] p. 269 [Vernon’s Ann. P. C. art 941]) it is provided in section 1, art. 941, of the •Penal Code, that: “It shall be unlawful for any person to place, set, use or drag any seine, net or other device for catching fish and shrimp other than the ordinary pole and line, casting rod and reel, artificial bait, trot line, set line, or cast net or minnow1 seine of not more than twenty feet in length for catching bait, or have in his possession any seine, net or trawl without a permit Issued by the Game, Pish and Oyster Commissioners or by his authorized deputy in or on any of the waters of * ⅜ * Shamrock Cove, Nueces Bay, Ingleside Cove; Red Eish Cove, Shoal Bay, Mud Plats, Shallow Bay, which are more clearly defined as beginning at the South West end of ‘Red Pish Cove,’ thence South on a line intersecting Corpus Christi Channel, and all the waters lying from this line, the said Channel, and between Harbor Island and the Mainland to Aransas Bay; all of Aransas Bay between Port Aransas and Corpus Christi Bayou and lying between Harbor Island and Mud Island; Copano Bay, Mission Bay in Refugio County, Puerto Bay, St. Charles Bay, Hynes Bay, Contec Lake, Powderhorn Lake, Oyster Lake; * .* * Aransas Pass, leading from Aransas Bay to the Gulf of Mexico; Corpus Christi Pass, leading from Corpus Christi Bay to the Gulf of Mexico; Brazos Santiago Pass, leading from the Lower Laguna Madre to the Gulf of Mexico, or the pass on the north of Laguna Madre, leading into Corpus Christi Bay, which pass shall be.defined as beginning one-fourth of a mile southwest of Peat Island and running from said point to Elour Bluff in Nueces County, or in or on the waters within one mile of the passes herein mentioned, connecting the bays and tidal waters of this State with the Gulf of Mexico or in or on or within a mile of any other such passes, or within the waters of any pass, stream or canal leading from one body of Texas bay or coastal waters into another body of such waters. * * *”

In section la of article 941, as so amended, it is further provided: “That it shall be unlawful for any person ,to drag any seine, or ■use any drag seine, or shrimp trawl for catching fish or shrimp, or to take or catch fish or shrimp with any device other than with the ordinary pole and line, easting rod, rod and reel, artificial bait, trot line, set line, or cast net, or minnow seine of not more than twenty feet in length for catching bait, or to use a set net, trammel net or strike net, the meshes of which shall not be less than one and one-half inches from knot to knot, in any of the tidal hays, streams, bayous, lakes, lagoons, or inlets, or parts of such tidal waters of this State not mentioned in Section 1 hereof.” Certain penalties are prescribed for violation of the provisions of the act.

In each of the several penal acts set out above it is provided that where persons are charged with violation of the provisions of the acts, the “Game, Fish and Oyster Commissioner of Texas or his deputy shall have the power and right to seize and hold nets, seines or other tackle in his possession as evidence until after the trial of defendant and no suit shall he maintained against him therefor.”

In their fifth proposition appellants' challenge the validity of the legislative act prohibiting the taking of fish and . shrimp from the waters named in the act upon the ground that such enactment is a “local” or “special” law, and that under constitutional provisions notice of the intention to propose such legislation should have been published as prescribed in those provisions, it being conceded that no such notice was published as a condition to the passage of the act in question. Article 3, §§ 56, 57, Const. We overrule this proposition for the reason that, in our opinion, the act is not a local or special law within the contemplation of the constitutional provisions relied upon by appellants. Clark v. Finley, 93 Tex. 173, 54 S. W. 343; Reed v. Rogan, 94 Tex. 177, 59 S. W. 255; Logan v. State, 54 Tex. Cr. R. 74, 111 S. W. 1028, 1029; Smith v. State, 54 Tex. Cr. R. 298. 113 S. W. 289, 294.

It is contended by appellants that said acts are in conflict with other laws of this state not repealed thereby, and that they are “indefinitely framed and are of such doubtful construction that neither of them can be understood.” These allegations are too general to invoke a decision by the courts. They point out no other laws with which said acts may be in conflict, nor the points of such conflict, and it is not the duty of courts, upon •their own motion, to search the statutes at large for such conflict for the purpose of striking down any one of them. The same may be said of the general allegation that the acts are unintelligible, in contravention of article 6, Penal Code 1925. Appellants do not point out the provisions of the acts claimed to be ambiguous and unintelligible. It is sufficient to say, in this connection, that such defects, if they exist, are not so patent or obvious as to invoke condemnation from a court upon its own motion.

So is it claimed that the acts are in contravention of section 35 of article 3, of the State Constitution because their captions do not express the specific subject embraced in the body of the acts wherein it is provided that no suit shall be maintained against the commissioner in case of seizure and retention by him of the paraphernalia of offending fishermen. We overrule this contention. The purpose of the acts, specifically expressed in their captions, is to regulate and in certain cases prohibit the taking of fish and shrimp from the public waters of the state, and under this subject it was permissible for the Legislature to incorporate the purely remedial provision mentioned. Sutherland, 'Stat. Cons. ■(2d Ed.) § 136.

Appellants insist that the prohibited waters are insufficiently and incorrectly described in the acts assailed, and that in consequence of this defect it is impossible for persons affected by the legislation to ascertain or determine what waters are included within or excluded from the prohibition. We are of the opinion that the acts are not reasonably subject to this objection. The various bays, passes, coves, lagunas, lakes., and flats upon which the prohibitions operate are designated-by their respective names, or otherwise located and identified in the acts, so that persons seeking in good' faith to obey the laws should have no difficulty in locating and avoiding the waters included within the prohibition. Gibson v. Sterrett (Tex. Civ. App.) 144 S. W. 1189; Gavina v. State, 65 Tex. Cr. R. 572, 145 S. W. 594.

Appellants’ chief complaint seems to be against the provisions of the acts which penalize commercial fishermen for fishing in public waters without a permit therefor from the commissioner, or, as substituted by the later statute, the commission. It is contended that by this act the commission is empowered to make a law prescribing a penalty, whereas, it is contended, such power exists exclusively in the Legislature, and cannot be delegated to any other governmental agency.

It is true, of course, that the Legislature cannot delegate to an administrative board the power to make a law prescribing a penalty, but it is equally true that it is competent for the Legislature to- authorize a commission or board created for that purpose to prescribe duties or ascertain conditions upon which an existing law may operate in imposing a penalty and in effectuating the purpose designed in enacting the law. It is in pursuance of this authority that railroad commissions, public utility commissions, live stock sanitary commissions, health boards, and like agencies exercise their functions and administer and enforce the laws relating to their several departments. In their very nature such laws must be flexible in order to give them practicable application to the diverse conditions which exist within the several states. It is upon this principle that the legislative authority rests, and it is upon this authority that fish and game commissions are operating in Texas and many other states, under statutes similar to those here attacked, and the principles of which have been uniformly upheld. 6 R. C. L. p. 179 et seq., §§ 179, 180, 181, 481; 11 R. C. L. “Fish and Fisheries,” §§ 28, 29, 35, 37; State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969, 32 L. R. A. (N. S.) 639, and note; State v. Hanlon, 77 Ohio St. 19, 82 N. E. 662, 13 L. R. A. (N. S.) 539, 122 Am. St. Rep. 472; Com. v. Sisson, 189 Mass. 247, 75 N. E. 619, 1 L. R. A. (N. S.) 752, 109 Am. St. Rep. 630; Ex parte Leslie, 87 Tex. Cr. R. 476, 223 S. W. 227; Sterrett v. Gibson. (Tex. Civ. App.) 168 S. W. 16; Raymond v. Kibbe, 43 Tex. Civ. App. 209, 95 S. W. 727.

Appellants contend that there was no necessity existing for the passage of said acts; that there was no public demand for their enactment. We overrule these contentions. The question of the demand or necessity for legislation is for the Legislature to determine, and such determination is conclusive upon the courts.

It is contended by appellants that the act is violative of the due process and equal protection clauses of the Federal and State Constitutions, and in contravention . of the provision of the State Constitution vesting the Legislature with the exclusive power to make laws. We are of the opinion that the acts are not subject to these objections.

Appellants’ motion for rehearing is overruled.


author: GRAVES, J.'

text:
    COOMBS et al. v. CITY OF HOUSTON et al.
    No. 9609.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1930.
    Rehearing Denied Jan. 29, 1931.
    W. P. Hamblen, of Houston, for appellants.
    Sam Neathery, Rodman S. Cosby, and William D. Orem, all of Houston, for appellees.
   GRAVES, J.'

Appellants protest against the granting below of a temporary injunction against them, whereby they, at the suit of the city of Houston and certain intervening individual owners of property abutting on that street as such, were restrained from interfering with the city, its agents, servants, or employees, in removing three obstructive houses from the part of Vale street within the city that abuts on blocks 316 and 324 of what is known as Houston Heights subdivision or addition, according to the Omaha & South Texas Land Company’s plat thereof, duly filed for record in the office of the county clerk for Harris county on October 31st of 1892. The gravamen of their complaint is that Mrs. Coombs, at the hearing held thereon preliminary to the issuance of the writ, had by undisputed evidence shown herself to be then actually holding this property under a bona fide claim of title thereto that had emanated from her “peaceable and adverse possession thereof, coupled with its cultivation, use, and enjoyment,” for an unbroken period immediately preceding that time of more than 35 years, wherefore, notwithstanding the appellees’ claim of a prior dedication of it as a street, she had at least demonstrated such a proha-ble right thereto as made improper the issuance of the adverse temporary injunction in advance of a trial of her claim on the merits, if indeed she had not already shown full and all-preclusive title hy limitation.

The learned trial judge, in entering the order, thus disposed of the heart of this contention: “The Court finds that neither the theory of improper dedication, or of title hy limitation, advanced by the defendants as defenses in this cause are such as would be sustainable by a court either in case the issues were being tried on a permanent injunction, or in case of a trial before a jury.”

This court approves the quoted view, and affirms the decree based on it; as we see it, the whole controversy is so determined by the plain application to it of Rev. St. art. 5517, to this effect: “The right of the State shall not be barred by any of the provisions of this title, nor shall any person ever acquire, by occupancy or adverse possession, any right or title to any part or portion of any road, street, sidewalk of grounds which belong to • any town, city or county, or which have been donated or dedicated for public use to any such ' town, city or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city, or county in this State; provided, this law shall not apply to any alley laid out across any block or square in any city or town.”

By that statute, which was passed in 1887, five years before Houston Heights was platted in 1892, and seven years before Mrs. Coombs ever bought any adjoining property therein or began her possession of that here involved, the public policy of Texas with reference to how the title to land might be acquired by occupancy, or adverse possession, was imperatively declared to be that no person should thenceforth ever thereby acquire “any right or ■title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been donated or dedicated for public use to any such town, city or county by the owner thereof, or which have been laid out or dedicated in any' manner to public use in any town, city, or county in this State.”

Mrs. Coombs was thus in advance of all pretended tenure on her part charged with knowledge of the fact that she could never by any encroachment upon, or adverse possession of, this strip of land, no matter how long such use of it by her might continue, acquire any right or title to any of it that “had been laid out or dedicated in any manner to public use.”

Plainly she could not be legally aggrieved, if she and her advisers then or thereafter were mistaken as to whether or not such a laying-out or dedication had already been effected ; that accordingly becomes, we think, the sole material inquiry.

The facts in relation to that, too are undisputed, and, briefly summarized as far as deemed material, are:

The land company’s plat of the Houston Heights subdivision, so filed for record in 1892, delineated the laying-out of about 1,700 acres of land surrounding the small strip here involved into, blocks, lots, and streets, among which latter was Yale street, shown as adjoining on the west side thereof blocks 316 and 324 of the addition, and as running in both directions far to the north and south of those two blocks, all such streets and thoroughfares so appearing being dedicated to the public use in these express recitations: “The streets and alleys, as designated and marked on said plat and map are dedicated to the use of the owners of the property in said ‘Houston Heights,’ subject, however, to the following reservations hereby expressly made by said Omaha & South Texas Land Company and said O. M. Carter, viz.: (Here follows a number of specified rights and privileges retained by the dedicators, such as to construct and maintain street railways, sewers, light, gas, and power lines, in and under all the streets and alleys, all looking, however, to the continuation of the use thereof as such thoroughfares); subject to the above reservations, the streets and alleys in said Houston Heights as the same1 are laid out and marked on this plat and map are dedicated as such for the benefit of those who may hereafter purchase property in said Houston Heights, but the fee of said streets and alleys, is to remain the property of said Company and said Carter, subject to the use of the same for the streets and alleys, as above provided.”

Prior to 1894, a number of sales of property elsewhere in the addition as so platted, together with one of lots abutting on Yale street itself, were made to various purchasers, all under descriptions thereof that referred to this recorded plat of the addition, all the lots therein having been so sold before 1904; that is, less than ten years before the inception of Mrs. Coombs’ claim. In 1894, through three separate deeds, all of which likewise described the property conveyed therein by reference to this recorded plat of Houston Heights, appellant Mrs. Coombs acquired lots 13 to 21, inclusive, in such block 316, and lots 21, 22, and 25 to 34, inclusive, in block 324. Some time thereafter she .erected the three houses and other equipments above referred to, which form the subject-matter of this suit, on the land abutting such blocks 316 and 324 on the west side thereof and shown by the plat to be a part of Yale street. These buildings, together with subsidiary construction, which she has been in possession of and has so maintained there for more than thirty years, constitute an obstruction on that portion of Yale street, and prevent its improvement and' use by the appellee city. This Houston Heights subdivision, when first thus platted, was merely an outlying tract of land in Harris county, but about 1918 became a part of the city of Houston. No affirmative act of acceptance by any governmental authority of any dedication of this part of Yale street appeared. The interveners below, co-appellees with the city of Houston here, were abutting property owners on Yale street in the addition; their holdings having also been bought by and described to them with reference to this recorded map thereof.

The undisputed facts thus developed, notwithstanding that no formal acceptance thereof as such appeared, in our opinion show a dedication of Yale street as delineated on the map in evidence that, under the adjudicated cases in Texas, clearly comes within the purview of the cited statute, R. S. article 5517. City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924, 925; Sanborn v. City of Amarillo, 42 Tex. Civ. App. 115, 93 S. W. 473, 474 (writ of error denied); North Texas Trust Company v. Brittson (Tex. Civ. App.) 279 S. W. 892 (writ of error dismissed); Krueger v. Railway Company (Tex. Civ. App.) 191 S. W. 151.

'■ That being true, it follows, perforce of the lex scripta of the state, that Mrs. Coombs’ long and free possession and use of it neither did nor ever could have matured in her any right to either temporaiily hinder, or permanently prevent, the priblie authority from opening and maintaining it as such a public way; that having indisputably come out on preliminary hearing, obviously in consonance , with the old maxim :of equity to that purport, it would have been a vain and useless thing for the trial court to yet have refrained from visiting the instant legal consequences upon that unalterable fact by holding the cause for the mere form of a second proof of the same thing on a final trial. The rule therefore that appellants invoke as to the remedy by temporary injunction being a provisional one for the sole purpose of preserving the status quo of the controversy until a final trial on the merits, while undoubtedly existent, is the ordinary one obtaining under conditions of fact not controlled by the mandatory terms, of this special statute; hence plainly cannot apply in this instance.

Not only was every fact held essential to the establishment of an irrevocable dedication by the Supreme Court in the Zorn Case, supra, shown in this one, but, upon the equivalent of the same state of facts as here exist, both it and the Courts of Civil Appeals in the cited Sanborn arid Brittson Cases held the lack of acceptance thereof by the public authority unnecessary and immaterial, as concerned its own right to enforce such dedication.

We quote as follows from the two first mentioned:

■ From City of Corsicana v. Zorn: “ ‘If the owner of land lays out and establishes a town, and makes and exhibits ’a plan of the town, with various plots of spare ground, such as streets, alleys, quays, etc., and sells the lots, with clear reference to that plan, the purchasers of the lots acquire, as appurtenant to their lots, every easement, privilege, arid advantage which the plan represents as belonging to them, as part of the town, or to their owners, as citizens of the town. And the right thus passing to the purchasers is not the mere right that the purchaser may use these streets or other public places according to their appropriate purposes, but a right vests in the purchasers, that all persons whatever, as their occasions may require or invite, may so use them. In other words, the sale and conveyance of lots in the town, and according to its plan, imply a grant or covenant to the purchasers that the streets and other public places, indicated as such upon the plan, shall be forever open to the-.'use of the public, free from all Claim or interference of the proprietor inconsistent with such use.’ In Rowan v. Portland [8 B. Mon. (Ky.) 232], before cited, the court said: ‘Nor can it be doubted that in purchasing and paying for his lot he purchased and paid for, as appurtenant to it, every advantage, privilege, and easement which the plan represents as belonging to it as a part, or to its owner as a citizen, of the town, and that a conveyance of each lot with reference to the map, or merely as a part of the town, was a conveyance of all these appurtenances, as ascertained by the map, which is the basis of the town, as such, and identified with it.' The effect of the deed, then, from Mrs. Zorn and her husband to the different purchasers of lots in Zorn’s Addition, was to convey to such purchasers the right that they and all persons should be permitted to use the streets and alleys for the purposes designated upon the said plat for all time, and this conveyance vested in the public and in the city of Corsi-cana, as the organized representative.of the public, the right to take possession of and use said streets and alleys whenever the progress and development of the town should make it necessary so to do. Meier v. Portland [16 Cr. 500, 19 P. 610, 1 L. R. A. 856], before cited; Elliott on Roads & Streets, § 118; Town of Derby v. Ailing [40 Conn. 410], before cited. It is objected on the part of Mrs. Zorn that there has been no acceptance by the city of the dedication. There was no necessity for such acceptance, for the right which vested in the purchasers of the different lots, and through them in the public, was irrevocable. It was not expected that the streets and alleys should all be opened at once, but, as is well known in the history of such transactions, many years might elapse before the settlement of that-part of the city would -require the use of such streets. In the case of Meier v. Portland, before cited, the court said: ‘Nor does the proprietor or the purchasers anticipate that all the streets shown upon the plat will be immediately opened and used. It is generally known and understood that a large portion of them will not be required for use for many years after the town is laid out, that their necessity will depend upon its future development and growth, and that they will remain in abeyance until the public exigencies demand that they be opened and improved. Nor does the dedication impose any such burden upon the public as would imply that its acceptance might be refused.’ ”

From Sanborn v. City of Amarillo: “The ■dedication, then, being complete and irrevocar ble on- the part of appellant, it becomes immaterial whether the city of Amarillo ever formally accepted the dedication, so far as its right to maintain the defense of dedication to the public is concerned. Appellant’s offer to dedicate was sufficiently accepted by the public when some of its individual members acted upon the offer, and purchased with reference to the exhibited maps.”

Further discussion is deemed unnecessary; the affirmance will enter.

Affirmed.

On Motion for Rehearing.

Dismissing the applicability of R. S. art. 5517, by simply saying it “gives a court of equity no power to grant a temporary injunction for the forcible removal of a person in possession of property which might oome under its terms,” appellants, through their able counsel, as the major contention in their motion for rehearing, hark back to their original insistence, notwithstanding such enactment that it was legal lese majeste for them to be deprived of their claimed “continuous, peaceable, and adverse possession ,of the property in controversy for more than thirty-five years” in advance of a final trial, marshaling in support of the position an array of authorities laying down the well-settled general rule, in ordinary cases, that is thus stated by this court in San Jacinto Construction Company v. Scanlan, 300 S. W. 220, 222: “In such circumstances, the possession not having been obtained by one of the litigants from the other by force or fraud, it is never the office of a temporary injunction — pending a trial of the title to the property between rival claimants — to oust the actual possession of one and transfer it to the other, but rather to merely preserve the ■original status with reference to the possession between them until the issue of ownership has been settled. Simms v. Reisner (Tex. Civ. App.) 134 S. W. 278; Simms v. Pipe Line Co. (Tex. Civ. App.) 195 S. W. par. 3, at page 288.”

As counsel urges, the quoted holding is typical of all that class of cases to which he so strongly appeals, but, to the contrary of his further view, it et id genus omne are far from resting upon the legal equivalent of the same state of facts as obtains here. In the first place, being delivered as ruling conditions occurring long before the passage of article 5517, and the city there having declared upon neither a conveyance nor a dedication of the property, it did not come within the purview of that act at all; in the second place, it w{is expressly grounded on a finding on the facts that there had been “thus disclosed a bona fide and undisposed-of dispute over the title to the strip of land involved” — in other words, that the Seanlans had shown out of their actual occupancy for many years before the passage'of this statute at least a probable, colorable, or debatable title to ithe property, together with the consequent right of possession — whereas Mrs. Coombs in this instance, having begun her obstructive use of this land both years after" it was shown to have been dedicated for street purposes and the cited statute had been in operation, by virtue of its directly inhibitory terms, had nothing that could be deemed “adverse possession,” however long she may have continued it. She was therefore not on a parity With one who has an actual appropriation of land commenced and continued for the length of the limitation period under a claim of right, inconsistent with and hostile to the claim of another; rather she stood as one boldly challenging the public authority inhering in the city— her answer even admitting' that she proposed.. , to maintain her tenure 'by force, if necessary —without the possibility of ever acquiring such a bona fide claim of right, title, or possession, as this court was pronouncing upon in the Scanlan Case, since she indisputably had nothing but occupancy of what had been so dedicated as a street, and had never bought or otherwise acquired any right to any land outside of the block lines of the addition.

The rationale of the two Simms Oases, cited and relied upon for support of the Scan-lan'opinion, is the same; neither came within the purview of article 5517; but in both of them there was a like showing'on the facts that the litigant in possession had what might at least be shown upon'a ffill hearing of all the facts underlying the rival claims to amount to a right to maintain It. ■'' '•

These considerations, we hold, fundamentally distinguish all that line of cases from the one at bar. ■ ’’ ■■' ■■■ ■

Like this cause in the principle applied, however, though not involving a' public street nor otherwise arising under the statute referred to, is Hudspeth v. Gugenheim (Tex. Civ. App.) 278 S. W. 952, 953, where essentially the same state of fact in purport as here came out in a different way on preliminary hearing; that is, the legal ef- . feet of the evidence was. to negative any right of possession in Hudspeth, the actual occupant of the property. The San- Antonio Court of Civil Appeals, with the approval of the Supreme Court through its refusal of a writ of error, in affirming the granting at that stage of the proceeding of both temporary prohibitory and mandatory injunctions, said:

“The general rule in ⅛⅛ state is that a mandatory injunction is not available for the purpose of dispossessing one who is in peaceable possession of land, pending an adjudication of the relative equities of those claiming the right of possession. But the rule is not so inflexible as to exclude all exceptions, for it has been relaxed so as to permit such injunctions in extreme cases of pressing necessity, and where the complaining party shows himself entitled to the interference-of a court of equity and is without ■adequate and practical remedy at law. Sumner v. Crawford, 91 Tex. 131, 41 S. W. 994.
“Under that exception, the question in cases of this character becomes one of whether or not under the peculiar facts the case is one of a clear right and a pressing necessity, in which the ousting party is entitled to relief, but is without a practical and adequate remedy at law.”

,So the rule appellants invoke, notwithstanding the seemingly unconditional form of its statement in many authorities they rely on, was clearly not promulgated as a •Procrustean bed that all instances of actual occupancy .of land by claimants must be made» to fit, irrespective of whether or not they are shown to have even a color of right to the possession thereof, hut only to cases where, under the evidence then heard, it at least prima facie appears that there is enough substance in the claim, or of probability to the asserted right, as justifies a further trial of that matter on the facts, gee, also, City of Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 1008; Dozier v. Austin (Tex. Civ. App.) 253 S. W. 554, 555; Franklin County v. Huff, 43 Tex. Civ. App. 355, 95 S. W. 41; Joyce on Injunctions, vol. 2, § 1285; Miller v. Lynch, 149 Pa. 460, 24 A. 80; Galveston, H. & S. A. Railway Company v. City of Eagle-Pass (Tex. Civ. App.) 249 S. W. 268; City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924.

But further insistence is made that the city had a full, complete, and adequate remedy at law in an action of trespass to try title to this claimed strip of street, wherefore the remedy by temporary injunction should have been denied.

This contention, we think, fails initially to take into account the materially different status toward each other of these litigants from that which ordinarily obtains between private individuals only concerning land unaffected with a public interest; the city here, as" the embodiment of the public authority, with all the consequent power over and responsibility for the dedicated streets within its limits, not only had the right, but the nondelegable and inescapable duty to the public, as well, to at all times open, protect against purprestures, and maintain them in usable condition as such ways. In the exercise of those high powers and duties, under the authorities last above cited, irrespective of what might be the slower and less effective remedies, if any, available at law, it undoubtedly had the affirmative right to summarily remove any such obstructions therefrom, either through the outside exercise of its police powers, or by securing a mandatory injunction from a court of equity, not being remitted to a mere action in trespass to try title, if that would have lain in these circumstances.

In Dozier v. City of Austin, supra, the San Antonio Court of Civil Appeals put the matter in thi/3 way: “A city cannot recover damages arising from the obstruction of streets. It has the right to have them removed. Ap-pellee is a corporation organized by its citizens to administer their affairs, have their laws executed, protect their streets, alleys, and public grounds from trespassers and invaders of their rights, and, in seeking the aid of the courts of Texas to remove obstructions from streets and alleys placed there by trespassers and those acting in defiance of law, it does not devolve upon such corporation to allege or prove damages or that it has an adequate remedy at law for such relief. It has no such remedy at law. The only matter to be alleged or proven was the invasion of a public right. Dillon, Mun. Corp. § 1130; State v. Goodnight, 70 Tex. 682, 11 S. W. 119; Oxford v. Willoughby, 181 N. Y. 155, 73 N. E. 677; Woodbridge v. Middlesex Water Co. (N. J. Ch.) 68 A. 464. This action was brought by the guardian of the public to conserve the rights which the public have in the alley as a highway. The duty rested on the city to have the obstruction removed. Joyce on Injunctions, § 1285, and authorities cited in footnote.”

The Supreme Court dismissed that cause for want of jurisdiction, but the quoted declaration of the law is well supported by the authorities therein referred to, as well as those cited herei supra.

In this instance there were present, under the uncontroverted evidence heard, both the “pressing necessity” emphasized by the court in the Hudspeth Case, supra, in that the city had in process of construction on the portion of Tale street affected costly paving improvements, with attendant contractual obligations of magnitude, the appellants were, without a right in them of any sort, delaying and interfering with by 'maintaining their obstructions through threats and force, and the “invasion of a public right” deemed in the Dozier Case, supra, to be the sole material consideration,, in that a dedicated street ■of the city of Houston was being encroached upon to the extent of obliteration.

’ After the most painstaking reconsideration of the cause, we must revert to our original conclusion that the determining issue was whether or not a dedication of the street had •been effected prior to the inception of appellants’ claim. That having been determined adversely to them, it cannot be held that the learned trial court abused a sound discretion in issuing the writ they inveigh against.

The motion for rehearing has accordingly been overruled.

Overruled.


author: HICKMAN, C. J.

text:
    MERRITT v. H. O. WOOTEN GROCER CO.
    No. 807.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    E. E. Diggs, of Childress, for appellant.
    Davidson, Doss & McMahon, of Abilene, for appellee.
   HICKMAN, C. J.

The appeal is from a judgment overruling appellant’s plea of privilege and also from a judgment against appellant on two itemized accounts. Since we have determined that the plea of privilege should have been sustained, we shall confine our statement of the case to such of the proceedings only as throw light upon the privilege question. Appellee declared upon two itemized accounts. One account was for merchandise sold by appellee to a partnership composed of Lee Johnson and appellant, Merritt. The other account was for merchandise sold by J. M. Radford Grocery Company to the same partnership, of which account appellee was alleged to be the owner by virtue of an assignment thereof to it. Lee Johnson was not made a party to the suif; the allegation being that he was a bankrupt, totally and wholly insolvent, and that his estate would pay no dividends to the common creditors. Appellant resides in Childress county, and filed a statutory plea of privilege to be sued in that county. By its controverting affidavit appellee sought to hold venue in Taylor county upon-the following allegations: “That plaintiff has filed herein a petition alleging that the defendant, R. J. Merritt, a resident citizen of Childress County, Texas, is indebted to plaintiff in the sum of $362.09 and in the further sum of $112,94, which said accounts were each payable in Taylor County, Texas, as is evidenced by a signed statement to this effect executed by said defendant; that in connection with the foregoing allegation, said plaintiff refers to and makes a part of this controverting plea its original petition filed in the above cause. That by reason of the execution and delivery to this plaintiff of said signed statement executed by said defendant to the effect that the indebtedness sued upon herein should be payable in Taylor County, Texas, this .court has venue of this suit.”

In reply to this controverting plea, appellant denied under oath that he was a member of the partnership at the time the indebtedness accrued. The proof on trial of the plea of privilege established conclusively, as found by the trial court, that, prior to the incurring of any of the indebtedness sued upon, the partnership firm of Johnson & Merritt had been dissolved; that Merritt had sold all of his interest therein to Johnson and transferred same by an instrument in writing, all with knowledge on the part of the traveling salesmen of appellee and J. M. Radford Grocery Company. Appellee introduced in evidence a written statement executed by appellant for the partnership, dated January 1, 1929. This statement was made by appellant for the purpose of forming the basis of a line of credit to be extended to the partnership, and contained the following language: “We agree to give them written notice promptly of any change in the personnel of our firm, or of any material change in our assets or liabilities. It is also agreed that all the sums due and to become due for purchases heretofore or hereafter made from H. O. Wooten Grocer Company are payable in Abilene, Taylor County, Texas, with interest of ten per cent, per an-num from maturity of bills, and ten per cent on amount unpaid for attorney’s fees if placed in' tbe bands of an attorney for collection.”

Tbe trial court filed findings of fact, one of which was that, before tbe accruing of any of tbe indebtedness sued for in this suit, “defendant Merritt actually withdrew from tbe firm, and tbe traveling salesmen of plaintiff knew of said withdrawal.” Notwithstanding this fact, tbe plea of privilege was overruled on account of appellant’s failure to notify appellee in writing of tbe dissolution of the firm. Neither in its petition nor its controverting' plea did appellee allege or attempt to allege an estoppel against appellant to deny tbe continued existence of tbe partnership. Tbe only question put in issue by the plea of privilege was whether appellant was a member of the partnership at tbe time tbe goods were purchased, for, admittedly, tbe written statement made for tbe purpose of obtaining credit did not obligate appellant to pay for goods sold to any other- person or firm than tbe partnership of Johnson & Merritt. When appellant proved without dispute that the goods were sold to Johnson and not to Johnson & Merritt, he established his right to have the venue changed to Childress county. In order to defeat that .right, it devolved up.on appellee both to allege and prove an es-toppel to deny the continued existence of the partnership. Proof of an estoppel without a .pleading thereof is unavailable. The exact question here presented was considered by this court in the ease of Tarver, Steel & Co. v. Pendleton Gin Co., 25 S.W.(2d) 156. We there collated authorities holding that under simple allegations of agency a party is not permitted to prove an estoppel to deny agency, but that the facts constituting such es-toppel must be pleaded in order to be available. The same principle applies to partnerships. We shall not again discuss the subject, but refer to our opinion in.the case eit-,ed, and on the authority thereof hold that es-toppel to deny partnership was not available to appellee in the instant case, for the reason that same was not pleaded.

The trial judge prepared a written opinion in this case, and same has come to us in the transcript. In that opinion, in discussing the question of the right of appellee to maintain suit against appellant in Taylor county on the account assigned to it by J. M. Radford Grocery Company, there occurs this language: “Where an account is assigned for a valuable consideration, the sole question then seems to be whether or not the transfer was made with fraudulent intentions to affect the venue. Kell Milling Co. v. Bank (Tex. Civ. App.) 155 S. W. 325; Carver Bros. v. Merrett (Tex. Civ. App.) 155 S. W. 633.”

' The cases cited arose prior to the amendment of subdivision 4 of article 1995, Revised Statutes 1925. That particular subdivision was so amended in 1913 as effectually to prevent the changing of the venue of a cause by an assignment. The language of the amendment is as follows: “The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made.”

Whether the assignment was made with fraudulent intentions or in utmost good faith is wholly immaterial. By the express wording of the statute, the assignee of a chose in action cannot maintain a suit thereon in any county in which the assignor could not have maintained same.

Since it is our opinion that the plea of privilege was improperly overruled, it would not be proper for us to consider or discuss the merits of the case. It is our order that the judgment of the trial court be reversed and the cause be remanded to the trial court, with instructions to transfer the venue to the county court of Ohildress county.

Reversed and remanded, with instructions.