author: SHARP, C. CURETON, C. J.

text:
    FIRST NAT. BANK OF HOUSTON et al. v. FOX et al.
    No. 5668.
    Supreme Court of Texas.
    June 10, 1931.
    Boyles, Brown & Scott,. Pat N. Fahey, Ful. bright, Crooker & Freeman, and T. H. Cody, all of Houston, for plaintiffs in error.
    Heidingsfelder & Kahn and R. H. Ward, all of Houston, for defendants in error.
   SHARP, C.

This suit originated in one of the civil district courts of Harris county and results from the dismissal of a suit filed in that court on the 5th day of June, 1919. On August 27, 1928, the trial court dismissed the case for want of prosecution. No motion or pleading of any character was filed in the case within thirty days from and after the order of August 27, 1928. A motion to reinstate, bearing no file mark, was placed with the papers in the case about January 7, 1929. The motion to reinstate had. been handed to the judge or the clerk some time in October, and the direction to reinstate was given by the judge about that time. The entry was actually made, however, on January 7, 1929, the day after the expiration of the term of court during which the orders dismissing and reinstating the case were made. On January 9, 1929, the First National Bank of Houston filed a motion praying that the purported order of December 1, 1928, undertaking to reinstate the case, be stricken from the docket and held for naught, and that the order of dismissal be given effect and reaffirmed, on the ground tha\no motion for new trial or to reinstate the case was filed within thirty days from and after the entry of the order of dismissal; and that the order of dismissal from and after the expiration of thirty days became a final judgment, as provided by article 2092, subdivision 30, of the Revised Statutes. On January 11, 1929, the court granted the motion, held that the court was without jurisdiction to grant the order of reinstatement, dated December 1, 1928, that the judgment of dismissal was the final judgment in the case, that the order of reinstatement was void, and ordered the clerk to drop the cause from the docket. An appeal was made to the Court of. Civil Appeals at Galveston, and that court reversed the judgment of the trial court and rendered judgment overruling the motion made to set aside the order of reinstatement and ordered that the reinstatement order of December 1, 1928, remain in full force and effect. 23 S.W.(2d) 888. The Supreme Court granted a writ of error to review the holding of the Court of Civil Appeals upon this question.

The statement of facts filed herein contains the following admission of the parties: “It is admitted by all parties that the former term of this court ended on January 6, 1929, and that the entire minutes of that term of court into which the clerk has undertaken to carry the purported docket entry of December 1, 1928, are still unsigned by the trial judge, and it is further adr mitted by all parties that no motion or pleading of any character was filed in the case within thirty days from and after the order of August 27, 1928, dismissing such cause for want of prosecution.”

Upon the hearing of the motion to set aside the order of reinstatement, dated December 1, 1928, and restore the order of dismissal entered on August 27, 1928, the trial court entered a judgment, the material and relevant parts thereof reading as follows:

“On this 11th day of January, 1929, upon consideration of the motion of the defendants, the Eirst National Bank of Houston, Texas, * * * seeking to have declared a nullity the purported order of December 1st, 1928, undertaking to reinstate the above entitled and numbered cause, the court. * * * is of the opinion and finds:
“ ‘That on the 27th day of August, 1928, this court, by order * ⅜ ⅜ dismissed said above entitled and numbered cause for want of prosecution; that no motion for a new trial was filed in said cause within ten (10) days thereafter; that no motion or pleading of any character was filed in said cause within thirty (30) days from and after the entry of said judgment, to-wit, August 27, 1928; that by reason of the provisions of Article 2092 of Revised Statutes of the State of Texas, and particularly by reason of the provisions of Section 30 of said Article, this court was without jurisdiction from and after the expiration of thirty days from the entry of said judgment of dismissal on August 27, 1928, to entertain or consider any motion or pleadings of any character in said cause, and that said court was from and after the expiration of thirty days from the entry of said order on the 27th day of August, 1928, without jurisdiction in any respect with reference to said dismissed cause.
“ ‘It is, therefore, considered by the court, ordered, adjudged and decreed, that said judgment of August 27, 1928, dismissing said cause for want of prosecution, is the final judgment in said cause; and that said purported order of December 1, 1928, undertaking to reinstate said cause is null and void, and of no force and effect whatever.
“ ‘It is further ordered that the clerk of this court do, pursuant to the terms of said judgment of August 27, 1928, drop said cause from the docket of said court.’ ”

The Court of Civil Appeals, in its opinion with reference to the district Courts of Harris county, says: “There are four district courts in Harris county (Eleventh, Fifty-fifth, Sixty-first, and Eightieth), the territorial jurisdiction of each being coextensive with the county boundaries. The statute provides that each of these courts shall hold' two terms a year. The first term, .designated the January-June term, begins on the first Monday in January of each year and ends on the Sunday before the first Monday in July; and the second term, designated the July-December term, begins on the first Monday in July and ends on the Sunday before the first Monday in January, following.” '

Plaintiffs in error contend that since no motion or pleadings of any character was filed in the cause within thirty days after the entry of judgment of dismissal of the Cause entered on August 27, 1928, the trial court, because of the provisions of subdivision 30 of article 2092, R. S., was without jurisdiction from and after the expiration of thirty days from the entry of the judgment of dismissal to consider any motion or pleadings with reference to the dismissed cause.

This contention is sustained.

In response to a public demand, the Legislature, for the purpose of relieving the congested condition of the dockets in many of the district courts of this state, enacted article, 2092, R. S. Among many other provisions it contains the following: “Judgments of such civil district courts shall become as final after the expiration of 30 days after the date of judgment or after a motion for a new trial is over-ruled as if the term of court had expired. After the expiration of thirty days from the date the judgment is rendered or motion for new trial is over-ruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts.”

The foregoing article 2092 is applicable to the civil district courts of Harris county.

It is a well-established rule that in the absence of a statutory prohibition, every court has the power to dismiss a suit for want,of prosecution. 9 R. C. L. p. 206, § 25; 18 C. J. 1191, 1192, § 110; Hall v. City of Austin, 31 Tex. Civ. App. 626, 73 S. W. 32.

It is also well settled that a judgment of dismissal is considered a final judgment. Green v. Green (Tex. Com. App.) 288 S. W. 406; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100.

The rule is equally well settled that a court is without power, except when specially conferred by statute, to grant a new trial at a subsequent term of the court to that at which the judgment was rendered and that an order attempting to do so is void. Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905; Green v. Green (Tex. Com. App.) 288 S. W. 406, 407; Carter v. Commissioners, 75 Tex. 286, 12 S. W. 985; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Wright v. Thomas, 6 Tex. 420, 424.

In the case of Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100, Judge Gaines, speaking for the court, states the rule in the following terse language:

“The appellant brought this suit in the court below. At the second term of the court after its institution he forwarded to the clerk an application for continuance, but, neither he nor his attorney having appeared when the cause was called for trial, the court dismissed the suit for want of prosecution. At the next succeeding term of the court he filed a motion for a reinstatement of the ease upon the docket, and for a new trial, which was stricken out on motion of the defendant. From this last order this appeal is taken.

“In the view we take of the case, we deem it unnecessary to discuss the contents of the motion for a new trial. The judgment of dismissal at the former term was a final judgment, and it is a well-settled rule of practice in this state that after the adjournment of the term at which such a judgment is rendered it is no longer subject to the control of the trial court. Rogers v. Watrous, 8 Tex. 62 [58 Am. Dec. 100]; Metzger v. Wendler, 35 Tex. 378.”

This brings us to a consideration of subdivision 30 of article 2092, R. S. We are toot without judicial authority upon this question. Our Supreme Court, in a well-considered opinion written by Associate Justice Pierson, in the case of Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905, 906, reviewed this section of the foregoing article and held that it was valid. In discussing the provisions of this section it was held: “If said statute is a valid and constitutional enactment, and if its terms apply to this judgment, relator is entitled to the writ. Under the provisions of chapter 105 a motion for new trial filed more than 30 days after the entry of a judgment would be as one filed after the term of court had expired. The only remedy would be, as in similar cases and as provided by said chapter, by a bill of review.”

In the course of the opinion the following language is also used:

“The law is a valid exercise of legislative authority, and well designed to have a wholesome effect upon the dispatch and finality of litigation in the courts in our congested centers. Legislative prerogative has always extended to fixing the time when judgments become final and the time when the necessary steps in the procedure must be taken.
“While the Act' is a departure from the former regulations respecting motions for new trial,- when the judgment becomes final, and other matters of procedure, yet its terms are reasonable and generous. Instead of two days, as heretofore allowed, ten days are allowed in which a motion for new trial may be filed. It may be amended within twenty days after it is filed. The judgment does not become final until after the expiration of thirty days from the date of the judgment, or after a’ motion for new trial was overruled, at which time the term of court is at an end as far as the immediate case is concerned. * * *
“When the court adjourns, or when the term expires by operation of law, judgments become final and can be set aside or reopened only by a suit for that purpose.”

Again it was said:

“If the term had ended by adjournment at any time after the rendition of the judgment, this judgment would have become final. It is no less final upon the end of the term for this case under the terms of the new statute.
“The only legal way to review it is the way provided by this statute, and which would be the way in the absence of the statutory provision after the judgment had become final; that is, by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review.
“The act here operated prospectively. Its provisions had no effect upon the action of the court in entering the judgment. It applied only to future acts of the court in reference to the judgment, and as to when the court’s control over it should cease.
“No motion for new trial was filed under the old or the new statute, and the judgment became final as if the term of court was at an end.”

But it is contended that the opinion rendered by the Supreme Court in the case of Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1079, 1084, 48 A. L. R. 355, is in conflict with the opinion rendered in the case of Pierce Co. v. Watkins, supra. A comparison of the two opinions, considered in the light of the facts involved in each case, will clearly show that this contention is not sound. Judge Pierson, in rendering the opinion in the ease of Pierce Co. v. Watkins, had under consideration subdivision 30 of article 2092, and its effect upon the procedure prescribed therein. This article was held valid. The case of Nevitt v. Wilson involved the power of the trial court to set aside a judgment inadvertently entered by the clerk, which was not the actual judgment rendered by the court. .The further question was raised and considered by the court as to whether or not a motion for new trial had been timely filed. Chief Justice Cureton held in that opinion, in line with the former holdings of the Supreme Cburt, that the trial court had the power to enter the correct judgment and make the record speak the truth. He also held that by reason of filing a motion for a new trial within the time prescribed by statute that the court had jurisdiction of the case to pass upon that motion later. In that case the exact question before the Supreme Court in the ease of Pierce Co. v. Watkins, and before the court in this case, was not before the court for consideration or decision. Chief Justice Cureton did not intend to modify the rule announced by Judge Pierson in the case of Pierce Co. v. Watkins and expressly so stated in the fallowing language: “The case of Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905, has no application to the case before us. In that case the motion for new trial was not filed within the statutory time.”

Eor the reasons herein stated, the judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


source: Caselaw Access Project

author: . SHARP, C. CURETON, C. J.

license: Public Domain

text:
    STEVENS v. WILLSON, Chief Justice, et al.
    Motion No. 9629.
    Supreme Court of Texas.
    June 10, 1931.
    Phillips, Trammell, Ohizum, Price & Estes . and Clayton L. Orn, all of Fort Worth, for relator.
   . SHARP, C.

Relator has filed a motion for leave to file a petition for mandamus against the members of the Court of Civil Appeals for the Sixth Supreme Judicial District at Texarkana. The mandamus is sought for the purpose of requiring that court to certify a conflict of decisions, which it is alleged exists between an opinion in that court in this case [37 S. W. (2d) 240], the Supreme Court, and certain C’ourjs of Civil Appeals. The petition shows that the cause pending in the Court of Civil Appeals is an appeal from a judgment of the county court of Dallas county, overruling a plea of privilege filed by relator to be sued in Morris county; that the suit was instituted by the Southern Ice & Utilities Company upon two promissory notes, each for the sum of $80.60, executed by relator, payable to the order of the Southern Ice & Utilities Company at Dallas, Tex., and also to recover on an open account for an additional sum of $503.16, a total of $664.16. The relator contended that the county court of Dallas county did not have jurisdiction of the sum of $503.-16, the amount of the open account. -No contention is made that suit could not be maintained against relator in Dallas county on the two notes.

No final judgment upon the merits has been entered in the case. The Supreme Court has no jurisdiction to grant a writ of error to review the holding of the Court of Civil Appeals in a case where the appeal is from 'an interlocutory judgment of the trial court overruling a plea of privilege. In such case the judgment of the Court of Civil Appeals is final. R. S. art. 1821 (as amended Acts 1929, 41st legislature, p. 68, ch. 33, § 1 [Vernon’s Ann. Civ. St. art. 1821]); Hinn v. Gallagher, 114 Tex. 322, 268 S. W. 132; National Compress Co. v. Hamlin, 114 Tex. 375, 269 S. W. 1024; First State Bank of Crowell v. Hill (Tex. Com. App.) 22 S.W.(2d) 1061; Vaught v. Jones (Tex. Com. App.) 20 S.W.(2d) 758.

Since no writ of error would lie, the Court of Civil Appeals could be required by mandamus to certify the question if its ruling was in conflict with other decisions and the Supreme Court did not approve of the ruling made by the Court of Civil Appeals. The ruling of the Court of Civil Appeals is based upon the following authorities: Middlebrook v. Bradley, 86 Tex. 706, 26 S. W. 935; Warner v. Golhman, Lester & Co., 117 Tex. 145, 298 S. W. 890.

The two notes sued upon being payable in Dallas county, the suit was properly brought there, and in order to avoid a multiplicity of suits it was proper to embrace in the suit with the two notes the amount stated in the open account. The correct rule is announced by the Supreme Court in the case of Middlebrook v. Bradley, supra, and that opinion is followed and approved in the case of Warner v. Golhman, Lester & Co., supra.

In this case the Court of Civil Appeals having followed the correct rule, the Supreme Court should decline to permit the petition for mandamus to be filed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered-in accordance therewith.


author: sharp; J. CUBETON, C. J.

text:
    HOUSTON PRINTING CO. v. TENNANT.
    No. 1456—5691.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Ross, Wood, Lawler & Wood and W. M. Cleaves, all of Houston, and Winbourn Pearce, of Temple, for appellant.
    Tyler & Hubbard, James B. Hubbard, and A. L. Curtis, all of Belton, and De Witt Bow-mer, of Temple, for appellee.
   sharp; J.

The Honorable Court of Civil Appeals for the Third Supreme Judicial District has certified to the Supreme Court the following question:

“The appeal is from an interlocutory order overruling a plea of privilege in which appellant (defendant below) sought to have the venue changed to Harris County, the county of its domicile.
“The suit is one for libel only, and appellee sought to maintain venue in Bell County, on the ground that within the meaning of R. S., art. 1995, subd. 29, he resided in that county ‘at the time of the accrual of the cause of action.’ Briefly, the record showed the following upon this issue: The libelous publication sued upon was with reference to official acts of appellee while he was a member of the State Board of Control, and the cause of action accrued subsequently to January 1, 1926. Prior to said date plaintiff had resided in Temple (Bell County) continuously for about 27 years. On January 1, 1926, be assumed office as a member of tbe State Board of Control, and from that time on be lived in Austin, where his principal duties upon tbe Board were performed. Upon leaving Temple be rented bis bouse furnished and it has been rented ever since, with tbe understanding that be was to re-take possession when bis term of office should expire. At Austin be and bis wife boarded at a hotel. He maintained bis domicile, paying his poll tax and voting in Bell County; and intended to return to Bel! County as soon as bis term of office expired. In other words, the evidence conclusively showed that his domicile continued to be in Bell County, although be was temporarily residing in Austin while performing his duties as a member of tbe Board of Control.
“Under a similar state of facts tbe Tex-arkana Court of Civil Appeals, in Belo v. Granberry, 9 S.W.(2d) 443, held that the venue statute in question bad reference to the actual residence of plaintiff as distinguished from his legal residence or domicile. This holding was followed in O’Rourke v. Star Telegram, 19 S.W.(2d) 136, by the Galveston Court. The Dallas Court reached tbe contrary conclusion in Evans v. American Publishing Co., 8 S.W.(2d) 809, but on account of tbe Texarkana Court’s bolding certified tbe question to tbe Supreme Court; and the Commission of Appeals in an opinion adopted by tbe Supreme Court held that tbe statute authorized the suit to be brought in tbe county of plaintiff’s domicile. 118 Tex. 433, 13 S.W.(2d) 358. Eater tbe Supreme Court dismissed an application for writ of error in the O’Rourke Case. The only point of difference between the Evans Case on the one hand, and the Belo and O’Rourke Cases on the other, as we read the opinion, is the fact that in the former the plaintiff maintained bis domicile in Texas and bis actual residence outside tbe State, whereas in the two latter cases both the domicile and actual residence were within the State. We have declined to follow the Texarkana and Galveston Courts in tbe above decisions, because, first, we believe they are in conflict in principle with the decision in tbe Evans case; and, second, because we are not in accord with tbe decisions-and conclusions reached in those cases; and we have affirmed the trial court’s order denying a change of venue.
“Because of the conflict between our decision and that of tbe Texarkana and Galveston Courts, tbe public importance of the controversy thus raised, and the manifest urgent necessity of having a judicial determination thereof by the Supreme Court (the decision of the Courts of Civil Appeals being final in this character of’ cases), we deem it advisable and our duty to certify for your decision tbe following question:
“Were we in error.in bolding, under tbe facts above outlined, that the venue in this case was properly laid in Bell County?”

It appears from tbe foregoing certificate that appellee is a member of the Board of Control. That on January 1, 1926, he assumed office as a member of that board and from that time on he has lived in Austin, where his principal duties upon tbe board were performed. Upon leaving Temple be rented his bouse furnished with the understanding that he was to retake possession when his term of office expired. He maintained his domicile, paying his poll tax and voting in Bell county, and intended to return to Bell county as soon as bis term of office expired. In other words, the evidence conclusively showed that his domicile continued to be in Bell county, although he was temporarily residing in Austin while performing his duties as a member of the Board of Control. That the libelous publication sued upon with reference to his official acts while a member of the State Board of Control and tbe cause of action accrued subsequent to January 1, 1926. Prior to that date appellee bad resided in Temple, Bell county, Texas, for about twenty-seven years.

Article 5430, R. S. 1925, reads: “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of tbe the dead, or tending to injure the reputation of one who is alive, and thereby expose him to irablie hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

Tbe general rule for determining the venue of a suit of this character in this state is prescribed by subdivision 29 of article 1995, R. S. 1925. Subdivision 29 reads; “A suit for damages for libel or slander shall be brought, and can only be maintained, in the county in which tbe plaintiff resided at tbe time of the accrual of the cause of action, or in the county where the defendant resided at the time of filing suit, or in the county of the residence of defendants, or any of them, or the domicile of any corporate defendant, at the election of the plaintiff.”

Webster’s New International Dictionary defines tbe word “reside” as follows: “To dwell permanently or for a considerable time; to have a settled abode for a time; to have one’s residence or domicile.”

It has never been the policy of the courts of this state to give a strict technical construction to the words “inhabitant,” “resident,” “domicile,” and “residence.” It is well settled by the decisions of this state that tbe words “inhabitant” and “resident” and “domicile” and “residence” are interchangeable terms as used in the venue statutes of this state. Taylor v. Wilson, 99 Tex. 651, 93 S. W. 109; Evans v. American Publishing Co. et al., 118 Tex. 433, 13 S.W.(2d) 358; Pearson v. West, 97 Tex. 238, 77 S. W. 944; Pittsburgh Heater Co. v. Sullivan, 115 Tex. 417, 282 S. W. 576; Brown v. Boulden, 18 Tex. 432; Funk v. Walker (Tex. Civ. App.) 241 S. W. 720; Bolton v. Alley (Tex. Civ. App.) 25 S.W.(2d) 638; Burns v. Napier (Tex. Civ. App.) 19 S.W.(2d) 578.

Subdivision 25 of article 1995 provides that suits against railroad corporations for damages arising from personal injuries “shall be brought either in the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury.”

In construing the language contained in subdivision 25 of the Venue’ Statute, the courts have held that an action may be brought in the county of plaintiff’s permanent residence, although temporarily residing elsewhere. G. C. & S. F. Ry. Co. v. Overton (Tex. Civ. App.) 107 S. W. 71; L. & G. N. Ry. Co. v. Elder, 44 Tex. Civ. App. 605, 99 S. W. 856.

The Supreme Court in the Overton Case, supra, granted a writ of error and reversed the opinion of the Court of Civil Appeals upon other issues, but did not disturb the holding of the Court of Civil Appeals with reference to the venue of the suit. 101 Tex. 583,110 S. W. 736, 19 L. R. A. (N. S.) 500.

It is undisputed that the appellee is holding office for a limited term on the Board of Control which calls for his principal duties to be performed at Austin. He and his wife boarded at a hotel in Austin, but retained his home furnished at Temple in Bell county and claimed it as his home ever since he left that county and intended to return and take possession of his home just as soon as the term of his office expires.

The publication of a libelous matter is a direct thrust at a person’s reputation for honesty, integrity, or virtue. The law has provided a remedy for such an offense, if committed. Naturally, a 'person against whom such a libelous matter is published, should be permitted to file and maintain his suit in a forum in the county where he resides and is known best. We do not think it was the intention of the Legislature in defining venue in a case of this character to compel a citizen, who might be temporarily serving the state by holding some office at Washington, D. C., or at Austin, to litigate his rights in a county where he is a stranger or unknown. Nor do we think the fact that in the discharge of his duties he is called away from his domicile can affect the question. On the contrary, we think it the policy of this state, in a case of this kind, to permit citizens to litigate their rights in the county where they vote, pay taxes, and have their residence among the people who know them best, who know their character and standing for honesty, integrity, virtue, and fair dealing. We do not believe that it was the purpose or intention of the Legislature to destroy this right and a construction of subdivision 29 does not sustain that contention.

That the conclusions stated above reflect the public policy of this state is fully shown in the language used in section 9, article 16, of the Constitution of Texas, which reads as follows: “Absence on business of the state, or of the United States, shall not forfeit a residence once obtained, so as to deprive any one of the right of suffrage, or of being elected or appointed to any office, under the exceptions contained in this constitution.”

We therefore recommend that the foregoing question be answered, “No.”

CUBETON, C. J.

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.


author: RYAN, J.

text:
    FLOYD v. FIDELITY UNION CASUALTY CO. et al.
    Motion No. 9013; No. 1135—5417.
    Commission of Appeals of Texas, Section B.
    June 24, 1931.

      For former opinion, see 24 S.W.(2d) 363.
    White & Yarborough, of Dallas, for plaintiff in error.
    Collins & Houston, of Dallas, and Martin & Oneal, of Wichita Palls, for defendants in error.
   RYAN, J.

It is insisted that bill of exceptions to the argument of counsel should not be considered, because:

First. It does not negative two facts, viz., that the argument is upon the evidence, and that the argument is in reply to the argument of opposing counsel.

Second. It is not clearly shown that the argument was calculated to prejudice the rights of the complaining party.

We are cited to Kansas City, M. & O. Ry. Co. v. West (Tex. Civ. App.) 149 S. W. 206; Pecos & N. T. Ry. Co. v. Suitor (Tex. Civ. App.) 153 S. W. 185; Travelers’ Ins. Co. v. Peters (Tex. Civ. App.) 3 S.W.(2d) 568; Oilbelt Motor Co. v. Hinton (Tex. Civ. App.) 11 S.W.(2d) 338; and Schroeder v. Rosenbaum (Tex. Civ. App.) 21 S.W.(2d) 694, which are -authority for the propositions contended for, that a bill of exceptions complaining of improper argument is fatally defective unless it negatives the idea that such argument was called forth either by the evidence or in response to argument by opposing counsel.

As pointed out by Chief Justice Pannill in Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169, the propositions above cited and the rule announced in those cases have been modified by the decisions in Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Wichita Valley Ry. Co. v. Williams, 116 Tex. 253, 288 S. W. 425; and Bain Peanut Co. v. Pinson (Tex. Com. App.) 294 S. W. 536, and the burden is no longer on an appellant to show that an error calculated to prejudice his rights did in fact have that effect, but that when such error is shown, either in an instruction to the jury,, the admission of testimony, or in argument, a reversal will follow, if there is any reasonable doubt of its harmful effect, and whether there is such a reasonable doubt, is a question of law and not one of fact.

Contrary to the authorities cited by defendants in error, in support of their contention that the bill of exceptions should not be considered, because it does not affirmatively state that the argument complained of was not upon the evidence, and not in reply to the argument of opposing counsel, and not shown that it was calculated to prejudice the rights of the complaining party, the rule is now settled, in this state, that where improper argument has been indulged in, the adverse complaining party is entitled to reversal of the judgment, ' if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Behringer v. South Plains Coaches (Tex. Com. App.) 13 S.W.(2d) 334; Hubb Diggs Co. v. Bell, 116 Tex. 427, 293 S. W. 808; Hull v. Christian (Tex. Civ. App.) 283 S. W. 568; Missouri-Kansas-Texas Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106, 107; McMahan v. City of Abilene (Tex. Civ. App.) 8 S.W.(2d) 554; Davis v. Hill (Tex. Com. App.) 298 S. W. 526; Houston & T. C. Ry. v. Gray, 105 Tex. 42, 143 S. W. 606; Western Union Telegraph Co. v. Perry, 95 Tex. 648, 69 S. W. 131; St. Louis S. W. Ry. v. Boyd, 40 Tex. Civ. App. 93; 88 S. W. 509; Chicago, R. I. & T. Ry. v. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331.

As said by Judge Bishop in Bain Peanut Co. v. Pinson, supra, a litigant may not wrongfully prejudice the rights of his adversary and profit by his wrongful act by casting upon such adversary the burden of showing that harm has resulted.

The statute prescribes no particular form of words in a bill of exceptions, only that the objection shall be stated with such circumstances, or so much of the evidence as may be necessary to explain, and no more, the whole, as briefly as possible. Article 2237, Rev. Stat. 1925. The reviewing court passes upon the bill as approved by the trial judge, and where error appears therefrom, harmful effect will be presumed and the judgment reversed, unless it affirmatively appears otherwise.

The trial judge must be held to have knowledge of the circumstances causing the bill, and that may render it harmless ana should qualify it accordingly. The presumption should be indulged that he did his duty in approving the bill, and that there was no modifying or justifying explanation to be made, other than as stated therein.

■The trial judge does not, in the bill of exceptions, certify that the argument complained of was in answer to the argument of opposing counsel; Ms qualification of the bill is to the effect that counsel for Frankie Floyd sthted that Mr. Yarborough (counsel for Willie Floyd) asked the jury: .“What do you reckon Frankie Floyd is accusing a white woman of something? * * ⅜ I said it is not fair to this negro woman,, Frankie Floyd, for them to insinuate to the jury with reference to anything that happened in the life of Frankie Floyd and Andrew Floyd and then insinuate there is no truth in it. They have got a right to ask those things. It is a treatment of Frankie Floyd that is just.” This is far short of an affirmative statement by the court that the language was in reply to opposing'counsel’s argument, and is only a statement by Mr. Martin in continuation of his argument.

We adhere to what we said in our original opinion on the subject...

The defendant in error, appellee in the Court of Civil Appeals, presented certain cross-assignments of ’error to be considered should that court have reversed the judgment of the trial court. The Court of Civil Appeals affirmed the trial court [13 S.W.(2d) 909], and it was therefore unnecessary for it to consider and pass on such cross-assignments of error. '

The Supreme Court, having granted writ of error, reversed the judgment of the Court of Civil Appeals and of the trial court .on recommendation of this section of the Commission of Appeals, and remanded the cause to the district court for further trial. ■

Such cross-assignments of error relate to the admissibility and nonadmissibility of certain testimony, and defendants in errpr insist that they be passed upon.

Said cross-assignments complain of the trial court’s action in refusing to permit’ one John Teel to testify that in 1917 he and Willie Floyd (plaintiff below) lived together as man and wife, in Frederick, Okl., and in refusing to permit in evidence a picture and certain letters sent by a white ■woman to the deceased, Andrew Floyd, evidencing an illicit intimacy between them.

The proposed testimony of John Teel would have no bearing on the issues involved in this case. It was affirmatively proven that Willie Floyd was married to the deceased in 1925, according to the laws of Oklahoma, and" lived with him until his death. If this marriage was illegal, it was because he had been previously married to Frankie in' 1909 according to the laws of Alabama, and never divorced from her.

At most, the effect of the testimony, if admitted, would be an attempted impeachment of Willie’s testimony, on a collateral matter, having no material relevancy to the issues in the case, as made by the pleadings. Johnson v. Richardson, 52 Tex. 481; Noel v. Denman, 76 Tex. 306, 13 S. W. 318; Missouri, K. & T. Ry. v. Moore, 24 Tex. Civ. App. 489, 59 S. W. 282.

As to the picture and letters from the white woman to the deceased, it suffices to say that Frankie Floyd had testified (and this was un-eontradicted) that the reason her husband, Andrew, left in October, 1917, was because “he got in trouble with a white woman” who was then in jail and the police “came looking for him.” The object of this was to explain Andrew’s absence at different times and to show that “he had not abandoned Frankie, without good cause, for a period of three years prior to his death.”

'The fact, therefore, that Andrew Floyd had an affair with a white woman, and left home on account thereof, was already before the jury and the excluded testimony bore only on the degree of intimacy, if any, between them.

The point sought to be .made was that Andrew left because of fear — the result of his intimacy with a white woman, not of the degree of that intimacy.

• The fact of his leaving, and the alleged , cause thereof, was in evidence, and it would have been improper to have injected into the case sordid details to distract that attention of the jury which should be concentrated on vital points, and could only have the effect of wasting the time of the court. The court should refuse t.o permit its introduction, particularly when the testimony challenged as irrelevant is such as to arouse the sympathy of the jurors or is calculated to create prejudice — the point sought to be proved having already been established — and is offered as being merely corroborative. Stallings v. Hullum, 79 Tex. 421, 15 S. W. 677 ; 2 Jones, Evidence (2d Ed.) § 588; 22 C. J. p. 169.

We think the evidence in question was properly excluded by the trial court.

We recommend that the motion for rehearing be overruled.


author: CHRISTIAN, J.

text:
    WOOD v. STATE.
    No. 14081.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    Ghent Sanderford, of Eastland, D. R. Pearson, of Ranger, and Frank Sparks, of East-land, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is embezzlement; the punishment, confinement in the penitentiary for two years.

M. H. Leventhal, agent of Eureka Vacuum Cleaner Company, had employed appellant to sell vacuum cleaners. Appellant sold a vacuum cleaner to M. L. Tarver, for which he received a check in the sum of $64.50. Appellant appropriated the proceeds of the check to his own use and benefit. C. W. Dozier, assistant treasurer of the company, testified that he did not give appellant his consent to appropriate the amount of money in question. He further testified that the company owed appellant no money at the time appellant made the sale to M. L. Tarver. The state did not use Leventhal as a witness, it appearing that he was in the state of Louisiana at the time of the trial.

Appellant testified that the vacuum cleaner company owed him $67 at the time he appropriated the $64.50 he had received from M. L. Tarver. He said that he was to receive $19 of the money from the sale as a commission, and that the corporation was due him other sums arising out of transactions he had had with it from time to time. He said that Mr. Leventhal told him to take what he needed out of the sales he made until the company paid him what they owed him, and that he would withhold from his check for commissions any amount that he might be due the company. We quote appellant’s testimony at this point as follows:

“As to whether or not I knew there was a rule that required me to remit those proceeds to the company; Mr. Leventhal told me if I had to have the money to use it and let him know about it. As to whether or not I knew there was a rule,that required me to remit those proceeds to the company; we were supposed to until Mr. Leventhal told me this— I knew this was a general rule, yes, sir. Mr. Dozier had never told me otherwise; but I did not know Mr. Dozier until two weeks after I went to work for the company.”

We quote further:

“As to whether or not I had the consent of Mr. O. W. Dozier or any person in the Eureka Vacuum Cleaner Company to so appropriate it; I had the permission of Mr. Lev-enthal, he told me not to starve — T didn’t know but what Mr. Dozier was just an office boy until January — I had never been in the office until 'in January — I had never been in the office but four times and I had all of my dealings with Mr. Leventhal, he employed me. ⅜ ⅛ * As to whether or not Mr. Leven-thal told me to take that $64.50; he told he to take any of it until they paid me. As to whether or not Mr. Leventhal gave me permission to take the $64.50 that I collected from M. L. Tarver; he told he to take any amount I needed to eat on as long as I kept it straight.”

The state offered in evidence a. written statement made by appellant to Mr. Dozier, wherein appellant stated that he appropriated the money in question. .On cross-examination, appellant admitted that he had retained receipts for the sale of vacuum cleaners to other parties, and that he had been several times indicted for wnbezzlement, and on one occasion for forgery.

Nowhere in the charge did the court submit to the jury the issue raised by appellant’s testimony that he had the consent of his employer, Mr. Beventhal, to use the money. Where the accused claims that the injured party gave him the right to use the money or property embezzled, the court should submit this defense to the jury. Branch's Annotated Penal Code, § 2614; Henderson v. State, 1 Tex. App. 437; Pye v. State, 74 Tex. Cr. R. 322, 171 S. W. 741. In applying the law to the facts, the court nowhere in the charge advised the jury that they must believe from the evidence beyond a reasonable doubt that the property was taken by appellant without the consent of the injured party. It is true that the court instructed the jury that appellant had the right to retain in his hands sufficient funds belonging to his employers to pay such indebtedness as defendant honestly believed was due him by the company. This was one of the defensive matters in evidence, but not the sole defense. Appellant also relied, according to his testimony, upon consent given him by his employer, Beventhal, to retain and use such funds in his hands as he deemed necessary to pay his expenses while adjusting his accounts with the company. Appellant not only objected to the court’s charge for its failure to submit the affirmative defense touching the consent of his employer to use the money, but also presented a special charge covering the issue. In cases in which an affirmative defensive theory arises from the evidence, it is necessary, upon proper demand, that an instruction be given to the jury to acquit if they find the defensive theory to be true. Richardson v. State, 106 Tex. Cr. R. 72, 290 S. W. 1099.

The state elicited from appellant on cross-examination that he had been indicted in several cases charging him with embezzlement. There was also evidence that appellant had been indicted for forgery. Appel.lant objected to the charge of the court for its failure to limit the testimony touching these indictments to the purpose of impeachment. We see no good reason for the court declining to limit this testimony. Where a defendant becomes a witness in his own behalf and .proof is made that he had been or was then charged with other offenses, the better practice is to always limit the testimony to the purpose for which it was admitted. Wakefield v. State, 98 Tex. Cr. R. 491, 266 S.W. 1097. There are some cases where the accused is shown to have been charged with an offense so dissimilar in character to the one on trial that it would be impossible for the jury to appropriate it for anything but impeachment purposes, and in such cases failure to limit it has been held not reversible. See Carroll v. State (Tex. Or. App.) 58 S.W. 340. Most of the indictments pending against appellant charged him with the same character of offense (embezzlement) for which he was on trial. Not being informed of the purpose of the indictments, the jury may have concluded that the former charges were indicative of criminal connection with the one then under investigation. If another trial be had, the testimony should be limited.

We disclaim any intention of holding that it was improper for the state to show that appellant had taken money received from sales of vacuum cleaners on occasions other than the one out of which the present indictment grew. In view of the fact that appellant declared that the company owed him more money than he had retained, it would' appear that it was proper for the state to show, even though it disclosed other offenses, that, at about the same time he appropriated the money in question, appellant had retained other sums of money belonging to his employer.

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of' the Court of Criminal Appeals and approve^ by the court.


author: LATTIMORE, J. HAWKINS, J.

text:
    THOMAS v. STATE.
    No. 13676.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1930.
    Rehearing Denied June 26, 1931.

      Jones & Jones, of Mineóla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, two years in the penitentiary.

We are furnished no brief in appellant’s behalf. There are sixteen bills of exception. The application for a second continuance was defective, in that it did not state that appellant could not procure the same testimony from other witnesses. We might add that substantially the same evidence was had from other witnesses. There appears a bill of exceptions to practically every single ground set up in the motion for new trial. Each of these has been considered, and we find nothing in any of them of sufficient materiality to call for discussion. The charge of the court was full, and as far as we are able to tell, submitted every issue pertinent, in approved manner. The testimony is of sufficient cogence to justify the verdict. We perceive no good to come from setting it out at length. Three parties raided a still which was in operation, actually making and then producing whisky. All three of these parties swore that appellant was one of those engaged in the whisky making. His defense was an alibi, to which he and a number of his relatives swore. The jury have settled the conflict in the testimony against him.

No error appearing, the judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

HAWKINS, J.

We said in our original opinion that appellant’s second application for a continuance was defective in failing to aver that the same testimony expected from the absent witnesses could not be procured from any other source. We were mistaken as to this in so far as the application was based on the absence of Mrs. Burrell Thomas. It did state that her evidence in certain respects could not be procured from any other source. There can be no doubt that her evidence was material, and we think that the court committed error in not granting the continuance. The denial of the continuance was made, one ground of appellant’s motion for new trial. It appears from the court’s qualification to the bill which complained of the denial of the continuance that Mrs. Thomas had died between the date of the trial and the time the motion for new trial was presented. Upon hearing of the motion for new trial, even had the trial court concluded that he had been in error in refusing the continuance, he was confronted with the proposition that to have granted the new trial would have availed appellant nothing because he had been deprived of the witness’ evidence on another trial because of her death. To now reverse the judgment because of an error in refusing the continuance would be a useless thing. Similar questions in principle will be found discussed in Tapley v. State (Tex. Cr. App.) 25 S.W. (2d) 869; Medlin v. State (Tex. Cr. App.) 29 S.W.(2d) 752; McLaren v. State, 85 Tex. Cr. R. 31, 209 S. W. 669; Watson v. State, 90 Tex. Cr. R. 576, 237 S. W. 298; Smith v. State, 98 Tex. Cr. R. 409, 266 S. W. 153.

It is not necessary to consider the other witness for whom the continuance was sought, as the court certifies-that this witness appeared at the trial, was tendered to appellant, but was not used as a witness.

Written exception was taken to the court’s charge for its failure to submit any instruction on the law of circumstantial evidence. Such omission is again urged as error in the motion for rehearing. Two deputy sheriffs and the sheriff testified that they found appellant and two other parties at a still which was in operation. The officers agreed that when they got to within thirty or forty yards of the still the parties discovered them and all of them fled. They escaped for the time being, but were later arrested. One of the deputies testified: “They were working around the still when I first saw them, I don’t know now just what they were doing. I don’t remember.” The other deputy testified; “They were doing something; I don’t remember what they were doing, all three of them were just right up around the still.” The sheriff testified in substance that appellant was one of the parties, but he could not tell what they were doing around the still; that the officers were slipping up on them and watching them. He said he could not be positive that he saw appellant doing any work at the still.

It was not appellant’s defense that he was present at the still as an innocent bystander, but he defended on the ground that he was not there at all, insisting that the officers were mistaken in their testimony identifying him as one of the parties. Appellant insists that the state’s case is one depending upon circumstantial evidence and relies on the cases of Berry v. State, 104 Tex. Cr. R. 114, 282 S. W. 594, and Ellsworth v. State, 92 Tex. Cr. R. 334, 244 S. W. 147, to support his proposition. It will be found in each of the cases mentioned that accused admitted his pres-’ ence at the time and place of the commission of the offense but denied guilty participation therein. From the facts it appeared that the state was relying upon circumstances only to connect the accused with the commission of the offense and therefore the cases were reversed for a failure to charge upon circumstantial evidence. It does not occur to us that the facts of the present case bring it within the rule announced in those just mentioned. Helton v. State, 94 Tex. Cr. R. 359, 250 S. W. 1030; Arzate v. State, 99 Tex. Cr. R. 534, 270 S. W. 1017, appear to be more nearly in point and are against appellant’s contention.

Believing the case was properly disposed of in our original opinion, the motion for rehearing is overruled.


author: CHRISTIAN, J. LATTÍMORE, J.

text:
    AROCHA v. STATE.
    No. 14295.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Appeal Reinstated May 20, 1931. Rehearing Denied June 24, 1931.
    See, also, 27 S.W.(2d) 197.
    S. B. Carr, of Floresville, and Heilbron, Kil-day & Howard, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 20 years.

The state’s attorney before this court moves to dismiss the appeal because no sufficient notice of appeal appears in the record. We find in the record the copy of a docket entry indicating that appellant gave notice of appeal. This is-not sufficient. Thackerson y. State (Tex. Cr. App.) 26 S.W. (2d) 241; Bryson v. State (Tex. Cr. App.) 20 S.W.(2d) 1047. The sentence concludes with the statement that it was imposed subject to the action of the Court of Criminal Appeals of the state of Texas. This is not sufficient to show that notice of appeal was given in compliance with article 827, C. C. P., which provides that an appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having same entered of record.

The motion to dismiss must be granted. Without notice of appeal, this court has no jurisdiction. Gatlin v. State (Tex. Cr. App.) 23 S.W.(2d) 382.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion to Reinstate Appeal.

LATTÍMORE, J.

It being made known to its by a supplemental transcript that the original order of the trial court contained a notice of appeal, and that same has now been properly entered on the minutes of said, court, the order of dismissal is set aside,- the appeal is reinstated, and the cause now considered on its merits.

Upon the trial, the court submitted murder with malice aforethought and without malice, also self-defen.se based on real or apparent danger; and also gave special charges requested by appellant instructing the jury fully upon appellant’s right to kill to prevent theft at night, and telling the jury that, if they believed deceased or some other person was stealing, or preparing to' steal, turkeys or other property at night under appellant’s control, and appellant shot while such party was within gunshot of the place where he believed said property was being taken, or about to be taken, or if they had a reasonable doubt on that proposition, the jury should acquit. They were also told in a special charge which was given that, if they found that appellant believed he was firing at some object or an animal other than a human being, and thereby killed deceased, and that such belief did not arise from a want of proper care on appellant’s part, and that the shooting was under such conditions, or if they had a reasonable doubt thereof, they should acquit. Another special charge, given at • the request of appellant, applied the law of negligent homicide aptly to the facts as testified to by defense witnesses, the jury being told that, if appellant shot while in the performance of a lawful act, to wit, the act of protecting property, or if he fired at some animal or object other than a human being, and that without apparent intention to kill, and by negligence killed deceased, he would not under such facts be guilty of more than negligent homicide.

The court’s charge was excepted to for its failure to'submit the law of aggravated assault. This is discussed at length in appellant’s brief and various cases are cited. In our opinion, appellant does not properly comprehend said authorities. The Gomez Case (Tex. Cr. App.) 34 S.W.(2d) 607, on its facts shows that there was a fight between two seventeen year old boys in which one of •them, 'the accused, cut the other with an ordinary pocketknife. So also in Bookman v. State, 112 Tex. Cr. R. 233, 16 S.W.(2d) 123, 125, it appears that appellant in killing his wife used only his hands and feet and a part of an axe handle, and in this opinion we said: “There is no question but that the violence ^was committed by the use of means not in their nature ordinarily calculated to produce death.” As said by us in Cade v. State, 96 Tex. Cr. R. 527, 258 S. W. 484, 486: “The language in all opinions must be construed with reference to the particular subject under investigation.” To this we might add that the language in all opinions must be construed with reference to the facts in the particular case. In the Cade Case the weapon used was a Winchester rifle used to shoot with, and we held it not error, upon the facts of that ease, to refuse to submit the issue of intent to kill. In the opinion Judge Morrow .said: “A different rule applies when, as in the present case, one is killed by a firearm intentionally used as such at close range with an intent to shoot the party killed.” See Twyman v. State, 96 Tex. Cr. R. 439, 258 S. W. 480.

In Miller v. State, 112 Tex. Cr. R. 125, 13 S.W.(2d) 865, 867, Judge Martin said: “There do exist cases, we think, in which it is not necessary to prove a specific intent to kill any further than is involved in the proof of certain facts, as the intentional infliction of serious bodily injury upon the person of another by the use of a weapon deadly per se, or a killing committed in the attempted perpetration of arson, burglary, etc. In such cases we can see no reason for giving the charge under discussion. The rule herein stated is, of course, based upon and limited by the facts of the instant case.” This was a case wherein the alleged assault was committed by striking with a bottle, a weapon not necessarily deadly. In the instant case we think the court gave to appellant all of the law ápplicable to any theory fairly supported by testimony. We do not think the court should have charged on aggravated assault, in view of the fact that there was no question as to the deadly character of the weapon used and the maimer of its use.

Nor are we able to agree with appellant that the facts did not justify a verdict inflicting a penalty at more than five years in the penitentiary. The jury evidently did not believe appellant’s claim that deceased was so acting as to induce belief that he was a turkey thief, or that he was acting as if he purposed bodily harm to appellant, or property. under his control. The body of deceased was found a hundred yards or more from appellant’s residence, according to state witnesses. No hen or turkey roosts appeared to be near. That the shot was fired at a range of a few yards was established by testimony. That the body of deceased had been moved to the-place where it was found is also supported in the record. It is not necessary to prove motive on the part of the accused in order to make out a case for murder. That there are conflicting theories arising upon the facts of any given case which has been properly submitted to the jury upon the law applicable would hardly justify us in reversing same because we might believe a less verdict more appropriate on the facts.

In this ease the uncontroverted facts show that appellant shot and killed deceased. His own language, appearing in the statement of facts, makes it evident that he intended to shoot that at which he aimed and fired. He claimed that he heard some noises among the turkeys which roosted out in front of his house, and that he took his gun and went out and saw a bulk under the trees, and that he called out several times and got no answer and fired. The load of No. 4 shot entered the body of deceased in the abdomen, and the small area caused by the shot holes supported the conclusion that appellant was within eight or ten yards. A doctor testified deceased must have fallen and died at the same place where he was shot. The acts, conduct, and wor’ds of appellant while on the witness stand, and as testified to by other witnesses, support the theory that he knew he was shooting at a human being.

All of the theories favorable to appellant seeming to have been submitted in the charge and solved adversely to him, we are impelled to'hold that no reversible error appears, and the judgment will be affirmed.


author: GALLAGHER, C. J.

text:
    HOME BEN. ASS’N et al. v. SIMS.
    No. 1075.
    Court of Civil Appeals of Texas. Waco.
    June 11, 1931.
    Morrow & Clark, of Hillsboro, and Oltorf & Oltorf, of Marlin, for plaintiffs in error.
    A. C. Scurlock, of Dallas, for defendant in error.
   GALLAGHER, C. J.

Defendant in error, Mrs. Lona Sims, instituted this suit in the district court of Hill county against plaintiffs in error, Home Benefit Association, a local unincorporated mutual aid association, J. W. Torbett and Michael S. Hunt, president and secretary thereof, respectively, to recover on an insurance contract issued by said association to William T. Sims, by the terms of which it agreed to pay to defendant in error, his wife, as beneficiary the maximum sum of $4,000 in ease of the accidental death of the insured. Defendant in error alleged that said contract had been matured by the accidental death of the insured; that due proof thereof had been made and submitted to said association; and that it had refused to pay her claim. Process returnable to the July term, 1930, of the court was issued and served on plaintiffs in error, July 8th was appearance day of said term. Prior thereto each of the plaintiffs in error filed a separate plea of privilege and prayed therein that the cause be transferred ‘ to the district court of Palls county, in which the home office of said association was maintained and in which said Torbett resided. Defendant in error thereafter on the 14th day of July filed in said cause an affidavit controverting said plea of privilege. No further-action of any character in said cause is shown until the 5th day of November, 1930, when defendant in error filed therein her motion for permission to take a voluntary nonsuit. Sáid motion was on the same day granted by the court and an order dismissing the cause was duly entered. Apparently no further proceedings were had in said cause until. the. 1st day of May, 1931, at which time plaintiffs in error filed therein their petition and' bond for writ of error to this court.

Opinion.

Plaintiffs in error contend that since defendant in error’s controverting affidavit was’ not filed within five days from and after appearance day, the court after the expiration of such time had no power nor authority to enter any other order or decree except one transferring the cause to the district court of Falls county for trial, and that the order of dismissal entered at a subsequent term of the court was void.

The precise issue presented for determinar tion herein was considered by our Supreme Court in Atlantic Oil Producing Company v. Jackson, 116 Tex. 570, 296 S. W. 283, in which the court held that the filing of a plea of privilege and the failure of plaintiff to controvert the same within the time limited by law did not deprive the plaintiff of the right, at any time before the court announced his decision to transfer the case in response to such plea, to take a voluntary nonsuit under the provisions of article 2182 of the Revised Statutes, and that the action of the court in granting such nonsuit, instead of being void, was entirely correct. See also H. H. Watson Co. v. Cobb Grain Co. (Tex. Com. App.) 292 S. W. 174, 177; Hewitt v. De Leon (Tex. Civ. App.) 293 S. W. 301, pars. 1 and 2.

The judgment of the trial court is there-fpre affirmed.


author: HALL, C. J.\:

text:
    POSEY v. PLAINS PIPE LINE CO.
    No. 3620.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1931.
    Rehearing Denied June 17, 1931.
    H. PI. Smith,_ of Panhandle, for appellant.
    . James Spiller;.of Panhandle, for appellee.
   HALL, C. J.\:

This case Jjresfents' 'an 'unusual question. Posey sued the -appellee in thet justice court of Carson county tb -recover- indebtedness alleged tO' be dUe him- for labor. Citation was duly issued añil sérved on 'áppelleé, properly returned, and filed in the justice court on May 22, 1930, citing the appellee to appear for trial on May 26th. On appearance day ap-pellee entered its appearance in the case and secured a continuance until the June term of said court. At the June term both parties appeared and agreed that the ease be set for trial on July 7th. On that day the plaintiff and his attorney appeared, but the defendant was not present by attorney or otherwise. There was a trial, and appellant recovered a judgment in the sum of $131.44, with costs.

About ninety days later the appellee, by certiorari proceedings, attempted to transfer the case to the county court of Carson county. In the last-named court the appellant attacked the certiorari proceedings and moved to dismiss upon numerous grounds. The court overruled the motion, to which the appellant, Posey, excepted. The case was then called for trial upon its merits, and a consent judgment was entered into in open court, which recites that the parties plaintiff and defendant, •without waiver by plaintiff of his exceptions to the action of the court in overruling his said motion to dismiss for certiorari, but still insisting on the same, by their said attorneys agreed that plaintiff is not now able to procure his witnesses for a trial on the merits; that a judgment on the merits be entered in favor of the defendant in this cause, subject to the right of the plaintiff to except thereto and question its validity on the ground that his motion to dismiss certiorari should have been sustained and on the ground that this court by reason of his motion to dismiss cer-tiorari, as aforesaid, is without jurisdiction to proceed in the premises other than to dismiss the proceedings and remand the cause to the lower court for execution, it being expressly understood that plaintiff, by the foregoing agreement to enter judgment on the merits, does not waive the defects and irregularities, if any, in the defendant’s said application and affidavit for certiorari,' nor does he by such agreement waive the insufficiency of said application and affidavit as such as against his motion to dismiss, if insufficiency exists, it being further understood that all errors and irregularities, if any, in defendant’s said certiorari procedure, may be heard and determined by the Oourt of Appeals the same as if judgment had been rendered upon evidence adduced in the absence of agreement and over plaintiff’s objections as made. The judgment then decrees that plaintiff, Posey, take nothing as against the defendant pipe line company, and that the latter recover its costs.

The general rule is that a party can- . not complain of a judgment or decree,,rendered by consent -or on agreement, nor cqn he appeal or- sue-out a writ of error to have the same reviewed, even though there has been an attempt to reserve the right to appeal. 3 C. X 671. It is held in Texas that a judgment by consent of parties waives all errors committed before its rendition, and they will not be noticed by the appellate court. McDaniel v. Monday, 35 Tex. 39; Tait v. Matthews, 33 Tex. 112; Dunman v. Hartwell, 9 Tex. 495, 60 Am. Dec. 176; Johnson v. Hall (Tex. Civ. App.) 163 S. AV. 399; Forty-Acre Spring Live Stock Co. v. AVest Texas Bank (Tex. Civ. App.) Ill S. AV. 417; Campbell v. Kracke & Flanders (Tex. Civ. App.) 100 S. W. 1028; Wells v. Houston, (Tex. Civ. App.) 56 S. W. 233; National Bank of Denison v. Kilgore, 17 Tex. Civ. App. 462, 43 S. W. 565.

Craighead v. Bruff (Tex. Civ. App.) 55 S. W. 764, holds that an agreement for judgment precludes the raising of questions as to jurisdiction. Of course, if the county court had no jurisdiction of 'the subject-matter, an agreed judgment would not waive the want of jurisdiction, but the amount involved herein is appealable to the county court. The law is settled in Texas that a general appearance entered by a defendant waives all informalities and defects in process or prior proceedings had in the case, and we can conceive of no more effectual general appearance than an agreement or consent to a judgment.

The fact that the parties agreed, and the trial court decreed, that this court might pass upon the sufficiency of the certiorari proceedings, is in no degree binding upon this court. By the consent judgment plaintiff confessed that he was not entitled to recover. The sufficiency of the certiorari proceedings therefore becomes moot.

For the reasons stated, we affirm the judgment.


author: SMITH, J.

text:
    CITY NAT. BANK & TRUST CO. OF CORPUS CHRISTI v. PYRAMID ASBESTOS & ROOFING CO.
    No. 8622.
    Court of Civil Appeals of Texas. San Antonio.
    May 20, 1931.
    Rehearing Denied June 24, 1931.
    Hubbard, Dyer & AVeaver, of Corpus Christi, for appellant.
    Polk, Allen & Helm, of Houston, for appel- ' lee.
   SMITH, J.

T. H. Black was employed by appellee as salesman of roofing materials in the Corpus Christi territory. Some of his customers paid Black for those materials through checks made payable to appellee or its order. Black indorsed the checks as the representative of appellee, and deposited them in appellant bank, which credited the proceeds thereof to Black’s personal account. Black had no authority to so indorse said checks or appropriate the proceeds thereof to his own use, and appellant became liable to appellee for the amount of the funds so converted. .

The trial court found that the funds so misappropriated amounted to $501.43, and, from a judgment in favor of appellee for, that amount.against .appellant, both parties have appealed; appellant contending that the amount is excessive, and appellee contending for a larger sum.

One of the checks upon which appellee sought to recover was for the sum of $136, and was made payable “to the order of (ap-pellee) or bearer.” Black presented the check to appellant for payment, and appellant credited the amount thereof to his personal account; Appellee contends, by cross-assignment, that appellant thereby converted the fund; that, in effect, it was not negotiable without appellee’s authorized indorsement thereon. AVe overrule this contention. A check payable to order “or bearer” is negotiated by delivery, and is payable to bearer without the necessity of indorsement. Sections 9, 30, Negotiable Instruments Act (Rev. St. 1925, art. 5932, § 9, and art. 5934, § 30).

Appellee further urges that the trial court erroneously withheld judgment in its favor for an item of $73 alleged to have been wrongfully converted from funds belonging to ap-pellee. But the court found that thé evidence traced this item into the possession of ap-péllee, and we. cannot say this finding is •without support. By the same token appellant’s contention, that two items of $20.01 and $200, respectively, were erroneously charged against it, cannot be sustained.

We conclude that there is no ground for reversal, and, accordingly, the judgment is affirmed.


author: ELY, C. J.

text:
    AUTOMOBILE UNDERWRITERS’ INS. CO. v. LONG.
    No. 8623.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1931.
    Rehearing Denied July 1, 1931.
    Cunningham, Moursund & Johnson, of San Antonio, and R. 6. Storey, of Dallas, for appellant.
    Perry J. Lewis, H. C. Carter,- Randolph Carter, and Champe G. Carter, all of San Antonio, for appellee.
   ELY, C. J.

This is a suit instituted by appellee as administratrix of the estate of James Long, deceased, to recover of appellant the sum of $10,000, alleged to have grown out of a judgment in favor of Gladys Long against. James Long, as damages to said Gladys Long occasioned by the negligence of said James Long in running his automobile into the side of a bridge. Appellant was sought to be held on insurance of James Long against injury to one person in the sum of $5,000, and on the ground that appellant had taken charge of the defense of James Long and had withdrawn during the pendency of the suit, and for neglecting the defense as to permit a judgment for $10,000 to be obtained by Gladys Long against James Long. The cause was heard by the court without a jury, and judgment was rendered for appellee for $5,-333 principal, with interest from date of the Gladys Long judgment.

It was the contention of appellant that ap-pellee not only did not co-operate with it in defending the suit, but actually aided and abetted his niece, Gladys Long, in obtaining .the judgment against him for $10,000, and colluded with her to fix liability on appellant!

In the policy appellant bound itself to indemnify appellee in any sum up to $5,000, on account of injuries or death inflicted by appel-lee in the manipulation, handling, or driving of his certain automobile. The evidence showed that Gladys Long was riding in his automobile with her uncle James Long when the car collided with a concrete culvert, and she was seriously injured. Appellee admitted that he took the policy to attorneys, who were to represent Gladys Long in suing for damages. He denied having employed the attorneys. Long admitted that his negligence caused the injuries to his niece. It is not claimed by appellant that Gladys was not injured through the negligence of appellee. The judgment against Long in favor of. ’Gladys was regularly obtained in a court Of competent jurisdiction. It is not claimed that it was not a valid and binding judgment. It fixed the liability of James Long, and when that judgment was satisfied by his administra-trix the liability of appellant at once attached. It is true that the administratrix borrowed .the money to pay off the judgment from an attorney of Gladys Long. The money was paid to the guardian of Gladys Long, and a release of the judgment executed by her to the appellee. The money was then turned over to the attorney to be held by him as security for payment of the note. The whole transaction was had under the order of the probate court.

A judgment was satisfied under almost the same circumstances in the case of American Indemnity Co. v. Fellbaum, 225 S. W. 873, 874, and this Court held:

“When appellant assumed the exclusive management and control of the suit for damages instituted by Douglas Stough against M. D. Carr, as it was empowered to do under the terms of the policy, it became unconditionally liable for the amount of the judgment rendered against Carr, and Carr was not-compelled to pay the judgment in order to recover of appellant.” ,

The Supreme Court, in affirming the judgment in that case, went further than this court and held:

“While the authorities are in conflict, we think the best-considered cases hold that the indemnity company, by ' entering upon the defense of the Miss Douglas, Stough suit, waived the provisions of clause L, or, as it is commonly called, the ‘no action clause.’ * * *
“We conclude that the provisions of clause L in the insurance policy have no application where the company exercises the right given it under subdivision B to take over the defense of the case.” Id., 114 Tex. 127, 263 S. W. 908, 910, 37 A. L. R. 633.

In the case last cited, the Supreme Court held that when an insurance company has appeared and' presented the defense in a case of damages against which it has insured, that it cannot urge ½ a defense against the claim of the insured for reimbursement of the amount of a judgment against him, that insured has not paid off the'judgment. Appellant in the present case appeared and defended the suit against James Long. It is true that during the course of the trial attorneys for the insurance company abandoned the cause of Long and left him without counsel. That action merely added increased vigor to the rule pronounced by the Supreme Court. Appellant has placed itself in a position that would certainly preclude it from the defense of failure to pay the judgment. A judgment for $10,000 was the result of the desertion of Long in the midst of the trial.

It is complained that appellee was aiding the prosecution by obtaining medical service for his injured niece and performing other acts dictated by ordinary human sympathy for suffering unintentionally inflicted.

James Long undoubtedly did desire to see his niece recover damages arising from her injuries. TRe provision of the policy as to aid to be given to the insurance company in its defense, though not fulfilled, could not be pleaded as a defense against the indemnity promised by the insurer. No penalty was attached to the failure to assist in the defense, and the contract of indemnity was not based on such promise. It was not shown that James Long was not liable for damages to Gladys Long inflicted through his negligence in at least the sum of $5,000, and appellant bound itself to pay indemnity under such circumstances to the insured.’

Gladys Long was not a member of the household of James'Long within the purview of the language of the policy. She was the niece of James Long, but did not live with him, and was not dependent on him. The terms of the policy do not exempt the insurance company from liability for injuries inflicted by the insured upon his relatives, whether members of his household or not, and appellant cannot avoid paying what it has bound itself to pay by any specious defensive pleas.

There is no merit in any of the assignments of error or the propositions thereunder, and the judgment will be affirmed.


author: JACKSON, J.

text:
    TIDAL WESTERN OIL CORPORATION v. BLAIR.
    No. 3579.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1931.
    Bonner, Bonner & Childress, of Wichita Palls, for plaintiff in error.
    Martin & Oneal, of Wichita Palls, for defendant in error.
   JACKSON, J.

This case originated in justice court, precinct No. 2, Wichita county, Tex., and on appeal to the county court - of said county, the defendant in error, I. H. Blair, obtained a judgment against the plaintiff in error, Tidal Western Oil Corporation, for tiie sum of $200, from which judgment, by writ of error, the Tidal Western Oil Corporation, hereinafter called appellant, prosecutes this appeal.

The defendant in error, designated herein as appellee, alleged that about April 10, 1929, he resided upon certain lands in Wichita county, Tex., a part of which he cultivated and the balance of which was grazing land upon which he pastured his seven head of Jersey milch cows and other live stock. That in addition to his occupation as a farmer, he supported his family from milk and butter obtained from his said milch cows. That a branch ran through his pasture where his milch cows grazed, from which branch his cows obtained drinking water. That appellant, a corporation, engaged in the oil business, maintained an oil refinery, storage tanks, and pipe lines in connection with its business, all of which were located near and adjacent to appellee’s farm and pasture. That on or about April 10, 1929, appellant’s pipe line attached to and leading from one of its 50,000-barrel storage tanks broke, permitting large quantities of live oil to run out of said tank and pipe line and flow into the branch extending across appellee’s pasture where his cows grazed. That his said cows drank such live oil. That one of said cows, of the reasonable market value of $125, died from -the effects of drinking the oil. That two other of his said milch cows which would have been fresh in milk the following May drank the oil which had escaped from appellant’s pipe line and the effect thereof caused them' to abort their calves, as a result of which they produced no milk. That but for such condition, each of said cows would have produced 2½ gallons of milk per day for a period of 8⅜ months, from which appellee would have received a profit selling such milk' and butter therefrom for its reasonable market value, the loss of. which damaged appel-lee, the details of all of which he sufficiently pleads. He also alleges that each of the calves prematurely born would have been, at the time of their birth, of the reasonable market value of $25, and that by reason of the wrongful death of such calves, he was damaged in the sum of $50.

That the breaking of appellant’s pipe line and the oil escaping,therefrom and flowing into the branch in appellee’s pasture was caused by and due to the negligence of appellant in pumping the oil with too much force for the strength of the pipe line and forcing the oil through said line against closed valves, failing and refusing to cut off the power of the pump after the line was broken, and in failing to cut off the flow of the oil through the line after the break, refusing to repair it, and failing to make' any effort to prevent the oil from running upon appellee’s land by impounding it. That on account of such carelessness and negligence, the oil flowed upon and remained on appellee’s land, where it was drunk by appellee’s milch cows and caused the damages which he sustained, and that such negligence was the direct and proximate cause of such damages. *

The appellant answered by general demurrer, numerous special exceptions, and general denial, and pleaded that any damages sustained by appellee was due to tbe fact that his milch cows were suffering from some disease independent of drinking oil and that such disease -was the cause of appellee’s damages. That the water in the branch was not suitable for the cattle to drink, regardless of the oil therein. That appellee knew of the breaking of appellant’s pipe and the escape of the oil therefrom into the branch and upon his land and permitted his cattl'e to run at large in the pasture, knowing that they would drink the oil and be injured thereby. That he placed an obstruction across the branch and prevented the oil from flowing and escaping from his land, and he was guilty of contributory negligence which defeats his right of recovery.

The appellant also pleaded affirmatively that it used due diligence to repair its pipe line and protect the appellee from suffering any damages by reason thereof.

In response to special issues submitted by the court, in so far as necessary to a disposition of this appeal, the jury found, in substance, that appellant was guilty of negligence in permitting the oil to escape from its pipe line onto appellee’s land; that the cows drank the oil; that the cow that died was of the reasonable cash market value of $125 ;■ that the Reasonable cash market value near the farm at Burkburnett, in May, of the calves had they been born at the proper time, was $15 each; that appellee would have made a profit of,$100 from the sale of milk produced from the two injured cows, over and above the reasonable market cost of handling such milk; and that the negligence of appellant was the proximate cause of all of appellee’s damages. On these and other findings judgment was rendered in favo,r of appellee for the sum of $200 with interest at 6 per cent, from the date thereof.

The appellant urges as error the action of' the trial court in failing to define the term “reasonable cash market value” contained in special issue No. 5, because such term is a legal term and should have been defined by the court.

In issue No. 5 the court submitted to the jury, “what is the reasonable cash market value” of the three year old cow that died on the 10th of April, 1929, on appellee’s land? The appellant objected to the submission of this issue because “reasonable cash market value” was not defined by the court and is a legal phrase or term that should be defined.

Article 2189, R. O. S., among other things, provides: “In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

38 C. J. 1261, § 17, is to the effect that:

“While the usage of trade has given a fixed and technical meaning to ‘market value’ ” and “market value” is difficult to determine, not easy to define; and in some jurisdictions is considered plain, definite and well understood, but “the term is one which has been defined in its various applications in many decisions.” This announcement is followed by the author with numerous definitions of “market value,” given by various courts.

In section 18, p. 1262, this author continues: “Just what elements go to make up market value depends largely upon the facts and circumstances surrounding the particular case. There is no inflexible rule. ‘Market value’ implies the existence of a market, that is, a demand or want. It relates to buying and selling. Market values are created and controlled by the condition of the market with reference to supply and demand. So market value is ordinarily arrived at by conclusions deduced from transactions in commodities or property of the same or a like character. But such transactions must occur under ordinary and normal conditions, in the market generally, in open market, on "fair competition, • for cash, or on such time and terms as would be equivalent to cash, unaffected by elements which enter into transactions made outside the usual course of business, irrespective of peculiar circumstances. So it must be determined by the price for which a willing owner would sell and a willing purchaser would buy, but neither being under any obligation to do so.”

“The measure of damages for property destroyed is the market value of the property at the time and place where destroyed. * * * And in such cases it is the duty of the court to instruct the jury as to what is the legal meaning of market value.” Texas & P. Ry. Co. v. Williams, 1 White & W. Civ. Cas. Ct. App. 250.

In Texas Pipe Line Co. v. Watkins et al., 26 S.W.(2d) 1103, 1104, Judge Hightower, for the Beaumont Court of Civil Appeals, in considering the court’s failure to define in his charge the term “reasonable fair cash market value” to guide the jury in answering special issues, after stating the contentions of appellant and appellee, which are identical with the contentions made in this case, quotes the language from article 2189 supra, and continues: “Our appellate courts have had this statute under construction quite a number of times, and in nearly every instance the trial court’s failure to properly Refine a legal term for the guidance of the jury in answering special issues was held to be reversible error. We have no doubt that the term ‘reasonable fair cash market value’ is a legal term of well-defined meaning, and that it was the duty of the trial court * * * to define the term in order to properly guide the jury in answering special issues Nos. 1 and 2.” Citing numerous authorities.

In view of appellant’s objection and exception to the court’s failure to define “reasonable, cash market value,” the numerous elements that go to make up market value, that its meaning is largely dependent on the facts and circumstances in each case, and the authorities noted, we are constrained to hold that “reasonable cash market value” is a legal term or phrase and that the court committed reversible error in failing to advise the jury of its meaning so as to guide the jury in determining the market value of the animal in question.

Appellant, having objected to the court’s failure to define the language “reasonable cash market value,” was not required to tender in a special charge a definition thereof. Texas Pipe Line Co. v. Watkins, supra. See, also, Gulf, C. & S. F. Ry. Co. v. Conley et ux., 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183.

This assignment is sustained.

The appellant presents as error the action of the court in failing to submit certain affirmative defenses urged by it on the trial of the case, but the record fails to disclose that appellant prepared and tendered to the court any special issue on such affirmative defenses and they are therefore presumed to be waived and abandoned. Ormsby et al. v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

The testimony was sufficient to require the submission of this case to a jury. We deem it unnecessary to discuss various other assignments presented appellant, because, if error is presented in any of them, it will, in all probability, not occur on another trial.

We note that the court permitted the ap-pellee to recover what the market value of unborn calves would have been in May, following the injury of their mothers in April from drinking the oil. In connection with this action of the court, we call counsels’ attention to the holding in Texas & P. Ry. Co. v. Randle, 18 Tex. Civ. App. 348, 44 S. W. 603, to the effect that damages are not recoverable for negligently causing the death and premature birth of a colt, because remote and speculative.

The judgment is reversed, and the cause remanded.


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

text:
    MECKEL v. DAVIS et al.
    No. 8589.
    Court of Civil Appeals of Texas. San Antonio.
    April 8, 1931.
    Rehearing Granted June 3, 1931.
    Rehearing Overruled July 1, 1931.
    L. W. Elliott, of Sonora, for appellant.
    Lloyd Kerr, L. D. Gayer, and J. A. Thomas, all of San Angelo, for appellees.
   COBBS, J.

This is a suit instituted by appellees for an injunction to restrain Ben F. Meckel, appellant, from closing a certain road across lands owned by him in Sutton county, Tex.

It was alleged 'that some of the appellees, plaintiffs below, reside near the road in question and are engaged in the ranching business near said road. That said road has been rec.ognized and established and used as a public road by the appellees and other persons and by the general public, having occasion to travel through that section of Sutton county, continuously for a period of from thirty to forty years, during all which time same has been so used, traveled, and enjoyed under claim of absolute right so to do and without let or hindrance from appellant or .any person whomsoever, until thirty days before the filing of the suit. That said road has been used by appellees and other persons and the public as a route of travel in going to Sonora, the county seat of Sutton county, and trading point for such persons, and for hauling ranch equipment and supplies to their several homes and ranches, and for moving live stock from place to place, and to reach the Sonora-San Angelo Highway to travel to .points to which they may have occasion or necessity to go, and that said road has long since become and is now an established public road for use by appellees and the public ; and that they have long since acquired and now have and are entitled to the prescriptive right to use said road. This use of the said road was open and plainly apparent to appellant.

After all the ■ evidence was in, the court was requested to instruct a verdict for appellant, which was refused, and the jury answered, “Yes,” to the following special issues:

“1. Do you find from the evidence in this case that the roadway described in plaintiff’s petition was continuously used and traveled by the public generally, whenever it saw fit, for a period of ten years, or more, next pre-ceeding the 11th day of April, A. D. 1930, substantially along and upon the same route and across the lands owned by the defendant?
“2. Do you find from the evidence that the roadway described in plaintiff’s petition was continuously used and traveled by the plaintiffs, or by any of them, whenever they saw. fit, for a period of ten years or more next preceding the 11th day of April A. D. 1930, substantially along and upon the same route and across the lands owned by the defendant?”
“4. Do you find from the evidence that such use and travel of said road on the part of the public was open and notorious and adverse to the defendant and without objection by him ?
“5. Do you find from the evidence that the use and travel of said road on the part of the plaintiffs, if any, was open and notorious and adverse to the defendant and without objection by him?”

Thereupon the court rendered judgment in favor of appellees and this cause is properly before this court for decision.

The court did not err in overruling defendant’s request for an instructed verdict, because the evidence established the use of the roadway by appellees, clearly and without contradiction, for the full period of time to establish a public road by user of said land.

During the use of said road no one had been required to get any permission to travel over it. And during all that time the road had never been obstructed so that the people could not pass over if at will. Many herds of sheep and cattle were driven over that road to market, in plain view of appellant, and no one stopped or interfered with them in any way. It is true that there were four gates to he passed through, but they offered no obstruction, as they were readily and easily opened for passage along said road.

For many years the people traveled over this road at will and unrestrained, until they had acquired a public right to do so. If appellant did not actually give the right by words, he did so by acquiescence. The road was worked some by those using it— not to a great extent, but sufficiently so— from time to time.

J. Carlisle, one of the witnesses, testified: “At one time I lived in the settlement where this road is that’s involved in this case; for six years I owned land up there; I sold out and left there in April; that would be, practically speaking, six years preceding the filing of this case. I was ranching up there. Before that time I was familiar with this road; I traveled it off and on for twenty-one years that I have known it. As to who traveled the road during the time; the neighborhood all traveled it — the Mittel ranch people and Joe Trainer and others, and I would see cars that I didn’t know the people, and I would judge that they came from the Bailey ranch; I saw them when I lived there, and before I lived there I did windmill work, and I would see people on the road; I was doing windmill work over the country. During the time that I have known the road it had the same general character of travel and use; at times this Angelo road would be bad and people would swing around that way to go into Sonora with their supplies from San Angelo. During this time I have never known of anyone having to get permission to go through there. As to whether or not it has been called a public road by people; I taken it for granted people considered it a public road.”

Others testified to the same effect.

If appellant did not see fit to stop the use of the road by his own act or by resort to the courts, then he would be acquiescing in the use of the road over his land and this would be construed to be by his “permission” and could never be adverse. It is like the old joke about the way they construed the pistol íaw in a certain western county. If the fellow was standing still he was not “carrying” the pistol, and if he was moving around he was “traveling.”

We find no error committed that requires a reversal, and the judgment is affirmed.

On Motion for Rehearing.

SMITH, J.

The road in controversy was nothing more than a section of a neighborhood ranch road," maintained by neighboring ranchmen, primarily for their own tqnd each other’s convenience, although it is true, incidentally, that other members of the general public have occasionally traveled over it.

That section of the road here in controversy, which traversed appellant’s ranch, was maintained and kept in repair exclusively by him, at his own expense, and he used it himself just as his neighbors did. The county authorities have never taken official cognizance of it as a public road; have assumed no dominion over it, exercised no rights over it; have never had it worked or repaired, or regarded it as a public road for any purpose.

Appellant’s predecessor in title asserted affirmative dominion over it years ago by building and maintaining fences across it at four different points. It is true that he placed gates at those points, thereby evidencing his willingness to permit his neighbors to continue to share with him the use of the road, subject to the restraint imposed upon this travel by the obstructing gates. Those who availed themselves of this use recognized and respected the restraint by always closing the gates behind them, and by notifying him in advance when they desired to drive their herds through the gat.es and over the roadway across his ranch. No one was ever heard to object to this restraint, by word or act; all acquiesced in it. He continued his dominion over the road by maintaining and repairing it in his own way and time, and at his own expense, and those who had theretofore used it continued to do so in the face of those obvious conditions, without complaint. Such use was in no sense adverse to appellant, since it was with his open and obvious permission, and subject to the restraints imposed by him and the dominion asserted by him in retaining and exercising the exclusive control of the maintenance of the road.

If those using the road thought they had any rights in the road adverse to appellant, they could have asserted their claims by disregarding the gates and by asserting the right and assuming the burden of maintaining and keeping the road in repairs in their own way and at their own expense. They did not do this, but on the contrary acquiesced in appellant’s dominion and control, without objection or other words or acts negativing the natural effect of such acquiescence, thereby recognizing appellant’s claim of dominion just as effectively as if they had expressly done so in writing.

These beneficiaries of appellant’s neighborliness, who have so long enjoyed this permissive use of his premises, ought not now be allowed to repudiate their acts of acquiescence in his dominion over these premises, and by the same token convert 'them into a prescriptive right of their own to such dominion, if the road has now become a public necessity, appellees have the privilege of procuring its establishment by petitioffing the county authorities to exercise the right of eminent domain by condemning the land and paying appellant for it, as eqntemplated in our organic law.

The finding of the jury, that the public use of the roadway was adverse to appellant, is without any evidence, either direct or circumstantial, to support it; but, on the other hand, it is in my opinion contrary to all the evidence in the ease.

The judgment appealed from is in direct conflict with the holding of this court in Weber v. Chaney, 5 S.W.(2d) 213, and the numerous authorities therein cited. The Supreme Court approved our holding in that case by denial of a writ of error therein, and a majority of this Court see no reason to now repudiate that holding.

Appellant’s motion will be granted, and the judgment reversed and the cause remanded.

FLY, C. J.

I concur in the foregoing opinion of Associate Justice SMITH.

COBBS, J.

(dissenting).

The use of the road by the owner as others used it possessed no significance. The public used this road without objectioñ or protest, but on the contrary the owner placed gates, thereby saying to the public you are to pass this way, this indicates a permissive right to user. A person has no right to' allow the public to use a road for a number of. years, then before the expiration of the statutory right of possession, after rights have grown up, suddenly without rhyme or reason stop them. The fact that no one was heard to object to the so-called restraint, by word or act, cannot be construed as to them to mean they acquiesced. Acquiesced to what?

My understanding is that the continued and undisputed claim of right is evidenced by the public use and not as claimed to be a subservience. It will not do to say to show their claim as a user they should assume the burden of maintaining and keeping the road in repair. It is not shown that any agreement existed or obligation was imposed by its use.

The rule of acquiescence has.no application to a person who seeks to hold .property by user. The two propositions are antagonistic. We do not quite .understand the meaning of our associate in his opinion.

Of course, we understand one way to secure a road is by condemnation, but that is not the only way. I cannot agree with my associate that the finding of the jury is without evidence, nor d.o I agree to the statement that the original opinion is in conflict with Weber v. Chaney (Tex. Civ. App.). 5 S.W.(2d) 213, which is obviously distinct.

A careful reading shows the use of this road by the public for many years, more than ten, at the same time some work had been done by some of these users, all with the knowledge of the owner, who, if he did not give a direct right to its use, did so by his knowledge and presumed assent. Boone v. City of Stephenville (Tex. Civ. App.) 37 S.W. (2d) 842.

We have no doubt as to the correctness of our views as expressed, so the judgment must stand affirmed, and I dissent from the majority opinion, this day handed down.