author: PELPHREY, C. J.

text:
    SMITH v. HAMPTON.
    No. 2578.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 8, 1931.

      Johnson & White, of Fort Worth, and Hart Johnson, of Fort Stockton, for appellant.
    T. M. Milam, of Fort Stockton, for appel-lee.
   PELPHREY, C. J.

Appellant instituted this suit against ap-pellee and for cause of action, omitting the formal parts of his petition, pleaded as follows:

“1. On or about the 10th day of February, 1930, C. S. Messinger, J. D. O’Mara and L. W. Osborne, were the owners of a commercial oil and gas lease and were then in possession of such lease, upon the following described land situated in Peeos County, Texas, to-wit: (Here follows a description of the leased premises.)
“And on such 10th day of February, 1930, said C. S. Messinger, et al., the owners of such lease, entered into a written contract with defendant John Hampton, which contract was dated February 10, 1930, and is recorded in Yol. 2, page 17, Contract Record of Pecos County, Texas, to which reference is hereby made, and which contract provided that defendant John Hampton should within 15 days from the date of such contract begin the drilling of a well for oil and gas upon the described lands, and should drill same to a depth of 1600 feet or to production at a lesser depth. Said contract further provided as follows:
“ ‘The party of the second part (defendant, John Hampton,) shall have an option to drill other wells on said land for the stipulated sum of $4.00 per foot so long as said lease pays for the expense of drilling same.’
“Said contract further provided that such lease owners, C. S. Messinger, et al, would execute and deliver to defendant, John Hampton an assignment to an undivided one-half interest in and to said lease upon the completion of said well to a depth of 1600 feet or to production at a lesser depth.
“Said contract further provided that said defendant John Hampton should have a lien upon all oil produced from said land to pay for his drilling of such wells thereon.
“2. Thereafter, to-wit: On or about the 15th day of February, 1930, defendant John Hampton came to this plaintiff at Grandfalls, Texas, and there explained to this plaintiff that he, the said John Hampton, had the contract above described and that he desired to rent from plaintiff a certain oil well drilling rig, to-wit: A Model H. Spudder, and all necessary tools, with which to drill the first well under the above described contract, and plaintiff and defendant then and there agreed that plaintiff should rent such rig and tools to defendant for and in consideration of the execution and delivery to plaintiff by defendant of an undivided one-sixteenth interest in and to said lease after the completion of said first well and the further consideration of the assignment by defendant of his right under the contract above described between O. S. Messinger et al, and defendant, to drill all other wells upon said lease at the rate of $4.00 per foot as therein provided, to this plaintiff, which last named consideration, plaintiff says is and was the chief consideration for such contract between plaintiff and defendant. It was further agreed to reduce such contract to writing and to sign same. .
“3. After plaintiff and defendant had agreed upon the terms of their said contract, plaintiff had his attorney at Grandfalls, Texas, prepare the said contract as agreed upon in writing, a copy of which contract is attached hereto marked ‘Exhibit A’ and made a part and had same dated Feb. 19, 1930, (hereof as that was the date on which plaintiff expected defendant to return to Grand Falls to sign same.) On said 19th day of February, 1930, defendant did return to Grandfalls, Texas, but plaintiff having been called away on business, left said written contract with his wife to present to defendant. Plaintiff’s wife did present said written contract to defendant and defendant then and there agreed that same was in proper form and represented the contract made by plaintiff and defendant, but did not ■then sign and execute same as plaintiff was away, but agreed to sign and execute same as soon as defendant had returned from Brown County, Texas, as hereinafter more fully alleged, with said rig and tools rented him by plaintiff.
“4. Thereafter, defendant went to Brown County, Texas, and hauled said rig and certain of said tools back to the above described leased lands in Pecos County, Texas. Plaintiff further alleges that defendant did not bring all of the tools from Brown County with said rig, which were there with it and which defendant was entitled to under his contract with plaintiff, but brought sufficient tools to satisfy himself and such as he desired.
“That on or about the 21st day of February, 1930, defendant brought said rig and tools to said lease and began drilling of a well thereon and that on or about the 21st day of May, 1930, defendant completed said well as a commercial producer.
“5. That on or about the 19th day of February, 1930, defendant had prepared a certain contract in writing by his attorney, a copy of which is attached hereto, marked ‘Exhibit B’, and made part hereof, which provided in substance all of the provisions of the contract entered into by and between plaintiff and defendant as aforesaid, but which did not include the provision as to the assignment of the right to drill other wells upon said leased lands at $4.00 per foot, as had been agreed upon by plaintiff and defendant and that defendant brought a copy of said contract signed and acknowledged by himself to Grandfalls, Texas, on or about the said 19th day of February, 1930, and delivered same to plaintiff’s wife, plaintiff not then being present as above alleged. Plaintiff’s wife objected on plaintiff’s behalf that said copy did not provide for the assignment of said right to drill other wells and defendant then and there stated to, and agreed with plaintiff’s wife, acting for plaintiff, that he would have a supplementary contract prepared setting out such omitted provision as to the assignment of the right to drill said wells, which he agreed should have been in the contract he had prepared, and that he would then sign same with the plaintiff, or would sign the contract already prepared by plaintiff’s attorney, when plaintiff returned, as well as the one he had already signed.
“0. Defendant, however, failed to sign said contract prepared by plaintiff or to have a supplemental contract drawn in accordance with their agreement and his promise, and after said well had been completed, then refused and has always since refused to sign same, and plaintiff desiring to protect himself in the premises as best he could and under the advice of his attorney, signed the said copy defendant had delivered to plaintiff’s wife and placed same of record in Pecos County, Texas, same then and there being a part of the contract between these parties. Thereafter defendant mailed an assignment to a l/16th undivided interest in said lease .and thereby partly performed his said contract with plaintiff and plaintiff caused same to be recorded in Pecos County, Texas, but ■still insisted on the signing of the complete .contract prepared by plaintiff and the assignment by defendant of the drilling right on .said lease.
“Plaintiff further says that he has at all times been ready, able and willing to comply with the terms of his agreement, with defendant and that he has in fact complied with said contract fully and has delivered and allowed defendant to use said rig and tools, which was his entire obligation and that ■defendant has complied partly with said contract by using said rig and tools and by delivering to plaintiff said 'assignment to a 1/16 interest in said lease, but that defendant has not fully complied with said contract by not signing said contract prepared by plaintiff as he agreed to do and by making no assignment to the right to drill said wells on said lease under said contract between Mes-singer, et al, and defendant.
“That plaintiff has always been since his agreement with defendant and is now in possession of sufficient rigs, tools and other machinery to drill and all wells upon said lease and is financially able to drill same, and that plaintiff is an experienced driller and contractor and has the ability to drill such wells properly, and that he is willing to comply with said contract with defendant in every way and has done so. Plaintiff further says that it was possible and that plaintiff was able to drill out said lease fully within one year from time said contract was made by and between plaintiff and defendant.
“Wherefore, plaintiff prays judgment of the court that defendant be decreed to specifically perform the contract between plaintiff and defendant and that he be decreed to sign and execute the said contract prepared by plaintiff and agreed to by defendant and that he be decreed to assign the right under the contract between Messinger, et al, to defendant to drill said wells at $4.00 per foot to this plaintiff, for all costs herein, and for such other and further relief, at law and in equity to which plaintiff may be justly entitled.
“And in the alternative plaintiff shows un- . to the court that it will require ten wells to completely drill out said lease, and that the cost of drilling such wells would be at the rate of $2.00 per foot, which would give this plaintiff a profit of $2.00 per foot on each of said' wells; that the average depth of such wells is and would be 1600 feet and that the profit to plaintiff on each well would be $3200.00 and would be a total profit of $32,-000.00, wherefore plaintiff prays in the alternative for judgment against defendant for $32,000.00 being the damages suffered by plaintiff by reason of defendant’s refusal and failure to comply with his said contract with plaintiff, which plaintiff alleges is the amount of damages he has suffered, for costs of court and such other and further relief as plaintiff may be justly entitled to.”

Appellee filed a general demurrer to the above petition which was by the court sustained. Appellant refused to amend and the court rendered judgment in favor of ap-pellee. This appeal is prosecuted from such judgment.

Opinion.

Appellant assigns error to the action of the Court in sustaining the demurrer, and presents the following propositions:

“(1) Recognized forms may be followed, but are not authoritative.
“(2) All pleadings are to be construed liberally, it being sufficient for a pleading to set forth a full and clear statement of cause of action -without' ambiguity or contradiction, and a clear statement of relief sought.
“(3) The pleadings must allege facts relied upon with that certainty which will enable adverse party to understand and to meet them with proof.
“(4) Technical rules of pleading cannot he allowed to defeat the right substantially alleged.”

Appellant argues that his pleading, when stripped of all its superfluity and separated from the evidence alleged, plainly sets forth a distinct cause of action, in that he is seeking to force appellee to specifically perform that portion of the oral agreement that was, by mistake or accident, omitted from the written contract, and in the alternative he is seeking damages for the failure of ap-pellee to perform part of his agreement.

He refers to paragraph 5 of his petition, and contends that while it does not allege in exact words that a portion of the contract was omitted by mistake or accident, it is an allegation of fact" which amounts to such an allegation, and it is not necessary that mistake or accident be set out by name .or set out as a legal conclusion from such facts.

Appellee, on the other hand, argues that appellant’s petition shows that an agreement was entered into between the parties; that that agreement was reduced to writing and signed by appellee, with that portion relative to the assignment of the drilling contract omitted; that appellant finally accepted the written agreement with that portion omitted;1 that such portion was intentionally, omitted, and was executed by both parties with knowledge that such portion was not included, and therefore states no cause of action.

It is well established that, as between the parties thereto, a legally binding written instrument, which is unambiguous in its terms, cannot be varied, added to, or •contradicted by proof of prior or contemporaneous agreements, in the absence of either fraud, accident, or mistake in its procurement, and this has been held to be a rule of substantive law, and not merely a rule of evidence. Rubrecht v. Powers, 1 Tex. Civ. App. 282, 21 S. W. 318; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Morrison Co. v. Riley (Tex. Civ. App.) 198 S. W. 1031; 1 Greenleaf on Evidence, § 275; 10 R. C. L. pp. 1017, 1018; 3 Jones on Evidence, §§ 434, 435; Wigmore on Evidence, p.ars. 2400, 2425, 2446. And in the case at bar, we find appellant alleging the execution of a written contract and attempting to add thereto an oral provision, without alleging that the execution thereof was procured either by fraud, accident, or mistake. His own allegations show that he was fully aware at the time he executed the written contract that the provision as to the drilling of other wells was not included; therefore, there could have been no mutual mistake as to that fact, and there was certainly no accident which brought about the omission.

It is true that he alleges appellee agreed to have a supplementary contract embodying such provision executed, and that this he failed and refused to do, but nowhere does he allege that appellee had no such intention, at the time the promise was made, that such representation was made for the purpose of and did induce appellant to execute the written contract, but he alleges that he executed it upon advice of counsel and for the purpose <3f protecting his rights.

Consequently, there is no such allegation of fraud as would entitle appellant to introduce evidence adding to the terms of the written contract.

We have concluded that the petition states no cause of action, and that the demurrer was properly sustained.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    WESTERN SHOE CO. v. AMARILLO NAT. BANK.
    No. 3656.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1931.

      Dorenfield, Poster & Pullingim, of Amarillo, for appellant.
    Cooper & Lumpkin, of Amarillo, for ap-pellee.
   JACKSON, J.

This suit was instituted in the district court of Potter county, Tex., by the plaintiff, Western Shoe Company, a corporation organized under the laws of Texas, against the Amarillo National Bank of Amarillo, a banking corporation organized under the laws of .the United States, to recover $511.99 evidenced by a check of date April 11, 1929, given to the plaintiff by the H. L. Barnard, Inc. Departments, on the defendant bank.

The plaintiff pleads in detail the alleged facts on which it bases its cause of action and upon which it seeks a recovery. .

The defendant answered by general demurrer, general denial, and pleaded the alleged facts relied on by it as a defense.

A written agreement, signed by the attorneys for the parties, discloses the following facts: That the plaintiff, at the times involved, was engaged in the mercantile business in Amarillo, Tex., buying and selling shoes at retail. That I-I. L. Barnard, Inc., was, on April 11,1929, engaged in the general business of operating a department store in Potter county. That on April 11, 1929, H. L. Barnard, Inc., executed and delivered to plaintiff the following check:

“H. L. Barnard, Inc. Departments
“905 Polk Street, Amarillo, Texas.
No. 140.
“Amarillo, Texas, 4 — 11—1929.
“Pay to the order of Western Shoe Co. Inc. $511.99. The sum of $511 and 99 cts. dollars “To The Amarillo National Bank, Amarillo, ' Texas.
“H. L. Barnard Inc. Departments “By Milton L. Hirschfeld, President.”

That in due course of business the check was presented to' the defendant bank and payment thereof demanded, which was refused for want of sufficient funds. That at the time of the execution and delivery of the check, I-I. L. Barnard, Inc., was a depositor of the bank and carried therein two accounts, one under the name of H. L. Barnard, Inc., and one under the name of H. L. Barnard, Inc. Departments.

That on and prior to April 11, 1929, there was on deposit with the bank in the I-I. L. Barnard,, Inc. Departments, account a sum of money in excess of $511.99. That on said day H. L. Barnard, Inc., was indebted to the defendant bank on a note for the sum of approximately $2,500, which note was past-due and unpaid. That for the purpose of paying said note or a part thereof, the bank applied on the payment of the note the sum of $511.99 out of- the I-I. L. Barnard, Inc. Departments, account, which left an amount in said account insufficient to pay the check in full and payment on the cheek was refused because of insufficient funds.

That on April 6, 1929, an officer of the bank entered on the ledger sheet of the H. L. Bar-' nard, Inc. Departments, account: “See C. T. Ware or A. H. Ware before paying check. Show sheet each day.” That the entry of such set-off was not made on the ledger sheet until April. 16, 1929, and the check of the plaintiff was presented on April 13, 1929, for payment and was refused. That had the bank not made such application of the funds of the H. L. Barnard, Inc. Departments, account, there would have been sufficient money in said account to pay the amount of the check. That 1-1. L. Barnard, Inc., was not made a party defendant for the reason that shortly after-April 11, 1929, it filed a voluntary petition in bankruptcy and was thereafter adjudged a bankrupt and all of its property sold and the proceeds thereof applied to the liquidation of its indebtedness.

That on December 10, 1928, H. L. Barnard, Inc., executed to the defendant bank its note for the sum of $2,500, payable on January 15, 1929. That during the month of April, 1929, and for some time prior thereto, I-I. L. Barnard, Ine., was a customer of the bank, carrying an account subject to check. That on March 7,1927, H. L. Barnard, Inc., opened an account with defendant bank in the name of H. L. Barnard, Inc. Departments. That this account was closed June 20, 1928, and opened again on April 2, 1929. That on said day H. L. Barnard, Inc., withdrew from its account the sum of $1,500 and deposited it to the account of H. L. Barnard, Ine. Departments. That on April 3, 1929, it withdrew from this account the sum of $217.75 and deposited it to the account of H. L. Barnard, Inc. Departments. That on April 4, 1929, it withdrew from its account the sum of $122.92 and deposited it to the H. L. Barnard, Inc. Departments account. That said sums so withdrawn were all the funds that went into the account of H. L. Barnard, Inc. Departments. That the intention of the officer of the bank in making the notation on the H. L. Barnard, Inc. Departments, account: “See O. T. Ware or A. H. Ware before paying check. Show sheet each day,” was to set off by the bank the amount of money in the I-I. L. Barnard, Ine. Departments, account and credit the same to the H. L. Barnard, Inc., note due the bank.

The testimony discloses that H. L. Barnard, Inc., was conducting a mercantile business in a leased building at 905 Polk street in Amarillo, Tex. That the plaintiff, the Western Shoe Company, as lessee, by written contract rented from H. L. Barnard, Inc., as lessor, certain space in said 'building to be used exclusively by lessee for the purpose of operating a shoe and hosiery department. Under the terms of the written lease the lessee was to purchase, without liability upon the lessor, all merchandise used in such shoe department. That all moneys received from customers through the sale of merchandise by the lessee should be paid to the cashier of the lessor each day and a full, true, accurate, and separate record thereof kept of such moneys; and the lessor agreed to place such money to the credit of the lessee on the day of sale and that the money so received would be held in trust by the lessor for the lessee and an accounting made to the lessee on the 5th and 20th of each month for such funds, but before making remittance thereof, the lessor was authorized to make certain deductions as consideration for the lease, which it is unnecessary to set out.

M. L. Hirschfeld testified, in substance, that H. L. Barnard, Inc., handled all the moneys and accounts and took all the checks paid for merchandise of the Western Shoe Company, depositing such checks and money to the account of H, L. Barnard, Inc., and withdrew the money due the Western Shoe Company from such account and deposited it in the department’s account. That the Western Shoe Company owned the merchandise that was sold in the shoe department in the H. D. Barnard, Inc., store. That at the time he opened up the account with the defendant bank for H. L. Barnard, Inc. Departments, he advised an officer of the bank that it constituted a trust fund. That on April 2, 1929, the day the $1,-500 was- transferred from the H. L. Barnard, Inc., account to the account of I-I. L. Barnard, Ine. Departments, and on April 3d and 4th, the dates the other two sums were transferred, he did not talk to any one in the bank relative to the accounts, but made the deposits through the teller’s window. That $511.99 of the money transferred from the H. L. Barnard, Inc., account to the H. L. Barnard, Inc. Departments, account, belonged to and was the money of the Western Shoe Company, but that he did not tell any one of that fact at the defendant bank when the money was transferred from one account to the other.

C. H. Berwald, the manager and treasurer of the Western Shoe Company, testified that in April or May, 1927, shortly after opening the ■business of the Western Shoe Company, he went to the defendant bank and sought a loan in the amount of $1,500. That at that time he advised an officer of the bank that he was operating as a leased department in the store with H. L. Barnard, Inc., and the Western Shoe Company deposits did not reflect the sales of his company, but that the money of the Western Shoe Company was held in trust by H. L. Barnard, Inc., and was paid by it to his company at certain periods. That he had with him the lease contract between H. L. Barnard, Inc., and the Western Shoe Company and read to such officer paragraph 5 of the contract, which is, so far as material to this appeal, as follows:

“All moneys received from customers, through the sale of merchandise by the lessee, shall be paid to the cashier of the lessor each day, who shall keep a full, true, accurate and separate record, open and available at all times for the inspection of both parties hereto ; and lessor Agrees that it will keep strict account thereof and place same to the credit of the lessee on the day of sale, and that these moneys so received will be held in trust by the lessor for the lessee.
“It is further agreed that reports of all sales made and of all credit charges passed upon, and all refunds to purchasers, and all vouchers issued, shall be issued by the lessor to lessee’s department manager daily, and for said purpose lessee shall furnish to lessor the report cards and voucher blanks. The lessee shall be entitled to receive from the lessor, settlement for all sales made by the lessee in the demised premises, and the lessor shall account therefor to the lessee as follows :
“On the fifth and 20th day of each month, for all cash and C. O. D. sales made during the preceding monthly period, and for all charge and will-call accounts on the tenth of the month following that in which said accounts were contracted. Before making such remittance, the lessor shall first deduct the percentage as hereinabove provided for.

That he advised the officer of the hank that because of the arrangement with H. L. Barnard, Inc., his deposits were made only about three times a month- and did not show his daily sales. That the defendant bank declined to make the loan without he furnished security. That shortly thereafter he closed his account with the defendant bank and opened an account with the First National Bank. That the check given the Western Shoe Company by H. L. Barnard, Inc., on the H. L. Barnard, Inc. Departments, account represented the amount of money for cash sales of merchandise sold out of the shoe department and covered the time approximately two weeks prior thereto. That H. L. Barnard, Inc., closed and went into bankruptcy about April 17, 1929.

The case was submitted to the court without the intervention of a jury and judgment rendered that the plaintiff take nothing by its suit and the defendant go hence with its costs, from which judgment this appeal is prosecuted.

The appellant, by several assignments which we will consider together, presents as error the action of the court in rendering judgment against it because the evidence shows that the appellee bank knew that the moneys deposited by H. L. Barnard, Inc., in the account of H. L. Barnard, Inc. Departments, were trust funds, or, in any event, the bank knew sufficient facts to put it on inquiry as to the trust fund character of said deposits and hence was not authorized to appropriate the §511.99, which was a trust fund, as a payment on its past-due note.

The bank offered no evidence to dispute the testimony of M. D. Hirschfeld, secretary of H. L. Barnard, Inc., and O. I-I. Berwald, manager and treasurer of the Western Shoe Company, relative to the notice these witnesses claim to have given the bank of the trust character of the funds deposited in the bank in the account of H. L. Barnard, Inc. Departments.

“ Where the proof tends to establish a fact, and *• * * it is within the power and to the interest of the opposing party to disprove it if false, the silence of the opposing party not only strengthens the probative force of the affirmative proof, but of itself is clothed with a certain probative force.’ Pullman Palace Car Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 624. The failure to produce evidence within a party’s control raises the presumption that, if produced, it would operate against him; and every intendment will be in favor of the opposite party. Bailey v. Hicks, 16 Tex. 222; Thompson v. Shamion, 9 Tex. 536,

“Usually the force of evidence, though slight, is greatly increased by the failure of the opposite party to rebut it, where it is obvious that the means to do so are readily accessible to the party. Chandler v. Meckling, 22 Tex. 44; Needham v. State, 19 Tex. 332; Mutual Life Ins. Co. v. Tillman, 84 Tex. 31, 35, 19 S. W. 294.” Farmers’ Guaranty State Bank v. Burrus Mill & Elev. Co. (Tex. Civ. App.) 207 S. W. 400, 403.

The appellee contends that the court was not required to believe the testimony of these witnesses, as they were both interested parties.

So far as this record discloses, M. L. Hirschfeld was not an interested party. His company, H. L. Barnard, Inc., had been adjudged a bankrupt, its assets sold and the proceeds applied to its indebtedness, and the company discharged.

It has been held that: “A jury cannot arbitrarily discredit a witness and disregard his testimony in the absence of any equivocation, confusion, or aberration in it. It is not proper to submit uncontradicted testimony to a jury for the sole purpose of giving the jury an opportunity to nullify it by discrediting the witness, when nothing more than mere interest in the case exists upon which to discredit such witness.” M. H. Thomas & Co. v. Hawthorne (Tex. Civ. App.) 245 S. W. 966, 972. See, also, Golden v. First State Bank of Bomarton (Tex. Civ. App.) 3S S.W.(2d) 628, and authorities cited.

This ease having been submitted to the court without the intervention of a jury,, the trial judge in determining the facts, in our opinion, is controlled by the same rules as a jury would be in passing upon the facts, and if a jury cannot arbitrarily discredit a witness and disregard his testimony because of his interest, neither could the trial judge.

In Interstate National Bank v. Claxton, 97 Tex. 569, 80 S. W. 604, 607, 65 L. R. A. 820, 104 Am. St. Rep. 885, in passing upon the right of a bank to apply a trust fund on deposit with it to the payment of a debt owing to it, the Supreme Court says: “In attempting to acquire such a right or benefit the bank becomes a party to the action of the trustee, and stands as any other person dealing with one holding property in a fiduciary capacity. The question of notice of the title of the person holding the property and his power over it arises, and a bank cannot, any more than any other person, acquire that which belongs in equity to another, if it have notice of his rights

In Steere et al. v. Stockyards National Bank, 113 Tex. 387, 256 S. W. 586, 590, 258 S. W. 1042, the Supreme Court, in answer to a certified question, in an opinion written by the Commission of Appeals, quotes with approval this language:

“The decided weight of authority is to the effect that where the hank, in which funds in which third persons have an interest are deposited in the individual name of the depositor, has neither actual knowledge, nor notice of facts sufficient to put it upon inquiry, as to the true character of the deposit, it may apply the deposit to the individual debt of the depositor. * * *
“Where the bank, although having no actual notice of the character of funds deposited with it, has knowledge of circumstances such as are regarded as sufficient to necessitate inquiry upon its part, the general rule is that the bank cannot, as against the true owner, set off such funds against the individual indebtedness of the depositor to the bank.”

In addition to the testimony of Hirschfeld and Berwald that they had advised the bank that the moneys placed in the H. L. Barnard, Inc. Departments, account was a trust fund, the evidence is that the provisions in the written lease contract between the appellant and II. D. Barnard, Inc., requiring that the money be held by H. B. Barnard, Inc., for the appellant as a trust fund, was read to the official of the bank. It is unquestioned that the officer of the bank with whom these transactions were had was authorized to represent, and did represent, the bank on these occasions in his official capacity and that he was not acting in his individual capacity. Therefore, whatever knowledge this official had was the knowledge of the bank, acquired by its duly authorized officer acting in its behalf. The account which the bank was advised would constitute a trust fund was opened on March 7, 1927, and closed June 20. 1928, and reopened on April 2, 1929, and deposits made to the account of H. L. Barnard, Inc. Departments. The evidence is that the $511.99 in this account was the money of appellant.

Under these authorities and this record, we are of the opinion that the appellee bank was in possession of sufficient facts to place it on inquiry as to the character of the fund carried in the account of H. L. Barnard, Inc. Departments. U. S. F. & G. Co. v. Adoue & Lobit, 104 Tex. 379, 137 S. W. 648, 138 S. W. 383, 37 L. R. A. (N. S.) 409, Ann. Cas. 1914B, 667; Central Nat. Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693; Arnold v. San Ramon Valley Bank, 184 Cal. 632, 194 P. 1012, 13 A. L. R. 320, and notes, page 324.

The appellee did not plead or prove that it lost or would probably have lost its debt without the application of this $511.99 upon the noté of H. D. Barnard, Inc. If the moneys appropriated was a trust fund and belonged to appellant, the bank could not credit the funds of appellant to the payment of its debt if it had notice of the trust fund character of the money or if it knew sufficient facts to put it on inquiry as to the character of the funds. If it was not a trust fund, the bank was authorized to make the application as it did, and under our view of the case, as presented by the record, whether the bank lost, or would probably have lost, is immaterial.

’ The record suggests that the case was not fully developed on the former trial, and the testimony being sufficient to show that the ap-pellee had knowledge of sufficient facts to put it on inquiry as to the character of the fund it applied to its note, the judgment is reversed, and the cause remanded.


author: HIGGINS, J.

text:
    HOOKER et al. v. STEVENS et al.
    No. 2576.
    Court of Civil Appeals of Texas. El Paso
    Oct. 8, 1931.
    Rehearing Denied Oct. 22, 1931.
    Dea, McGrady & Edwards, of El Paso, for appellants.
    Allen R. Grambling, R. F. Burges, and Walter S. Howe, all of El Paso, for appellees.
   HIGGINS, J.

The will of R. B. Stevens, deceased, designated five persons as independent executors of his estate and directed that no bond be required of them as such, and contained the usual provision that they should administer the estate free from the control of the probate court. The will was probated March 7, 1927. The executors named ■ qualified and returned into the probate court an inventory, etc., which was approved in May, 1927.

The will in question has been twice before this court. See Hocker v. Piper, 2 S.W.(2d) 997, and Hocker v. Stevens, 18 S.W.(2d) 842.

On October 10, 1930, all of the beneficiaries under the will, except Lucille T. Stevens, filed a motion in the county court of El Paso county, where said will was probated, to remove from office the said executors. Attached to and made a part of the motion was a copy of the will.

It was alleged.that the executors had been guilty of gross neglect and mismanagement in the performance of their duties in certain particulars specified, which need not be here set forth as no point with respect to the sufficiency of those allegations is here made.

It was prayed that the court remove such executors and appoint an administrator of the estate. In the county court a general demurrer to the motion was sustained, and the movants declining to amend, the motion was dismissed. Upon appeal to the district court the demurrer was again sustained and the motion dismissed, from which order this appeal is prosecuted.

This appeal is presented upon the proposition that article 3467 applies to independent executors without bond, and that under subdivision 2 of said article the executors are removable by the county judge because of the grounds set up in the motion, and that it is not necessary for the beneficiaries of the will to first proceed under chapter 12, title 54, of the Revised Statutes, to compel such executors to give bond as provided in article 3438 of said chapter.

In' brief, the position of the appellants is that independent executors without bond are removable by the county judge under article 3467, when it is proven that such executors have been guilty of gross neglect or mismanagement in the performance of their duties as such. In support of their position appellants have presented an able brief which we have carefully considered, but in our opinion the question is foreclosed against them by the decisions of the Supreme Court of this state in Perkins v. Wood, 63 Tex. 396, and Jerrard v. McKenzie, 61 Tex. 40. See also opinion of Judge Williams in Roy v. Whitaker (Tex. Civ. App.) 50 S. W. 491, at page 495.

In the first-mentioned case Perkins was the independent executor, without bond, of his mother’s will. The will provided that the share of Plosmer Wood, grandson of the deceased, should not be paid to him until he became twenty-one years of age, and no portion of it until five years from the date of the will, and that the executor should retain in his possession the share of Hosmer Wood' until the latter’s majority. Wood, as the-guardian of the minor, Hosmer Wood, filed suit in the county court against the executor for the purpose of removing him from his position as executor, or of compelling him to-execute a bond if the court declined to remove him. Charges of mismanagement and misapplication of the estate were stated against the executor. Judgment by default was rendered against the executor, removing him from his position as such, a receiver of the-estate was appointed until an administrator should be appointed, and the executor ordered to turn over all of the effects of the estate to him. From this order the executor appealed, and the Supreme Court, speaking-through Justice Stayton, said:

“The will of Mrs. Perkins not requiring the-plaintiff in error to give bond as executor, the application, on very 'sufficient grounds, sought, under the provisions of article 1944, R. S., to compel the executor to give a bond for the security of those interested in the-estate. It sought also to have him, as an alternative relief, removed from the executor-ship upon grounds which would be sufficient to require the removal of an executor or administrator who had given bond and was administering an estate under the control of the county .court.
“In accordance with the will of Mrs. Perkins, the plaintiff in error qualified as executor without bond; and when an executor under such a will has qualified, the statutes provide a mode by which creditors of the estate or persons interested therein may require for their security the execution of a bond. R. S., 1944-1946.
“These provisions of the statute, however, do not contemplate that the executor shall be-removed, unless, after being required to do so, he fails to execute a bond in accordance-with art. 1946.
“The law gives effect to the expressed wish of the testator or testatrix in so far as it can be done without prejudice to creditors of the-estate or persons interested therein; but for the protection of such persons, whenever it is found-to be necessary, requires a bond to-be given by the executor.
“If, when required to do so, thfe executor-fails, within ten days, to give the bond prescribed, then it is made the duty of the-court to remove him and to appoint some competent person in his stead. .R. S., 1947.
“The articles cited are directly applicable' to cases of this character and provide the-mode of procedure; while articles 1973-1976-are applicable to executors or administrators administering an estate under the control off the probate court. Jerrard v. McKenzie, 61 Tex. 43.
“We are of the opinion that the court erred in removing the plaintiff in error from the •executorship, without his failure to give bond ■after being required to do so, and for that reason the judgment of the court below will be reversed and the cause remanded, that, if the averments of the application be found true, the cause be disposed of in accordance with this opinion; the receivership to continue until bond, if found necessary, be given, ■or an administrator with the will annexed be qualified to take charge of the estate.”

Articles 1944-1947, referred to in the opin,ion, correspond to articles 8438-3441 of our present Revised Statutes. Articles 1973-1976 ■correspond to articles 3466-3469 of the present revision.

The case of Jerrard v. McKenzie, which is cited by Judge Stayton, fully supports the conclusion reached in the Perkins Case..

It is insisted by appellants that the Perkins Case is distinguishable and not controlling. But we are unable to find any material distinguishing feature. Upon the authority of that case and the others cited, we are of the opinion that the remedy of the appellants is controlled and governed by articles ¿43S-3441, and the demurrer was properly sustained.

Affirmed.


author: WALKER, X

text:
    GALVESTON, H. & S. A. RY. CO. v. EUBANKS.
    No. 2110.
    ¿Court of Civil Appeals of Texas. Beaumont.
    Oct. 13,15, 1931.
    Rehearing Denied Oct. 21, 1931.
    Baker, Botts, Andrews & Wharton, John T. Garrison, and Arterbury & Coolidge, all of Houston, for appellant.
    Charles Murphy, of Houston, for appellee.
   WALKER, X

In this suit appellee was plaintiff below, and appellant was defendant. Appellee alleged that be was employed by appellant as brakeman on the 24th day of October, 1920, and was wrongfully discharged on the 25th day of October, 1923; that his employment was subject to the conditions of a contract between appellant and its employees of date 1913, whereby it was agreed that appellee would not be disciplined or discharged without proper cause, and whereby he had the right to appeal from the order of dismissal to appellant’s higher officers; that after his discharge he prosecuted his appeal therefrom in the manner provided by the contract of 1913, but his contentions were denied, and appellant refused to reinstate him; he further alleged that in 1922 appellant and the four brotherhoods, the Brotherhood of Locomotive Engineers, the Order of Railway Conductors, the Brotherhood of Locomotive Firemen and Enginemen, the Brotherhood of Railroad Trainmen (appellee belonged to the last named brotherhood), entered into a contract by which appellee had the right to appeal from the final decision of appellant’s higher officers, under the contract of 1913, to a “Train Service Board of Adjustment for the Western Region,” created by the contract of 1922; that he did so appeal, and that his appeal was fully sustained by the board; that, notwithstanding the final orders of the board, appellant refused to reinstate him. His claim was for damages for time lost from the date of his discharge to the end of his life, as measured by the standard mortality tables.

The substance of appellant’s answer was (a) the award of its higher officers was binding upon appellee, and (b) the award of the board, created by the contract of 1922, was void, because the board was without jurisdiction to hear the controversy.

The case was tried to a jury, but, upon conclusion of the evidence, the jury was discharged and judgment entered by the trial court in appellee’s favor at the rate of $144 per month from the date of his discharge on October 25, 1923, to the date of the trial, the 18th day of June, 1930, and for twenty-nine years additional time, being appellee’s life expectancy from the date of the trial, at the rate of $144 per month. However, on the second item, appellee prayed for only $30,000, and his recovery on that item was limited to that sum. On the first item he was awarded $11,481.20. Against this item, the court refused to allow appellant credit for appellee’s earnings as a carpenter from the date of his dismissal to the date of trial. The appeal was duly perfected to the Galveston Court of Civil Appeals and transferred to this court by order of the Supreme Court.

The facts are as follows: Appellee was employed by appellant as brakeman, and discharged on the. dates pleaded. The accident, resulting in appellee’s discharge occurred on the 11th day of September, 1923, at Schulen-burg, a station on appellant’s line of railway. On that day, appellee was assigned to the rear end of local train No. 84, which left San Antonio at 7:55 a. m., and arrived at Schulen-burg at 8:50 p. m., with nine loaded, and two empty, cars. The usual stop was made on the main track on a 1.22 per cent, ascending grade for the purpose of doing switching on the local yard. The head brakeman and the switch swing brakeman were riding the head end of the train. The conductor and appellee were riding in the caboose. After the train stopped, appellee immediately went back with stop signals to protect the rear end of his train. After the train stopped, the conductor left the caboose and walked towards the head end of the train. After appellee left the train, the engine and three cars were cut loose from the other cars. The engineer, his fireman, and the two other brakemen rode the engine and the three ears that had been cut from the train to the compress track for switching purposes. When appellee’s train No. 84 stopped at Schulenburg, train No. 246, a superior train, traveling closely behind ap-pellee’s train and in the same direction, was past due at Schulenburg, which facts appel-lee knew. During the progress of the switching work, and after about twenty minutes delay, the engine returned from the compress to the main track with a cut of cars, and backed up against the cars left standing on the main track. Because the coupling failed to make, the rear portion of the train was started down grade, running a distance of about two miles before coming to a stop. The runaway would have been avoided had a sufficient number of hand brakes been set on the rear end of the train.

It was shown without dispute that appel-lee left his train without setting any hand' brakes on the rear end thereof. The charge upon which he was dismissed was worded as-follows: “Failing to set hand brakes on rear-portion of his train which was left standing on an ascending grade, and responsibility for part of his train getting away at Schulen-burg, Texas, September 11, 1923.”

Article 32 of the 1913 contract is as follows: “No trainman will be disciplined or-discharged without proper cause, and if a. trainman accepts his time when discharged, he does not forfeit his right to make a grievance, within the prescribed limit. Trainman taken out of the service or otherwise disciplined shall be given a hearing by proper division officers as early as possible, after request in writing, and decision will be promptly rendered. Trainman will have the right to be accompanied or represented by. one or more trainmen in the Company’s employ or the regular Committee of the Organization, and have the right to appeal to higher officers of the Company, in case decision is unsatisfactory. Notice of appeal must be given within sixty days after decision is rendered. Officers to whom cases are appealed will give a hearing and decision as early as possible. If dismissal is found unjust, trainman will be reinstated and paid for all time lost. Trainman charged with offenses involving either discipline or dismissal will be advised of the offense in writing, and all parties concerned may be present at the investigation, if the accused so desires. In so far as it can be done legally, transportation over the lines of these Companies will be furnished employees upon request, for the purpose of securing evidence concerning grievances, or to reach the General Officials.”

Appellant’s operating rules, to which appel-lee was subject, material to this case, are as follows:

“Rule 47. When a freight train is standing on a grade where it is necessary to keep the brakes applied, hand brakes must be set and straight air brake applied on locomotive or locomotives, then the automatic brake released so as to have train charged to maximum brake pipe pressure before starting. When train is standing on descending grade, hand brakes must be set on head end, and when on ascending grade, hand brakes must be set on rear end.”
“Rule 99. When a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman’s signals a sufficient distance to insure full protection. One-fourth of a mile from the rear of the train, he will place one torpedo on the rail; continuing back one-half mile from the rear of the train, he will place two torpedoes on the rail, two rail lengths apart. He may then return to the single torpedo, where he must remain until relieved by another flagman or is recalled by the whistle of his engine. When recalled if he does not see or hear an approaching train, the single torpedo will be removed, and not before. By night, or by day when conditions warrant, a lighted fusee will be displayed to protect his train while returning.”
“Rule 843. On grades when engines áre cut off at stations to do work or at any stop of unusual length, the air must be released and a sufficient number of hand brakes set to hold the train. Both conductor and en-ginemen will be held responsible for compliance with this rule.”

Appellee was discharged for failing to- obey rule No. 843, and duly prosecuted his appeal from the order of discharge to appellant’s “higher officers,” under the procedure provided for by article 32, who refused to sustain his grievance. He then perfected his appeal to the board, as created by the 1922 contract. The material portions of that contract are as follows:

“1. That all disputes growing out of personal grievances or out of the interpretation or application of the schedules, agreements or practices now, or hereafter established on the , railroad signatory hereto, which cannot be adjusted by direct conference between representatives of the individual railroad and its respective employees shall be disposed of in the following manner.
“2. There shall be created as soon as practicable a Railroad Board of Adjustment to be known as ‘Train Service Board of Adjustment for the Western Region’ (hereinafter referred to as the Board) to consist of eight members; four to be selected by the said railroads and one each by the chief executive officer of each of the four organizations of employees, hereinbefore named.
“17. No dispute shall be considered by the Board except those with respect to matters covered by Section 1 of this agreement and which have arisen out of occurrences subsequent to October 1, 1921, and are now pending, or may hereafter arise.
“All disputes arising out of proposed changes in rules, working conditions or rates of pay are specifically excluded from the jurisdiction of the Board.
“The Board shall not assess punishment or change the discipline administered. In the determination of disputes involving personal grievances the decision of the Board shall be limited to the guilt or innocence of employees as charged.”

In his complaint to the board, appellee submitted the facts of the accident and his construction of the contract of 1913, and of appellant’s operating rules, together with a request that the board find that he was unjustly discharged. He also stated that he would expect pay as provided by article 32, if it was found that his dismissal was unjust. Appellant refused to make a joint submission, but made an independent statement of the facts, substantially as we have stated them above. It also protested the jurisdiction of the board to entertain appellee’s grievance, and stated to the board that it had no jurisdiction, except to determine whether or not appellee set the hand brakes on the rear end of his train before leaving to protect it from the approaching train, and further stated that, since appellee conceded this fact, the board had no jurisdiction, except to return a verdict of guilty as charged. Upon this submission, the board entered the following decree, on the 8th of March, 1926: “Decision: In view of the facts involved in this case, this claim is sustained.”

Appellant wrote to the board protesting the legality of the award, on the ground that it was beyond the board’s jurisdiction, and stated to the board that it would not recognize the award. Appellee also wrote the board that appellant refused to recognize the decision to reinstate him, and filed with the board a supplemental claim asking that it determine his guilt or innocence, as charged. Appellant was not served with notice of this supplemental claim. With this correspondence before it, the board entered an addenda decision on the 7th day of July, 1926, to the effect that its decision of March 8, 1926 “should be understood as expressing the intent of the Board that Brakeman Eubanks was not guilty.” After this last award was made, appellant again protested it as void. On the 30th of November, 1926, the board reopened the claim by the following order: “Board’s docket No. twenty three sixty four now assigned to Eubanks case and will be heard with others set for next week based entirely upon the provisions of article thirty two.”

Under that order, a new submission was had and another decree was entered, as follows: “Decision: In the opinion of the board decision No. 1876 (referring to the original decision copied above), and addenda issued by the board dated July 12, 1926, implied that article 32 of schedule should be applied. The board, therefore, sustains the claim.”

That was the final award by the board. Appellant again protested its validity.

Opinion.

The jurisdiction of the board to entertain appellee’s grievance is the first question in this case; for, if the board had no jurisdiction, under St. Louis, B. & M. Railway Co. v. Booker (Tex. Civ. App.) 5 S.W.(2d) 856, the award of appellant’s “higher officers,” made under article 32 of the 1913 contract, was binding upon appellee, and the court erred in refusing to instruct a verdict in its favor. But if the board had jurisdiction, appellee had a cause of action for his damages.

It is the contention of appellant that the board had jurisdiction only to the extent of determining whether or not appellee set the hand brakes on the rear end of his train, and, since that fact was admitted, the board was compelled, as a matter of law, to find that he was guilty as charged. On the other hand, it is the contention of appellee that the board had jurisdiction to construe the 1913 contract and the operating rules, which he was compelled to obey, and to determine, under all the facts in the record, his guilt or innocence as charged; that is, whether or not in failing to set the hand brakes he had breached a duty owed by him to appellant.

Section 1 of the 1922 agreement expressly gave the board jurisdiction over all disputes growing out of personal grievances, and the interpretation and application of the “schedules,” “agreements,” and practices regulating and controlling appellee’s employment with appellant. Appellee’s difference with appellant was “a personal grievance.” The 1913 contract and appellant’s operating rules fall within the terms “schedules” and “agreements,” as used in section 1 of the 1922 contract. Appellee’s personal, grievance was a dispute growing out of the “interpretation” and application of the operating rules, and of article 32 of the 1913 contract. Thus it is clear, under this analysis of the operating rules and the two contracts, that the board had jurisdiction to decide the dispute between appellant and appellee. But appellant says this proposition is not sound because by section 17 the board was expressly denied jurisdiction of proposed changes in rules, working conditions, and rates of pay, and was without power to assess punishment or change the discipline administered. Ap-pellee’s grievance involved none of these issues. He merely asked the board to' find that he was unjustly discharged, which, under the facts of this case, presented the same issues as if he had asked the board to determine his guilt or innocence. It is true that he also stated in his application that if the finding was in his favor he would “expect” pay for time lost, as provided by article 32 of the 1913 contract. That request did not invoke the power of the board to do anything. It was nothing more than a statement by ap-pellee of his legal rights if the controversy was decided in his favor, for, under article 32, a favorable finding entitled him to pay fop “all time lost.” Again, appellant says the board had no power, under section 17, except to determine the guilt or innocence of appellee as charged, and, since he admitted that he did not set the hand brakes, the board was compelled, as a matter of law, to find him guilty. This proposition is not a correct cpn-struction of the contracts and operating rules. Section 17, by granting the board authority to determine the guilt or innocence of an employee, gave it jurisdiction to construe and interpret the contracts and operating rules, and to find whether or not these rules had been violated by the employee. The employee’s guilt or innocence would not be determined by a mere finding that he did or did not do the specific act charged against him, for, if he had violated no duty owed by him to his employer, he would be entitled to a verdict of not guilty. So, in this case, though appellee admitted he failed to set the hand brakes, if, on all the facts, it was not his duty to set the hand brakes before going back to guard the rear end of his train, he was not guilty as charged. On the facts of this case, we think the board had jurisdiction to render its first decision of March 8, 1926, sustaining appellee’s claim. Had no protest been made against that decision, ap-pellee’s rights thereunder would have dated from March 8, 1926. But appellant entered its protest, denying the jurisdiction of the board and refusing to give it effect, and ap-pellee answered that protest, thereby suspending the operation of the order of March 8th. Eollowing that order, on the 12th of July, the board entered its addenda decision, to the effect that by the decree of March 8th it intended to find that appellee “was not guilty.” Had no protest been made against the addenda decision, appellee’s rights ‘thereunder would have dated from July 12, 1926. But the act of appellant, in protesting its validity, and of appellee, in resubmitting his grievance, again suspended the operation of the order of March 8th, and it did not go into effect until the board made its final order on February 18, 1927, giving its two preceding orders a definite construction, and fully sustaining appellee’s contention that he had been unjustly discharged. As the final award was in appellee’s favor, and as appellant refused to recognize its validity and to reinstate him and to pay him for “all time lost,” as provided by article 32 of the 1913 agreement, appellee had a cause of action against appellant as for breach of contract of employment. On this statement of the case, appellant was not entitled to an instructed verdict.

The next important question is appel-lee’s proper measure of damages. When a contract of employment is broken by the master without fault of the servant, the servant’s cause of action is not for the wages contracted for, but for damages for breach of contract. Our courts say, in such cases, that there is no difficulty in defining the cause of action and the date of its accrual, but in determining the proper measure of damages. In Litchenstein v. Brooks, 75 Tex. 196, 12 S. W. 975, discussing the servant’s right to recover against his master for breach of contract of employment, our Supreme Court said: “There is but one cause of action, and only one suit can be brought. That may be brought at any time before the cause of action is barred by the statute of limitations, either immediately or after the expiration of the time that the contract was made for. In either case no more damages can be recovered than have accrued at the trial.”

On this same proposition, Mr. Chief Justice Jones, speaking for the Dallas Court of Civil Appeals, in Southern Properties, Inc. v. Carpenter, 300 S. W. 963, 964, said: “It has been uniformly held by our courts that, in a suit filed by the discharged employee previous to the expiration of the contract time, he can only recover damages for the period of time from his discharge to the trial of his case, and that, if he elects to go to trial of his ease before his entire damages can be ascertained, he waives damages for the period of time following the trial. Litchenstein v. Brooks, 75 Tex. 196, 12 S. W. 975; Louisiana Rio Grande Canal Co. v. Quinn (Tex. Civ. App.) 161 S. W. 375; Weber Gas & Gasoline Engine Co. v. Bradford, 34 Tex. Civ. App. 543, 79 S. W. 46; Pacific Express Co. v. Walters, 42 Tex. Civ. App. 355, 93 S. W. 497.”

In Golden Bod Mills v. Green, 230 S. W. 1089, 1092, the San Antonio Court of Civil Appeals, citing the Brooks Case on this proposition, said: “There can be no recovery in such cases for damages beyond the time of the trial.”

Under the authorities cited, appellee had a cause of action against appellant for refusing to reinstate him in his employment, but could not recover damages beyond the date of the trial of his case in district court. 1-Iis measure of damages from the date óf the final award to date of final judgment in district court herein will be the difference between what he would have earned under his contract with appellant and what he may earn in the exercise of ordinary diligence in some other employment. Announcing this measure of damages, our Supreme Court said, in the Brooks Case, supra: “It is the duty of the injured party to find other employment if he can, and if he succeeds the amount of his damages will be reduced by the amount earned in the new employment.”

Because article 32 of the 1913 contract expressly provided that appellee, if his dismissal was unjust, should have pay “for all time lost,” he insists that the general rule does not constitute his measure of damages covering the period of time from the date of his discharge to the date of the final order. Wo have found no decision construing the language pay “for all time lost” as constituting a limitation upon the general rule. But the facts of San Antonio & A. P. Kailway Co. v. Collins (Tex. Civ. App.) 35 S.W.(2d) 507, involved a construction of this language by the United States Kailway Labor Board. In that case, it appears that a switchman appealed for relief against his dismissal to the United States Kailway Labor Board, which sustained his appeal. The employee’s contract provided, as does appellee’s contract, that, if the dismissal was unjust, he was entitled to be reinstated and paid “for all time lost.” The Labor Board made its decision ordering the switchman reinstated, and directing the railway company to pay him all sums which he would have earned, less what he would have earned in other employment. We believe the United States Bailway Labor Board correctly construed this language. The provision, pay “for all time lost,” means nothing more than pay for loss of’ earnings.

In the trial of this case in the court below, when the judge announced his decision to take the case from the jury and to enter judgment in appellee’s favor, appellant, at that time, reserved no exceptions to the rulings of the court in dismissing the jury, but duly excepted in his motion for new trial. Because appellant failed to except at the time the court discharged the jury, appellee insists that error cannot now be predicated upon the rulings of the court in discharging the jury, nor upon the findings of the court assessing damages in appellee’s favor. This contention is overruled. This identical proposition was before the Commission of Appeals in Korn v. Korn, 15 S.W.(2d) 1017, where it was held, quoting second syllabus: “Action of trial court in withdrawing case from jury in suit involving issue of husband’s fraudulent conveyance of homestead held reviewable on appeal, notwithstanding defendant’s failure to take exceptions to court’s action, where objection thereto was made in motion for new trial, since result of withdrawing case from jury is equivalent to giving peremptory instruction.”

We also sustain appellant’s contention that ■the court erred in fixing, as a matter of law, appellee’s «monthly compensation at $144. Appellee was an extra brakeman; his contract did not provide him with regular employment ; he worked only when he was called out for service. During the six months preceding his discharge, he earned the following amounts:

‘April, 1923.$137.22
May “ . 70.44
June “ . 61.65
July “ . 179.42
August “ . 195.13
Sep. “ . 166.85
Oct. “ 123.40”

On these facts, appellee’s compensation from the time he was discharged to the date of the final trial of this cause will be a question for the jury.

For the errors discussed, the judgment of the lower court is reversed, and this cause remanded for a new trial.


text:
    MARKS v. SECURITY STATE BANK OF McCAMEY et al.
    No. 2569.
    Court of Civil Appeals of Texas. El Faso.
    Sept. 24, 1931.
    Rehearing Denied Oct. 15, 1931.
    B. F. Howell, of Rankin, for appellant.
    Hanson Womack, of McCamey, and W. C. Jackson, of Ft. Stockton, for appellee.
   HIGGINS, J.

Appellant, Marks, sued C. M. Carroll and applied for a writ of garnishment against the Security State Bank of McCamey, Tex., a corporation. ‘The writ was issued and served upon the president of said bank. Carroll gave.a replevy bond. Eater the bank answered admitting that it was indebted to Carroll in the sum of $879.46, at the time the writ was served upon it, and that said sum was thereafter paid to Carroll upon notice by the clerk of the court that the same had been replevied according to law. The answer denied any further liability upon the writ. Upon motion of Carroll the garnishment proceedings were quashed, and this action of the court is the only error here assigned.

The writ summons C. M. Carroll to make answer thereto. It does not in any wise direct that the bank, upon whom liability as garnishee was sought to be imposed, should, be summoned, and for this reason the writ was fatally defective. Insurance Co. of North America v. Friedman, 74 Tex. 56, 11 S. W. 1046.

This defect is so obviously fatal that we need not consider objections also urged by appellee against the sufficiency of the affidavit in garnishment. It is asserted by the appellant that the defect in the writ was waived by the action of the garnishee in answering the writ and by Carroll giving a replevy bond. This contention cannot be sustained. The garnishment cannot be aided, to the detriment of Carroll, by the voluntary act of the garnishee in answering the writ, Insurance Co. of North America v. Friedman, supra.

And article 4084, Rev. Stat., provides that where the defendant gives replevy bond he may make any defense which the defendant in garnishment could have made. It is clear that in view of this statute the defendant Carroll is not to he regarded as having waived the defect in the writ under which his funds were sought to be impounded. See the ease above cited, and the following: Fleming v. Pye, 43 Tex. Civ. App. 176, 95 S. W. 594; Luse v. Fort Worth Electric & Motor Car Co. (Tex. Civ. App.) 261 S. W. 163 ; Walker v. Illinois Torpedo Co. (Tex. Civ. App.) 278 S.W. 456; New Amsterdam Cas. CO. v. Keith (Tex. Com. App.) 273 S. W. 836; Pumphrey v. Hunter (Tex. Civ. App.) 270 S. W. 237.

Affirmed.


author: 'ALEXANDER, J.

text:
    KING et al. v. FALLS COUNTY et al.
    No. 1089.
    Court of Civil Appeals of Texas. Waco.
    Oct. 1, 1931.
    T. B. Bartlett, of Marlin, and J. W. Spivey, of Waco, for appellants.
    C. D. Jessup, of Houston, and Terry Dickens and Carroll Pearce, both of Marlin, for appellees.
   'ALEXANDER, J.

This was a suit instituted in the district court of Falls county by R. W. King and others as taxpayers residing in new road district No. 4 of Falls county, Tex., complaining of Falls county, the commissioners’ court thereof, and the tax collector and tax assessor of said county, seeking to enjoin the sale of road bonds issued by said district, and to prevent the levy and collection of taxes in said district for the purpose of paying said bonds at their maturity. The plaintiff's allege, among other things, that on or about the 9th day of September, 1929, the commissioners’ court of Falls county created and established new road district No. 4 in said county, and that thereafter, on petition properly presented, the commissioners’ court ordered an election in said district to determine whether or not it should issue road bonds on the faith- • and" credit of. said district in the sum of $446,000. The plaintiffs further allege that at the election for the issuance of said bonds, said issue carried, and the commissioners’ court passed an order authorizing the issuance of said bonds; that the court has levied a tax on all property located in said district for the purpose of liquidating said bonds, and is now seeking to collect said taxes. The plaintiffs alleged various irregularities in the creation of said district and in the voting of said bonds, and sought to have said bonds declared illegal, and to restrain the sale of said bonds and the collection of the taxes for the payment of the same. These irregularities will be set out more fully in the opinion. The case was regularly set for trial on its merits, and, upon a hearing thereof, the trial court sustained a general demurrer to the plaintiffs’ petition, and they have appealed.

The plaintiffs alleged that the proceedings of the commissioners’ court in creating the new road district were illegal because at the time the district was created the court did not hear any evidence as to the advisability of creating the district, and the plaintiffs were not given any opportunity to express themselves. The statute, article 752c (Acts 1926, 39th Leg., 1st C. S., p. 23, ch. l6, § 3; Acts 1927, 40th Leg., 1st C. S., p. 250, ch. 92, § 1 [Vernon’s Ann. Civ. St. art. 752c]) authorized the commissioners’ court to create a road district of its own motion, and does not require that any previous notice be given to the taxpayers, nor that evidence be heard as to the advisability of creating the same. The statute does not contemplate that the taxpayer shall be heard at the time the district is created. His right to be heard accrues later when the petition is presented to the court calling for the bond election. Revised Statutes, article 752e, (Acts 1926, 39th Leg., 1st C. S., p. 23, ch. 16, § 5 [Vernon’s Ann. Civ. St. art. 752e]).

The plaintiffs further alleged that, at the time the petition for the bond election was presented, the commissioners’ court entered an order reciting that it would be for the benefit of all taxable property in the district to issue such bonds and to construct such roads. Plaintiffs then charged: “That the above is not true or correct and was not true or correct at the time such order was made, and that said commissioners’ court wrongfully, negligently and arbitrarily made such finding and order with respect to such benefits and advantages without any evidence on which to base it.”

Our Legislature in compliance with the holding of the Supreme Court in the case of Browning v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 330, “The Archer County Case,” enacted chapter 16 of the First Called Session of the 39th Legislature, and,-by section 5 thereof, provided that when a petition is presented to the commissioners’ court for a road bond election, “The court shall proceed to hear such petition and all matters in respect of the proposed bond election. Any person interested may appear before the court in person or by attorney and contend for or protest the calling of such proposed bond election. * * * if upon the hearing of such petition, it be found '* * * that the proposed improvements would be for the benefit of all taxable property situated in such * * ⅜ road district,” etc., the court may order the election. Revised Statutes, article 752e (Acts 1926, 39th Leg., 1st C. S., p. 23, ch. 16, § 5).

This statute requires the commissioners’" court, before ordering such an election, to make a finding that it would be for the benefit of all taxable property in the district. In this case, the court entered an order reciting such finding, but plaintiffs have charged that such a recitation was untrue, and that the court made such order wrongfully and arbitrarily and without any evidence. Since the trial court sustained a general demurrer to the petition, we must indulge all reasonable presumptions in favor of the petition. We must also presume that the plaintiffs, if they had been permitted to do so, would have proven the allegations as- made by them. We therefore have before us a case where the law requires the commissioners’ court, before ordering a bond| election, to judicially determine that the issuance of the bonds would be for the benefit of all taxable property in the district, and yet, under the allegations in this ease, the court has not judicially determined such issue, but has arbitrarily and wrongfully entered such an order contrary to the facts.

The word “arbitrarily” means in an arbitrary manner, and “arbitrary,” as defined by the Standard Dictionary, means: “Fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.” Central of Georgia R. Co. v. Mote, 131 Ga. 166, 62 S. E. 164, 170.

The statute contemplates a judicial determination of the issue by the court; an adjudication which renders judgment only after a consideration of the facts; an adjudication that is the result of deliberate judgment, exercised in the light of the facts, if any, proven as well as matters within their own knowledge, and not the arbitrary entry of a decree or judgment as the result of caprice, without judicial deliberation and determination of the issue, and contrary teethe facts. It would be useless to hold that the taxpayer must he allowed a hearing before the board, as was held in the case of Browning v. Hooper, supra, and then to hold that the board could arbitrarily enter the order for the election without a judicial determination of the issue.' Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71. (writ ref.); Allen v. Emery Ind. School District (Tex. Civ. App.) 283 S. W. 674.

Our Constitution, article 5, § 8, gives the district court supervisory control over the commissioners’ court. Oden v. Barbee, 103 Tex. 449, 129 S. W. 602; Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162; Robison v. Whaley Farm Corp. (Tex. Sup.) 37 S. W.(2d) 714. Where a matter has been committed to the discretion of the commissioners’ court and acted on by it, its judgment becomes the judgment of a court of competent jurisdiction, and a district court is not authorized to review the discretion of the commissioners’ court, nor to set aside such judgment, unless it appears that there has been a clear abuse of the discretion of the court, or, unless there appears to be collusion, fraud, or bad faith. 11 Tex. Jur. 568; Williams v. Castleman, 112 Tex. 193, 247 S. W. 263, par. 8; McWilliams v. Commissioners’ Court of Pecos County (Tex. Civ. App.) 153 S. W. 368, par. 2; Cameron v. Earnest (Tex. Civ. App.) 34 S.W.(2d) 685, par. 5; Wright v. Allen (Tex. Civ. App.) 257 S. W. 980, par. 4; Schiller v. Duncan (Tex. Civ. App.) 21 S.W.(2d) 571, par. 2; Davisson v. Eastland County (Tex. Civ. App.) 6 S.W.(2d) 782, par. 9.

Where the acts of the commissioners’ court, in matters requiring the exercise of judicial discretion, are the result of purely arbitrary action on their part, and not the result of a judicial determination of the issue, it becomes the duty of the district court, under its supervisory power, to set aside such acts. In the case of Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71, 73 (writ ref.) it is said: “For all such arbitrary acts [of the commissioners’ court] performed in the exercise of judicial power are fraudulent, and voidable, in the proper tribunals of the state, by direct proceedings to set them aside.”

In the case of Allen v. Emery Ind. School District (Tex. Civ. App.) 283 S. W. 674, 676, it is said: “A merely and purely arbitrary or capricious valuation made by such tribunal [a tax board] disproportionate to the property’s value is ground for objection and cause for interfering with its action.”

For the reasons above stated, we think the court erred in sustaining the general demurrer to plaintiffs’ petition. This is not an attack on the legal existence of the district as was the case of Grisham v. Tate (Tex. Civ. App.) 35 S.W.(2d) 264, but is an attempt to restrain the issuance of the bonds, notwithstanding the legal existence of the district.

We have considered all other propositions presented in appellants’ briefs, and find them without merit.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for a new trial.


author: LOONEY, J.

text:
    LOVING v. LAIRD et al.
    No. 10847.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 10, 1931.
    Rehearing Denied Oct. 24, 1931.

      Ross Lawther, and Wm. M. Cramer, both of Dallas, for appellant.
    T. W. Davidson and J. W. Randall, both of Dallas, for appellees.
   LOONEY, J.

This is a suit by Pat Laird, a minor, by E. M. Laird, his father, and Mrs. Linnie Laird, his mother, as next friends, to recover damages for personal injuries received by being struck and knocked from the running board of a Ford coupé by a truck operated by an agent of Earl S. Loving, appellant; and Mrs. Laird in the same action sued to recover in her individual right damages for the loss of services of her son, for medical expenses, etc.

Appellant sought to have abated the cause of action set up by Mrs. Laird in her individr ual right, on the ground that E. M. Laird, the husband, was the proper person to sue for and recover such damages; also answered by demurrers, general denials, pleaded qon-tributory negligence on the part of plaintiff, his father and mother, and Mrs. Morrow, driver of the 'coupé, on the running board of which the boy was standing when struck by the truck. Appellant also interpleaded A. H. Belo & Co., alleging that Mrs. Morrow, who at the time of the injury was being assisted by Pat Laird in delivering to subscribers the Dallas Journal, one of its publications, was its agent, and that her negligence was the proximate cause of the injury to said minor. However, as the corporation was dismissed on its plea in abatement, its connection with the litigation will not be further noticed. All issues of fact having been found in favor of plaintiffs, and their damages assessed at the total sum of $10,450, apportioned $8,000 to Pat Laird and $2,450 to bis mother, Mrs. Linnie Laird, the court rendered judgment against appellant accordingly, from which he appealed.

By proper assignment, appellant urges the proposition that the claim for lost services of the minor — doctor bills, etc., — ■ was community property of E. M. Laird and wife, Linnie Laird, for the recovery of which the husband alone was entitled to sue, hence the judgment in favor of Mrs. Laird for those items was unauthorized and should be set aside.

This proposition correctly asserts the general rule, but the facts of the case, in our jpinion, bring it clearly within a well-recognized exception. As before shown, E. M. Laird, joined his wife as next friend in the prosecution of the suit for the benefit of their minor son, and in the same pleading Mrs. Laird set up her right to recover individually for the loss of services and for medical expenses, etc., resulting from and incident to the injury to the boy, based upon allegations to the effect that, while she and her husband, E. M. Laird, were not divorced, nevertheless they were separated; that he had removed to and resided in another part of the state; that he contributed nothing to the support of herself or their three minor children, including Pat; that Pat gave to her all his earnings, and was in turn supported and eared for by her. The evidence, without contradiction, fully sustained these allegations. In addition to this, the first amended supplemental petition filed in the cause by E. M. Laird and wife contains this allegation: “That E. M. Laird, the father of Pat Laird, makes no claim for any individual compensation for himself by vir'Cue of the injuries, but joins herein as next friend in order that Pat Laird may maintain this suit and recover such damages as the court may in its judgment award.” Disposing .of the parties and issues, the court adjudged, among other things, “that the plaintiff E. M. Laird take nothing by this suit except in so far as the same was awarded to the minor, Pat Laird!”

These facts show that, by reason of having been abandoned by her husband, and his failure to contribute to the support of herself and minor children, Mrs. Laird was thrown upon her own resources for the support of herself and children; therefore was authorized to sue in her own individual right for the loss of services, and for medical expenses incident to and resulting from the injuries to her son.

The doctrine controlling such a situation was accurately and succinctly stated by Judge Robertson, in Cullers v. James, 66 Tex. 494, 497, 1 S. W. 314, in the following language: “In Texas, practically, the protection and disability of marriage have been linked together, and the wife, when deprived of the one, has been released from the other. Ezell v. Dodson, 60 Tex. 331, and cases cited. Humanity requires that when thrown upon her own resources by the abandonment of her husband, or by his lunacy or imbecility, she shall be unfettered in her struggle for existence and independence. Here her separate being has not been merged in her husband, at common law, but, as far as it could be done, consistently with the preservation of the home and family, she has been disenthralled. She has equally with her husband an interest in the community property, and while her husband is the managing partner, and may assert his prerogative as long as he exercises it in good faith, yet, certainly, when he abandons the wife and their property, there can be no principle in our law or practice which would prevent the wife, as a party in interest, from asserting her rights in the courts. The husband has abdicated his authority, and by that act enabled the wife to appear in court in her own name and right.”

Aside, however, from this status of the ease, in view of the disclaimer of record by E. M. Laird, that he made no claim except as next friend for his son, and the adjudication that he take nothing except in so far as the same was awarded to his son, Mr. Laird would be estopped to prosecute a subsequent action against appellant for the recovery, in his individual right, of damages resulting to the community from the injuries to his sop. We therefore overruled this contention o"f appellant.

Plaintiffs relied for recovery on allegations to the effect that appellants’ agent, the driver of the truck, was guilty of negligence in operating the same at the place and under the circumstances at a high and dangerous rate of speed; that he was negligent in failing to keep a lookout for persons, in order to avoid injuring them; that he was negligent in not keeping the truck under proper control, so as to avoid running into' persons and automobiles; and that such negligence was a proximate cause of the injury.

The evidence was sufficient to sustain findings favorable to plaintiffs on each alleged phase of negligence, but the court, it seems, submitted specifically and separately only one phase — that is, the issue as to the failure of the driver to keep a proper lookout. The question of negligence was submitted by the court in special issues Nos. S, 4, and 5, as follows:

“No. 3: Do you find and believe from a preponderance of the evidence that if Mrs. Morrow was in the act of pulling out from the curb into the street at the time of the alleged collision, then could the driver of the truck, in the exercise of ordinary care in driving and keeping a lookout, have avoided such collision and injury, if any, to the plaintiff, Pat Laird? Answer this question ‘yes’ or ‘no.’ Answer: ‘Yes.’
“No. 4: Do you find and believe from a preponderance of the evidence that the plaintiff Pat Laird, on or about the date stated in plaintiff’s petition, was struck and injured by reason of the negligent operation, if any, of a truck owned and operated by the agents and servants of the defendant, Earl S. Loving? Answer this question ‘yes’ or ‘no.’ Answer: ‘Yes.’
“If you have answered Special Issue No. 4 in the affirmative or by ‘yes’ then you will answer the following special issue, but if you have answered Special Issue No. 4 in the negative or by ‘no’ then you need not answer the following special issue:
“No. 5: Do you find and believe from a preponderance of the evidence that the negligence, if any, of the defendant in the operation of his truck was the proximate cause, as that term has hereinabove been defined to you, of the alleged injuries, if any, to the plaintiff, Pat Laird? Answer this question ‘yes’ or ‘no.’ Answer: ‘Yes.’ ”

Appellant urged below objections to special issues Nos. 4 ¿nd 5, to the effect that they were too general, did not confine the jury to the acts of negligence pleaded, or to any specific act of negligence, were multifarious and duplicitous. These objections were overruled, error was assigned thereon, and the proposition urged here is that separate issues of negligence should have been submitted as pleaded, and that the court committed reversible error in the manner and form in which the question of negligence was submitted to the jury. j

When read together, the effect of the charge of the court was a submission of the alleged negligence of the driver in failing to keep a proper, lookout, which the jury found in favor of plaintiff, and further that such negligence was a proximate cause. This, in our opinion, was sufficient to sustain the judgment, for, even if the other phases of negligence alleged by plaintiffs — that is, as to the rate of speed the truck was being driven, and the failure of the driver to keep the same under proper control — had been separately submitted and found by the jury in favor of appellant, yet, in view of the finding that the driver was negligent in failing to keep a proper lookout, and that such negligence was a proximate cause of the injury, plaintiffs would nevertheless be entitled to judgment. Eor this reason, we do not think the case is within the rule announced in Lancaster v. Rogers (Tex. Civ. App.) 258 S. W. 283; Rosenthal v. Hillebrandt (Tex. Civ. App.) 280 S. W. 882; Darden v. Denison (Tex. Civ. App.) 3 S.W.(2d) 137; Kansas City, etc., v. Moore (Tex. Civ. App.) 11 S.W.(2d) 335, 337; and Northern Texas Traction Company v. Singer (Tex. Civ. App.) 34 S.W.(2d) 920, 922, as contended by appellant. In each of these cases separate acts of negligence were alleged, but the question of negligence, whether or not, was submitted to the jury in a general form, which met condemnation; the courts holding that negligent acts should have been separately submitted as plead.

In the discussion appellant seems to have ignored special issue No. 3 and the answer of the jury thereto, and rests his contention on objections to special issues Nos. 4 and 5. If these issues stood alone, the case would be similar to the adjudicated cases mentioned above, and the doctrine announced in those cases and invoked here would doubtless- be applicable, but such is not the case. Special issue No. 3 and the answer of the jury thereto <?annot be ignored, and, when considered in connection with issues Nos. 4 and 5, we do not think appellant’s position is well taken. Having carefully considered all assignments of error and propositions urged by appellant, and finding no reversible error, the judgment below is affirmed.

Affirmed.


author: WALTHABU, J.

text:
    TEXAS & P. RY. CO. v. RODGERS et al.
    No. 2573.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 1, 1931.
    Rehearing Denied Oct. 22, 1931.
    T. D. Gresham and R. S. Shapard, both of Dallas, Russell & Starley, of Pecos, Howárd & Jackson, of El Paso, qnd D. Vance Swann, of Odessa, for appellant.
    Beall & Beall, of Sweetwater, Paul Moss, of Odessa, and Dallas C. Biggers, of Dallas, for appellees.
   WALTHABU, J.

W. B. Rodgers brought this suit against the Texas & Pacific Railway Company for damages for personal injuries to himself and injury to a motortruck driven by him, which injuries he alleges he sustained through the negligence of appellant in operating its railroad engine at the intersection of the Bank-head Highway crossing with appellant’s railroad tracks in the town of Odessa.

The Commercial Credit Company, Inc., filed a plea of intervention claiming an indebtedness against appellee Rodgers in the principal sum of $1,003.62, with interest and attorney’s fees, evidenced by a promissory note, and secured by a chattel mortgage on said truck. Intervener prayed that it recover a sufficient amount of any judgment recovered by Rodgers in his suit for the destruction of said truck, to pay its said claim. Among its defenses appellant pleaded contributory negligence on the part of Rodgers.

The trial court refused to give to the jury appellant’s requested peremptory instruction to find in its favor on the issue of Rodgers’ contributory negligence “as a matter of law.” In its first proposition appellant submits that the case was fairly tried, and in its brief and oral argument before this court submits that the evidence shows that appellee in driving the truck upon the railroad track at the time and place, and under the circumstances disclosed by the evidence, was guilty of contributory negligence “as a matter of law,’’ and for that reason it was error to refuse its peremptory instruction.

Appellant waives every question other than the one above stated, and asks that this case be reversed and rendered if the evidence shows negligence as a matter of law, and if not that the case be affirmed.

The accident occurred about 2:30 or 3 o’clock on the morning of the day of the accident. The evidence is extensive, covering some 172 pages of the record, accompanied by several photographs and references thereto. Appellee was severely injured and the truck completely demolished.

The jury found that appellant’s employees were negligent and that their negligence was the proximate cause of the injuries in question ; that the acts of appellee Rodgers, while negligent, were not the proximate cause of the collision. Upon such findings the court entered judgment for appellee for his personal injuries, and for his damages to the truck in the amounts found by the jury, and for inter-vener against appellee as in the judgment.

As stated, the only question we are called upon to consider is: Should the trial court have given the requested peremptory charge? That is, the negligence charged not being negligence per se to authorize the court to withdraw the issue of appellee’s negligence from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. F. B. Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 88, 36 S. W. 247, 37 S. W. 319, and cases cited in the opinion.

A review of the evidence briefly stated shows the following: The accident occurred at the intersection of the Bankhead Highway crossing of appellant’s railroad track in the town of Odessa. At the point of intersection and for several blocks before reaching the point of intersection with the railroad tracks said highway runs north and south through the town of Odessa. At that point the railroad tracks run east and west, the highway and the railroad tracks intersecting at right angles. At the time -of the accident Rodgers was driving his heavily loaded truck south on said highway and collided with one of appellant’s locomotive engines, without ears attached, coming from the west at the point of intersection of the highway and the railroad tracks. In going south through Odessa the highway and Grant avenue, one of the streets, are the same. In going south on the highway, the Odessa Hotel is situated on the west side of the highway. Before reaching the hotel, going south, the view of the west is shut off hy buildings.

Without quoting from the evidence, we understand from the evidence that the next crossing, to the west, is some four- blocks away; that west of the intersection in question is situated the railroad depot, the section' house, and ice plant. Before reaching the depot, the locomotive engine, as stated by the trainmen, was running about thirty-five miles an hour, hy others it was running faster. As stated by the trainmen, the required whistles were blown and the bell was rung, and by others the whistle was not heard. These statements are not made to determine any question of negligence of the appellant, but that of Rodgers.

Rodgers testified: When he got down by the hotel he slowed down and was looking for the train, and after he passed the street (apparently south of the hotel) said, “there was only one place you could see a train”; said: “there was a lot of box cars on the track that morning and the way the box cars were you couldn’t see any train. I kept looking and went in beside the depot and was satisfied no tráin was coming, then I looked down east. * ⅜ * When I passed the Hotel and got to where I could see west, why I told this negro (on the truck) to look for the cars and I looked west and there was a lot of box cars on the track and I was really more careful that morning than before because there were lots of box cars up there and I looked then until I got in behind the depot to where I couldn’t see up the track, then I looked east. What for? I was looking for a train. * ⅜ * There was a pretty bad little ditch there, then I had broken a spring there once before and had a big load; when I looked East and was satisfied no train was coming, I looked at the ditch. I don’t guess I was running over two or three miles an hour. * * ⅝ I said when I passed the hotel, as we went down the street I told the negro to look for cars, and we looked. I looked west for the train. There were a lot of box cars and I kept looking until I got in behind the depot where I couldn’t see. * * * At the time, I listened for a train, looked and listened too. I did not hear any train coming. ⅜ * * You ask if I wouldn’t have heard the whistle if I had been listening: I was looking and listening in both directions for the train. * * * It could have whistled back up the track, and I wouldn’t have heard it. * * * I know now there are a lot of trees up there that apparently obscure the view, but at that time I didn’t know it. ⅜ ⅜ s There were some lights there. There was a light just this side the track, street light, and a lot of red lights and one on the other side of the track, and the lights shining on the track as they did, the light coming down the track wouldn’t have any effect on throwing the light ahead of you. * * * rjae headlight had no effect.”

A witness standing on the east side of the highway north and about a block from the depot testified that he did not hear the whistle and would have heard it had it blown.

The depot is about 300 feet long, platform and all. The main line track is close to and about 60 feet south of the depot. At the time and place of the collision Rodgers testified that in crossing the tracks he was driving his truck at about two or three miles per hour. The above is a very brief statement of a very extended examination of-many witnesses.

W.e have concluded that the court was not in error in refusing to instruct the jury in appellant’s favor.

Having been requested by appellant not to reverse and remand the case, and to consider only the one issue, we have considered only the one question, whether appellee was negligent as a matter of law, and have concluded that the evidence is sufficient to take the case to the jury.

The case is affirmed.


text:
    HOGG v. WADDELL.
    No. 2571.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 1, 1931.
    Rehearing Denied Oct. 15, 1931.
    C. W. Tate, -of Odessa, and G.' W. Dunaway, of Midland, for appellant.
    Russell & Starley, of Pecos, for appellee.
   HIGGINS, J.

This is an election contest brought by the appellee against appellant Gilbert D. Hogg, and involves the office of county commissioner for precinct No. 3, Winkler county.

At the general election held in November, 1930, four votes were • cast for the appellant, and three votes cast for the ap-pellee. Certificate of election was thereafter issued to appellant by the commissioners’ court of the county. The case was tried without the aid of a jury, and judgment rendered in favor of the contestant. Separate .findings were not filed, but recitals in the judgment disclose that the court found that Mr. and Mrs. George Hogg, who voted for appellant, were not qualified voters. The record does not disclose upon what theory the court based this finding, and so it must be sustained by this court if any phase of the evidence supports the same.

Appellant attacks the finding, but the evidence very- clearly supports- the view that Mr. and Mrs. George Hogg were residents of Ward county, rather than Winkler county. We will not undertake to detail the evidence at length, for it would serve no good purpose to do so. Suffice it to say that about the only evidence supporting the view that they were residents of Winkler county is the testimony of Mr. Hogg to the effect that he considered his ranch in Winkler county as his home. Mrs. Hogg did not testify.

As opposed to this, the evidence shows that for many years Mr. and Mrs. Hogg have had a home in the town of Monahans in Ward county, and spent practically all of their time there; they sent their children to school there; school census blanks executed in 1929 and 1930 by Mrs. Hogg, in which she swore she was a resident of school district No. 2 in Ward county; poll tax receipt issued to Mr. Hogg on January 9, 1930, stated, he .resided at Monahans, precinct No. 2, and had resided in the city and county for twenty-five years. Testimony of various witnesses appeared in the record, from which the inference is plainly deducible that Mr. and Mrs. Hogg were residents of the town of Monahans.

The question of intention is frequently important in determining the residence of a voter, but intention, as testified to by the voter, is not necessarily controlling.

In this case, we must assume the trial judge found as a fact that Mr. and Mrs. George 1-Iogg were in fact residents of Monahans in Ward county, and the evidence, as we view it, clearly supports this finding, and this court would not be justified in disturbing the same. Hill v. Mays (Tex. Civ. App.) 278 S. W. 919; Marsden v. Troy (Tex. Civ. App.) 189 S. W. 960; Garvey v. Cain (Tex. Civ. App.) 197 S. W. 765.

At the election in question, the contestant voted for himself. Appellant challenges the qualification of contestant as a voter upon the theory that he had not resided in Winkler county for six months prior to the election. The court, however, found that contestant was a qualified voter. The testimony shows that prior to the 8th day of February, 1930, Waddell’s wife and children lived in Midland county. Upon that date, his wife died. He still owns a home in Midland where he has a housekeeper to take care of his children, and they attend school in Midland. Waddell testified that since the death of his wife his residence has been on the ranch in Winkler county, and that he has slept there four-fifths of the time. Upon this phase of the case, the question of Waddell’s intention is material. The evidence would have warranted the trial court in finding that Waddell was not a resident of "Winkler county, and, if such finding had been made, it would have been the duty of this court to uphold the same; but the evidence also supports the view that Waddell was a resident of Winkler county and had resided there since the death of his wife. Article 2958, Revised Statutes, and cases cited above.

Upon this view, it follows that appellant’s second proposition is without merit.

The third proposition is not within the scope of the issues presented by the pleading, and presents nothing for review. Article 3047.

If the issue were properly before us, we would nevertheless be of the opinion the same presented no error.

Affirmed.