author: BAROUS, J.

text:
    ALLISON v. CAMPBELL.
    No. 994.
    Court of Civil Appeals of Texas. Waco.
    Jan. 29, 1931.
    Rehearing Denied Feb. 26, 1931.

      Alfred H. Eaton, of Fort Worth, for appellant.
    Rufus S. G-arrett, of Fort Worth, for ap-pellee.
   BAROUS, J.

This is the second appeal in this case. For former opinions, see 117 Tex. 277, 298 S. W. 523, 1 S.W.(2d) 866. Appellee instituted this suit against appellant to recover on a note for $900, signed West Texas Land Company, by J. J. Oxford, manager. Appellee alleged that the West Texas Land Company was a partnership composed of appellant and J. J. Oxford, and sought to hold appellant as a partner in said company. Appellant, under oath, denied being a partner with Oxford or being in any way interested in the West Texas Land Company, and further alleged that, if he was a partner in said company, it was a nontrading partnership, and that Oxford had no power or authority to execute the note, and that same was not binding upon him. He further alleged that said note was obtained 'by reason of fraud and collusion between Oxford and appellee.

The cause was tried to a jury and submitted on special issues. The jury found that, at the time Oxford signed the note, appellant was a partner with him in the West Texas Land Company, and further found that appellee did not take said note as a part of a conspiracy between him and Oxford.

The record shows that appellant and Oxford made a written contract on March 14, 1924, same being copied at length in the former opinion, under the terms of which they entered into a partnership to be known as the West Texas Land Company, Oxford to have a three-fourths interest and appellant a one-fourth interest therein; the purpose of said partnership being to sell land in West Texas. Appellant’s contention was that he did not read the partnership contract, and did not understand its purport, and that he did not intend to be, and was not as a matter of fact, a partner with Oxford. Both appellant and Oxford testified at length relative thereto. The jury found that a partnership did in fact exist, and said finding is abundantly supported by the testimony. After the formation of said partnership, Oxford, in the name of the West Texas Land Company, purchased from appellee an automobile to be used in carrying prospective purchasers of West Texas land out to see said land, and for the purchase price thereof executed the note in controversy.

Appellant, by his second proposition, complains of the action of the trial court in refusing to submit six separate special issues or instructions to the jury which relate to different matters. Appellant’s third proposition complains of the action of the trial court in refusing to submit five separate and different special issues or requested instructions to the jury. Appellant’s proposition No. 4 complains of the action of the trial court in refusing to submit ten separate and distinct special issues or definitions. Proposition 5 complains of the refusal of the trial court to submit three separate and distinct definitions. Proposition 6 complains of the refusal of the court to submit seven separate and distinct special issues. Proposition 7 complains of the action of the court in overruling eight separate and distinct exceptions to the pleadings. All of said propositions seem to be based on one or more assignments of error.

Our courts uniformly hold that a party cannot present, under one general proposition, a number of assignments of error presenting entirely different and disconnected matters. This method of briefing makes it very onerous upon the appellate courts and extremely difficult to determine the real complaint of the party appealing, and such propositions are not entitled to any consideration by the appellate courts. Ferguson v. Washburn (Tex. Civ. App.) 4 S.W.(2d) 574 (error dismissed); Standard Accident Ins. Co. v. Williams (Tex. Civ. App.) 4 S.W.(2d) 1023; Id. (Tex. Com. App.) 14 S.W.(2d) 1015; Miks v. Leath (Tex. Civ. App.) 26 S.W.(2d) 726.

While, under said authorities, .we are not required to consider said propositions, we have, however, carefully read the entire record and examined each of said propositions and each of the assignments of error on which same are based, and do not think any of them show reversible error. Appellant, as we understand the record, contends that no partnership existed between himself and Oxford, and then contends that, if there was a partnership, it was a nontrading one, and that he would not be responsible for any debts contracted by Oxford, unless at the time the debt was contracted Oxford had specific authority from him (appellant) to create same, or unless it was clearly shown that the debt was necessary to be made in order to carry on or forward the business of the nontrading partnership. Under the terms of the written contract, the partnership was • general in its nature, organized for the purpose of doing colonization work and selling lands in West Texas. No effort was made by said parties to create a limited partnership, as provided by our statutes. Oxford testified:

“I bought this car for. the purpose of obtaining this land, 'but principally for the purpose of conveying people backwards ánd forwards from Stephenville, my home town, to West Texas and back. In other words, to carry out this colonization plan as we had outlined it.”

The record shows that Oxford attempted first to purchase an old car from appellant, but appellant did not sell same to Oxford. Appellant referred Oxford to a friend who had some secondhand cars for sale, and Oxford inspected same, but did not purchase one from him. Oxford thereafter bought the car in question from appellee, and in payment therefor executed the note sued on. There is no testimony in the record that it was not necessary for Oxford to have a ear in order to successfully- carry out the colonization plan as testified to by him or that it was not necessary for him to have a car to conduct or carry on the proposed partnership business.

Appellant further contends that appel-lee and Oxford entered into a fraudulent conspiracy under and by virtue of which appel-lee sold Oxford the car for $900, which was at said time practically .worthless, and that it was a fraudulent design and intent on the part of said parties to collect therefor from appellant. The trial court submitted special issue 5, which reads:

“Did the plaintiff take the note sued on as . a part of a conspiracy between the plaintiff and Oxford by which conspiracy plaintiff would get rid of said Automobile and fix the liability for the price of the same as represented by the note sued on, upon Dr. Allison without the knowledge of Dr. Allison, and against his will?” Which the jury answered, “No.”

No objection was made by appellant to said issue as submitted, and the jury’s answer thereto is amply supported by the testimony.

There were only two witnesses who testified relative to the value of the car at the time Oxford purchased same, and each of them testified that it was at that time worth as much or more than Oxford agreed to pay.

Appellant contends the trial court erred in overruling his first application for continuance. We have carefully examined the record as it relates thereto, and do not think the trial court abused its discretion. Appellant asked that the cause be continued in order that he might get the testimony of the witness Jordan, by whom he expected to prove the value of the car in June or July, 1924, same having been purchased in April, 1924.

The trial judge, in approving the bill of exception, brought to this court by writ of certiorari by appellant, states in his qualification of same “that the witness Jordan testified when the case was tried in July, 1926, that he, Jordan, saw the Winton Six Automobile in question on the morning of the trial, which was some two years after the date of the purchase of said automobile by the defendants from plaintiff, and that Jordan did not testify to having seen it any other time.” The application for a continuance states that a subpoena had been issued for Jordan, and that the sheriff had been given $1 to tender to said witness. There is nothing in the affidavits or record to show when the subpoena was issued or whether Jordan had been served therewith.

Appellant contends that the trial court should have submitted one or more of the various issues requested by him for the jury to determine whether appellant really intended to form a partnership with Oxford. Each of said issues were evidentiary in their nature. The question of the intention of the parties' is proper for a jury to take into consideration in determining whether or not a partnership has been actually formed. It is not, however, absolutely necessary for the jury to find that each party actually intended a partnership to be formed in order to create said relationship. Regardless of the intention of the parties, if, as a matter of fact, a partnership was actually formed, all partners thereby became bound as such. In Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S. W. 122, Ann. Cas. 1916E, 446, Judge Phillips, speaking for the court, specifically held that parties might by their acts form a partnership when they did not intend to do so. The trial court gave by request a lengthy definition of what it took to constitute a partnership, and instructed the jury that, “in determining the issue as to whether a partnership actually existed or not, the entire agreement and all the attending circumstances are to be taken into consideration in determining whether or not the partnership has been launched.” No objection was made by appellant to the definition or instructions as' given.

We have carefully examined all of appellant’s assignments of error and propositions thereunder, and same are overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COBBS, J. SMITH, J.

license: Public Domain

text:
    BAKER et al. v. HILL et al.
    No. 8562.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 3, 1930.
    Rehearing Granted Jan. 21, 1931.
    Rehearing Overruled Feb. 18, 1931.
    J. F. Carl, of Edinburg, for appellants.
    Geo. P. Brown, of Edinburg, and L. J. Polk, of Pharr, for appellees.
   COBBS, J.

This original case was filed and appealed to this court as E. B. Baker et al., appellants, against State of Texas, et all, appel-lees, and this court reversed the judgment, and further held: “The judgment of the trial court is reversed, and judgment is here rendered that a appellees take nothing by their suit. And further, it is the judgment of this court that the Ed Couch independent school district, with all the territory incorporated therein at said election, is, and it is hereby adjudged to be, a legally established and constituted independent school district under the laws of this state, and that the individual appellants herein aré, and are hereby adjudged to be, the duly elected and qualified trustees of said independent school district, with all the powers and duties given by law to such trustees, to the exclusion of appellees. The costs of the appeal will be taxed against the rela-'tors.”

Subsequently the Supreme Court granted a writ of error therein [see (Tex. Civ. App.) 26 S.W.(2d) 325]; and the case is now pending in the Supreme Court on application for writ of error.

In the former appeal of the case this court held, in effect, that the Ed Couch independent district and its trustees superseded common school district 16 and its trustees, for all purposes. It follows, as a matter of course, that that decision- excluded the common school district trustees from further control of the school affairs in said district, and the trial court should have granted the temporary injunction herein prayed for. It is true that the Supreme Court has granted writ of error to this court in that ease, but the decision of this court must be regarded as the law of the case until the Supreme Court has finally determined the matter.

The order of the trial court denying the injunction prayed for will be reversed, and judgment here rendered granting said injunction, to remain in full force until the prior appeal shall have been finally determined in the Supreme Court.

Judgment reversed, and injunction granted at the cost of appellees.

On Motion for Rehearing.

SMITH, J.

At an election held for that purpose on January 29, 1928, the citizens of the territory involved voted to create and incorporate Ed Couch independent school district to embrace parts of common school districts 16, 2, and 18, in Hidalgo county. The state, upon the relation of the trustees of common school district 18, instituted a proceeding in the nature of quo warranto to determine the legality of a newly created independent district and whether the existing trustees of the common districts shall continue to function as such to the. exclusion of the newly elected trustees of the Independent District. Upon appeal from the judgment of the trial court in that cause, this court held that the independent 'district was legally created, and replaced the common districts, and that the trustees of the independent district must supersede the trustees of common school district 18. Baker v. State, 26 S.W.(2d) 324. Writ of error was granted in the case by the Supreme Court, where the matter still pends. The trustees of common school districts 2 and 16 were not parties-to the quo warranto proceeding, and the judgments of the several courts therein- do not operate directly upon them.

It appears from the record herein that the trustees of the independent district have not taken over the control and management of the common districts embraced in the newly created independent district, but seem to be awaiting the final disposition by the Supreme Court, of the quo warranto proceeding. In the meantime the trustees of the common school districts, and particularly district 16, have continued undisturbed in the active management and control of the schools within their respective districts, and are keeping those schools in operation.

| In the summer of 1930 the trustees of common district 16 concluded that a new school building was essential to the scholastic needs of the district, and accordingly purchased a site and arranged to finance and construct such building, whereupon the independent district and its trustees brought this action to restrain the common district trustees from spending the funds of the district for the proposed improvement. The trial court granted a temporary restraining order, and, upon a hearing, while refusing a temporary injunction, ordered that the original restraining order remain in force pending disposition of the case on appeal. The independent district and its trustees have appealed from the order denying the temporary injunction, while by cross-assignments the common district and its trustees complain of the trial court’s order continuing in force the temporary restraining order pending this appeal.

As a practical matter, the action of the trial court operates in effect as a temporary injunction restraining the common school district and its trustees from controlling and managing the scholastic affairs in that district.

It appears from the record that the independent district has never been put in operation,' nor have its trustees undertaken to take over the- control and management of the schools therein, or otherwise perform the duties of their office. On the other hand, the trustees of common district 16 have continued to exercise control of the schools within their district, employing and paying teachers, furnishing facilities for the operation of the schools, and performing all the other functions incident to their office, and we have concluded that the courts should not exercise their purely equity powers to interfere with those trustees and tie their hands, pending the settlement of the unhappy and unfortunate litigation growing out of the quo warranto proceeding, which, after more than two years’ duration, is still pending, with no means of foreseeing its end. Public policy, as well as every other proper consideration, requires that the scholastics of the district -be furnished the educational facilities vouchsafed them under the Constitution and laws of the state. The trustees of common district 16 have the status at least of de facto officers, are in actual and heretofore uninterrupted control of the, school affairs of the district, have been actively and satisfactorily performing their duties as such, and courts of equity will not cut them off from or hamper them in the exercise of the discretion inherent in their office, until they are ousted ¡by others who have shown themselves entitled to superior rights over them.

The judgment of the trial court denying a temporary injunction is affirmed, but its decree continuing in force the temporary order restraining appellees from proceeding in their discretion to perform the duties of their office will be set aside and held for naught. Because of the nature of the relief granted here, the costs of this appeal will be taxed equally against appellants and appellees.

Affirmed in part, and in part reversed and rendered.


author: WILLSON, O. J.

text:
    MUSE et al. v. McKINNEY INDEPENDENT SCHOOL DIST. et al.
    No. 3896.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 8, 1931.
    Rehearing Denied Feb. 19, 1931.
    Mort W. Muse, of McKinney, for appellants.
    W. R. Abernathy, of McKinney, for appel-lees.
   WILLSON, O. J.

Virginia Shelley Muse and James Harrison Muse, children within the compulsory school age (article 2892, R. S. 1925) and not entitled to claim exemption from .attending school on any of the statutory grounds (article 2893, R. S. 1925), attended the one-teacher school in common school district No. 100, Collin county (where they resided) until they had passed the grades taught in said school. Before August 1, 1929, they were duly transferred from said district to the McKinney independent school district, and on September 2, 1929, were duly accepted, classified, and enrolled in a junior high school in said independent district, which high school they attended without question of their right to do so until November 4,1929, when they were notified they must pay tuition or cease to attend the school. November 8,1929, notwithstanding they were still within the compulsory school age, said children were sent home from said high school because of their refusal to pay such tuition. This suit by appellant Mort W. Muse, father of said Virginia Shelley Muse and James Harrison Muse, on his own behalf and as next friend of his said children, was commenced on said November 8, 1929. It was for an “injunction (quoting) restraining the defendants (to wit, the McKinney Independent School District, a corporation, Jack R. Ryan, Superintendent of the McKinney City Schools and the Board of Trustees, naming them, of the McKinney Independent School District) from sending said children Virginia Shelley Muse and James Harrisoh Muse from said school and from collecting said tuition charges, and commanding said defendants to permit said children to attend school pending the determination of this suit.” The trial was to the court without a jury, and resulted in. a judgment rendered March 4, 1930, in terms denying the relief appellant prayed for, but continuing in force a “temporary restraining order (quoting) heretofore issued in this cause” upon appellant’s entering into “a good and sufficient bond in the sum of $250.00.”

We think it sufficiently appears from the statement above that the case has become a moot one, and that the appeal therefore should be dismissed. 3 Tex. Jur. 68, 69, 966. By the terms of the statute (article 2903, R. S. 1925), applicable to all public schools (Gulf, C. & S. F. Ry. Co. v. School Dist. [Tex. Civ. App.] 143 S. W. 353), the scholastic year of the school appellant claimed his children were wrongfully excluded from attending expired August 31,1930, and no useful purpose would be accomplished by now determining whether they were entitled to attend the school during that year or n.ot.

The appeal will be dismissed.

On Motion of Appellants for a Rehearing.

The sole basis of the relief sought being, as we think after further consideration of the allegations in appellants’ petition, a claimed right of the children to attend the high school in the McKinney independent school district free of any charge whatever after being transferred there, and it appearing that the children are still within the age entitling them to the benefit of the state’s free schools, we have concluded it was error to hold that the case became a moot one after August 31, 1930, when the scholastic year beginning September 1, 1929, ended. Therefore the judgment of this court dismissing the appeal, rendered here November 6, 1930, will be set aside.

However, we do not think it appeared the children were entitled to attend said high school free of charge, and therefore think, further, that the court below did not err when he refused to grant appellants the permanent injunction they prayed for. As we view it, the case is not materially different in its facts from Slocomb v. Cameron Independent School District, 116 Tex. 288, 288 S. W. 1064, where it was held, under a statute not materially different, so far as the question here is concerned, from the statute now in force, in an answer to a question certified to the Supreme Court, that an independent school district might charge tuition for pupils transferred from other districts (and see Huck v. Public Free Schools of City of Austin [Tex. Civ. App.] 290 S. W. 1118), and City of Dallas v. Love (Tex. Civ. App.) 23 S.W.(2d) 431 (writ of error granted, but on what ground we are not informed), where a similar ruling was indirectly made. The contentions, based on provisions of the Constitution, urged by appellants here, were discussed in those cases, and we think correctly determined.

The motion is granted so far as it is to .set aside the judgment dismissing the appeal, but refused so far as it is to reverse the judgment of the court below. Instead, that judgment will be affirmed.


author: JONES, O. J.

text:
    FIDELITY UNION CASUALTY CO. et al. v. TEXAS POWER & LIGHT CO.
    No. 10877.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1931.
    Rehearing Denied Feb. 21, 1931.
    Collins & Houston, of Dallas, and Webb & Webb, of Sherman, for appellants.
    Leachman & Gardere, of Dallas, for appel-lee.
   JONES, O. J.

This appeal involves the question as to whether the cause of action created by section 6a of article 8307,, R. S. 1925, in favor of a compensation carrier against a negligent third party, inflicting an, in jury upon an employee protected by compensation insurance, can be maintained -against a plea of limitation, when more than two years had elapsed from the date of the injury before the institution of such suit, though same was instituted within two years after final judgment was entered in the employee’s suit against such compensation carrier. The following are the necessary facts:

Appellant Riley was an employee of Pevito Brothers at Sherman, Tex., and appellant Fidelity Union Casualty Company was the carrier of their workmen’s compensation insurance. On November 9, 1927,' Riley, an employee of Pevito Brothers, received personal injuries while working in the scope of his em-. ployment, through the negligence of appellee, Texas Power & Light Company. Appellant Riley will be referred to by name, appellant Fidelity Union Casualty Company as casualty company, and the Texas Power & Light Company as appellee. After complying with all necessary provisions of the Workmen’s Compensation Law, Riley filed a claim with the Industrial Accident Board, in which he was duly awarded judgment against the casualty company, as compensation for his injuries. Riley elected not to abide <by this award and duly filed the statutory suit in the district court of Grayson county, to have the award set aside and to recover judgment for a larger sum than the award. The casualty company contested the amouht sought to be recovered by Riley in such suit, and a trial was had on-the issues made by the pleadings, which resulted in a judgment in the district court in favor of Riley for a lump sum payment of $4,.-359.70. The casualty company appealed from this judgment to this court, with the result that the district court judgment was affirmed, as -between those parties, and such judgment became a final adjudication between the parties on March 22, 1930. Fidelity Union Casualty Co. et al. v. Riley (Tex. Civ. App.) 26 S.W.(2d) 682. This judgment was paid by the casualty company, and on April 21, 1930, this suit was instituted against appellee by the cas-1 ualty company for its own benefit, and for the benefit of Riley, with proper allegations to the effect that Riley’s injuries were the result of the negligent acts of appellee, its agents and servants. The petition also contains all necessary allegations to bring the suit clearly within the provisions of section 6a, art. 8307, supra.

To this suit appellee, among other defenses, answered by a special exception to the petition, to the effect that the petition showed on. its face that more than two years had elapsed from the date of the receipt of the injuries to the institution of this suit, and that by reason thereof the suit is barred by the two years statute of limitation under subdivision 6 of art. 5526, R. S. 1925. This special exception was sustained by the trial court and the suit dismissed.. The appeal of the casualty company and Riley has been duly perfected to this court.

Subdivision 6 of article 5526, supra, provides that there shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, an action for injury done to the person of another. If the cause of action asserted in this suit accrued on the day the injuries were inflicted upon Riley and continued as an accrued and enforceable cause of action until the institution of this suit on April 21, 1930, then-the petition was subject to the special exception, and there was no error in sustaining it and in dismissing the suit. On the other hand, if the cause of action asserted in this suit, under the provisions of said section 6a of article 8307, supra, did not accrue until after the casualty company had either paid or assumed to pay to Riley the judgment awarded him under the Workmen’s Compensation Act, or if such cause of action he considered to have accrued at the time of the injuries, but that under the provisions of the .law creating such cause of action, the parties were disabled by law to institute such suit until after final judgment in Riley’s compensation suit against the casualty company, then, in either event, the sustaining of the special exception and the dismissal of the suit was error. These opposing views are presented by the respective briefs of the parties.

As. under the terms of the statute invoked by appellee limitation does not begin to run until a cause of action has accrued, the first important inquiry is: When did this cause of action accrue? Under various decisions of this state, though a different rule is applied in some other jurisdictions, the casualty company could not maintain a suit against appellee, under the equitable doctrine of subrogation, as the negligent third party causing the injuries to Riley; for which reason, the Legislature amended the Workmen’s Compensation Law, by the enactment of section 6a of Art. S307, supra. This section reads:

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may ■at his option proceed either at law against that person to recover damages or against the association, for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. If compensation be claimed under this law by the injured employee or his legal beneficiaries, 'then the association shall be subrogated to the rights of the injured employee in so far as may be necessary and may enforce in the name of the injured employee or of his legal beneficiaries or in its own name and for the joint use and benefit of said employee or beneficiaries and the association the liability of said other person, and in ease the association recovers a sum greater .than that paid or assumed by the association to the employee or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employee or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employee or his beneficiaries and the approval of the board, upon a hearing thereof.”

There can be no question that a common-law action for personal injuries is barred in this state, under the said limitation statute, unless such suit is instituted on such cause of action within two years from the infliction of the injuries, because such cause of action is full and complete when the injuries are inflicted. The above-quoted statute gave to Riley, on the receipt of his injuries, an option either to institute a suit at common law against appellee, as the negligent third party causing his injuries, or to prosecute his statutory claim against the casualty company as carrier of the compensation insurance protecting him as an employee of Pevito Brothers. If he shall elect to pursue his remedy at common law, he must do so within two years from the time the injuries were inflicted; if he shall elect to pursue the statutory remedy for his injuries against the casualty company, under the Workmen’s Oompensation Law, he must do so by duly filing a claim for compensation with the Industrial Accident Board within six months from the receipt of the injuries. The statute under review declares that, if he elects to pursue his remedy at common law, then he shall not pursue his statutory remedy; and likewise, if he elects to pursue his statutory remedy, then he shall not pursue his common-law remedy. In the instant case, Riley elected to pursue the statutory remedy. This election prohibits him from instituting an action at common law for damages against appellee, as such right existed prior to his making his election of remedies. When Riley filed his claim for compensation with the Industrial Accident Board, he thereby exercised the option given him by this statute, and there then ceased to exist in his favor the common-law action for damages because of injuries negligently inflicted by the wrongful act of appellee.

When Riley made such election, the casualty company, under the provisions of section 6a, supra, became “subrogated to the rights of the injured employee in so far as may be necessary” to enforce this right of subrogation for the joint use and benefit of itself and Riley; the amount to be recovered against appellee to be appropriated between the parties as directed by the statute. This right of subrogation has existence only in the terms of this statute and it can be enforced only as therein directed. An analysis of this statute shows that the right of subrogation is not absolute, but is contingent upon the happening of the future event, that Riley prosecutes his claim against the casualty company to a successful conclusion. If he be defeated in this claim, then no cause of action against appellee is given to either Riléy or the casualty company. It is clear that the contingent event, which will mature the cause of action on the right of subrogation, given in this statute, does not occur in a contested claim of an injured employee against a compensation car rier, until final judgment in favor of the injured employee is entered, for only then can the law declare that the compensation carrier has assumed to pay the claim of the injured employee. ⅝

Previous to the entry of such judgment no enforceable cause of action existed in favor of the compensation carrier; for it could not be alleged in a petition in a suit to enforce such right that appellee should be adjudged to pay the casualty company or Riley any sum by virtue of this right of subrogation, because such fact was in process of judicial ascertainment. No cause of action, therefore, accrued on the respective claims herein asserted until the final judgment of this court, when the fact, necessary to give the casualty company and Riley an enforceable right, was given the judicial determination contemplated by said statute. As the statute of limitation did not begin to run until the subrogated cause of action for personal injuries ,accrued, this suit was instituted within the limitation period. Fidelity Union Casualty Co. et al. v. Riley, supra; 37 C. J. 811, § 154 and authorities cited in note.

If we be mistalren in our conclusion that the statute of limitation did not begin to run until the entry of final judgment in favor of Riley in the compensation suit, and that such limitation began to run on the date Riley received his injuries, we are nevertheless of the opinion that the same conclusion, under the facts of this case, is inevitable. Riley .is forbidden, by the terms of the statute, to institute the suit as a common-law action in his favor to recover any overplus of damages he may be entitled to under the statute, until he has prosecuted his claim for compensation to a final and successful conclusion. While this legislative pi'ohibition to enforce his rights under this statute existed, the law of limitation is suspended. Manes v. Case Threshing Mach. Co. (Tex. Civ. App.) 295 S. W. 281, and authorities cited therein; Lipsitz v. First Nat’l Bank (Tex. Civ. App.) 288 S. W. 609; Id. (Tex. Com. App.) 293 S. W. 563; Meeks Co. v. Hudgins (Tex. Civ. App.) 22 S.W.(2d) 764; Braun v. Sauerwein, 10 Wall. 218, 19 L. Ed. 895; 17 R. C. L. 827-8, § 189; 37 C. J. 1045, § 455.

The effect of the decision in the case of Fidelity Union Casualty Co. v. Riley, supra, is that the casualty, company was subject to the same legislative prohibition to which Riley was subject. Previous to the entry of final judgment in Riley’s compensation suit, the only manner in which the casualty company could seek to enforce its right of subrogation against appellee was to implead appellee as a codefendant in Riley’s compensation suit, and seek'by cross-action to recover against appel-lee on its statutory right of subrogation to Riley’s common-law action, whatever sum of money it should be adjudged to pay to Riley. ;The casualty company attempted to pursue this very course in Riley’s compensation suit, but this court sustained appellee’s plea in abatement in that case, and dismissed, without prejudice to the casualty company, its cross-action against appellee. The reasons why thé casualty company could not pursue such course are stated in the opinion in the former case.

On the above authorities we hold that, in any event, the statute of limitation was suspended from the day Riley filed his claim with the Industrial Accident Board to the date of the entry of final judgment in that case, March 22, 1930, and this suspension is fatal to appellee’s claim of limitation.

We therefore conclude that the court erred in holding that this suit was barred by the statute of limitation, and reverse and remand the cause for a trial on its merits not inconsistent with the views herein expressed.

Reversed and remanded.


author: SMITH, J.

text:
    FIRST TEXAS PRUDENTIAL INS. CO. v. MATA.
    No. 8539.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    Rehearing Denied Feb. 25, 1931.
    Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.
    G. Woodson Morris, of San Antonio, for appellee.
   SMITH, J.

TMs appeal is from a judgment against tie appellant insurance company for tie amount of a policy it iad issued upon tie life of Aniceto V. Mata, for tie ienefit of iis wife, Dolores L. Mata, appellee ierein. Tie policy belonged to tie class inown generally as “industrial policies.”

Tie jury 'found, upon sufficient evidence, tiat all premiums iad been paid on tie policy up to tie time of tie deati of tie insured, but appellant resisted tie suit upon tie ground tiat sucb payments iad not been entered in tie “premium receipt book,” as required by a provision in tie policy, tiat “no payment of tie premium to an agent siall bind the company or be of any force, effect or validity, unless such agent on date of payment of each premium, made proper entry and sign for same in tie premium receipt book belonging to and bearing the same name and number as this policy.”

Tie evidence shows tiat, up to within a short time before tie insured’s deati, tie premiums iad been paid to appellant’s agent in person in San Antonio, who properly noted such payments in tie receipt book. Tie insured’s family then moved to Uvalde, after which tie premiums were paid by mail. This method of payment resulted in tie omission of tie entries in tie receipt book. Appellant now urges this omission as a complete bar to recovery upon tie policy, notwithstanding tie full and timely payment of premiums.

Tie use of tie premium receipt book no doubt furnishes a convenient and accurate method of bookkeeping between, insured and insurer, but no court of justice will lend its aid to the unconscionable doctrine tiat tie mere failure of tie insurer to make such entries when premiums axe timely paid siall work a forfeiture of tie beneficiary’s right to collect tie amount of tie policy upon tie deati of the insured. Federal Life Ins. Co. v. Sweeney (Tex. Civ. App.) 18 S.W.(2d) 702. We overrule appellant’s propositions I and II.

Appellant’s remaining propositions present no reversible error, and tie judgment is affirmed.


author: LEVY, J.

text:
    HOULLE v. MARTIN, District Court Clerk.
    No. 3937.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 8, 1931.

      Barret Gibson, of Marshall, for appellant.
    Scott, Casey & Hall and Beard & Abney, all of Marshall, for appellee.
   LEVY, J.

(after stating the case as above).

The appellant contends that the funds in the hands of the district clerk, although placed in his custody by order of the court, were not exempt from garnishment because such funds were a surplus of money from the property of the Watters Oil Company and was its absolute property at the time of the service of the writ of garnishment. It is believed that the trial court did not err in discharging the garnishee in the facts of the case. The discharge of the receivers had the effect only to terminate their duties and authority. Their services, as shown in the application for discharge, were no longer necessary for the preservation and protection of the defendant’s property. But in the discharge of the receivers there was not a surrender of jurisdiction by the court over the assets o-f the defendant Watters Oil Company collected by the receivers, for the court expressly directed the clerk “to receive and receipt for' the money” and “to hold the remaining balance of said money in the registry of this court, subject to the further order of this court.” By the terms of this order, then, the clerk was holding the funds by order of the court. It was within the power of the court to require the lunas collected by the receivers to be held to be applied as the court may thereafter direct, for the suit of Whitworth against the Watters Oil Company in which the receiver was appointed was still pending and undetermined, although all other claims had been paid. 28 C. J. p. 72; Kreisle v. Campbell, Receiver, 89 Tex. 104, 33 S. W. 852; see Challenge Company v. Sartin (Tex. Civ. App.) 260 S. W. 313. The facts here do not bring the present proceedings within the case of Turner v. Gibson, 105 Tex. 488, 151 S. W. 793, 43 L. R. A. (N. S.) 571. The appellant’s remedy was not by garnishment, but by proper application before the court to have his claim paid.

The judgment is affirmed.


author: PLY, C. J.

text:
    HEWIT et al. v. PRATT-HEWIT OIL CORPORATION et al.
    No. 8528.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1931.
    Rehearing Denied March 4, 1931.
    Dodson & Ezell, of San Antonio, J. Turner Yanee, of Refugio, and Arthur H. Bartelt, of San Antonio, for appellants.
    McDonald Meachum and Kennerly, Williams, Lee, Hill & Sears, all of Houston, far appellee Houston Oil Co.
    J. Y. Yandenberge, Jr., of Victoria, for ap-pellee Pratt-Hewit Oil Corp.
   PLY, C. J.

This suit was filed by W. E. Hewit, as a stockholder in the Pratt-Hewit Oil Corporation, a corporation chartered by the state of Delaware, against Pratt-Hewit Oil Corporation, J. E. ■ Sharp, Paul P. Meier, Andrew Steel, P. R.- C. Lintner, and Thomas H. Pratt, directors of the corporation, and the Houston Oil Company of Texas, to cancel and set aside ' certain contracts made by the Pratt-Hewit Corporation and the Houston Oil Company by which the former transferred to the latter one-half of all properties, leases, and otherwise owned and controlled by the former, and to place the former corporation in possession of the properties. The suit is really a stockholders’ bill to protect their interests in the corporation property. Other stockholders came in and joined in the prosecution of the suit. Pleas in abatement to the pleadings of the plaintiff and interveners were sustained, and the cause dismissed.

The court filed certain findings of fact which show that the Pratt-Hewit Corporation was chartered in the state of Delaware, and that the plaintiff and interveners were stockholders therein.

We copy from the findings of fact as follows:

“That the plaintiffs and intervener plaintiffs in this case are stockholders of the Pratt-Hewit Oil Corporation, * * * duly incorporated under the laws of the State of Delaware. * * *
“Said Pratt-Hewit Oil Corporation) has never filed with the Secretary of State of the State of Texas, a certified copy of its Articles of Incorporation as provided and required by article 1529 of the Revised Statutes of Texas; and a permit to transact business in the State of Texas has never been issued to said Pratt-Hewit Oil Corporation.
“Shortly after said Pratt-Hewit Oil Corporation filed its Articles of Incorporation in the State of Delaware, it became the owner of numerous oil, gas, and mineral leases, and wells thereon, and of personal property consisting of drilling tools, engines, boilers, piping, fittings, and machinery, constituting complete equipment of oil and gas wells, all said lands and properties being situated in Refugio County, Texas; all of this property was acquired by said Pratt-Hewit Oil Corporation prior to September 28, 1925.
“A substantial portion of said lands upon which said leases existed had by the Pratt-Hewit Oil Corporation been proven as gas producing in paying quantities; and said Pratt-Hewit Oil Corporation was organized for the purpose of developing said lands and for operating in the production and sale of oil and gas for profit.
“Said Pratt-Hewit Oil Corporation in carrying on the business for which it was organized upon the lands and leases acquired by it in Refugio County, Texas, drilled oil and gas wells; employed labor, purchased drilling equipment, machinery, boilers, piping, fittings, tools, and all equipment generally and commonly used in drilling and exploring for oil and gas; built houses upon its lands and leases; bought and paid for groceries and other supplies; opened and kept bank accounts in the Town of Refugio; borrowed money; entered into various characters of contracts; built pipe lines; erected derricks, completed wells, 'Some dry holes and others •producing wells; produced and saved gas, and ■generally transacted and did the business incident and necessary to the development of oil and gas leases, drilling wells thereon, saving and selling production therefrom. This was all done after the date of its incorporation and prior to September 28,1925, and in Refugio County, Texas.
“That on September 28, 1925, said Pratt-Hewit Oil Corporation and the Houston Oil Company of Texas entered into a written contract as set out in plaintiffs’ petition, and that said contract was acknowledged on said date by all parties thereto before a Notary Public in Harris County, Texas; and that prior to the execution of this contract said Pratt-Hewit Oil Corporation had been doing and transacting business in the State of Texas in Refugio County, as more fully hereinabove stated.
“That at' the time of the filing of this suit, this defendant, the Pratt-Hewit Oil Corporation, maintained an office in Harris County, Texas.
“That plaintiffs and intervener plaintiffs herein bring this suit as stockholders of and for the benefit of the Pratt-Hewit Oil Corporation.”

The court found that, as the corporation had no permit to do business in Texas, no shareholder could bring a suit for it or a suit that might result in its benefit.

The general rule is that the property of a corporation belongs to it, and that it alone can bring a suit to preserve any right it may have or to redress any wrong perpetrated against it, and that the stockholder has no power or authority to sue for it or in its name for any property of-the corporation. The rule is well established and universally recognized. However, there is an exception to the rule, which has become as well established and as fully recognized as the general rule itself, and that is, when a corporation is wasting, destroying, or wrongfully and fraudulently dealing with its corporate property through a disloyal or dishonest directorate, thereby damaging the interests of the shareholders, and actually or virtually refuses to protect such interests through a suit, the stockholder may institute and prosecute a suit for the protection of the property of the corporation and incidentally the interests of the stockholders. Such suit is deemed to be for a corporation which cannot or will not go into courts to protect its property rights. When a suit is brought by a stockholder, the corporation must be made a party, usually a defendant, and, while any property thus recovered goes into the possession and control of the corporation, it may afterwards, if followed up by the stockholder, be set apart for his benefit and that of the other stockholders. This rule of justice and right cannot be impaired or destroyed by making a law requiring foreign corporations to obtain permits to engage in business in Texas, and denying them, in the absence of such permits, the right to enter the courts of the state to prosecute suits. Such a construction would license fraud and place the helpless stockholder in the clutches of leeches who would drain his life blood. The law should not be so warped and distorted as to place men in positions of trust in an armored car to ride over and destroy the rights of stockholders. No such condition of affairs is contemplated by the statute, and courts of equity will not be closed to the cries of the wrong,ed and oppressed.

This opinion is fortified and sustained by Pomeroy, Eq. Jur. vol. 3, § 1095, based upon numerous decisions of federal and state courts, among the' latter being the ease of Evans v. Brandon, 53 Tex. 56.

There need be no fear that the application of the equitable principles herein announced will impair or weaken the law requiring permits to be obtained before engaging in business in this state, but, on the other hand, it strengthens the law by not permitting it to be used as a fortification for disloyal directors and- as a cover for fraud and deception. Texas will not close her courts on baseless technicalities against those seeking justice in the name of conscience and morality.

The judgment will be reversed and remanded, to be tried according to the principles herein enunciated.


author: DAVIDSON, Special Associate Justice.

text:
    STEPHENS v. SOVEREIGN CAMP, W. O. W.
    No. 770.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 23, 1931.
    Rehearing Denied Feb. 27, 1931.
    Smith & Smith, of Anson, for appellant.
    Turner, Seaberry & Springer, of Eastland, for appellee.
   DAVIDSON, Special Associate Justice.

This is a suit by Mrs. Esta Stephens against Sovereign Camp, Woodmen of the World, on an insurance policy for $1,000 on the life of E. E. Stephens, who is alleged to have died on August 28, 1928.

Appellee’s answer alleged that the insured failed .to make his payment of premium on said policy for the month of October, 1926, and for each succeeding month thereafter until his death, whereby said policy lapsed. The case was tried before a jury on special issues and- judgment rendered for appellee.

By her first assignment of error appellant complains that the verdict of the jury is contrary to the evidence, but to this we cannot agree. The matters of fact complained of were disputed issues of fact, which the jury expressly found against appellant, and there is ample evidence in the record to sustain such finding.

Appellant’s second assignment of error complains that the judgment of the court is contrary to the law applicable to this case on account of the fact that there were no pleadings by either party as a basis for the submission to the jury of special issue No. 2, which was as follows;

“Was policy No. 2 reinstated in the month of January, 1927? Answer: ‘No.’ ”

Appellant alleged that all of the premiums due on the policy sued upon were promptly paid from time to time as they became due and payable without interruption, and that the policy was in full force and effect up to the date of the beginning of the illness of the insured. Appellee alleged that the policy sued upon lapsed in October, 1926, on account of the nonpayment -of the premiums due therer on, and that said policy was never reinstated by the insured prior to his death, but remained in a lapsed condition and void from and after October, 1926. In answer to special issue No. 1 the jury had found that said policy did so lapse in October, 1926. In view of this state of the pleadings, we do not find any fundamental error involved under this assignment, and since the charge of the court was not objected to and no exceptions thereto filed by appellant, this assignment is overruled. :

Appellant’s third assignment of error complains that the judgment of the court is contrary to the law, in that the evidence showed that the policy sued upon was reinstated by the payment by appellant and acceptance by appellee of a payment of a premium thereon in February, 1928. While the record contains some evidence indicating such a payment by insured in February, 1928, there is no pleading on the' part of appellant that the acceptance of such payment by appellee would amount to a reinstatement of ithe policy. According to the terms of the policy and of the constitution, laws, and by-laws of appellant governing same and forming a part thereof, policies of this nature become null and void upon nonpayment of 'premiums, and in order to constitute a reinstatement of the policy it was incumbent upon appellant to have shown acts on the part of .appellee which would constitute a waiver of the forfeiture or facts which would amount to an- estoppel of appellee, to assert such forfeiture. No such waiver or estoppel was pleaded or alleged by appellant. It is well settled that, in order to claim the benefits of a waiver of rights, such waiver must be both pleaded and proved. Smith v. Security Investment Co. (Tex. Civ. App.) 16 S.W.(2d) 926, and authorities there collated. Since there is no pleading in the record on the part of appellant alleging such waiver or estoppel, we think the judgment of the trial court correct, and this assignment is overruled.

The fourth and fifth assignments of error of appellant complain of documentary evidence admitted over appellant’s objection and bills of exception are in the record pertaining to each assignment, but neither bill discloses the grounds upon which the objection to the testimony was made, and hence said bills cannot be considered by this court. Article 2237, Vernon’s Annotated Statutes of 1925, note 39, and cases therein cited.

This disposes of all of appellant’s assignments of error, and finding no reversible error in the record, the judgment of the lower court is affirmed.

WAGSTAFF, Special Associate Justice, and HICKMAN, Chief Justice, concur.


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McCREARRY et al.
    No. 3934.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 13, 1931.
    Rehearing Denied Jan. 22, 1931.
    See, also (Tex. Civ. App.) 296 S. W. 935: (Tex. Com. App.) 1 S.W.(2d) 868.

      Richard Mays and A. P. Mays, both of Cor-sicana, B. A. Landman, of Athens, and Adair Dyer, of Dallas, for appellant.
    Bishop & Holland, of Athens, and J. D. Pickett, of Palestine, for appellees.
   WILLSON, C. J.

(after stating the case as above).

It will be noted that the jury found, among other things, that the engineer operating the train discovered and realized that McCrearry was in a perilous position in time, by the use of means at hand, consistent with the safety of the train and those riding thereon, to have so operated the train-as to prevent its striking McCrearry, and found, further, (1) that said engineer failed to use such means, (2) that such failure ~was negligence, and (3) that such negligence was a proximate cause of McCrear-ry’s death. Unless error entered into the findings specified, they furnished a sufficient support for a judgment in appellee’s favor for some amount, and it is not contended here that the sum found by the jury was excessive.

At the trial appellant objected to the submission of the issues resulting in the findings just specified, on the ground that the evidence did not warrant the submission of such issues, and with reference to such issues requested the court to charge the jury as follows:

(1) “You are instructed that the defendant ' railway company has in law a right to use its tracks upon and over crossings, as well as elsewhere, in the operation of its trains superior to that of the deceased McCrearry. And it is not incumbent upon the railroad company to slow down or stop its trains because, another person is walking or running along a roadway or pathway, running along with its tracks theh in use.” (2) “Though you may believe from the evidence that the operatives of the train, in approaching the loading shed, saw deceased in the space between the main line and switch track, nevertheless they had a right to assume that the deceased Mc-Crearry would not undertake to go over the main line track in front of the approaching train at the risk of sustaining injury, and no duty would be imposed upon said operatives, unless and until they knew that McCrearry was undertaking to go over the track in front of the engine, and unless the train could have been stopped before the collision there would be no liability upon the railroad company for the death of said deceased.” (3) “You are instructed that though you may believe from the evidence that the engineer in charge of the locomotive ought to have discovered the peril of the deceased, if any, still you are instructed that the defendant would not be liable for the negligence of the engineer, if any, in so failing to discover the peril of the deceased, if any. The defendant would be liable only in the event the engineer actually discovered and realized the peril of the deceased, if any, and thereafter failed to use all of the means at his command to stop the locomotive corisistent with the safety of the train and those upon it.”

Appellant insists the court below erred when he overruled its said objection and when he refused to give the requested charges to the jury.

The refused charges plainly were general in their nature, and for that reason, the cause being submitted on special issues, were properly refused; and, of the three, those numbered 1 and 2 were clearly on the weight of the evidence and for that reason also should not have been given to the jury.

As we construe the evidence, it furnished sufficient support for the findings in question, and we therefore think the trial court did not err when he overruled the objection specified.

It appeared from testimony a jury had a right to believe that appellant’s passing track and main line track at Ash ran east and west parallel with and about 8 or 9 feet from each other; that when cars were on both the tracks the clearance space between them was about 4 feet; that at the time of the' accident several refrigerator cars were parked on the passing track; that there was a traveled crossing over said tracks 50 to 60 feet west of a peach-packing shed where the refrigerator cars were parked, and another such crossing 150 to 200 yards west thereof; that many people were then and for several weeks before the accident occurred had been working at the peach-packing shed; that the space between the tracks was then being, and for many years had been, used as a way by people working at the shed and by the public generally; that McCrearry was in the space between the tracks drinking water dripping from one of the refrigerator cars when he discovered the train on the main line track, only a short distance from him, and moving silently and rapidly toward him; thát, terrorized, he at once began running away from the train in the space between the refrigerator cars and the main line track; that while so running he turned north and attempted to cross said main line track ■in front of the train and was struck by some part of the far (north) side of the engine pulling the train; that appellant’s tracks were straight and the view of the operatives of the train as it approached the place where McCrearry was drinking the water was’ unobstructed for a distance greater than 200 yards; that the train was moving at a speed in excess of 25 miles per hour as it approached the place where the accident occurred; and that its speed was not in the least diminished until after it struck McCrearry. The fireman testified that “in looking ahead” he did not see any one in the space between the passing and main line tracks, and that the first knowledge he had of the accident was when tile engineer asked kim “if we kit tkat man.” He looked tken, ke said, and.“saw kim (Me-Crearry) come around on my side.” Mc-Crearry, tke fireman said, “just come around tke end of tke pilot beam on. my side, looked like ke kind of staggered and fell. * * * He kad cleared the rails, but maybe not tke cross ties.” Tke engineer testified tkat tke train “was just coasting,” at a speed of between 10 and 12 miles an hour, as it approached Ask. He said ke saw four or five men cross the track 150 to 200 yards ahead of tke train as it moved east, but saw no one between tke tracks at tke point where tke refrigerator cars were parked, and tkat ke never saw McCrearry until ke kad passed two of said cars; tkat ke saw kim tken “come out from under tke car or come out from between tkem.” He (McCrearry), tke engineer said, “was not (quoting) on tke railroad track wken I first saw kim. He was running along witk tke engine in tke space between my train and these refrigerator cars. He came out from under tke car about two feet or three feet behind tke pilot beam.” McCrearry, tke engineer said, further, made from four to eight jumps “before ke went in front of tke train, ke out run me, got faster than I was — he got ahead of me.” Tke engineer-testified, further, tkat ke “knew there were a lot of people working at tke peach shed”; that ke “looked straight ahead down tke track,” as tke train approached Ask; tkat ke “saw some fellows cross tke track from tke south and go north of tke track before ke got to tkem” ; but did not see McCrearry in tke space between tke cars before kis engine got to tke crossing nearest tke peach shed; tkat if ke testified to tke contrary on tke first trial of tke case it was an error; tkat if ke kad seen kim and applied tke brakes at said crossing ke could have stopped tke train before it kit McCrear-ry; tkat ke “didn’t know what McCrearry was going to do wken ke first saw kim,” whether he was “going to jump on this side, tkat side or what side,” tkat ke did not realize wken ke first saw McCrearry tkat ke was in danger and tkat ke might hurt him, but might have said on tke former trial tkat ke thought there might be danger of killing kim when ke first saw kim, and might have said on tkat trial that tkat thought came into his mind tke moment ke laid eyes' on McCrearry running down tke track; tkat tke moment ke saw McCrearry running down by tke side of kis engine ke thought he ought to take precaution for kis safety, and did; tkat McCrearry was running at full speed wken ke saw kim, “so fast ke outran tke train.”

Tke testimony on tke former trial being substantially tke same as tkat specified above, tke Court of Civil Appeals at Dallas (296 S. W. 935, 937) said: “While tke testimony of tke engineer discloses tke fact tkat, at tke time ke actually discovered tke deceased, between the tracks and realized kis danger, ke could not have stopped tke train in time to have avoided tke injury, yet ke could have seen deceased some distance back from tke place ke testified ke saw kim and at a place where perhaps tke collision witk deceased might have been avoided. Under suck circumstances, it was for the jury to determine tke issue of discovered peril.”

It appearing, as we construe tke testimony, tkat McCrearry kad all but gotten across tke track before tke engine struck kim, we agree witk the Dallas, court tkat a question for tke jury was presented and tkat they had a right to conclude McCrearry would have escaped injury kad tke speed of tke train been in tke least reduced, and to conclude further tkat the engineer discovered and realized tke danger McCrearry was in in time, by tke use of proper care, to have so reduced tke speed of the train as to have avoided tke accident. International & G. N. R. Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936; Houston & T. C. R. Co. v. Finn (Tex. Civ. App.) 107 S. W. 94; Id., 101 Tex. 511, 109 S. W. 918; St. Louis Southwestern R. Co. of Texas v. Ford (Tex. Civ. App.) 237 S. W. 655; Schaff v. Copass (Tex. Civ. App.) 262 S. W. 234; Texas & P. R. Co. v. King (Tex. Civ. App.) 18 S.W.(2d) 757; International & G. N. R. Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442; Verble v. Schaff (Tex. Com. App.) 251 S. W. 1023; Houston, E. & W. T. R. Co. v. Kopinitsch, 114 Tex. 367, 268 S. W. 923; Hines v. Arrant (Tex. Civ. App.) 225 S. W. 767; Stevenson v. Houston & T. C. R. Co. (Tex. Civ. App.) 19 S.W.(2d) 207.

Appellant insisted in a motion “to suppress and strike” deposition of Mrs. Bertha Johnson, a witness for appellees, tkat it appeared tke witness did not swear to the truth of tke answer before the notary public who took same, and kad failed to answer specified interrogatories propounded to her, and further appeared that said notary public did not “indorse his name upon -the envelope containing the deposition as required by law.” We think it appears from tke bill of exceptions covering tke ruling complained of tkat tke witness did answer tke specific cross-interrogatories and did swear to tke truth of suck answers and to tke answers she made to tke other1 interrogatories, and further appeared tkat the notary public did indorse kis name on tke envelope containing tke deposition. Hence we think tke court did not err wken he overruled tke motion.

Other contentions relevant to the issue of discovery and peril are presented by assignments in appellant’s brief, but we think none of tkem shows error requiring a reversal of tke judgment.

As the findings of tke jury on tkat issue furnished sufficient support for tke judgment, it is not necessary to consider other contentions presented by the 147 assignments of error in said brief.

The judgment is affirmed.


author: LANE, J.

text:
    STEPHENSEN et al. v. WOOD et al.
    No. 9476.
    Court of Civil Appeals of Texas. Galveston.
    April 10, 1930.
    Rehearing Withdrawn at Joint Request Feb. 19, 1931.
    Levy & Levy, of Galveston, for appellant. ,
    Robert Lee Bobbitt, Atty. Gen., and Jack Blalock, Asst. Atty. Gen., for appellees.
   LANE, J.

This suit was brought by F. P. Stephensen, for himself and on behalf of all licensed market fishermen residing in Galveston county, Tex., against A: E. Wood, as chairman, and all other members, of the Game, Fish and Oyster Commission of the-StfifhTff’Texas/aiid -against certain other named defendants charged with the administration and enforcement of article 941 of the Penal Code, as amended by the Forty-First Legislature of the State of Texas at its Regular Session, otherwise known as Senate Bill No. 88, chapter 119, § 1, Acts of the Regular Session of the Forty-First Legislature (1929), Vernon’s Ann. P. C. art. 941.

Plaintiffs alleged that said article closed the waters of Galveston Bay against fishing with nets and/or seines, which instruments were the only means by which fish could be obtained in commercial quantities and for market purposes. They further alleged that while said law closed Galveston Bay, it left open to commercial fishing other tidal waters of this state; that plaintiffs were and had been lawfully engaged in the fishing business for many years prior to the enactment of said statute, and had in their possession valuable nets, seines, and other paraphernalia which were rendered useless and valueless by said law, alleging that the value of each of said nets or seines was approximately $400, and that such instruments were lawfully in 'their possession long before said law became effective ; that said article 941 is a penal statute and not only makes such use of nets and/or seines a criminal offense, but also prohibits the possession thereof on' Galveston Bay, and other waters mentioned therein, ijnlesaj?lain-tiffs-first obtain a permit from the Game, Pish- and Oyster Commissioner' of ’ the - State of Texas; that said article further provides that the Game, Fish and Oyster Commissioner of the State of Texas had the power and right to seize and hold nets, seines, or other tackle in his possession as. evidence until after the trial of any persons charged with violation of the law; and that no suit can be maintained against such officer because of such seizure.

That under article 978f of the Penal Code of the State of Texas, as adopted hy the Forty-Eirst Legislature at its Regular Session, c. 118, which was made effective September 1, 1929 (Vernon’s Ann. P. 0. art. 978f), the office of the Game, Fish and Oyster Commissioner was abolished, and at the time said article 941 became effectiveon January 1,1930, there was no such office or officer in the state of Texas as the Game, Pish and Oyster Commissioner who could exercise the rights and power created and conferred by said article 941; that said article 941 is unconstitutional and particularly violates the • following sections of the Constitution of the State of Texas;

(1) Article 1, § 19, being commonly known as the due process clause.

(2) Article 1, § 16, prohibiting the enactment of retroactive laws.

(3) Article 2, § 1, prohibiting an executive or administrative officer from legislating or attempting to make laws.

(4) Article 1, § 3, prohibiting special and discriminatory legislation.

(5) Article 3, § 57, prohibiting the enactment of local and special laws without publication of notice in the locality affected.

That article 941 violates section 1 of the Fourteenth Amendment to the Constitution of the United States, known as the due process clause under the Federal Bill of Rights, and that said article 941 is invalid because it is so indefinitely framed and in violation of article 6 of the Penal Code of the State of Texas; that their valuable private property rights would be destroyed if said article were enforced, and with the suit they seek to protect themselves from irreparable damage and injury by injunction.

The defendants answered, filing: (a) A plea in abatement on the grounds that the suit was one against the state of Texas and had been filed without its permission; (b) a plea denying jurisdiction of the court because the suit was one to restrain the enforcement of a criminal statute; (c) a general demurrer ; (d) a general denial, and a special denial of each of plaintiffs’ allegations.

The trial judge entered a temporary restraining order on December 24, 1929, which was continued in,force and effect until January 18, 1930, when by agreement between counsel the case was submitted on the application for a temporary injunction.

Upon such submission, the court entered an order dissolving the temporary restraining order theretofore entered. F. P. Stephen-sen has appealed.

' By Senate Bill No. 83, passed by the Forty-First Legislature September 1, 1929 (Acts Regular Session Forty-First Legislature, page 265, c. 118 [Vernon’s Ann. P. C. art. 978fJ), the office of Game, Fish and Oyster Commissioner of this state was abolished and the present Game, Fish and Oyster Commission was created with authority, powers, duties, and functions theretofore vested in the Game, Fish and Oyster Commissioner, except where such former authority, powers, and duties theretofore conferred upon the Game, Fish and Oyster Commissioner conflict with the provisions of Senate Bill No. 83.

By section 4 of said act (Vernon’s Ann. P. C. art. 978f, § 4) it is provided that;

“Said Game, Fish and Oyster Commission is hereby authorized to make such rules and regulations for the conduct of its work and the work of the Game, Fish and Oyster Commission as may be deemed necessary, not inconsistent with the Constitution and laws of this State.”

Senate Bill No. 88, passed by the Forty-First Legislature, which became effective January 1, 1930 (Acts Regular Session Forty-First Legislature, 1929, c. 119, designated as article 941 [Vernon’s Ann. P. C. art. .941]), among other things which are not necessary to be here stated, provides that:

“It shall be unlawful for any person to place, set, use or drag any seine, net or other device for catching fish and shrimp other than the ordinary pole and line, casting rod and reel, artificial bait, trot line, set line, or cast net or minnow seine of not more than twenty feet in length for catching bait, or have in his possession any seine, net or trawl without a permit issued by the Game, Fish and Oyster Commissioners or by his authorized deputy in or on any of the waters of any of the bays, streams, bayous or canals of * *

Then follows a list of certain counties, including Galveston county and certain waters of the state.

By sections la, lb, lc, and If and lg of the act it is provided as follows:

“Sec. la. Provided that it shall be unlawful for any person to drag any seine, or use any drag seine, or shrimp trawl for catching fish or shrimp, or to take or catch fish or shrimp with any device other than with the ordinary pole and line, casting rod, rod and reel, artificial bait, trot line, set line, or east net, or minnow seine of not more than twenty feet in length for catching bait, or to use a set net, trammel net or strike net, the meshes of which shall not be less than one and one-half inches from knot to knot, in any of the tidal bays, streams, bayous, lakes, lagoons, or inlets, or parts of such tidal waters of this State not mentioned in Section 1 hereof.
“Sec. lb. Provided that shrimp trawls may be used for taking shrimp in Matagorda Bay, San Antonio Bay or that part of Aransas Bay and all that part of Corpus Christi Bay not mentioned in Section 1.
“Sec. lc. Provided that it shall be unlawful to attach to any set net, strike net or trammel net used in any of the waters of any of the tidal bays, streams, bayous, lakes, lagoons, or inlets of this State, any cork line or lead line of a size greater than one-fourth inch in diameter.”
“Sec. If. Any person who shall violate any of the provisions of this Article shall be deemed guilty of a misdemeanor, and on first conviction shall be fined in a sum not less than twenty-five ($25) dollars nor more than one hundred (§100) dollars; and on second or more convictions shall be fined in a sum of not less than one hundred (§100) dollars nor more than two hundred ($200) dollars and his fisherman’s license or dealer’s license or both -shall be automatically conceled and he shall not be entitled to receive another fisherman’s license or dealer’s license for one year from the date of his conviction; and provided that the Game, Pish and Oyster Commissioner of Texas or his deputy shall have the power and right to seize and hold nets, seines or other tackle in his possession as evidence until after the trial of defendant and no suit shall be maintained against him therefor.
“Sec. lg. All laws or parts of laws in conflict herewith are hereby expressly repealed.”

Appellants contend that the court erred in dissolving the temporary injunction and in not perpetuating same, in that Senate Bill, No. 88, art. 941, is void, in that its provisions violate the following provisions of the State Constitution: (1) Section 57 of article 3; (2) section 19 of article 1; (3) section 1 of article 2; and (4) section 16 of article 1; and that it is in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States, and of article 6 of the Penal Code of this state, and section 10 of article 1 of the State Constitution.

Appellants first insist that as it is provided by section 57 of article 3 of the State Constitution that:

“No local or special law shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice-shall state the substance of the contemplated law, ‘and shall be published at least thirty days prior to the Introduction into the legislature of such bill and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the legislature before such act shall be passed.”

And by article 2 of the Revised Civil Statutes of this state that:

“Any person intending to apply for the passage of any local or special law shall give notice of such intention by having a statement of the substance of such law published in some newspaper published in the county embracing the locality to be affected by said law, at least once each week for the period of thirty days prior to the introduction into the Legislature of such contemplated laws.”

And that since it is-admitted by appellees that no such notice as required by the Constitution or statutes was published prior to the enactment of the act complained of, such act is void and its provisions cannot be lawfully enforced against appellants.

The first inquiry that arises is: Is the law attached a local or special law? The words “local law” and “special law,” as used in sections 56 and 57 of article 3 of the State Constitution, are, we think, used as synonymous terms. Lastro v. State, 3 Tex. App. 363; Cordova v. State, 6 Tex. App. 208.

The first paragraph of section 56 declares-that “the legislature shall not, except as otherwise provided in this constitution, pass any local or special law authorizing;" (Then follows the naming of a number of subjects. Italics ours.)

The last paragraph of such section reads as follows:

“And in all other cases where a general law can be made applicable, no local or special law shall be enacted; provided, that nothing herein contained shall be construed to prohibit the legislature from passing special laws for the preservation of the game and fish of this state in certain localities." (Italics ours.)

It occurs to us that by the paragraph last quoted the framers of the Constitution meant to declare that nothing in the Constitution should prohibit the Legislature from passing laws, “special or local,” for the preservation of the game and fish of this state, whether made to apply to the whole state or to certain localities without notice required in the passage of laws relative to the subjects mentioned in sections 56 and 57 of article 3 of the-Constitution.

We are reinforced in such conclusion by the construction which has evidently been placed on the Constitution in question by the several Legislatures of this state, evidenced by the passage of many laws without notice, found in chapter 6 of our Penal Statutes, relating to game, fish, and oysters. See articles 880, 916, 923g, 923i, 923k, 9231, 928, 941a, 952, and many others.

In State v. Corson, 67 N. J. Law, 178, 50 A. 780, it was held that a statute is not special or local, within the meaning of the Constitution, merely because it prohibits the doing of a thing in a particular locality, but is general if it applies equally to all citizens and deals with a matter of general concern of the citizens. The rule above announced is quoted with approval in Logan v. State, 54 Tex. Cr. R. 74, 111 S. W. 1028.

We think the rule announced in the case cited is sound and should be followed In the present ease. Unquestionably the law under discussion in the present case, in so far as it prohibits the taking of fish by means of seines, nets, etc., from the waters named therein, applies equally to all citizens of this state or elsewhere within the United States; that it deals with a matter of general concern of all the citizens of this state; none are permitted to take fish from such waters, whether they live in Galveston county or in any other county; and all are'equally permitted to take fish from such waters in any manner not prohibited by law, whether they live in Galveston county or elsewhere.

In Clark v. Finley, 93 Tex. 173, near bottom of page 180, 54 S. W. 343, 346, it is said:

“And again it is held that a statute, although its enforcement be restricted to a fixed locality, is not local in its character if persons or things throughout the state be affected by it. Williams v. People, 24 N. Y. 405; Healey v. Dudley, 5 Lans. [N. Y.] 115.”

In Reed v. Rogan, 94 Tex. 177, at page 183, 59 S. W. 255, 257, it is said:

“It has been well said that ‘a law is not local that operates upon a subject in which the people at large are interested.’ Healey v. Dudley, 5 Lans. [N. Y.] 115.”

In referring to the case of Reed v. Rogan, the court in Smith v. State, 54 Tex. Cr. App. 298, 113 S. W. 289, 294, said:

“In the last-cited case the principle is laid down that where the public at large have an interest in the matter, and the legislation merely applies to a locality, but affects all who live in said locality, or whose interests may be drawn to same, that the law is a general law, and not a special one.”

An act of the Degislature for the protection of the fish of the state, as does the act under consideration, is not a “local” or “special” law, in the sense in which such terms are used in sections 56 and 57 of article 3 of the Constitution. Such an act is not a general subject — the protection of the fish of the state, the property of all the people of the state — which cannot be said to affect the welfare and Interest of any special locality alone.

We are also of opinion that by the last clause of section 56 of article 3 of the Constitution the authority of the Legislature to pass such laws as the one under consideration without the notice mentioned in section 57 of article 3 is specifically reserved. As we have already stated, we think the terms “local laws” and “special laws” were used by the framers of the Gonstitution in sections 56 and 57 of article 3 as synonymous terms.

By appellants’ third proposition and the argument thereunder, it is substantially insisted that the law under consideration as passed by the Legislature does not declare that it shall be unlawful for one to have in his or her possession any seine, net, or trawl on any of the waters of the bays, streams, bayous, and canals and other waters mentioned in section 1 of the act, nor does it provide for the infliction of a penalty against any person having such seine, net, or trawl on such waters, but the Legislature has attempted, by that part of the act which provides in effect that it shall be'unlawful for any person to have in his posession, on any of the waters named, any seine, net, or trawl without the permission or consent of the Game, Fish and Oyster Commissioners, to confer upon such commissioners authority to create a penal law. In other, words, that such part of the act is an attempt on the part of the Legislature to make it optional with the commissioners to make it- a penal offense to have any seine, net, or trawl on the waters mentioned, without designating any stipulation as to when. and under what conditions the permission to have such seine, net, or trawl on such waters shall or may be granted, or to refrain from making such act a penal offense by granting the permission mentioned.

Appellants insist that the attempt on the part of the Legislature to confer upon the commissioners authority to determine when and under what circumstances and conditions the possession of seines, nets, and trawls on the waters mentioned shall constitute a penal offense, is in violation of article 3, section 1 of the Constitution of this state, which expressly provides that the legislation of this state shall be vested in the Legislature of the state, and is therefore void and unenforceable.

This contention of appellants should be sustained. That the Legislature has no power to confer upon a commission, bureau, or agent of the state the power to make a law is well settled in this state, not only by the ■provisions of article 3, § 1, of the Constitution, but by the uniform opinions of our courts. Article 3, § 1, State Constitution; Ex parte Leslie, 87 Tex. Cr. R. 476, 223 S. W. 227, 229; Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126; 62 S. W. 419, 53 L. R. A. 349, 96 Am. St. Rep. 821; Stockwell v. State, 110 Tex. 550, 221 S. W. 932, 12 A. L. R. 1116; Ex parte Mitchell, 109 Tex. 11, 177 S. W. 953; State v. Swisher, 17 Tex. 441; Crossman v. Galveston, 112 Tex. 303, 247 S. W. 810, 26 A. L. R. 1210.

The case most directly in point is Ex parte Leslie, supra, wherein the Supreme Court, speaking through Mr. Justice Morrow,'said:

“The possession by relator of cattle which had not been dipped is not made by law an offense. It becomes an offense only when a proper rule made by the livestock sanitary commission, and promulgated according to law, has been violated. The law is incom-píete in failing to describe witli some degree •of certainty tbe rule with reference to notice, which it is intended by the legislature the commission is authorized to make, to the end that one accused of its violation may look to the law to determine the authority to make the rule, and the court, in passing upon the reasonableness, may ascertain the legislative will from the law as written. The law being silent upon this subject, the relator cannot be punished for refusing to obey the command of the commission or its agents. Power cannot be conferred upon them to' make an offense. Jannin v. State, supra; Ruling Case Law, vol. 6, pp. 181-183. * * * The power to make laws is placed by the people, through the Constitution, upon the Legislature. The rights of individuals are guarded by restrictions touching the enactment and publication of laws, and the privilege is afforded of presenting by petition or appearance before the legislative committees opposition to proposed enactments affecting the property or the liberty of the citizen.”

Such being the declaration of our Constitution and the uniform holding of our Supreme Court, we hold, as it becomes our duty so to do, that so much of the act under consideration as attempts to make it a penal offense for one to have in his possession seines, nets, or trawls on the waters mentioned in section 1 thereof, is unconstitutional and void.

As we have held the law not violative of either the fifty-sixth or fifty-seventh sections of article 3 of the Constitution, and that that part of the act attempting to confer powers of legislation on the commissioners, whereby the seizure and retention" of seines, nets, and trawls is sought to be authorized, is unconstitutional, it becomes unnecessary to discuss the further contentions of appellants to the effect that the act in so far as it authorizes the seizure of seines, nets, and trawls of persons and attempted to make it a penal offense to have such equipment on the waters mentioned, would deprive the citizens of their valuable properties without due process of law, and that it.would be, if sustained, unlawful as a retroactive law.

The conclusions above stated require an affirmance of the judgment in so far as it dissolves the injunction restraining appellees from enforcing the statute above quoted prohibiting the catching of fish in the waters described in the statute by the means therein prohibited; but in so far as the judgment dissolves the injunction restraining appellees from enforcing the provisions of the statute prohibiting the possession on the waters therein named of seines, nets, and trawls the judgment is reversed and judgment here rendered for appellants.

Affirmed in part; reversed and rendered in part.


author: BARCUS, J.

text:
    JOHNSON v. SMITH.
    No. 1015.
    Court of Civil Appeals of Texas. Waco.
    Feb. 12, 1931.
    Williford & Williford, of Fairfield, for appellant.
    Anderson & Bonner, of Fairfield, and Lex Smith, of Teague, for appellee.
   BARCUS, J.

Appellee instituted this suit against appellant to recover the amount due on a $500 note dated January 1, 1927, due January 1, 1928, bearing 10 per cent, interest per annum, and providing for 10 per cent, attorney’s fees, signed ‘‘Johnson & Mcllveen, by M. F. Mcll-veen,” and payable to H. D. Potter. H. D. Potter is dead, and appellee is his independent executor under a will which has been duly probated. About 1901 or 1902, A. S. Johnson and M. F. Mcllveen entered into a partnership and conducted a drug store. M. F. Mc-llveen was the man in active charge, and, according to the testimony of appellant, had full authority to buy on a credit and bind the partnership therefor. M. F. Mcllveen died in July, 1928. A short time thereafter his widow, Mrs. Mcllveen, by deed of conveyance >nd bill of sale, conveyed all of her "interest in the partnership assets of the firm of Johnson & Mcllveen to appellant, A. S. Johnson, who agreed to play, in consideration therefor, all the partnership debts. Mcllveen and wife had no children. His wife was his sole heir, and there was no administration on his estate, and, according to the pleading and proof, none was necessary. Appellee sought a recovery against A. S. Johnson as the surviving partner, and also by reason of the fact that he had taken charge of all of the partnership property and converted same to his own use and benefit. He sought to hold Mrs. Mcllveen on the theory that she had received part of the partnership property and was therefore liable to that extent. Mrs. Mcll-veen, by cross-action, asked for judgment over against Johnson in the event appellee should recover against her.

The cause was tried to the court, and resulted in judgment being entered for appel-lee against A. S: Johnson, individually, and in favor of Mrs. Mcllveen. A. S. Johnson alone appeals.

By his first proposition, appellant contends that the judgment of the trial court is not final, because same does not dispose of the partnership of Johnson & Mcllveen, and by his second proposition contends that the judgment is not final because it does not dispose of the cross-action of Mrs. Mcllveen against appellant. We - overrule these propositions. Under the pleadings as well as the undisputed facts, the partnership of Johnson & Mcllveen was dissolved by the death of Mcllveen in July, 1928, long prior to the time this suit was instituted. The law is well settled that the death of one partner, in the absence of an express agreement to the contrary, dissolves the partnership. 20 R. C. L. 989; 47 C. J. 1040; Roberts v. Nunn (Tex. Civ. App.) 169 S. W. 1086. Appellee’s suit was not against the partnership of Johnson & Mc-llveen, but was against A. S. Johnson, individually, and as the surviving partner of said partnership, and against Mrs. Mcllveen, the widow of the .deceased partner. Mrs. Mcll-veen, by her cross-action, only sought judgment against Johnson in the event appellee recovered judgment against her, and, the court having denied appellee any such recovery, same thereby effectively disposed of her cross-action.

By several different propositions, appellant contends the trial court committed error in permitting the witnesses W. O. Keet-on and wife to testify relative to a certain conversation they had with H. D. Potter, deceased; his contention being that said witnesses, being beneficiaries under the will of H. D. Potter, should not have been allowed to so testify under and by virtue of article 3716 of the Revised Statutes. We overrule these propositions. If it could be said that said testimony' for said reason was inadmissible, appellant waived said objection, because, after said witnesses had so testified, he cross-examined them fully with reference to the same matters, and had them repeat the same testimony, a.nd, in addition, went much further and more into detail with reference to the alleged conversation said witnesses had with the deceased. In addition, the exception was to the testimony of each of said witnesses as a whole. The identical question involved here was decided adversely to appellant’s contention in Cox v. McClave (Tex. Civ. App.) 22 S.W.(2d) 961 (error dismissed). To the same effect is Edwards v. White (Tex. Civ. App.) 120 S. W. 914.

The remaining propositions of appellant complain at certain findings of the trial court. We have carefully examined each of them, and same are overruled. We think the testimony of appellant fully supports the finding of the trial court that M. P. Mcllveen was the managing partner of the partnership of Johnson & Mcllveen at the time the note in controversy was executed and delivered, and that he so remained until the time of his death. Appellant testified that he and M. F. Mcllveen began business in 1901 or 1902, and that there were no members of the firm of Johnson & Mcllveen except M. F. Mcllveen and himself, and that said partnership continued until Mcllveen’s death. He further testified that Mcllveen had full authority to buy for the partnership on a credit during all of those years. He further testified that, after Mcllveen died, he did not pay Mrs. Mc-llveen «anything for her interest in the partnership property; that she turned all of it over to him, and made him a deed and bill of sale thereto, and placed the title to all of the property in him so that he could take it and pay the partnership debts. The bill of sale which Mrs. Mcllveen made to A. S. Johnson to the personal property recited a consideration of $1,590 paid, and the deed recited a consideration of $1,000 paid, and each of said instruments recited, the further fact that appellant assumed and agreed to pay all the outstanding indebtedness due by the firm of Johnson & Mcllveen.

We have examined all pf appellant's assignments and propositions, and same are overruled, and the judgment of the trial court is affirmed.