author: VAUGHN, J. UOONEY, J.

text:
    NORTHWESTERN CASUALTY & SURETY CO. v. BARZUNE.
    No. 10846.
    Court of Civil Appeals of Texas. Dallas.
    July 3, 1931.
    Rehearing Denied Oct. 3, 1931.
    McCormick, Bromberg, Leftwich & Carring-ton and Geo. W. Schénucker, all of Dallas, for appellant.
    Joe Utay, of Dallas, for appellee.
   VAUGHN, J.

This suit originated in justice court No. 2, precinct No. 1, of Dallas county. Appellee sued appellant to recover’ upon a policy of insurance duly issued August 3, 1927, indemnifying appellee against loss by burglary under certain limitations and conditions from a certain safe fully described in said policy. The recovery sought was for a loss of $168.50 in money alleged to have been taken from appellee’s safe on or about April 19, 1929, and $11.50 for damage to said safe. The case properly reached the court from which this appeal was prosecuted, and judgment in that court was rendered in favor of appellee for $180, plus interest and costs. As a general discussion will suffice to dispose of the two propositions upon which this appeal is predicated, .and will fully develop the issues presented by pleadings and the evidence introduced thereon, no further statement of the case will be made. This appeal is presented upon the following agreed statement of facts:

“It is agreed that on or about the 2nd day of August, 1927, the defendant Northwestern Casualty & Surety Company issued to the plaintiff its certain Burglary Policy No. VB. 937502, which was in force on or about April 19, 1929, the date of the loss and damage complained of by the plaintiff herein. That by the terms of said policy the defendant agreed to indemnify plaintiff:
“Eor all loss by burglary of money, securities and merchandise, as hereinafter defined, by its abstraction from within that part of any .safe or vault to which the insurance under this policy applies, by any person or persons making felonious entry into such safe or vault by actual force and violence of which force and violence there shall be visible marks made upon such safe or vault by tools, explosives, electricity, gas or other chemicals, while such safe or vault is duly closed and locked and located in the assured’s premises, described in the schedule, or located elsewhere after removal therefrom by burglars.
“Eor all loss by damage (except by fire) to such safe or vault and to money, securities and merchandise therein and to the premises and all furniture, fixtures and other property therein, caused by such forcible and violent entry into such safe or vault as aforesaid, or attempt thereat.”
“That said policy contained, among others, the following, viz.:
“ ‘Special agreements:
“ ‘5. The Company shall not be 'liable for any loss or damage:
“ ‘(a) Unless the doors of all vaults, safes and chests covered hereby are equipped with combination or time lock, and unless at the time of the burglary or attempt thereat all such doors are properly closed and locked by combination or time lock;
“ ‘(b) Effective by opening any safe, chest or vault by the use of any key or by the manipulation of any lock;
“ ‘(j) Of or to money, securities or merchandise contained in a fire-proof safe, unless entry into such safe has been effected by the use of tools, explosives, chemicals or electricity directly upon the exterior thereof.’
“II. That the plaintiff’s safe, described in the schedule to said policy, was a Mosler Fireproof Safe, equipped with an outer door, three inches thick, locked by a combination lock, and said safe also contained an inner compartment with a door of thin metal, locked by a key lock; that such thin metal door was surrounded by a cast iron casing.
“III. That on or about April 19, 1929, the premises of plaintiff were burglarized by some person or persons unknown, making felonious entry into such safe, and plaintiff sustained a loss of $168.50 in money, and his safe was damaged to the extent of $11.50, substantially as alleged by him. That such loss and damage occurred under the following circumstances: The $168.50 in money which was lost by the plaintiff was contained within the inner compartment of said safe, and the door to said inner compartment, as well as the outer door of said safe, were both duly locked. The combination lock with which the outer door of said safe was equipped was worked or manipulated, and entry into the inner compartment was effected by the use of some character of tool, the cast iron casing surrounding the door thereof being broken and the door thereof being pried open.
“IV. There were no visible marks made upon the exterior of such safe by tools, explosives, electricity, gas or other chemicals, and the opening of the outer door of said safe was effected by working or manipulating the combination lock thereof, and was not effected by the use of any tools, explosives, chemicals, .or electricity, directly upon the exterior thereof.”

The result of this cause depends upon the construction and interpretation of thp provisions of the policy, above quoted.

Appellant by its propositions insists: (1) That as the policy declared upon indemnified appellee only against loss incurred under the conditions specified in provisions (a), (b), and (j), supra, by a person making a felonious entry into appellee’s safe by some one or all of the means specified in said policy, and it was shown by the undisputed evidence that appellee’s loss was effected by working or manipulating the combination lock on the outer door of the safe, and that entry into it ■was not made by actual force and violence, and there were no visible marks made on the exterior of said safe by tools, explosives, electricity, gas, or other chemicals, the court erred in rendering judgment in favor of appellee; and (2) that, under the provisions of (b) and (j), supra, the undisputed evidence establishing that the safe in question was fireproof, that entry into same was not effected by the use of tools, explosives, chemicals, or electricity, directly upon the exterior thereof, but was effected by working or manipulating the combination lock thereof, the trial court erred in including in its judgment the item of $168.50 for money abstracted from the safe, and that its judgment should be corrected and reformed in that particular.

Appellee counters said propositions as follows: “(1) The policy in suit indemnifies ap-pellee — provisions (a) and (b) of said policy, supra, quoted — and by the undisputed evidence- it was shown that appellee’s loss was effected by some person or persons unknown, making felonious entry into such safe, that appellee sustained a loss in money of $168.50 and his safe was damaged to the extent of $11.50; the judgment in his favor was prop-.crly rendered. (2) The provisions of the policy that the company shall not be liable for any loss or damage, (b) and (j), supra, quoted, are not applicable in this case and should in no wise effect appellee’s right of recovery, because the undisputed evidence shows that entry to said safe was made into inner compartments of such safe by some person or persons unknown, by the use of some character of tools, and that the inner door was broken and pried open, and that the opening was in the exterior part of said safe.”

The determination of this appeal must abide the application of the generally accepted rule that insurance policies are to be construed in favor of the insured and against the company. This, however, is only to be invoked where there exist rational grounds for construction, viz., the contract must contain provisions or language of doubtful, ambiguous, or conflicting meaning, as gathered from a natural interpretation of its language. This because, if the language, when given its everyday commonly accepted meaning, is clear and specific in presenting the subject-matter in hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the policy cannot be said to be doubtful of meaning or conflicting in terms; and courts are not at liberty to indulge in a construction that would give an unnatural meaning to language in order to accomplish results that could not be shown to have been in the minds of the -parties, the language used being given its natural or commonly accepted meaning.

We think that the following holding in Frankel et al. v. Massachusetts Bonding & Ins. Co. (Mo. App.) 177 S. W. 775, 776, succinctly defines the “rule’s” sphere of application: “Such rule does not permit courts to remake policies or to change the face of their plain and explicit terms. The rule above mentioned is applied where the insurance contract ‘contains clauses of doubtful, ambiguous, or conflicting meanings.’ Ætna Life Ins. Co. v. Kansas City Electric Light Co., 184 Mo. App. 718,171 S. W. 580. It is enforced if the policy is ‘fairly and reasonably susceptible of two constructions.’ Long Bros. Grocery Co. v. United States, etc., Co., 130 Mo. App. 421, 110 S. W. 29. It is also enforced if the words employed of themselves, or in connection with other language used in the instrument or in reference to the subject-matter to which they relate, are susceptible of the interpretation given them by the assured, although in fact intended otherwise by the insurer. Stark v. John Hancock, etc., Ins. Co., 176 Mo. App. 574, loc. cit. 581, 159 S. W. 758.”

We will now address ourselves to the task of ascertaining whether or not any of the terms used require a meaning to be given thereto contrary to the commonly everyday accepted meaning of same. We must in this service bear in mind that, “Courts are not authorized to seize upon certain and definite covenants expressed in plain English with violent hands, and distort them so as to include a risk clearly excluded by the insurance contract.” Mitchell v. German Commercial Accident Co., 179 Mo. App. 1, loc. cit. 7, 161 S. W. 362, 363.

Furthermore, we should not forget that, “While, in the construction of insurance policies, the rule is that doubtful provisions are to be construed in favor of the insured and in aid of his right to recover thereon, the rule is equally well established that, where the terms of the policy are plain and explicit, the court can indulge in no forced construction of the contract to cast a liability upon the insurance company which it has not assumed.” First National Bank v. Maryland Casualty Co., 162 Cal. 61, loc. cit. 69, 121 P. 321, 325, Ann. Cas. 19130, 1170.

The' terms of the policy herein first quoted are the only ones necessary to be considered, and they are sought to be interpreted so as to sustain appellee’s cause of action and recovery thereon. The combination lock with which the outer door of appellee’s safe was equipped was worked or manipulated, and that door thereby opened, and entry into the inner compartment of said safe was effected by the use of some character of tools, the cast-iron casing surrounding said inner door being broken and said door pried open. We think that the words, “effective by opening any safe by the manipulation of any lock,” are so plain and explicit as to exclude every other reasonable hypothesis, save and except that the opening referred to was any other than the door -that formed a part of the exterior or outward construction of the safe, and to exclude the idea that the opening referred to had reference to an interior opening, one that could only he reached through said outward or exterior door, for until such exterior or outward opening had been made an opening could not be effective through the interior door

Of the many definitions of the word “open” to be found in Webster’s New International Diet. Ed. 1927, the following are the most appropriate to that word as used in the policy: “to become open, or unshut; to unclose or become unclosed; said either of a door, etc., or of the passage way; or to have the door opened for business, to give access; to have an opening, passage or outlay; with to, into, out of, towards, as the door opens into a vestibule.” The word “opening” by the same authority is defined: “Act of one that opens, a making or becoming open * * * act of beginning, start, initiation, commencement, that with which anything opens or begins. * * ⅜ »>

As to the provisions of the policy providing that appellant shall not be liable for any loss or damage “unless entry into such safe has been effected by the use of tools, expío-sives, chemicals, or electricity, directly upon the exterior thereof,” same can have no meaning other than that appellant’s liability only extended to and included the loss of money effected through one of the means above specified, applied directly upon the outer surface of the safe, and that no such liability could or would exist for loss occasioned in any other manner, way or means. “Directly” and “exterior” are the two pivotal words used in said sentence. The term “directly” is defined as follows: “In a direct manner; in a straight line or course at right angles to a surface ; in a direct way; without anything intervening; not by secondary but by direct means.” And the word “exterior,” viz.: “On the outside, external, pertaining to the outside part, as the exterior part of a sphere; the outward surface or part of anything; that which is external; outside.” Webster’s Diet., supra.

The words of the policy, construed together and each given its natural meaning — that is, the meaning naturally implied from the use of same — are not in the slightest degree doubtful, ambiguous, or conflicting in meaning ; therefore, it can be only gathered therefrom that appellee contracted for protection within the -plain import of the language of said policy as stated in its provisions (a), (b), and (j), supra; -therefore appellee was only to be indemnified for loss of money effected by the use of tools, explosives, chemicals, or electricity, directly applied upon the exterior of the safe — that is, to the outside parts thereof. The language conveying this meaning is not susceptible to any other construction without distorting the words “directly” and “exterior” so as to give each a meaning diametrically opposed to the natural or self-evident meaning of said terms. We are fully in accord with the pronouncement made in the case of Wiest v. United States Ins. Co., 186 Mo. App. 22, 29, 171 S. W. 570, 572, viz,: “If it appeared that the portions of the policy under consideration, when read and construed together, were at all' ambiguous or of doubtful import, we should not hesitate in the least to ‘blandly’ resolve such ambiguity or doubt in favor of the insured. Indeed, the policy, should, if possible, be construed so as to effectuate /the insurance, and not to defeat it,” and have not been unmindful of same in disposing of this cause.

As heretofore stated, appellee’s safe was burglarized by some person or persons unknown; that in making the entry into said safe no visible marks were made upon its exterior by tools, explosives, electricity, gas, or other chemicals; that the opening of the outer door of the safe was effected by working or manipulating the combination lock, and not by the use of any tools, explosives, chemicals, or electricity directly upon the exterior thereof. The instant case, both as io terms of the policy and facts anent -the loss sustained, are identical with the terms of the policy and facts in the case of Frankel v. Mass. Bonding & Ins. Co., supra; therefore, as expressive of our views, 'we quote therefrom as follows: “The question then is: Does the loss come within the terms of the policy, which insured against felonious abstraction of money, etc, from the safe by persons who made entry thereinto ‘by the use of tools or explosives applied directly to the outside thereof’? The policy does not extend blanket insurance for all loss by theft or burglary from the safe. The words ‘by the use of tools or explosives applied directly to the outside thereof’ clearly and explicitly exclude insurance against a burglary or theft by any one who knew the combination, or insurance against such crime committed when the combination was carelessly left unlocked. The insurance was carefully limited to a loss occasioned by a burglary committed by making an entry into the safe by the use of tools or explosives applied directly to the outside of the safe. Now, it is conceded that no tools or explosives were applied to the outer doors having the combination lock, and none wei-e applied to the middle doors. * * ⅝ But the insurance provided in the policy is for loss from a burgla-rious entry obtained by the use of tools or explosives applied directly to the outside. How can it be said that the use of force upon the cash box, which occupied only a small portion of the space in the interior of the safe, was an application ‘directly to the outside’? Can the little door to the money box or drawer in the safe be considered ‘the ouside of the safe’ any more than a door to the cupboard or sideboard containing the family silver could be deemed the outside of the house?”

The following authorities support the holding in the Frankel Case, supra; Blank v. National Surety Co, 181 Iowa, 648, 165 N. W. 46, L. R. A. 1918B, 562; Brill v. Metropolitan Surety Co. (Sup.) 113 N. Y. S. 476; United States Casualty Co. v. Medcalf & Thomas (Tex. Civ. App.) 272 S. W. 539.

The only Texas cases in any wise approaching this case are National Surety Co. v. Silberberg Bros. (Tex. Civ. App.) 176 S. W. 97, National Surety Co. v. Chalkley (Tex. Civ. App.) 260 S. W. 216, 217, and F. & D. Co. of Maryland v. B. & J. Sales Co. (Tex. Civ. App.) 298 S. W. 459, 460.

The Silberberg Case involved only forcible or violent entries upon the premises or exit therefrom, provided that the company should not be liable unless there were visible marks on the premises of actual force or violence used. It was held that proof that the owner saw a bolt to the lock on the premises thrown before entering the next morning sufficiently satisfied the requirement of visible evidence and visible marks of forcible entry.

The Chalkley Case is readily distinguishable from the case at bar. There the property was obtained by actual breaking by force and violence of the inside compartments of the safe. It was held that the insured could recover under the policy, which provided for indemnity against loss by abstraction from within the safe by one making entry into the safe by actual force and violence, of which force and violence there should be visible marks made upon such safe, although there was no sign on the outside of the safe to indicate forcible entry. There was no provision in the policy requiring entry into the safe by the use of tools, explosives, etc., “directly upon the exterior thereof,” as in this case. The safe there involved was a burglar-proof safe and the requirement of force applied to the exterior had no application. Moreover, the court said: “The evidence did not show how the outer door of the safe was opened, and the court could not have found that it was done with a key or by manipulation, even if such finding had been requested by appellant, which was not done.”

F. & D. Co. of Maryland v. B. & J. Sales Company, supra, while a little different in its facts, tends to support appellant’s position here. There the combination to the outer door of the safe was worked and the inner compartment was opened by tools, but .the money was not taken from such inner compartment but from a portion of the safe outside such compartment. In holding that the loss was not covered under the terms of the policy (similar in substance to the one involved here), the court said: “As we view it, the marks within the safe and on or about the minor compartment therein do not show entry into the safe itself by actual force and violence evidenced- by the use of tools, explosives, etc., thereon. We therefore eon-dude that, the appellee’s loss does not come within the terms of the policy rendering the appellant liable for the loss sustained under the facts of this case. Blank v. National Surety Co., 181 Iowa, 64S, 165 N. W. 46, L. R. A. 1918B, 562; Maryland Casualty Co. v. Ballard County Bank, 134 Ky. 354, 120 S. W. 301; Brill v. Metropolitan Surety Co. (Sup.) 113 N. Y. S. 476; U. S. Casualty Co. v. Medcalf & Thomas (Tex. Civ. App.) 272 S. W. 539. While the testimony in this case evidences a burglarious entry into the building through a rear door thereof, yet the policy does not purport to cover all loss sustained from such entry into the building containing the safe, but only losses traceable to entry into the safe in certain specific Ways and by the use of designated instrumentalities.”

Submitted to the most rigid test for the purpose of discovering whether or not the language of the policy contains clauses of doubtful, ambiguous, or conflicting meaning, or susceptible of two constructions, or if the word thereof employed of themselves or in connection with other language jised therein, or in reference to the subject-matter to which they relate, are susceptible of the interpretation given them by the trial court, we have not been able to gather therefrom the existence of any one' of the conditions that would support said judgment, but, to the contrary, the terms used are free from any doubtfulness of meaning, of susceptibility of two constructions, or conflicting meanings. In other words, the terms are plain and specific in meaning and cannot be given any other than their natural meaning without an unwarranted arbitrary eonstr'uction.

The policy in suit was not a general contract of indemnity against all losses sustained by burglary. It insured only against particular losses occurring in particular ways. It covered only loss by burglary by abstraction from the safe by any person making felonious entry into such safe by actual force or violence, of which force and violence there shall be visible marks made upon such safe by tools, explosives, electricity, gas, or other chemicals, while such safe is duly closed and locked; and it specifically excepts losses effected by opening the safe, by the use of any key or by the manipulation of any lock.

All of the established facts gravitate to, but one construction, viz., that appellee’s loss was effected by reason of the working or manipulating the combination lock; therefore, the loss sustained was not-covered by the policy of insurance; and, further, that there were no visible marks made upon the exterior of the safe by tools, explosives, electricity, gas, or other chemicals, and for such additional reasons the loss was not covered. We are therefore of the opinion that the court erred in rendering judgment for ap-pellee for the sum of $168.50 on account of money extracted from the safe; therefore said judgment is" reversed in that respect, and judgment rendered in favor of appellant, that appellee take nothing on account of said sum of $168.50, and is affirmed as to the sum of $11.50 for damages done to the safe.

Affirmed in part; reversed and rendered in part.

UOONEY, J.

(dissenting).

I dissent from that part of the decision of the majority reversing the judgment in favor of appellee for $168.50 and interest, being the. amount of money extracted by the criminal from the safe, hence believe the judgment below should have been affirmed in its entirety.

The risk assumed by appellant is described in its policy as follows: “For all loss by burglary of money, securities and merchandise, as hereinafter defined, by its abstraction from within that part of any safe or vault to which the insurance under this policy applies, by any person or persons making felonious entry into sucli safe or vault by actual force and violence of wbicb force and violence there shall be visible marts made upon such safe or vault by tools, explosives, electricity, gas or other chemicals, while such safe or vault is duly closed and' locked and located in the assured’s premises, described in the schedule, or located elsewhere after removal therefrom by burglars.”

The safe burglarized is described in the agreed statement as follows: “That the plaintiff's safe, described in the schedule to said policy, was a Mosler Fireproof Safe, equipped with an outer door, three inches thick, locked by a combination lock, and said safe also contained an inner compartment with a door of thin metal, locked by a key lock; that such thin metal door was surrounded by a cast iron casing.”

The entry into the safe, the force and violence used, the visible marks made, and the abstraction of money therefrom, are described in the agreed facts as follows: “That on or about April 19, 1929, the premises of plaintiff were burglarized by some person or persons unknown, making felonious entry into such safe, and plaintiff sustained a loss of $168.50 in money, and his safe was damaged to the extent of $11.50, substantially as alleged by him. That such loss and damage occurred under the following circumstances: The $168.50 in money which was lost by the plaintiff was contained within the inner compartment of said safe, and the door to said inner compartment, as well as the outer door of said safe, were both duly locked. The combination lock with which the outer door of said safe was equipped was worked or manipulated, and entry into the inner compartment was effected by the use of some character of tool, the cast iron casing surrounding the door thereof being broken and the door thereof being pried open.”

If the ease ended at this point, no question could be raised as to appellant’s liability, because it appears that there was a felonious entry into the safe by the forcible use of some tool that left visible marks, in that, the cast-iron casing surrounding the second or inner door was broken or pried open. However, appellant contends that it should escape liability under the following exception or special agreement contained in the policy, to wit: “The company shall no$ be liable for any loss or damage * * * (j) Of or to money, securities or merchandise contained in a fire-proof safe, unless entry into such safe has been effected by the use of tools, explosives, chemicals or electricity directly upon the exterior thereof.”

If the method of entering the safe had not been duly described, the agreed facts would doubtless preclude this discussion. Paragraph 4 of the agreed facts reads: “There was no visible marks made upon the exterior of such safe by tools, explosives, electricity, gas or other chemicals, and the opening of the outer door of said safe was effected by working or manipulating the combination lock thereof, and was not effected by the use of any tools, explosives, chemicals, or electricity directly upon the exterior thereof.” In view, however, of the other facts stated — that is, that the “combination lock with which the outer door of said safe was equipped was worked or manipulated, entry into the inner compartment was effected by the use of some character of tools, the cast iron easing surrounding the door thereof being broken and the door thereof being pried open” — the statement in paragraph 4, to the effect that no visible marks were made upon the exterior of the safe by tools, etc., can only mean that there were no visible marks upon the exterior surface of the safe. If this is not its meaning, paragraph 4 is contradictory of other recitals, and is out of harmony with the line of thought pursued in the majority opinion. So, the question turns on the proper construction to be given the phrase “by the use of tools * * * directly upon the exterior thereof” (the safe), for if this language refers exclusively to the outside surface of the safe, no liability, under the letter of the policy, was shown, but if it refers, as I think it does, to any part of the safe exterior to the cavity holding its contents, liability was, in my opinion, clearly shown.

What did appellant mean by the phrase “by the use of tools * * * directly upon the exterior thereof”? The policy was certainly intended to indemnify appellee against loss resulting from felonious entry into a safe having both an inner and an outer door. The safe was constituted of an exterior and an interior, an outside and an inside, there existed no neutral zone, there could have been no abstraction of money from within the safe until the second door was forced and the cavity containing the money was reached, hence the operations of the criminal, in reaching the cavity containing the money, were necessarily made upon an exterior portion of the safe.

Appellant could have laid a good basis for its present contention if the policy, instead of using the language adopted, had contained, as a prerequisite to liability, provisions requiring forcibly entry through the outside door, or the exterior surface of the safe, attended by visible marks, etc.; but the policy contained no such or equivalent provisions. Appellant having adopted language susceptible of two constructions — one sustaining and. the other defeating liability — I do not think the court, under the circumstances, should hesitate to apply the rule of construction that, favors the insured.

On the exact facts presented, the case is one of first impression in this state, but decisions in point from other states sustain my view of the question. The cases mentioned below correctly applied the general rule construing, as should have been done, all doubtful provisions in favor of the insured.

Under similar facts, in Bruner v. Fidelity, etc., Co., 101 Neb. 825, 166 N. W. 242, 243, the Supreme Court of: Nebraska, answering a contention, in effect the same as appellant makes in the instant case, said: “This safe had double doors. Until the inner doors were opened no access could be had to its contents, and no entry made into the safe proper. Explosives were used upon the inner door.” The court held that “entry into the safe” was made by the use of explosives and that it was not material that the outer door had not been so opened. In Fidelity, etc., Co. v. Sanders, 32 Ind. App. 448, 70 N. E. 167, 169, in a similar case, the court held that: “The policy makes no distinction between outer and inner doors. The pleading shows that the money and property were taken from a part of the safe that was entered by the use of tools and force. Aside from the rule that insurance policies should be liberally construed in favor of the assured, we think this policy means that,, if the money or property in the safe is reached through the use of tools or explosives upon any part of the safe, the loss is covered by the policy.”

In Moskovitz v. Travelers’ Indemnity Co., 144 Minn. 98, 174 N. W. 616, under a similar policy, where, although the outer door was opened by manipulating the lock, as in the instant case, the entrance through the inner door was effected by force and violence leaving visible marks, as in the instant case, the Supreme Court of Minnesota said: “The policy is not quite clear. The rule of construction favors the insured and resolves ambiguities against the insurer. It was proper, and not difficult, to write a policy making a forcible entry through the outside door attended by visible marks a prerequisite of liability. If the insurance company intended to offer the plaintiff such a policy it could have made its meaning sufficiently cigar by the use of a few apt words; and, wishing its liability thus limited, it should have done so.”

In Columbia Co. v. Rogers, 29 Ga. App. 248, 114 S. E. 718, the Court of Appeals of Georgia held, under practically identical facts, that a felonious entry into the safe effected by tools, etc., directly upon any part of the safe exterior to the cavity holding the contents, was a felonious entry insured against. To the same effect, see Johnston v. Fidelity & D. Co., 220 Mo. App. 753, 275 S. W. 973; Rosenbaeh v. National, etc., Co., 204 Mo. App. 145, 221 S. W. 386. The case of National Surety Co. v. Chalkley, 260 S. W. 216, 217, decided by the San Antonio Court of Civil Appeals, is more nearly in point than any Texas case, and I am constrained to adopt as pertinent here the language of Judge Fly; he said: “ * ⅜ * The evidence showed that the property in the safe was obtained by an actual breaking into the house and an actual breaking by force and violence of the inside compartments of the safe, and appellant should not be permitted to evade its liability by a technicality which under the facts of this case is absolutely unjustified. The house was broken into, the safe was entered, the inner locks broken, and the property taken, and under a reasonable construction of the terms of the policy appellee is entitled to a recovery.”

For these reasons, sustained by the authorities cited, I am of opinion that the majority erred in not affirming the judgment of the court below in its entirety.


source: Caselaw Access Project

author: VAUGHAN, J.

license: Public Domain

text:
    WILLIAMS v. TOMPKINS.
    No. 10842.
    Court of Civil Appeals of Texas. Dallas.
    June 20, 1931.
    Rehearing Denied Oct. 3, 1931.

      J. H. Synnott, of Dallas, for appellant.
    J. J. Collins, City Atty., and A. A. Long, W. Hughes Knight, and H. P. Kueera, Asst. City Attys., all of Dallas, for appellee.
   VAUGHAN, J.

This is an appeal prosecuted from a judgment denying to appellant a writ of mandamus against appellee as auditor of the city of Dallas and sought to compel appellee as such auditor to issue and countersign a proper warrant to pay the amount of an award made to her in compensation for personal injuries. As to the allegations upon which appellant predicated her right to the relief sought, it is only necessary to reproduce the following, viz. that the injuries received by her were in consequence of having been run over by a motorcycle officer of the city of Dallas on September 6, 1926; that a claim for compensation for loss from such injuries was presented and filed with the city December 80, 1926, and was by its board of commissioners duly and properly audited and allowed on December 21, 1928, as evidenced by a formal order of that date entered allowing said claim in the sum of $1,716.52 and ordering same paid; that it was the duty of appellee, in his official capacity, to issue and countersign all vouchers and checks, to pay all accounts and claims ordered paid by the board of commissioners of the city of Dallas (including appellant’s claim); and that no such account or claim can be collected except upon a check or voucher issued and countersigned by him as such auditor.

In the discussion of the several material questions presented by this appeal, the ease, as developed on both theory and fact by appellant and appellee, respectively, will be reflected ; therefore, a further statement of the case as made by the pleadings will not be necessary. Following are all of the material facts established by the evidence to have existed from the time appellant was injured to the date the order allowing her claim was entered.

On September 6,1926, appellant “was struck by a motorcycle ridden by a traffic policeman and sustained bruises and contusions of her right leg and thigh, a deep laceration of her left thigh and hack, which were severely bruised, sprained and injured internally, her left foot and ankle severely injured and a compound-comminuted fracture of both bones ■of the left leg just above the ankle.”

On December 30, 1926, Dr. Dane B. Cooke, •city health officer, made the following report to the board of commissioners of the city of Dallas as to the condition of appellant: “Mrs. Williams is confined to the bed or a chair from which she is unable to arise even with the aid of crutches. Movement in an ■effort• to arise produces severe pain in the small of the back; the heel of the left foot cannot be brought to the floor, and no weight can be tolerated on the left leg. The hones of the left leg which were, broken into many small pieces and driven through the flesh and' out through the skin have again but feebly united; the leg somewhat shortened and not entirely straight, and leg and foot swollen to .nearly twice the normal size. Over the site of the fracture there is a large reddish fluctuating area which appears to be caused by a piece of a dead bone which is separating from the more healthy tissue and will ultimately form a chronic discharging ulcer and will have to be removed surgically, and may continue as a chronic osteo-myelitis requiring repeated operations and possibly the amputation of that leg. It is my opinion that Mrs. Williams will never again regain the use of her left leg, may never be able to walk again, even with the use of crutches, and certainly will never be able to perform any part of her housework again. She is totally and permanently disabled.”

On December 21, 1928, an order was entered by the board of commissioners on petition of appellant for redress on account of the injuries sustained by her, which in effect directed the city auditor to pay appellant the sum of $1,716.52 in settlement of her claim for damages, sustained by her on September 6, 1926; the said order further recites that appellant was struck by a motorcycle ridden by H. D. Miller of the police department, and directs said sum to be paid out of suits and accounts fund, and instructed the city attorney to draw the necessary release, and provides that out of said sum of $1,716.52 appellant should pay $641.52 to the city of Dallas, said sum representing accumulated taxes on appellant’s homestead, and directed that the doctor’s bill should also be paid out of said sum.

Following are all of the material facts established by the evidence to have existed in support of appellee’s defense:

On July 12, 1929, the new city government —composed of J. Waddy Tate, mayor, and Wylie, Pouts, Harris, and Graves, commissioners — passed an order revoking the order of December 21, 1928, allowing appellant the sum of $1,716.52 in settlement of her claim, for injuries received by her September 6, 1926, and as grounds for said rescission the following statement is contained in said order of July 12, 1929:

“Whereas, heretofore, on the 21st day of December, 1928, the Board of Commissioners of the City of Dallas passed an order providing that the City of Dallas pay to Mrs. Lizzie (Lucy) Williams, widow, the sum of $1,716.52; and,
“Whereas, it appears upon investigation of said Board order and the claim of the said Mrs. Lizzie (Lucy) Williams that there was ■never any legal liability existing against the City of Dallas for and on behalf of the said Mrs. Lizzie (Lucy) Williams, and that the City of Dallas was at no time legally obligated to pay Mrs. Lizzie (Lucy) Williams any sum of money or to make compensation to the said Mrs. Lizzie (Lucy) Williams in any manner ; and,

“Whereas, it appears that the said Board order which was passed on the 21st day of December, 1928, was passed and enacted without legal consideration, and that order was void and invalid.”

That appellant, as owner of lot 6 and 15 feet of lot 6, block 2/1008, Maple avenue, was due the city "of Dallas taxes, penalties, and interest aggregating $041.52 up to December 15, 1928. By letter of date July 12, 1929, written by A. A. Long, assistant city attorney, addressed to the mayor and board of commissioners, they were advised that, in the opinion of said assistant city attorney, appellant’s claim for personal injuries, by virtue of having been struck and injured by one Miller, motorcycle policeman of the city of Dallas, was not a valid claim against said city, and that there had been no legal liability resting upon said city by virtue of said accident. The following excerpt from the appellant’s first amended original petition was offered in evidence by appellee:

“That heretofore, to wit, about the 6th day of September, 1926, the plaintiff was injured by being struck by a motorcycle ridden by one H. D. Miller, a member of the police department of the said City of Dallas, Texas, who was employed by the said City as a traffic policeman, whose duty was to assist the City in the control and regulation of traffic in and upon a street.”
“That at the time the said officer and servant of the City of Dallas was acting within the scope of his employment under the City, in and about its business as a municipal corporation, in keeping its streets cleared of traffic jams, speeding vehicles, and directing and controlling the traffic, and performing such other duties in connection with said traffic and municipal business of said City upon its streets and sidewalks, as he might be called upon from time to time to perform by the police or other departments of said City.”

H. B. Miller, witness for appellee, testified as follows: “I was riding a motorcycle out on Maple Avenue, in the City of Dallas, on September 6, 1926, when I struck a lady over here on Maple Avenue, and she appears to be Mrs. -Williams, the plaintiff in this case. At that time I was patrolling the streets of the City of Dallas, after a speeder, at that particular moment. I am a traffic officer, that is I was a traffic officer at that time, employed by the City of Dallas, in the motorcycle department, in the police department. I was working under the orders of Chief Trammell, Chief of Police of the City of Dallas. My hours at that time were from three to eleven in the afternoon. * * * Just before this accident I was in a filling station. I do not remember whether I just came out of there when I struck her, I do not remember whether I came out of the filling station or not, I had just taken off after a speeder, but I do not remember whether it was in the filling station or whether I was parked by the side of the street.”

Appellee testified in reference to the refusal to pay the claim as follows: “I refused the approval of the claim because the City Attorney told me that it was an illegal claim, that is the reason, and there was no funds to pay it. I would have paid it if the City Attorney had told me to pay it, and if there had been an appropriation made. * * * At the time I refused to issue the voucher, I knew that the Commissioners had entered an order allowing it, and I refused to issue because I thought they made a mistake of law, and that the City Attorney had; that the Commissioners made a mistake of law, and that first order, at least, was illegal, I asked them later, about the matter, in taking up those things, and I asked the City Attorney; and if he advises me to settle it then I go into the matter, and advise with him about them. At the time the voucher was submitted to me I was informed it was illegal, and that is the reason I have continued my refusal to pay it, up to now.”

That since the order of date July 12, 1929, repealing the order of date December 21,1928, no order had been entered by the board of Commissioners of the city of Dallas approving and directing the payment of appellant’s claim. That H. P. Kucera, member of the legal department of the city of Dallas, advised the mayor and board of commissioners, prior to the passing of the order of date December 21, 1928, by written opinion, that no legal liability existed upon the city of Dallas on account of appellant’s claim, and that, in disregard of this opinion, said order was passed.

The determination of this cause largely depends upon the legal effect of and the correlation of the following provisions of the city charter of Dallas, viz., section 9, art. 3: “The Commissioners named as the head of each department shall audit all accounts or claims against it, unless he be absent or fail so to do, in which event the Mayor shall appoint another Commissioner to act in his stead during his absence, or to audit such claims and accounts as the said Commissioner shall fail or refuse to act upon; but before payment all accounts shall be acted upon and approved by said Board of Commissioners at ¿ meeting of said Board.”

Section 3, art. 4: “It shall be the duty of the auditor to examine in detail all bills, accounts and claims against the said city, and if found correct, to sign his name in approval thereof, but if found incorrect he shall return them to the party presenting the same for correction. He shall be the general accountant of said city, and shall keep in books regular accounts of all real, personal and mixed property of the said city; of all receipts and disbursements of . money; and under proper heads, separately, each source of receipt and tlie cause of each disbursement; and shall also keep an account with each person, including the officers who have money transactions with said city, crediting amounts allowed by proper authority, and specifying the particular transaction to which such entries apply.”

As to the legal effect of said provisions of section 9, the commissioners of the city of Dallas are made its audit board; the primary work in that respect being divided between the four city commissioners, each commissioner being required to audit all accounts and claims against the department of which he has been selected head. That, in order for an account or claim so audited by a Commissioner to be paid, same “shall be act^d upon and approved by said Board of Commissioners at a meeting of said Board.” Said language of section 9, supra, definitely and exclusively designates and appoints the commissioners, individually and collectively, the audit board of the city of Dallas. No legal meaning less in effect can be given said language than that, after an account or claim has been “audited” by the head of the proper department, acted upon and approved by said board, such account or claim has been established for payment.

To “audit” means to hear, determine, and adjust or certify, and “an audit” means that an official examination has been made of an account or claim, comparing vouchers, charges, and fixing the balance. Fuller & Hiller I-Idwe. Co. v. Shannon & Willfong et al., 205 Iowa, 104, 215 N. W. 611, 613 ; O’Neil v. State, 223 N. Y. 40, 119 N. E. 95, 96. Therefore, in making an audit of appellant’s claim, said board was vested with the jurisdiction to hear evidence, pro and con, in reference thereto, determine the validity of said claim and the liability thereunder, make adjustments thereon, and to certify the conclusion reached by said board in reference to said claim. This involves, not only an official examination of said claim, but a judicial act in fixing the amount of liability. New York Catholic Protectory v. Rockland County, 212 N. Y. 311, 106 N. E. 80, 81; Id., 159 App. Div. 455, 144 N. Y. S. 552, 556; Conover v. West Jersey Mortgage Co., 96 N. J. Eq. 441, 126 A. 855, 861; Travelers’ Ins. Co. v. Pierce Engine Co., 141 Wis. 103, 123 N. W. 643, 644; City of Syracuse v. Roscoe, 66 Misc. Rep. 317, 123 N. Y. S. 403, 408; Territory v. Grant, 3 Wyo. 241, 21 P. 693; People v. Jefferson County Sup’rs, 35 App. Div. 239, 54 N. Y. S. 782, 784; People v. Board of Apportionment & Audit, 52 N. Y. 224, 227; People ex rel. Donlon v. Board of Town Auditors of Town of Pelham, 74 Hun, 83, 26 N. Y. S. 122, 124.

In New York Catholic Protectory v. Rockland County, 159 App. Div. 455, 144 N. Y. S. 552, supra, it is held that to audit is to hear, determine, and in its proper sense includes the adjustment or allowance, disallowance or rejection of a claim; and in Conover v. Mortgage Co., supra, the court held that to audit an account is to see that accountant is charged with everything with which he is chargeable and nothing is placed on the credit side to which he is not justly entitled to credit. In City of Syracuse v. Roscoe, supra, it was held: “The meaning of the phrase ‘to audit,’ when applied to claims against towns, cities, or counties, means to hear, to examine an account, and, in its broader sense includes its adjustment or allowance, disallowance, or rejection: ‘and the verb ‘audit,’ as so used, means simply to examine, to adjust, and clearly implies the exercise of judicial discretion.”

By the provisions of section 3, supra, it was not intended to create, and there was not created, the position of auditor, as that term is defined above, or to duplicate the duties enjoined upon the commissioners as the audit board of the city of Dallas; or to confer upon the one selected under the provisions of said section 3 as “auditor for the City of Dallas” the jurisdiction, power, and authority conferred by the provisions of section 9, supra, upon the commissioners individually and collectively, as the audit board of said city; but, to the contrary, the language-of said section 3 only confers upon the one selected under the provisions of said section 3 the duty that generally belongs to an accountant, viz. to examine as one skilled in or who keeps books of accounts to ascertain if the result reached, as shown by the items of an account or claim being- examined, is correct or accurate. The specific duty required to be performed, viz. “to examine in detail, all bills, accounts and claims against the said city,” is but an additional safeguard against errors of calculation being made both as to the items composing the account or claim and the amount allowed therefor. This is clear from the following language: “ * ⅜ * And if found correct to sign his name in approval thereof”; the word “correct” having reference to the items of and the amount for which the account or claim was allowed, as shown by the record of the proceedings in reference thereto. In this connection, the additional language of said provision is quite significant, viz.: “ * * * But if found incorrect he shall return them to the party presenting the same for correction.” This certainly excludes the idea that appellee, as such accountant, provided for by said section 3, in making the examination of accounts and claims against the city of Dallas, is clothed with judicial determination and acts as a special tribunal when performing such duty. This is borne out by the fact that appellee, as such auditor on a claim or account being found correct, is required “to sign his name in approval thereof” ; and on the other hand, if found incorrect, he is required to return such claim or account to the party presenting same for correction; not to correct the work performed by the board of auditors provided for by said section 9, supra, but undoubtedly only for the correction of some mathematical or clerical error in the amount of the account or claim. This would not be the case if the examination was for the purpose of ascertaining whether or not the audit made by the board of commissioners involving judicial determination was correct; for, if so, certainly a claim or account “found incorrect” would, by said section 3, be required to be returned to the board of commissioners. This we think sufficient to show that appellee, as “auditor” appointed under said section 3, has no power to revise an audit of an account or claim made under section 9, supra, or refuse to countersign a warrant drawn in payment of a claim that has been audited, acted upon, and approved for payment under the provisions of section 9, supra, unless it should appear from the proceedings had in reference thereto that such audit was obtained by fraud or collusion or from the face of such audit that same was illegally made. In either case, appellee would not only be warranted, but it would be his duty, to withhold the countersigning of a warrant issued for the payment of such claim. Superior Incinerator Co. v. Tompkins (Tex. Civ. App.) 37 S.W.(2d) 391.

Section 9, art. 3, supra, by unmistakable definite language fixes the jurisdiction, power, and authority with and upon the four city commissioners acting primarily, individually as the head of one of -the departments of the city government, and then collectively as a board, to audit all accounts and claims against the city of Dallas. Therefore it is a pertinent inquiry, viz., in what capacity do the commissioners act when discharging the duties required of them by the provisions of said section 9? We think undoubtedly that, in passing upon claims and accounts against the city, said commissioners as a board act in a judicial capacity and function as a special tribunal. Polk v. Roebuck (Tex. Civ. App.) 184 S. W. 513, 517; Williams v. Castleman, 112 Tex. 193, 247 S. W. 263; Padgett v. Young County (Tex. Civ. App.) 204 S. W. 1046, 1052; Smith v. Town of Anson (Tex. Civ. App.) 160 S. W. 114; People ex rel. Smith v. Clarke, Mayor et al., 174 N. Y. 249, 66 N. E. 819, 820. In the last cited case it was held that: “The rule which forbids the reopening of a matter once judicially determined under competent jurisdiction applies as well to decisions of special and subordinate tribunals as to the decisions of courts exercising general judicial powers * * * and decisions of boards of audit have been considered as embraced within the principle.”

Certainly the contention cannot be well founded that, by virtue of said section 3, art. 4, there is conferred upon appellee the same discretionary powers that are delegated to the commissioners of the city of Dallas by said section 9 for the purpose of discharging the-duties required of them by the provisions of said section. What authority did the new city administration have to revoke the order of date .December 12, 1928, passed by its predecessors, it not appearing upon the face of said order that it was induced by fraud or collusion, or was made in violation of some provision of the law applicable to and pror hibiting the making of same?

As to the acts of a board of audit, it is stated in 44 C. J. 1448, § 4643, that same, within its jurisdiction, in the absence of fraud or collusion, are final and conclusive, and cannot be questioned in a collateral proceeding.

In the instant case, there was neither allegation nor proof of collusion or fraud, nor illegality upon the face of the audit; therefore the power did not rest with the new eity government to revoke the order so entered by their predecessors in authority. Busch & Co. v. Caufield (Tex. Civ. App.) 135 S. W. 244; Brown v. Ruse, 69 Tex. 589, 7 S. W. 489; Edmonson, County Atty., v. Cumings (Tex. Civ. App.) 203 S. W. 428; Polk v. Roebuck, supra; Williams v. Castleman, supra.

As to the duties of appellee, same are well defined in section 3, art. 4, supra, viz.: “To examine in detail all bills, accounts, and claims against the said city”; this for the purpose of ascertaining whether or not same are correct, as evidenced by the following provision of said charter: “And if found correct, to sign his name in approval thereof, but if found incorrect he shall return the same to the party presenting the same for correction.” This certainly cannot be construed to confer upon the “city auditor” the powers of a special or subordinate tribunal, for that construction would, without justification, create an irreconcilable conflict between said article 4 and section 9 of article 3 of said charter. The balance of said .section provides for details that have, in no respect, any relation to the auditing of a claim against the city, as embraced within the language of said section 9, art. 3, and, on the whole, said article 4 only conferred upon appellee officially clerical duties; in no respect judicial. Chrestman v. Tompkins (Tex. Civ. App.) 5 S.W. (2d) 257. However, if it should appear upon the face of the audit of an account or claim that same was obtained by fraud or collusion, or was illegal, in that it was in violation of the provision of an ordinance or some other provision of the law applicable to the claim or account allowed, then certainly it would be his duty to refuse to sanction an order thus wrongfully made. Superior Incinerator Co. of Texas v. Tompkins (Tex. Civ. App.) 37 S. W.(2d) 391.

The audit of appellant’s claim was under the jurisdiction of the commissioner named as tile bead of tlie police and fire department, who made the preliminary audit required by section 3, supra, and then passed within the jurisdiction of the board of commissioners. Therefore, in the absence of fraud or collusion, existing as a matter of fact, or of illegality on its face, the audit was final and conclusive and not subject to collateral attack, or to be questioned in an indirect proceeding. 44 C. J.-1448, § 4643; People ex rel. Smith v. Clarke, Mayor et al., supra. Prom Smith v. Clarke, supra, we make the following quotation, as being very appropriate to the instant case: “An illegal audit can, of course, be attacked either directly or collaterally, because it is void, but not so in case of an audit that is based upon a legal power to act, but is erroneous as to some matter of fact or law. The' rule which forbids the reopening of a matter -once judicially determined under competent jurisdiction applies as well to decisions of special and subordinate tribunals as to ■ the decisions of courts exercising. general judicial powers * ⅜ * and decisions of boards of audit have been considered as embraced within the principle. .* * . * Under this rule it was not in the power of the comptroller to reaudit the claim which had been, legally audited by his predecessors in . office. * * ⅜ The foregoing ■view of this proceeding is not affected by the allegation in the comptroller’s answering affidavit that the relator had printed only 776 folios of matter, which, at the legal rate, would amount to only $388. This allegation raises no issue of fact, because it does not contradict any of the statements in the relator’s moving papers. It shows what the comptroller did, but throws no light upon the acts of the two auditing committees which preceded him. The most that can be claimed for it is that it shows the previous audits to have been either illegal or erroneous. But that is not enough, for the obvious reason that, if there was mere error in the audits, they cannot be reviewed in this proceeding; and, if ■they were illegal, there is no legal proof of the fact, and we cannot presume illegality.” Busch v. Caufield, Brown v. Ruse, Polk v. Roebuck, Williams v. Castleman, supra.

Under the facts of this case, said audit was not subject to be vacated by the Tate administration, as the auditing board of that administration had no power to re-audit appellant’s claim, same having been, upon the face of the record, legally passed upon by their predecessors in office. The act of the board in auditing appellant’s claim cannot be affected by the evidence introduced by appellee to justify his refusal to .countersign warrant in favor of appellant as ordered by said board. .This evidence raised no issue of fact, in that said audit was not questioned thereby. The • course pursued by ap-pellee, in reference to said audit was revealed, but did not present the facts that were before and upon which said board acted in making said audit. At most, the probative effect of said evidence was to show that the act of said board, in approving and ordering appellant’s claim paid, was either illegal or erroneous, but that will not suffice, for the apparent reason that, if there were error made in the audit, same may not be here reviewed, and, if illegal, no legal proof thereof was adduced, and illegality is not to be presumed. Especially is such presumption prohibited where facts could have existed, and it was not shown by the. record that same did not exist, upon which the audit could have been properly predicated; that such facts could have been present and acted upon, we cite the following cases: Carrington v. City of St. Louis, 89 Mo. 208, 1 S. W. 240, 58 Am. Rep. 108; Shinnick v. City of Marshalltown, 137 Iowa, 72, 114 N. W. 542; Town of Johnson City v. Wolfe, 103 Tenn. 277, 52 S. W. 991; Levin v. City of Omaha, 102 Neb. 328, 167 N. W. 214; 43 C. J. 921, 937, 966; Smith v. Arnold (Tex. Civ. App.) 251 S. W. 315; City of Desdemona v. Wilhite (Tex. Civ. App.) 297 S. W. 874; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S. W. 909.

Therefore, inasmuch as the officer, at the time he inflicted the injuries sustained by appellant, could have been engaged in a strictly municipal matter, as distinguished from a duty purely governmental in character, making the city of Dallas liable for such action, we must ■ presume, which presumption, under the state of the record before us, is indisputable, that the city commissioners in auditing appellant’s claim decided that, on grounds legal, the city was liable, and that question was not reopened in this litigation; in order to reconsider whether or not said officer might have been engaged in those duties which made him an officer of the state, in enforcing its traffic laws, and therefore the city was not liable. In other words, under the state of the record presenting this case, it is not for us to now inquire what the officer was doing at the time appellant sustained her injuries, it being sufficient for the disposition of this appeal for us to know, and it is all that we may inquire into, viz. whether it was probable for said officer to have been engaged in such an errand or .service as made the city liable. Having determined that such was reasonably possible, then, in aid of the validity of the city’s judicial act, we are to presume that its audit board at that time made proper inquiry and determined that the city was. -liable on account of the injury so received" by appellant.

Appellee very earnestly insists that, “at the time of the enactment of the b.oard order allowing the, claim, the facts recited therein show that the claim was barred by ,the $wo. years’ statute, of limitation, if any liability ever existed on tbe part of tbe City of Dallas.” Tbis cannot be sustained, as tbe uncontradicted evidence established tbe following facts, viz.: That appellant sustained tbe injuries complained of September 6,192(5; tbat on account thereof her claim was filed in tbe office of tbe city secretary December 30, 1926, and referred to tbe legal department December 31, 1926, by tbe Doard of commissioners; tbat said claim was primarily audited by Commissioner Parker, bead of the police and fire department (date not shown), by which it was recommended that the city aiiditor be instructed to pay appellant the sum of $1.716.52, in settlement of claim for damages sustained by her September 6, 1926; tbat said claim was passed upon and approved as so recommended by the city commissioners at a board meeting December 21, 1928; tbat suit was filed April 3, 1930.' On tbe filing of appellant’s claim, tbe running of tbe statute of limitation ceased, and was held in abeyance until payment under the audit thereof was finally refused by the passing of tbe order by tbe new administration of date July 12, 1929, for the purpose of revoking tbe order of date December 21,1928; therefore appellant’s claim, or cause of action, was not barred by tbe two-year statute of limitation át tbe time .her petition was filed, as same did not accrue until July 12, 1929, date of revocation order.

Appellant further contends tbat, because said order recites, “tbat part of the money allowed is to be paid in as taxes to the city of Dallas, which appellant owes to it, is nothing more than a releasing 'of taxes of an individual in violation of tbe constitution, and presents a complete defense to appellant’s cause of action.” The order entered, upon which this position is based, is as follows: “That tbe City Attorney be instructed to draw the necessary release in this connection. It is understood that out of tbe above settlement to Mrs. Williams she will pay $641.52 accumulated taxes on her homestead.” That the above language is not susceptible of the construction placed thereon by appellee, viz. that thereby appellant was released from the payment of taxes due by her to the City of Dallas, we think is self-evident, for, instead of the payment of said taxes being released, appellant is required by said language to pay to the city of Dallas the sum of $641.52 as taxes, penalties, and interest due the city out of said sum of $1,716.-52; therefore this proposition cannot be sustained.

By our research we have reached the conclusion that appellant was and is entitled to the relief sought; therefore the judgment of the trial court is reversed and judgment here rendered awarding writ of mandamus 'as prayed for; that appellee be and he is required in his official capacity to issue and countersign such check, order, or voucher and deliver same to appellant in accordance with the terms and provisions of the order allowing and directing the payment of appellant’s claim.

Reversed and rendered.


author: HALL, C. J.

text:
    PANHANDLE CONST. CO. v. SIKES et al.
    No. 3648.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1931.
    Rehearing Denied Oct. 7, 1931.
    Robt, A. Sowder, of Lubbock, for appellant.
    Morgan, Culton, Morgan & Britain, of Amarillo, for appellee North Texas Bldg. & Loan Ass’n.
   HALL, C. J.

The appellant company filed this suit in March, 1930, to recover the amount of a paving certificate issued by the city of Canyon and. to foreclose a lien on certain real estate owned by J. B. Sikes and wife. G. W. .Johnson, C. R. Burrow, and W. D. Ckeyne and the' North Texas Building & Loan Association, Inc., were made defendants, because, as alleged, they are claiming some interest in the property.

The substance of the appellant’s (construction company’s) petition is that Canyon was a city of more than 1,000 inhabitants, and that prior to January 30, 1928, the governing body of said city ordered improvements made on Third avenue along the east fifty feet of the S. W. ½ of block 1, Victoria addition to said town; that' said improvements were to be made in accordance with plans and specifications furnished by the city engineer, and on said last-named date the city entered into a contract with the appellant, construction company, whereby the latter was to improve said street in front of the property described at a cost of $205; that the city would issue to appellant improvement certificates evidencing a lien against the property from the date such improvement was ordered; that such certificates should recite that all the proceedings with reference to the improvements were regular and the prerequisites to the fixing of the lien had been complied with.

Appellant further alleged that proper notices of the order for improvement of the street had been given fixing March 3, 1928, as a date for the hearing; that at said time it was determined that the value of the property would be enhanced by at least the sum of $205, and the order and contract of January 30, 1928, was confirmed by the city authorities.

It was further alleged that Sikes and wife executed and delivered to appellant their contractor’s and materialman’s lien for the improvements mentioned in the sum of $205; that after the 3d day of March appellant completed plans and specifications, in accordance with its contract with the city, at which time the certificate was issued to appellant in said sum of $205, payable in six equal payments ; that, on account of the failure to pay the first and second installments, appellant had declared the entire debt due and asked that a reasonable attorney’s fee, which it alleged to be $175, be allowed.

It is further alleged that the defendant Johnson owned the lot in question on January 30,1928, and sold the same to defendant Sikes on February 3,1928; that the defendant Burrow is claiming to be the owner of a lien on the property in the sum of about $368 and interest; that Sikes and wife had executed a deed of trust to secure the appellee North Texas Building & Loan Association in the payment of $1,500, a part of which has been paid; that on the 8th day of March, 1930, J. K. Estes, as substitute trustee for the Building & Loan Association, caused notice of sale to be posted, and sold the property April 1, 1930; that the appellant’s lien was superior to the lien of the North Texas Building & Loan Association.

The prayer was for an injunction restraining the trustee’s sale, for judgment for the debt, interest and attorney’s fees, and general relief.

The defendant North Texas Building & Loan Association answered by general demurrer, general denial, and specially answered that, at the time of the filing of the suit by appellants, it was the owner of a first lien covering the property above described, which lien was evidenced by a deed of trust executed' by Sikes and wife on May 16, 1928, to secure a note for $1,500 of even date with said trust deed, said sum of money having been advanced by appellee to Sikes and wife for the purpose of refinancing, renewing, and extending a prior lien for said amount, said prior lien being a mechanic’s lien note for $1,600; that said property at said time was community property and the homestead of Sikes and wife under the laws and Constitution of Texas, and was at the time of the fixing of the purported paving lien their homestead, and had been since January 4, 1928; that for said reason no valid lien of any kind could be created on said property other than a contract lien for improvements, by reason of which facts the lien fixed by the ordinance of the city of Canyon on January 30, 1928, was wholly void; that, by accepting the contract lien made by Sikes and wife on March 21, 1928, appellant had waived its purported lien fixed by said ordinance; that appellee had no knowledge, express or implied, of any attempt on the part of the city of Canyon to create a lien by an ordinance of January 3, 1928, covering the property in question, which said ordinance was passed after the property became the homestead of Sikes and wife.

The defendant further attacked the validity of the trustee’s sale to A. B. Duncan, and asked that the cloud east upon the title by said sale be removed.

The case was tried to the court without the intervention of a jury. The court found in favor of Sikes and wife, and entered judgment accordingly.

On the 30th day of January, 1928, the city commission of Canyon passed Ordinance No. 61, .wherein certain improvements and paving were ordered on Third avenue adjacent to the property in question. The ordinance levied an assessment fixing a lien against the property above described to secure the payment of part of the costs of paving and improving the street in front of said lot. The property was the homestead of J. B. Sikes and wife January 4,1928, at which time they entered into a mechanic’s lien contract with C. R. Burrow for the purpose of placing improvements upon said lot and creating a lien to secure a note for $1,600'; that' on March 17, 1928, Burrow transferred a $1,500 interest in said note and lien to tlie North Texas Building & Loan Association. Afterwards Sikes and wife executed a deed of trust to said Building & Loan Association covering the property for the purpose of securing the payment of a note for $1,500 given in renewal and extension of the $1,500 interest owned by the Building & Loan Association in the $1,600 note which had been given to Burrow. On March 21, 1928, a paving lien contract was entered into between J. B. Sikes and wife, Angie Sikes, to the appellant, construction company, whereby a lien was created covering the property above described, for the purpose of securing the payment of the paving certificate sued on herein, which had been previously issued.

The court found that, at the time of all of these transactions, the property involved was the homestead of Sikes and wife. The court further found that the action taken by the city commission did not, in fact, order an assessment against any property in the town of Canyon for the purpose of securing the payment of a part of the costs incurred in paving and improving the street in front of the property involved.

The court concluded as a matter of law that Ordinance No. 61 did not have the effect of creating a valid lien on the property, because of the homestead rights of Sikes and wife at the time said ordinance was enacted, and further concludes that the contract made by Sikes and wife with the Panhandle Construction Company was subject to, and inferior to, the lien created by contract between Sikes and wife and Burrow on February 3, 1928. There are other findings and conclusions filed by the court which are not necessary to the consideration of the errors assigned and insisted upon.

The first contention to be considered is that, because the city of Canyon received and acted upon petitions signed by citizens asking for the pavement of certain particular property and ordered a bond election to pay a portion of the cost, and because said city further advertised for and accepted bids for such paving, such action is tantamount to an order to pave said street within the meaning of the statute which fixes the lien on abutting property to secure payment for such pavement.

On the other hand, the appellee contends that, in order to fix a valid lien upon abutting nonhomestead property for street improvements, the governing body of the eity must pass either an ordinance, motion, order, or resolution ordering the improvements, and that no such action was taken in this case.

R. S. art. 1105b, provides in section 3 thereof that the governing body of any city shall have power to determine the necessity for and order the improvement of any highway, highways, or parts thereof within the city. Within the meaning of this article, “highway” includes street. Section 4 of said article provides that, before any such improvements are actually constructed, and before any hearing is held, the governing body of the city shall prepare, or cause to be prepared, an estimate of the cost of such improvements. Section 6 provides that any assessments against abutting property shall be a first and prior lien thereon from the date the improvements are ordered, and shall be a personal liability and charge against the. true owners of such property at said date, whether named or not, from the date the improvements are ordered. Section 8 'contains the provision that nothing within the act shall empower any city to fix a lien against any interest in property exempt at the time the improvements are ordered.

Thus it will be seen that, in order to fix a valid lien, the eity must, by resolutions, ordinances, motion, or order duly passed, order the improvement adjacent to the specific property upon which a lien is sought to be fixed. According to the record, the only reference made in the proceedings of the city commission to the paving of the street upon which the property involved abuts is as follows: “The Oity Commission has before it petitions from the citizens of Canyon for paving certain streets within said city, being parts of Third Avenue from 10th St. to 20th St., part of Seventh Avenue from 8th St. to 23rd St., and 14th Street from Third Avenue to Seventh Avenue, and there appears to be other petitions out that have not been filed yet; therefore this City Commission desires to grant said paving or so much thereof as the citizens want and issue bonds of the city to pay the city’s part thereof.”

The election for the bonds was ordered for December 31, 1927. Ordinance No. 61, being the first action of the commission which ordered the street to be paved, was passed January 30, 1928, and it is clear from the record that at that time the lot in question was the homestead of Sikes and wife, so the effect of the whole proceeding was to create a personal indebtedness against the owner of the property at the time of the improvements, but any attempt to create a lien is necessarily void under article 16, § 50, of the Constitution of Texas. Johnson et al. v. City of Ft. Worth (Tex. Com. App.) 299 S. W. 883; Smith Brothers, Inc., v. Lucas (Tex. Com. App.) 26 S.W. (2d) 1055.

“Generally speaking, the authorization of a public improvement by the municipal authorities must be by an order in some form and when the power to make improvements is conferred in general terms the municipality may exercise the same only by formal legislative action on the part of the City Council, it being frequently provided by charter or statute that an ordinance by law or a resolution shall be necessary, in which case it becomes a condition precedent to the making of improvements or levying a tax to pay for same.” 44 C. J. 270, § 2437. City of Waco v. Prather, 90 Tex. 80, 37 S. W. 312;' Elmendorf v. San Antonio (Tex. Com. App.) 242 S. W. 185; City of Waco v. Chamberlain (Tex. Civ. App.) 45 S. W. 191; Noel v. City of San Antonio, 11 Tex. Civ. App. 580, 33 S. W. 263.

In Elewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043, 1044, Judge Gaines said: “It is not to be doubted that, in order 'to enable a municipal corporation to charge the owners of property abutting on a street with the cost of its improvement, the power must not only be expressly conferred by law, but the provisions of the law must be strictly pursued. The successive steps directed to be taken preliminary to ordering the work to be, done, the manner of letting the contract, and the mode of constructing the improvement, when provided for in the law, are intended for the protection of the property owner, and are his safeguards against the exercise of arbitrary power. Each act required to be done is essential to the exercise of the jurisdiction, and each must be rigidly performed. The courts cannot say that the omission of some requirement is unimportant, or that an act different from that directed is substantially as good. The effect of the proceeding being to charge the property of the citizen with a burden for the public benefit, the requirements of the law as to the exercise of the power should be deemed mandatory.”

Under article 1105b, the court was authorized to render a personal judgment, but, because of the failure of the city authorities to formally order the pavement prior to the time the property became subject to the homestead exemption, we think the court correctly held that there was no lien and denied any foreclosure.

The judgment is therefore affirmed.


author: WALTHALL, J.

text:
    WARNER v. BUCKLEY et al.
    No. 2536.
    Court of Civil Appeals of Texas. El Paso.
    July 9, 1931.
    Rehearing denied Sept. 17, 1931.
    John J. Yowell, of Chicago, Ill., and Chas. G. Russell, of San Angelo, for appellant.
    Paul Moss, of Odessa, Russell & Starley, of Pecos, and Wurdeman, Stevens & Hoester, of Clayton, Mo., for appellees.
   WALTHALL, J.

At a former day of the present term of this court we handed down an opinion in this case. On a review of what we there said we have concluded that we were in error, and we now withdraw that opinion, and in lieu thereof substitute the following:

The record shows that this case was not tried before Hon. Charles L. Klapproth, the regular district judge of the district court of Ector county, but was tried before Hon. John L. Fowler as special district judge, selected by the practicing attorneys present, in the absence of the regular' judge. The record shows the regular term of the court came on to be held on September 29, 1930; the regular district judge, the sheriff, district attorney, and district clerk all being present when the following proceedings were had:

“Friday, October 10th, 1930.
“On this day came on to be held an election of a Special Judge to preside at the balance of the unexpired term of the Honorable District Court of Ector County, Texas, the regular Judge, Chas. L. Klapproth now being confined to a hospital and not being present, and the attorneys at this bar présent, to-wit: W. R. Smith, Jr., D. Vance Swann, E. C. Lock-lear, Paul Moss and John L. Fowler. It is ordered that a special judge be elected to fill out the unexpired term of said Court now in session. Motion made by Paul Moss that John L. Fowler be nominated and seconded by D. Vance Swann. Motion by W. E. Smith, Jr., that said nominations be closed and John L. Fowler be unanimously elected and seeond-ed by D. Vance Swann. Motion put to a vote and all attorneys present voted in favor of said motion. It is therefore ordered that John L. Eowler is elected Special Judge of the District Court of Ector County, Texas, to fill out the unexpired term of the September Term A. D. 1930, of said Court.”

The prescribed oath of office was then taken and subscribed by the special judge before the district clerk on the day of the election with .the seal of the district court impressed thereon.

Appellant duly assigned error, and presents propositions on the ground to the effect that Hon. John L. Eowler was assuming to act as special judge in this cause over his objection and protest, said election as special judge not having been held, and he not having been elected as such special judge in accordance with the provision of the statute for the election of a special judge.

Appellees object to a consideration of appellant’s propositions because, as asserted, said propositions “do not raise propositions of law reserved by any assignment, and do not embrace questions raised by assignments of error,” and that “appellant having submitted his case to the trial court without objection to the manner in which the Special Judge was elected cannot raise said question, but is es-topped.”

The objections, we think, are not well taken. The fact that the special judge was, at the time of his election, county attorney of Ector county, would not disqualify him as special judge. Our courts have so held, and we need not further discuss that ground of disqualification. The only question we need to discuss as a disqualifying cause is: Do the minutes of the clerk, as above, show a substantial compliance with statutes providing for the election of the special judge to try this case; the record of the minutes of the clerk of the proceedings had in the election of the special judge being the evidence of the election and qualification of the special judge.

Article 1887 of our Civil Statutes provides: “Should the judge of a district court on the first or any future day of a term, fail or refuse to hold the court, the practicing lawyers of the court present may elect from among their number a special judge who shall hold the court and proceed with the business thereof.”

The minutes of the clerk show that the regular judge was at that time, a day of the unexpired term, confined to a hospital, and was not, and could not be, present. We conclude therefrom that the regular judge, on October 10, 1930, failed to hold the unexpired term of the court, and that an election of a special judge could then be had.

Article 18SS of the Civil Statutes provides that such election shall be by ballot, the practicing lawyers in attendance are entitled to participate and each entitled to one vote, and that a majority of the votes cast shall be necessary to the election of such special judge.

Article 1889 of the Civil Statutes provides: “The election shall be conducted as follows: The sheriff or constable shall make proclamation at the court house door that the election of a special judge of the court is about to be made by the practicing lawyers present; the clerk shall then make a list of the practicing lawyers present; and such lawyers shall then organize and hold the election.”

The next succeeding article of the statute provides for the election of a sheriff and clerk pro tempore should the sheriff or constable and clerk fail or refuse to act, and that such elected sheriff and clerk shall perform the duties of such officers.

Article 1891 of the Civil Statutes provides that “the clerk shall enter upon the minutes of the court a record of the election of . such special judge, showing;

“1. The names of all the practicing lawyers present and participating in such election.
“2. The fact that the public proclamation was made at the court house door that such election was about to take place.
“3. The number of ballots polled at such election and the number polled for each person, and the result of the election.
“4. That the. oath prescribed by law has been duly administered to the special judge.”

The election of the special judge is to supply the absence of the regular judge, and thus prevent a failure to hold a term of the court.

It is a well-established rule that judicial power may be conferred upon a court, or person, only by authority of law, and it is the right .of litigants to have their cases tried before the judge duly chosen to discharge the judicial functions of the Court. Volume 33, C. J. p. 1024, § 203, and cases cited in notes.

The record shows that the regular judge of the district court, by reason of sickness and confinement in the hospital, was disabled from holding the term of the court, and the question presented here goes only to the sufficiency and regularity of the election of the special judge to authorize him to hold the unexpired term of the court and try this case. If the record of the election does not show a substantial compliance with the statute providing for the election of the special judge, there could be no judgment in the case, and the proceeding had on the trial would be a nullity. The statute is plain, explicit, and unambiguous in stating the proceedings that must be observed in the election of a special judge.

There are some minor or less important provisions of the statute, if it can be said that some of its provisions are less important than others, which the record does not show were observed in holding the election, such as organizing the lawyers present into an electoral body in order that it might be orderly or determined by the lawyer taking part that the election of a special judge is about to be made, and in order that the sheriff or constable could make proclamation at the courthouse door that such election is about to be made; the statute requires that the voting for the special judge be by ballot, which the record does not show was done. We do not, however, base our holding upon a failure to observe the above requirements of the statute.

The statute provides that “the sheriff or constable shall make proclamation at the court house door that the election of a special judge of the court is about to be made by the practicing lawyers present.” The clerk then makes the list of the practicing lawyers present, and the lawyers present then organize and hold the election. To stress the importance, if not the necessity, of such proclamation as above, the statute provides that, should the sheriff or clerk fail or refuse to act in the matter of making such proclamation or list, the lawyers thus organized may appoint a sheriff and clerk pro tempore to perform such duties. The record does not show that such proclamation, or any proclamation, was made, or attempted to be- made, at the courthouse door that/an election of a special judge was about to be made.

The above proclamation is the only notice of the election of a special judge provided by statute for giving notice to litigants or the public.

We think the failure to make the proclamation at the courthouse door is not a mere irregularity in the proceedings, but an absolute failure to comply with a plain and necessary provision of the statute in the proceedings prescribed in the election of a special judge, which the statute says shall be done, and that the failure to make such proclamation voids the election. We have found no case discussing the direct point at issue.

In Grogan v. Robinson (Tex. Civ. App.) 8 S.W.(2d) 571, 574 (a writ of error refused), the Dallas court said that “a strict regard for and adherence to the very letter of the law permitting parties to select a Special' Judge to preside in their cause should be observed and enforced.”

In Clements v. Fort Worth & D. S. P. Ry. Co. (Tex. Civ. App.) 7 S.W.(2d) 895, 898, the Amarillo court said: “The rule is that a judgment rendered by a special judge who had not been appointed or selected in accordance with the constitutional and statutory requirements governing such matters is an absolute nullity.”

That ease arose under article 3266, R. C. S. The court said that- the article contemplates that there must first be a bona fide attempt to agree upon a special judge, and that the parties have failed to agree before the certificate provided for can properly be made, and further provides the procedure for the appointment of a special judge in the cases. The court further said: “It has not been complied with in the instant case. It follows, from what has been said, that Judge Easter [the special judge appointed by the governor, based upon the certificate] was not a de jure ^udge, and had no authority to appoint commissioners to assess the damages [in a condemnation proceeding for right of way]. It also follows that the commissioners acted without authority.”

The court reversed the case holding that judgment of a special judge, not appointed as provided by the statute, was a nullity, and referred to Bailey v. Triplett Bros. (Tex. Civ. App.) 278 S. W. 250; Summerling v. State, 69 Tex. Cr. R. 275, 153 S. W. 890; Dunn v. Home Nat. Bank (Tex. Civ. App.) 181 S. W. 099; Pickett v. Michael (Tex. Civ. App.) 187 S. W. 426; T. & P. Coal Co. v. Ready (Tex. Civ. App.) 198 S. W. 1034; Cohn v. Saenz (Tex. Civ. App.) 194 S. W. 685.

It is true that the cases referred to are where appointments of a special judge have been made, or where parties litigant have agreed among themselves upon a special judge to1 try a case, but the facts or circumstances provided by the statute did not exist which authorized such appointment or agreement. In such cases the courts have uniformly held that such appointment or agreement, in the absence of facts authorizing such appointment or agreement, did not have the effect to clothe the special judge with judicial authority.

In the instant case, the statute provides for the election under the circumstances then present of a special judge, and that the “election shall be conducted as follows”: The officer named shall make proclamation, stating the place, the facts to be proclaimed, by whom the election is to be made, the names of those taking part listed, and that those listed “shall then organize and hold the election.” The statute then requires that the clerk shall enter upon the minutes of the court the fact that such proclamation was made, thus preserving the evidence of such fact, showing the importance attached to such proclamation by the legislature in the election of a special judge.

The election of a special judge, in order to have the constitutional sanction, must be held “in such manner as may be prescribed by law.” Const, art. 5, § 11. There are many instances in the administration of the law in which a proclamation or public notice of some kind is required to be made, and upon the making or giving of which the rights of parties depend. We need not enter upon a discussion of so extensive a subject, but must content ourselves by simply saying that in the election of a special district judge the statute explicitly provides that a proclamation shall be made that such election is about to be made, and that then, and not until then, such election shall take place. The proclamation provided by the statute is in the nature of a condition precedent to an election by the practicing attorneys present, as also seems to be the preservation of such fact by its entry on the minutes of the courts.

We think the proclamation prescribed by the statute necessary to a proper election of a special district judge, and that, because such proclamation was not made, the proceedings had in the trial of this case were void.

Judicial power is a sovereign power exercised through a mandate from the state, and the exercise of that power by any person other than the regular judge must be supported by the sanction of the state as prescribed.

For the reason stated, the case must be reversed and remanded, and it is so ordered.


author: HIGGINS, J.

text:
    J. M. RADFORD GROCERY CO. et al. v. HOTHAN.
    No. 2566.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 17, 1931.
    Hill D. Hudson, of Kilgore, and Cox & Hayden, of Abilene, for appellants.
    Russell & Starley, of Pecos, for appellee.
   HIGGINS, J.

The J. M. Radford Grocery Company had a judgment against F. R. Hothan and G. Crutcher. Execution was issued upon this judgment, placed in the hands of Ray Clapp, sheriff of Winkler county, and by direction of Radford Company the execution was levied upon the stock of goods in a retail grocery store in the town of Wink. The goods were later sold under the execution and purchased by said company.

Appellee, Mrs. A. D. Hothan, brought this suit against the Radford Company and the sheriff, alleging that she was the owner of the groceries which was her stock in trade in a retail grocery business operated by her, and asked damages actual and exemplary for the alleged wrongful seizure and conversion of the property.

It was contended by- the defendants that the stock of goods was owned by the' judgment debtors, but this issue was found in favor of the plaintiff. Upon special issues the jury found that Mrs. Hothan had established a good will in connection with said grocery business prior to the date of the levy which was made on March 21, 1930, and the cash market value of said good will at that time in Wink was $1,600; that such good will was lost to the plaintiff by reason of the levy; that defendants held possession of the building for twenty-six days, and the closing of the building and holding of the same forced the plaintiff to discontinue her grocery business .for twenty-six days; that plaintiff suffered a loss of profits in her business by reason of the closing of same and holding-possession of the building, and the profits so lost amounted to $550; that the cash market value of the stock of groceries on March 21, 1930, in Wink was $1,550.

Upon these findings and others which need not bo stated, judgment was rendered against the Radford Company and the sheriff for $3,700, from which they appeal.

Upon the trial evidence was admitted over objection as to the retail value of the groceries. The court gave no definition of the term “cash market value” of the stock of groceries as used in the charge. The value of the stock of goods at which it might be sold at retail is not the proper basis for determining their market value. Needham P. & O. Co. v. Hollingsworth, 91 Tex. 49, 40 S. W. 787; Tucker v. Hamlin, 60 Tex. 171; Miller & English v. Jannett & Franke, 63 Tex. 82.

As was stated by Judge Gaines in the case first cited, “The market value is what the goods could-have been promptly sold for in bulk or in convenient lots.”

We do not desire to be understood as holding that in all eases it would be incumbent upon the court to give a definition of the .term “cash market value.” Ordinarily, there would be no occasion to give such definition or explanation, for it is a term commonly used and readily understood, but in the present case the jury might well have believed that the market value of the goods should be determined upon the basis of their retail value. The retail value involves the element of profits, and no issue of malice, express or implied, was submitted by the court for determination. There is thus no basis for the award of exemplary damages by way of lost profits and for the value of the good will. The award of damages for such profits and the value of the good will cannot be sustained in the state of the record. We are reluctantly constrained to so hold under the authoi’-ities cited above, as well as Kaufman & Runge v. Armstrong, 74 Tex. 65, 11 S. W. 1048; Kirbs & Spies v. Provine, 78 Tex. 353, 14 S. W. 849; and Tynberg v. Cohen (Tex. Civ. App.) 32 S. W. 157. As we understand the cases last cited, loss of profits and damage to good will are recoverable only as exemplary damages, and, as pointed out above, no finding of malice, express or implied, was submitted to or found by the jury, and hence no basis exists for the award of exemplary damages.

Error is assigned to the exclusion of testimony of the defendant Clapp to the effect that the grocery store in question had the reputation of being a place where whisky was sold. This presents no error. In the first place, the bill of exception relating to this matter discloses that the witness would not have testified as is asserted by the appellants. Furthermore, if he would have so testified, it would have afforded no justification for the wrongful seizure and conversion of appel-lee’s stock of groceries under execution against the judgment debtors.

Complaint is also made of certain sidebar remarks made by one of the counsel for plaintiffs. The remarks were manifestly improper, but we do not regard same as reversible, because they were evidently prompted by the effort of counsel for the appellants to convey to the jury the inference that plaintiff was running a bootlegging establishment when the evidence relied upon to show such fact had been excluded by the court. Furthermore, the court promptly instructed the jury not to consider the remark of plaintiff’s counsel.

The objection is not well taken that special issue No. 9 is upon the weight of the evidence. In this connection see what was said by Justice Lane in McCallum v. Houston Electric Company (Tex. Civ. App.) 280 S. W. 342.

The invoices referred to in the fifteenth, sixteenth, seventeenth, and eighteenth propositions were properly admitted in evidence. Standing alone, these invoices would not be regarded as competent evidence of- Mrs. Hothan’s ownership of the groceries covered by-the invoices. 33 C. J. 811; Federal Insurance Co. v. Munden (Tex. Civ. App.) 203 S. W. 917; Sturm v. Boker, 150 U. S. 312, 14 S. Ct. 99, 37 L. Ed. 1093. But other testimony in the case relating to the invoices rendered same admissible on the issue of ownership.

The evidence referred to in the nineteenth proposition was properly admissible under the plaintiff’s pleadings upon the issue of exemplary damages. As heretofore pointed out, this issue was not submitted to the jury, but that did not affect the admissibility of evidence upon the issue. AVhen the court determined not to submit the issue of exemplary damages, appellant should have a.sked an instruction to the jury to disregard the evidence which had been previously admitted upon the issue. Kaufman & Runge v. Armstrong, 74 Tex. 65, 11 S. AV. 1048.

AVhat is here said applies also to the evidence referred to in the twentieth and twenty-first propositions.

Complaint is also made of the form of special issue No. 5. This issue related to the contention -of appellants that the judgment debtor, F. R. Hothan, owned an interest in the stock of groceries and business conducted by the plaintiff. The question was submitted in negative form, and, among other objections, it is urged that it was calculated to confuse the jury. Upon retrial, it would be well to avoid any possibility of confusion in submitting the issue indicated.

The matters referred to in the twenty-third and twenty-fourth propositions present no error, and call for no discussion.

Reversed and remanded.