text:
    Margie Lyon KIRKLAND, Appellant, v. Oma Clyde KIRKLAND et al., Appellees.
    No. 16347.
    Court of Civil Appeals of Texas. Fort Worth.
    June 29, 1962.
    Rehearing Denied Sept. 14, 1962.
    See also 324 S.W.2d 21.

      Hollis D. Garmon, Greenville, for appellant.
    R. A. Kilpatrick, Cleburne, for appellee Oma Clyde Kirkland.
    Will Wilson, Atty. Gen. of Texas, and Fred D. Ward, Asst. Atty. Gen., Austin, for appellee Teacher Retirement System of T exas.
   BOYD, Justice.

Kenneth L. Kirkland, Sr., was a member of the Teachers Retirement System. He married Margie Lyon Kirkland on June 6, 1938. On August 14, 1938, on forms prepared by the System, Mr. Kirkland designated his sister, Miss Oma Clyde Kirkland, as his beneficiary. Kenneth L. Kirkland, Jr., the only child of Mr. and Mrs. Kirkland, was born December 19, 1938. Mr. Kirkland died intestate on January 15, 1958, leaving his wife and son as his only heirs at law.

Mr. Kirkland had not retired at the time of his death. The amount of accumulated contributions credited to him at the time of his death was $3,920.83. This amount is being held by the System pending the outcome of the suit.

Mrs. Kirkland sued Miss Kirkland, .the Teachers Retirement System, and Kenneth L. Kirkland, Jr., for a judgment declaring that the plaintiff is entitled to receive such funds and that they be awarded to her.

The case proceeded to trial before a jury and on April 17, 1961, after all parties had rested, the court announced that he believed there was no fact issue to be submitted, and that he would discharge the jury. Mrs. Kirkland objected to the court’s action in taking the case from the jury, and took a nonsuit. At that time Miss Kirkland had on file an answer asking that her designation as beneficiary be upheld and that she recover the benefits in controversy.

Nothing else was done in this case until August 15, 1961, when Mrs. Kirkland filed a paper styled “Amicus Curiae”, wherein she referred to herself as “plaintiff”, stated that she was not then a party to said cause, and that subsequent to the nonsuit she filed suit in the District Court of Travis County in the form of a class action against the Teachers Retirement System, the State Board of Trustees, and Frank M. Jackson as the representative of all members of the System and saying that Miss Kirkland should be made a party in that suit. She moved that this cause be consolidated with the cause in Travis County, and stated that a similar motion was pending in the Travis County case. She then prayed that a hearing be set as quickly as possible and that Miss Kirkland show cause why her cross-action should not be consolidated with the case in Travis County.

On September 22, 1961, Miss Kirkland filed a motion for judgment against Mrs. Kirkland, Kenneth L. Kirkland, Jr., and the System stating that the case had been fully tried and developed both as to the plaintiff’s action and the cross-action of Miss Kirkland against the plaintiff, Kenneth L. Kirkland, Jr., and the System.

On November 21, 1961, the court heard the motion for judgment, and rendered a decree declaring that Miss Kirkland is the legal beneficiary and entitled to receive the accrued contributions under the certificate of the deceased, and that she recover from the System judgment for $3,920.83, and directed the System to pay to her all sums that will accrue in the future by virtue of deceased’s having been a member of the System. From this judgment Mrs. Kirkland has appealed.

The Teachers Retirement Act authorizes ■designation of beneficiaries.

Miss Kirkland herself is a retired teacher, and is drawing retirement benefits. Appellant contends that if Miss Kirkland receives the benefits under the assignment in question she will receive two retirement pensions, which would be a violation of the Constitution and laws of this State, and particularly Article 3, Section 48a of the Constitution, reading in part as follows: ■“ * * * the recipients of such retirement fund shall not be eligible for any other State pension retirement funds or direct aid from the State of Texas, unless such other State pension or retirement fund, contributed by the State, is released to the State of Texas as a condition to receiving such other pension aid; * *

We do not believe that Miss Kirkland, should she be paid the benefits under the ■certificate of the deceased, would be the recipient of two state pensions. In Woods v. Reilly, 147 Tex. 586, 218 S.W.2d 437, a suit involving the Teachers Retirement Act, it was said:

“The petitioners have erroneously assumed that a nominee or designee under an optional allowance is a pensioner attempting to qualify as a teacher-member. Such is not the case. On the contrary, he is a mere beneficiary designated to receive the unpaid balance due the teacher at the time of his death, a balance which ordinarily the teacher might have been paid before death had he elected to receive upon retirement the whole of his membership and prior-service annuity payments for life, rather than the reduced amount with remainder to another.” The Supreme Court quoted with approval from the opinion of the Court of Civil Appeals in the same case, 211 S.W.2d 599, as follows: “ ‘The annuity benefits under the Teacher Retirement System are determined by fixed standards and formulas prescribed by the law. No person not qualified under the Constitution or the statutes is originally eligible to receive benefits under the Retirement Act. Once these rights have accrued in favor of one eligible to receive them, there is no constitutional prohibition against their assignment or transfer. The Retirement Acts expressly authorize such transfer.’ ”

We cannot agree with appellant’s second contention that the designation of Miss Kirkland was ineffective because the form used is not identical with the form now required by the State Board of Trustees. It was shown that the form used was prescribed by the System and was the one in use in 1938.

Appellant’s third point is that the assignment is ineffective because the Retirement Act provides that an assignment, transfer, or pledge of any salary or wages due or which may become due, as security for indebtedness, shall be valid only if written consent to such assignment shall have been obtained from the employing authority, and such assignment is acknowledged in the manner required when making deeds, and, if made by a married person, it is acknowledged in the same manner by his or her spouse. The designation under investigation was in no sense made as security for any indebtedness, and we think the provision invoked is inapplicable. This point is overruled.

We overrule the fourth point, which is that the designation of Miss Kirkland is testamentary in character, and since it was not executed under the formalities required in the execution of wills, the deceased’s interest in the funds vested in his heirs, and because, furthermore, Mrs. Kirkland did not join in the execution of the designation. We do not think the designation was testamentary. This holding, we think, finds support in Buehler v. Buehler, Tex.Civ.App., 323 S.W.2d 67, and Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470.

Appellant contends in her last point that issues of fact were presented as to whether appellant was defrauded by deceased in violation of her rights in community property, and that it was error to withdraw the case from the jury. The deceased was the owner of considerable separate estate, and there was evidence that the community estate amounted to $40,000.00 or more. It all went to his wife and son, except the fund in controversy. He was under a moral obligation, if not a contractual one, to help his sister. She had executed her will, in which deceased was named as beneficiary. They had an afflicted brother, who to some extent had been a charge upon both since his early childhood. In a similar situation the court said in Jones v. Jones, Tex.Civ.App., 146 S.W. 265, that where a deceased left such an estate for the benefit of his wife and child it would rebut any inference that he might have tried to injure his wife. See, also, Martin v. McAllister, 94 Tex. 567, 63 S.W. 624, 56 L.R.A. 585. What we have said makes it unnecessary to consider the effect of appellant’s failure to ask for a jury after her nonsuit.

Finding no error, the judgment is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    W. Howard LEE, Appellant, v. Hedy Lamarr LEE et al., Appellees.
    No. 13968.
    Court of Civil Appeals of Texas. Houston.
    June 14, 1962.
    Rehearing Denied July 12, 1962.
    Second Motion Overruled Sept. 13, 1962.
    See also 355 S.W.2d 255.

      Jack Binion, Fletcher H. Etheridge, Houston, Butler, Binion, Rice & Cook, Houston, of counsel, for appellant.
    Fred Parks, Donn C. Fullenweider, Houston, for appellees.
   WERLEIN, Justice.

This is an appeal by W. Howard Lee from an order of the trial court dissolving a temporary injunction previously granted restraining appellees, Hedy Lamarr Lee et al., from taking the depositions of some 13 witnesses to perpetuate their testimony in a suit which appellee alleged she anticipated filing against appellant. At the time the temporary injunction was granted on June 23, 1961, the trial court ordered that the writ of injunction should issue without prejudice to the right of appellees to move to dissolve the injunction after having amended their petition to perpetuate testimony so that the same would include such information regarding the nature of the anticipated suit as would fairly enable appellant Lee and his attorneys to cross-examine the proposed witnesses on the taking of their depositions. Thereafter, appellees filed an amended statement, which was sworn to, in which they alleged that ap-pellee Hedy Lamarr Lee still desired to perpetuate testimony pursuant to Rule 187, Texas Rules of Civil Procedure, and as a basis therefor represented to the court:

“That your Petitioner anticipates the institution of a suit in which she may be interested; that such suit as is anticipated will, if instituted, involve in excess of $1,000.00 and could properly be brought in a District Court of Harris County, Texas; that the name and residence of the person supposed to be interested adversely to your Petitioner is W. Howard Lee, 3005 Buffalo Drive, Houston, Texas; that your Petitioner desires to perpetuate the testimony of the following named persons to be used as witnesses in such anticipated suit. The names and addresses referred to are as follows: [We omit the names and addresses],
"That such suit as is anticipated will, if instituted, relate to the community property of W. Howard Lee and his wife, Mrs. Hedy Lamarr Lee. That your Petitioner and W. Howard Lee were married in New York City, New York during the month of December, 1953, and that they were permanently separated from each other during the year 1958 and were divorced by decree of divorce rendered by the Court of Domestic Relations No. 3 of Harris County, Texas, on April 22, 1960. Petitioner anticipates the filing of a suit growing out of intentional acts of W. Howard Lee, his agents, servants and employees under his direction and control, which resulted in the secretion of community funds and the denying to Petitioner a fair opportunity at the divorce trial of Hedy Lamarr Lee and W. Howard Lee of litigating and having determined her rights in and to the community property of Hedy Lamarr Lee and W. Howard Lee.
“That a copy of this First Amended Statement has been furnished the law firm of Butler, Binion, Rice & Cook, the attorneys for W. Howard Lee.
“WHEREFORE, Petitioner prays that the deposition of the witnesses named in paragraph 4 above be taken and returned as required by law.”

On December 20, 1961 the trial court, on motion of appellees, entered an order dissolving the temporary injunction. In such order the court recited, among other things, that Hedy Lamarr Lee has filed an amended statement pursuant to Rule 187, T.R.C.P., in Cause No. 572,318, styled In The Matter of The Testimony of W. Howard Lee et al., in the 157th Judicial District Court of Harris County, Texas, “and it appearing to the Court that said amended original statement was filed in good faith, and it further appearing to the Court that said amended statement to perpetuate testimony includes such information regarding the nature of the anticipated suit as will fairly enable Plaintiff, W. Howard Lee, and his attorneys to cross-examine each of the proposed witnesses named in said statement to perpetuate testimony on the taking of depositions to perpetuate testimony; that the temporary injunction should be dissolved.”

Appellant contends that the trial court erred and abused its discretion in finding that appellees’ amended application to perpetuate testimony was filed in good faith, and in dissolving the temporary injunction. Appellant further contends that the trial court abused its discretion in finding that appellees’ amended application was sufficient.

We cannot say that the trial court erred or abused its discretion in either particular. Rule 187, T.R.C.P., contemplates that the statement will include such information regarding the nature of the anticipated suit as will fairly enable the adverse party to cross-examine the witness. It does not require or contemplate that the statement will show the testimony which the moving party expects to elicit from the witness. Nor does it require as a condition to the *4ght to perpetuate testimony thereunder that the applicant be .unable to file the suit and obtain the testimony by ordinary deposition; nor is the statement required to allege that the proceeding is instituted in good faith and not as a fishing expedition. The good faith of the moving party is presumed unless the contrary is established by the allegations of the statement or by the evidence. Ramsey v. Gardner, 1955, 154 Tex. 457, 279 S.W.2d 584.

It is true that the allegations of the statement in the present case as to the nature of the anticipated suit are somewhat broad and general. The statement does show, however, that the anticipated suit if instituted will relate to the community-property of W. Howard Lee and Mrs. Hedy Lamarr Lee, who were divorced on April 22, 1960. The statement also shows that the- petitioner anticipates the filing of a suit growing out of intentional acts of W. Howard Lee, his agents, servants and employees under his direction and control, which resulted in the secretion of community funds and in denying to petitioner a fair opportunity in the divorce trial of litigating and having determined her rights in and to the community property of herself and W. Howard Lee.

We think this statement limits the inquiry to intentional acts resulting in the secretion of community funds which denied the petitioner a fair opportunity at the divorce trial to litigate and have determined her rights in and to the community property of the parties. As stated in Ramsey v. Gardner, supra, Rule 187 does not contemplate or require that the statement show the testimony which the moving party expects to elicit from the witness. It is not necessary for petitioner to allege specific facts or describe specific property that has been secreted. If the petitioner had knowledge of the specific facts and the description of property secreted, the petitioner could immediately file a suit without the necessity of taking depositions to perpetuate testimony of witnesses in an anticipated suit.

Appellant stresses at great length the fact that appellee and her attorneys made a full and complete investigation of the property of the parties, and came to the conclusion that the settlement was fair and equitable; that appellee, Hedy Lamarr Lee, was completely satisfied with such settlement after investigating the same; that she agreed to the settlement, and authorized her attorneys to withdraw her contest to Mr. Lee’s suit for divorce. Appellant also emphasizes that Hedy Lamarr Lee voluntarily absented herself from the trial at which she had every opportunity to determine the nature and extent of the community property. He therefore contends that in filing her petition to take depositions to perpetuate testimony of witnesses she is not acting in good faith.

The fact that an investigation and audit were made in connection with the divorce proceedings, and thereafter an agreement was entered into and duly executed by the parties and approved by all counsel and the court, does not establish that appellees are not proceeding in good faith, in alleging in their sworn amended statement that petitioner anticipates the filing of a suit growing out of intentional acts of appellant and his agents which resulted in the secretion of community property and in denying petitioner a fair opportunity to litigate and have determined her community rights. The pleadings, the sworn amended statement and the evidence do not establish as a matter of law lack of good faith, or that appellees contemplate excursions into other matters which would be in the nature of a “fishing expedition” to get evidence relating to other controversies between the parties. Bloomfield Steamship Co. v. Mattisen, Tex.Civ.App., 287 S.W.2d 697.

The trial court recited in its order that it appeared that the verified amended statement was filed in good faith. We think this finding of the trial court has some support in the evidence. In addition to the sworn amended statement filed by appellees, which the court could consider, there was other evidence. Arthur F. Thompson, a certified public accountant, who was requested by Mrs. Lee and one of her attorneys to examine appellant’s books and records, testified that he examined the personal books of Mr. and Mrs. Lee and that he gave Mrs. Lee’s attorney a transcript of the books and records in summary form. He further testified that he did not make an examination of the books of Lee Brothers, a partnership in which appellant was a partner; that he requested that such books be furnished him, but they were not furnished; and that he was not furnished any books or records for examination, other than the personal books and records of Mr. Lee, although he did see the partnership income tax returns.

Furthermore, as recited in appellant’s brief, appellees’ attorney, Fred Parks, stated to the court that he was employed in the matter by Mr. Giesler’s firm in California, and that Mr. Boies came here and they had had a long conference and that based upon such conference and the facts related to him, he felt there was a possibility that facts could be developed to set aside the property settlement, and that if such facts did exist sufficiently to justify filing a law suit, such suit would be filed. If the depositions which appellees seek to take should disclose that appellant had secreted community funds or property and had thereby prevented Mrs. Lee from litigating the same, the property settlement might be set aside. 20 Tex.Jur.2d, p. 582, § 253; Eldridge v. Eldridge, Tex.Civ.App., 259 S.W. 209; Novy v. Novy, Tex.Civ.App.1950, 231 S.W.2d 780.

The law is well settled that the exercise of the power to grant, refuse or dissolve a temporary injunction is within the sound discretion of the trial court. An appellate court will not set aside an order of a trial court granting, refusing or dissolving a temporary injunction unless it is established that the trial court abused its discretion in entering the order. All reasonable presumptions will be indulged in support of the trial court’s judgment. Railroad Commission v. Shell Oil Co., Tex.Sup.1947, 206 S.W.2d 235; Pancake v. Kansas City Life Ins. Co., Tex.Civ.App., 134 S.W.2d 776; Missouri Pacific Transp. Co. v. Union Bus Lines, Tex.Civ.App., 210 S.W.2d 846; 31 Tex.Jur.2d, p. 282, § 164.

We cannot say that the trial court abused its discretion in dissolving the temporary injunction previously granted and in refusing to enjoin the taking of the depositions in question.

Judgment affirmed.

On Motion for Rehearing

In his motion for rehearing, appellant complains of our statement that the Amended Statement is verified. The affidavit which follows the Amended Statement has reference to the motion to vacate the temporary injunction, to which motion a copy of the Amended Statement is attached. Such motion, however, expressly incorporates in it the Amended Statement as if copied verbatim therein. We make this statement in the interest of accuracy, although we consider the point of no appreciable significance insofar as the trial court’s finding of good faith is concerned.

Motion for rehearing is overruled.


author: BOYD, Justice.

text:
    CHRISTIE, MITCHELL & MITCHELL COMPANY, Inc., et al., Appellants, v. Willard E. HOWELL, Appellee.
    No. 16329.
    Court of Civil Appeals of Texas. Fort Worth.
    July 13, 1962.
    Rehearing Denied Sept. 14, 1962.

      Sewell & Forbis, Decatur, Paul A. Smith, Vinson, Elkins, Weems & Searls and Tarl-ton Morrow, Houston, for appellant.
    Paul Donald and Joe H. Cleveland Bowie, for appellee.
   BOYD, Justice.

Willard E. Howell recovered judgment for damages occasioned by drainage of oil and gas from a tract of land on which Christie, Mitchell & Mitchell Company, Inc., and others, held an oil and gas lease, and for cancellation of the lease on a portion of the tract should the defendants fail to drill a well thereon within sixty days from the date of the judgment. The defendants appeal.

Appellants’ lease covered an 83 acre tract in Wise County. There was a producing well on the north portion of the tract. Appellants refused appellee’s demand to drill on the south portion, claiming that a well there would not produce oil or gas in paying quantities.

The jury found that 8,845 barrels of oil had been drained from the south 40 acres of the tract by production through wells other than the well on the north 40 acres; it was found that 17,685,000 cubic feet of gas had been so drained from the 40 acre tract; and it was also found that appellants failed to develop the lease in question in the manner which a reasonably prudent operator would have done under the same or similar circumstances by not drilling on or before July 24, 1959, a well on the south 40 acres of the tract. Judgment was rendered for appellee for $2,986.-20 based on the findings of oil drainage and $221.06 on the findings as to gas, and cancelling the lease on the south 40 acres unless drilling operations thereon are commenced within 60 days.

Appellants requested submission of an issue as to whether it was impossible to ascertain the damages for failure to drill on the south 40 acres, which was refused, and they contend that since it was not found that such damages were impossible of ascertainment the judgment for conditional cancellation cannot be sustained. They further insist that the evidence failed to support the findings of damages for the drainage, and that such findings are against the overwhelming weight of the evidence.

We think there was evidence of probative force from which the jury could reasonably estimate the amount of oil and gas which had been drained from appel-lee’s land, and that the findings are not against the great weight and preponderance of the evidence. It may be conceded that the damages cannot be ascertained to a certainty. But certainty is not required in such situations.

We are of the opinion that the court erred in refusing appellants’ request that the jury be required to find whether damages for failure to develop the lease were impossible of ascertainment, and that in the absence of such finding the conditional judgment of cancellation was not warranted. Failure reasonably to develop will authorize cancellation of a lease where there is no adequate remedy at law. The lessor’s remedy for such failure is ordinarily an action for damages. It is only in extraordinary situations, where there is no legal remedy, that courts will decree a forfeiture of a lease, or a part thereof, for violation of an implied covenant properly to develop the premises after oil or gas may have been discovered and produced. Grubb v. McAfee, 109 Tex. 527, 212 S.W. 464; W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Merrill’s Covenants Implied in Oil & Gas Leases, § 103, p. 246; Summers Oil and Gas, Perm.Ed., Vol. 3, p. 2, “Remedies of the Lessor for Non-Development”. Conceivably, there could be a case where from the record the reviewing court could hold that it conclusively appeared that damages could not be ascertained with the degree of certainty required in such situations. But we cannot say that this is such a case. The jury found, and we think there was support for such finding, that a reasonably prudent operator would have further developed the lease; and appellee alleged that his “remedy under the law for breach of the implied covenant to drill wells to develop the lease and to prevent drainage by offset wells is an action for damages; plaintiff says that on a trial of this case on the merits he will establish beyond a reasonable doubt the amount of oil that a well drilled on the South part of his acreage would have produced since it should have been drilled in 1956,” and that his damages for such failure to drill was $7,500.00. Appellee did not ask for any finding on that issue, or a finding that damages could not be proved in any reasonable way.

In Kansas, where the doctrine of conditional cancellation was chiefly developed, we find illustrations of the application of the rule.

In Wheeland v. Fredonia Gas Co., 92 Kan. 50, 139 P. 1010, the court said: “All the business of leasing lands for development is based upon the opinions of men engaged in the business as to the value of the tracts leased for that purpose, and it is competent evidence; although it is impossible thereby in a particular case to show the exact amount of damage which has been suffered, it is sufficient to enable a jury to estimate the damages and to find accordingly.”

We quote from Howerton v. Kansas Natural Gas Co., 82 Kan. 367, 108 P. 813, 34 L.R.A.,N.S., 46: “Upon a review of the findings of the district court, and of the evidence, upon which the conclusions of law of that court were based, we now hold that the plaintiff failed to show, as he was required to do in order to obtain equitable relief, that damages would not afford an adequate remedy. The default consisted in the failure to properly develop the leased territory by drilling and operating a reasonable number of wells necessary for that purpose, and the failure to market gas and make the payments, stipulated for the well completed. No reason is shown why witnesses of experience, acquainted with the gas field, may not testify with reasonable accuracy as to the number of wells which should have been drilled on the leased land both for protection from drainage by neighboring leaseholds and to obtain the gas underneath the land. No insurmountable obstacle to such proof is perceived by the court, and, in the absence of evidence that it cannot be produced, it is concluded that the plaintiff is not entitled to a remedy by forfeiture or cancellation of the lease. This conclusion is supported by Harris v. Ohio Coal Co., 57 Ohio St. 118, 48 N.E. 502, cited in the first opinion, and other adjudicated cases which have followed that decision. It needs no authority, however, to support the proposition that, if there is an adequate remedy in damages, no other relief can be obtained. The burden was upon the plaintiff to show either by the nature of the case, or by proper evidence, that such damages could not be ascertained with reasonable certainty. Failing in this, the judgment of cancellation cannot be sustained.”

The judgment for damages for drainage is affirmed; but that part of the judgment decreeing cancellation upon failure to drill on the south forty acres within 60 days is reversed and remanded.

Affirmed in part and in part reversed and remanded.


author: RENFRO Justice.

text:
    Carol Hardin WRIGHT et vir, Appellants, v. John F. BIDA, Appellee.
    No. 16346.
    Court of Civil Appeals of Texas. Fort Worth.
    June 29, 1962.
    Rehearing Denied Sept. 14, 1962.
    Fanning, Harper & Gilley, and Harlan Harper, Jr., Dallas, for appellants.

      Crowley, Wright, Miller & Garrett, and William T. McGee, Fort Worth, for appel-lee.
   RENFRO Justice.

Joe Wright brought suit against Dr. John F. Bida on July 11, 1961, and for cause of action “would show that on or about the 15th day of July, 1959, the Defendant negligently performed an operation upon the Plaintiff's wife, Carol Wright, and gave her shots at a later time, which proximately caused Plaintiff’s wife to become injured, and to sustain great mental anguish and physical pain from suffering, and caused disability to the Plaintiff’s wife, thereby resulting in damages to the Plaintiff and his wife in the sum of $20,000.00.”

On October 31, 1961, plaintiffs filed a first amended petition. The petition is not included in the transcript. The parties agree, however, that in said petition plaintiffs for the first time plead the April 3rd operation, hereinafter mentioned.

On November 17, 1961, Wright and his wife Carol filed plaintiffs’ second amended petition. In the second amended petition plaintiffs abandoned the cause of action alleged in the original petition and plead that on April 3, 1959, defendant performed a vasectomy operation upon Joe Wright, and after making tests informed Wright, on August 12, 1959, the operation was a success and he could have intercourse with his wife without fear of her becoming pregnant. They alleged that in the latter part of August, 1959, defendant informed them the operation was not a success and there was danger plaintiff’s wife would become pregnant. She did. The discovery of pregnancy was made in December of 1959, and in January of 1960 she suffered a miscarriage. The plaintiffs “would show that because of the defendant’s representations and negligence, the plaintiff Carol Hardin Wright became pregnant * * * and had a miscarriage.” Plaintiffs prayed for damages for pain and suffering incurred by Carol by reason of the miscarriage and for loss of earnings because of partial physical disability.

Wright sought damages for injury sustained as a result of the alleged negligent operation performed on him by defendant on April 3, 1959.

The defendant filed a sworn motion for summary judgment based upon the pleadings and the depositions of plaintiffs and defendant. Essentially defendant took the position that both from the standpoint of the pleadings and of the evidence as developed by deposition, plaintiffs’ cause of action was barred by the two year statute of limitation.

Plaintiffs did not answer or controvert the motion but relied entirely upon their pleadings.

The second amended petition shows on its face it was based on an entirely different cause of action than the one alleged in the original petition. The original petition was based solely on an alleged operation performed on Mrs. Wright. The amended petition, which abandoned all mention of any operation performed on Mrs. Wright, was based on the operation, and representations made concerning same, performed on Mr. Wright on April 3, 1959. The amended petition states that defendant informed plaintiffs in August of 1959 that the operation was a failure.

Giving the plaintiffs’ pleadings the most liberal construction, they show plaintiffs knew in August of 1959 that the operation was not successful and the alleged representations were not true. The new cause of action filed on October 31, 1961, and on November 17, 1961, based wholly upon and growing out of a new, distinct and different transaction or occurrence, was barred by the two year statute of limitation. Art. 5526; Art. 5539b, Vernon’s Ann.Tex. Civ.St. There are no allegations in the petition sufficient to toll limitation. Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878; Johnson v. Daniel Lumber Co., Tex.Civ. App., 249 S.W.2d 658, refused. The court did not err in granting the motion for summary judgment on the pleadings.

Further, the judgment recited that the court, after considering the pleadings and depositions, found an absence of genuine issue of any material fact, and that defendant was entitled to judgment as a matter of law.

The plaintiffs did not file a statement of fact in this court.

Where there is no indication that evidence was introduced before and considered by the trial court which is not brought forward in the record, no presumptions are to be applied in favor of a summary judgment on the basis of the absence of a statement of facts. Box v. Bates, Tex., 346 S.W.2d 317.

When, however, it affirmatively appears from the record that evidence was introduced and considered by the trial court it will be presumed, in the absence of a statement of facts, that such evidence, in this case the depositions of the plaintiffs and the defendant, did not raise any genuine issue of material fact. Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015; McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486; Maxwell v. Maxwell, Tex.Civ.App., 292 S.W.2d 368.

The trial court is not, as claimed by the plaintiffs, required to make findings of fact in disposing of a motion for summary judgment. Findings are appropriate only in deciding issues of fact. In granting a motion for summary judgment the court merely rules that there are no material issues of fact. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; Riemenschneider v. Missouri Pacific Railroad Co., Tex.Civ.App., 316 S.W.2d 949; Quarles v. Traders and General Ins. Co., Tex.Civ.App., 340 S.W.2d 545; Quarles v. State Bar of Texas, Tex.Civ.App., 316 S.W.2d 797.

All points of error are overruled, and the judgment is affirmed.


author: DAVIS, Justice.

text:
    T. S. LANKFORD & SONS, INC. et al., Appellants, v. HARRY ELDRIDGE CO., Inc., Appellee.
    No. 7423.
    Court of Civil Appeals of Texas. Texarkana.
    July 24, 1962.
    Rehearing Denied Aug. 21, 1962.

      Joyce Cox, Fountain, Cox & Gaines, Houston, Jack Sayles, Abilene, for appellants.
    W. C. McClain, McClain & Harrell, Conroe, John J.O’S. Heyburn, Strong, Baker 8¿ Heyburn, Houston, for appellee.
   DAVIS, Justice.

This is a venue case. Appellants Abe Lankford, Charlie Lankford and T. S. Lankford and Sons, Inc., filed what they thought to be Pleas of Privilege. Rule 85, Vernon’s Ann.Tex. Rules of Civ.Proc., reads in part as follows:

“A plea of privilege to be sued in the county of one’s residence shall be in writing and sworn to * *

The pleas of privilege contain the following affidavits:

“THE STATE OF TEXAS ’
“COUNTY OF TAYLOR
“BEFORE ME, the undersigned au- . thority, on this day personally appeared Abe Lankford, who, on oath stated that he is one of the defendants in the above entitled and numbered cause, and that the foregoing plea, and every statement, allegation, and denial thereof are true.
“/s/ TOMMIE MAYES — Tommie Mayes
“SWORN TO AND SUBSCRIBED BEFORE ME, by the said Abe Lank-ford, this the 21st day of April, 1961, to certify which witness my hand and seal of office.
“/s/ TOMMIE MAYES — Tommie Mayes
“Notary Public, Taylor County, Texas
“THE STATE OF TEXAS
“COUNTY OF TAYLOR
“BEFORE ME, the undersigned authority, on this day personally appeared A. B. Lankford, President of Defendant, T. S. Lankford & Sons, Inc., a corporation, who, on oath stated! that the foregoing plea, and every statement, allegation, and denial thereof, are true.
“/s/ TOMMIE MAYES — Tommie Mayes
“SWORN TO AND SUBSCRIBED BEFORE ME, by the said A. B. Lank-ford, this 21st day of April, 1961, to-certify which witness my hand and seal of office.
“/s/ TOMMIE MAYES — Tommie Mayes
“Notary Public, Taylor County,. Texas.
“THE STATE OF TEXAS
“COUNTY OF TAYLOR
“BEFORE ME, the undersigned an thority, on this day personally appeared Charlie Lankford, who, on oath stated that he is one of the defendants in the above entitled and numbered cause, and that the foregoing plea, and every statement, allegation, and denial, thereof are true.
“/s/ TOMMIE MAYES — Tommie^ Mayes
“SWORN TO AND SUBSCRIBED BEFORE ME, by the said Charlie Lankford, this the 21 day of April, 1961, to certify which witness my hand •and seal of office.
“/s/ TOMMIE MAYES — Tommie Mayes
“Notary Public, Taylor County, Texas.”

The requirements of Rule 86 are mandatory. To give the trial court jurisdiction over the pleas, they must be in writing and sworn to. The pleas of privilege in this case were not sworn to, are a nullity, and fatally defective. 33 Tex.Juris. 624, Sec. 173; 43b Tex.Juris. 287, Sec. 106; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Brashears v. Strawn Nat. Bank, Tex.Civ.App., 57 S.W.2d 177, n.w.h.; Smith v. Daniels, 288 S.W. 496, err. dism.

The Supreme Court said in McCauley v. Consolidated Underwriters, supra, that when the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter the error will also be regarded as fundamental.

The plea of privilege of Abe Lankford was actually signed, prior to the affidavit, by A. B. Lankford. The plea of privilege by T. S. Lankford & Sons, Inc., was signed, prior to the affidavit by A. B. Lankford. The plea of privilege of Charlie Lankford was actually signed, prior to the affidavit, by Charlie Lankford. The affidavits show that “Abe Lankford, “A. B. Lankford”, and “Charlie Lankford” personally appeared before the notary, and swore that they were a defendant in the “foregoing plea” Then, the affidavit is signed by “Tommie Mayes”. The jurat is also signed by “Tommie Mayes”. Under the present Rules of Civil Procedure, a plea of privilege may be amended. 43-b T.J. 289, Sec. 107.

Under Rule 483, T.R.C.P., I would reverse and set aside the judgment of the trial court and dismiss the appeal. The appellants could then apply to the trial court to amend their pleas of privilege.

The other Judges will not agree to the foregoing opinion. I file it as my dissent. If the Rules of Civil Procedure and the Statutes mean what they say, I believe we still have fundamental error that goes to the jurisdiction of the courts. The holdings in St. Paul Fire & Marine Ins. Co. v. Murphree, Tex.Sup.Ct, 357 S.W.2d 744, and the authorities therein cited, are not in point.

The appellee sued the appellants, residents of Taylor County, Herbert M. Moon, a resident of Harris County, and H. W. Farrar, a resident of Kansas, in the District Court of Harris County. The purported pleas of privilege were filed and were controverted. The appellee did not set out any specific subdivision of Art. 1995 Vernon’s Ann.Rev.Civ.St. upon which he relied in his controverting affidavit. The trial court overruled the pleas of privilege and filed findings of fact and conclusions of law. From the judgment, the appellants have appealed and bring forward one point of error.

Appellants complain of the error of the trial court because the appellee failed to prove a cause of action against the resident defendant. Appellee was a sales agent, selling childrens’ and sub-teen sportswear. There was a written contract between appellants and appellee. The contract was plead as a basis for the lawsuit, and contained the following paragraph:

“12. It is agreed between the parties hereto that Company is presently engaged in manufacturing childrens’ and sub-teen wear under other trade-names and labels and which could be considered competitive to the articles and merchandise covered by this Agreement; it is, therefore, distinctly agreed between the parties hereto, that this Agreement covers only the articles described in paragraph 9 hereof, and to which articles and merchandise are attached the label covered by this Agreement, and no other articles, goods or merchandise.”

The contract was offered in evidence by the appellee.

Defendants Moon and Farrar were commissioned salesmen for the appellee. Prior to the time that defendants Moon, Farrar, and Curry, another employee, quit their employment with the appellee, the appellee had gotten behind with the payments of some of their commissions. They could not make a living under the oral contract of employment. All three of the employees of the appellee resigned on August 26, 1960. This was after an effort had been made by defendants Moon and Farrar to purchase the contract from the appellee. After the resignation, the appellee, knowing that Moon and Farrar had quit their employment, stated he would not expect any commissions from them. The appellee offered the use of his showrooms to the employees, and placed some ads for employment for them.

Defendants Moon and Farrar, being in need of work, contacted the appellants immediately after their resignation. About September 15, 1960, the Appellants hired the defendants Moon and Farrar and agreed to pay them a higher commission than the amount paid by the appellee. The defendants Moon and Farrar also contacted other prospective employers.

Appellants required defendants Moon and Farrar to give them a letter to the effect that they had resigned their employment with the appellee before appellants would hire them. The appellee based his cause of action upon a conspiracy between the defendants Moon and Farrar and the appellants. Bearing in mind the foregoing provision in the contract, appellants could not be guilty of any conspiracy whatever. The defendants Moon and Farrar being employed by oral contract were justified in resigning their employment with the appellee. There is no evidence in the record that Moon interfered wrongfully with the appellant-appellee contract. There is no evidence of any conspiracy by and between Moon and the appellants that could result in a judgment against Moon, or the appellants. The appellee takes the position that there was a violation of the contract. Under the contract between appellants and appellee, the sportswear were to be labeled “Trim Sportswear”. Under the contract, appellants being in the manufacturing business over a long period of time had to protect their business. This they did by paragraph 12 of the contract. The appellants did not put the label “Trim Sportswear” on the articles that were later sold by Defendant Moon. Under Subdivision 4 of Art. 1995, R.C.S., there must be proof of a valid cause of action against the resident defendant. Lee v. Robinson (Tex.Civ.App.) 282 S.W.2d 397 wr. dism.; MacDonald v. Trammell, Tex.Civ.App., 351 S.W.2d 89, n. w. h.; 1 MacDonald Texas Civil Practice 334, Sec. 4.10. There being no evidence of any conspiracy on the part of defendant Moon, the point is sustained.

The judgment of the trial court is reversed and rendered.


text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. J. H. WALKER, Appellee.
    No. 7376.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 14, 1962.
    Rehearing Denied Sept. 11, 1962.

      Clyde W. Fiddes, Roy P. Cosper, Tyler, Russell & Perkins, Mt. Pleasant, Calhoun & Calhoun, Tyler, for appellant.
    Jones, Brian & Jones, Marshall, T. R. Florey, Jr., Mt. Pleasant, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, J. H. Walker, sued the defendant-appellant for damages under the Federal Employers’ Liability Act, 45 U.S.C. A. § 51 et seq., and the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., for injuries sustained by the appellee on January 9, 1958. Appellee was a brakeman and was engaged in switching some cars when a knuckle was broken between two cars and he and a fellow brakeman were engaged in making repairs. At the time the knuckle was broken, the two cars separated and were about 75 feet apart. The brakeman had already signaled the engineer to stop, and had not given any other signal for the moving of the train. While the appellee and his fellow brakeman were repairing the knuckle, no signal whatever being given by them, the cars attached to the engine were moved into the brakemen from the rear, without warning, with such force as to move the entire train about 100 to 150 feet. Appellee was struck in the back, knocked down, and finally emerged from the track. This movement inflicted injuries on appellee for which he sued. Trial was to a jury, resulting in a verdict and judgment in favor of the appellee for the sum of $51,600.00 for his injuries and $223.-50 for extra medical expenses. From this judgment, the appellant has perfected its appeal and brings forward twelve points of error.

By Point One it complains of the misconduct on the part of the jury in arriving at their verdict by quotient or lot. In the hearing on the motion for new trial, appellant proved that the jury had agreed on certain figures, but they had not agreed upon the percentage of disability for the appellee. The case was tried before eleven jurors. They each put down on a piece of paper the percentage of disability they thought the appellee had suffered. This was added and divided by eleven. It came to 43%. The jury had previously agreed that his total earning capacity would amount to $120,000.00. They took 43'% of $120,000, which amounted to $51,600.00. The appellant did not prove that there was a pre-agreement to be bound by the percentage or the amount of the verdict. The two jurors who testified both swore that they voted upon the verdict twice after they had taken a quotient percentage of disability. They both swore that there was no pre-agreement to be bound by the figures. We have recently had the occasion to study a quotient verdict in Missouri-Kansas-Texas Railway Company v. Chesher, Tex.Civ.App., 354 S.W.2d 645, W/R., N.R.E., where we held that under Rule 327, Texas Rules Civil Procedure, a complainant in a motion for new trial alleging jury misconduct must not only prove the misconduct, but must show that the misconduct resulted in an injury. In that case, we held that the verdict was a quotient verdict, but that the jury did not have an agreement to be bound by the verdict after the figures were arrived at. Much research was made on the question of a quotient verdict and the authorities in point are cited therein. The point is overruled.

By its points, 2, 3, 4, and 5, it says the trial court erred because of the exces-siveness of the verdict, because there was no evidence, the evidence is insufficient, that the verdict was actuated by sympathy, passion or prejudice or improper motive outside of the record in this case, and the jury did not take into consideration the present value of money in arriving at the same. Seven witnesses testified as to his injuries. Dr. P. M. DeCharles testified about the injuries which included subluxation of a vertebra in his back, about the disability to his neck, about the scar tissue and its effect, that in his opinion the condition was permanent and he could never have the use of his neck as he had before the injury. The doctor did not testify as to the percentage of disability, but he did testify that on occasions it would run to as high as 75%, and sometimes he wouldn’t have any. He testified that was what could be expected in an injury of the type that he found with the appellee. An accountant testified as to the gross earnings of the appellee, and another witness brought forth annuity tables showing the sum of $120,-212.68 would be required to provide a single premium immediate life maturity to pay $471.72 monthly to a person 43 years of age over his life expectancy. The evidence is sufficient to support the jury verdict. Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918; Verhalen v. Nash, Tex.Civ.App., 330 S.W.2d 676, wr. ref., n.r.e.

The verdict is not excessive. Houston and Great Northern Railroad Company v. Frank T. Randall, 50 Tex. 254. The verdict was not occasioned nor influenced by passion or prejudice. Louisiana & A. Ry. Co. v. Chapin et al. (Tex.Civ.App.), 225 S.W.2d 614, wr. ref. See, also, 16 A.L.R.2d 306, § 117, and A.L.R.2d Supp.1961, Jan. issue, p. 189, § 22, and p. 204, § 117; McCollum v. McKellar, Tex.Civ.App., 337 S.W.2d 693, er. ref., n.r.e. The points are overruled.

By its points 6 and 7 the appellant complains of the argument of one of the attorneys for the appellee. From the Bills of Exception brought forward in the case, and qualified by the trial court, it seems that the argument was not objected to at the time it was given. The appellant waived the error, if any. Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546. The points are overruled.

Points 8, 9, 10, 11 and 12 are without merit and are respectfully overruled.

The judgment of the trial court is affirmed.


text:
    CITY OF PARIS et al., Appellants, v. Cleveland A. SKATES, Appellee.
    No. 7406.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 7, 1962.
    Rehearing Denied Sept. 4, 1962.
    Ben F. Mooring, Paris, for appellants.
    M. D. Emerson, Paris, for appellee.
   DAVIS, Justice.

The appellee was indefinitely suspended by the Chief of Police of the City of Paris from the classified service of the Police Department of the City of Paris on September 8, 1960. Appellee appealed to the Civil Service Commission and that body upheld the suspension. Appellee appealed to the District Court of Lamar County, and the court ordered him reinstated and rendered judgment against the city for accumulated salary.

The Chief wrote the letter of suspension to appellee, stating that the suspension was for acts and conduct that constituted a violation of Section 5 of the Firemen’s and Policemen’s Civil Service Law, specifically charging “Acts of Incompetency”, and “Neglect of Duty”. The chief charged the appellee and another police officer with stopping a car occupied by five young men in the city limits of Paris; that they did orally charge the driver of the car with driving while intoxicated and another passenger with being too drunk to be in a public place; that no complaint was filed as required by Sec. 2 of a Department Regulation issued by the Police Department of the City of Paris; that the officers failed and refused and did not report the matter to the Dispatcher, and no record was made of the incident; that the same was done in violation of Rule 8 of the Police Department of the City of Paris; that the police officers were charged with fraud in acquiring two $15.00 fines from two occupants of the car; that no report was made of such apprehension of the persons and the two fines; that the fines were neither authorized in law nor by the rules of the Department; that it had been the rule of the Police Department for many years that no person shall be fined and released until he is completely ■sober; and that the failure of the officers to report the detention of the accused and the collection of the fines was a flagrant violation of the Police Department, the Firemen’s and Policemen’s Civil Service Regulations, and the violation of the Penal Statutes of the State of Texas. This was in compliance with Art. 1269m, Sec. 16, Vernon’s Ann.Tex.Civ.St.

The appellee and the appellant filed motions for summary judgment. The main reason upon which the appellee based his motion for summary judgment was that the order of the Civil Service Commission did not show any findings of the specific charges against him, and that the appellee had not violated any of the Civil Service Rules. The appellants contended that the charges were sufficient, and they had proved the truth of the same before the Civil Service Commission to which is attached a copy of the hearing before said Commission. This Court will not make findings of fact. Such is the duty of the Civil Service Commission. The findings of the Commission are supported by substantial evidence.

We will quote the order of the Civil Service Commission in full, omitting caption and signatures:

“The hearing of Lieutenant C. A. Skates was held in the City Council Room in the City of Paris on the 19th day of September, 1960, at a Public Hearing upon charges with the Civil Service Commission by Dan A. Bills alleging certain violations of the Civil Service Rules and containing an indefinite suspension of Lieutenant C. A. Skates. The defendant was present in open court with his counsel, B. Ray Smith, and entered a plea of not guilty to the specifications contained in the order of suspension. There were present at and conducting the hearing, B. B. Richey and Morris Kimbell. The Commission sustained and hereby sustains the indefinite suspension of the classified employee, and it is the order of the Commission that the said employee shall be permanently dismissed from the Police Department of the City of Paris, Texas.”

It will be noted that in the Order the Commission sustained the indefinite suspension of the appellee, and permanently dismissed him from the Police Department. In the City of Houston v. Melton, Tex.Sup.Ct., 354 S.W.2d 387, we find the following:

“There is no requirement that failure to set out detailed findings shall make void the order of the Commission. The requirement is that the Commission must make a finding of the truth of the specific charges against such employee, and a careful analysis points up the fact that the order is based upon such findings. The order permanently dismissed Melton from the police force of the City of Houston as is required by the provision of Art. 1269m, § 16.”

Under the holdings of the Supreme Court, the findings of the Commission are sufficient.

For the errors hereinabove pointed out, the judgment of the trial court is reversed and judgment is here rendered in favor of the Firemen’s and Policemen’s Civil Service Commission of the City of Paris, affirming the action of the Civil Service Commission in permanently dismissing the appellee from its services.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellants, v. Ollie L. FOREMAN, Appellee.
    No. 7382.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 7, 1962.
    Donald Carroll, Ramey, Brelsford, Hull & Flock, Tyler, for appellants.
    Law Offices of Gordon R. Wellborn, Henderson, for appellee.
   DAVIS, Justice.

A workmen’s compensation case. Judgment in the above case was entered on February 18, 1961. Original motion for new trial was filed on February 27, 1961. An amended motion for new trial was filed on Mary 18, 1961. Assuming that the amended motion for new trial was filed on March 18, 1961, it had to be acted upon within 45 days thereafter. The 45 days ended on May 2, 1961. A hearing was had on the amended motion for new trial on April 29, 1961. On May 12, 1961, the following written instrument (omitting caption and signatures) was filed:

“The parties to this cause, through their authorized counsel of record, hereby, on this the 29th day of April, 1961, extend the time for the court to pass upon the defendant’s amended motion for new trial through the 12th day of May, 1961.”

On May 12, 1961, the court entered an order overruling the amended motion for new trial. The order was a nullity. Under Rule 329b, Texas Rules of Civil Procedure, a motion for new trial, or an amended motion for new trial must be acted upon by the trial court within 45 days from the date the same is filed; otherwise, it is overruled by operation of law, “unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. .* * * ” (emphasis added) The foregoing written instrument, if it is an agieement, was not “filed” with the clerk of the court prior to the end of the 45 day period. Unless such agreement is filed with the clerk during the 45 day period, it can not be considered because the motion or amended motion is overruled as a matter of law on the 45th day. Longview Transit Company v. Ferchill, Tex.Civ.App., 312 S.W.2d 407, n. w. h.

The amended motion in the case being overruled by operation of law on May 2, 1961, the appeal bond would have had to be filed on or before June 1, 1961. The appeal bond was filed on June 10, 1961. It was filed too late.

The appeal is dismissed.


author: COIL, Commissioner.

text:
    Johnnie Buren COMPTON, Respondent, v. Worth Clark MEADOWS and William J. Shreve, Appellants.
    No. 48890.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Sept. 10, 1962.
    William H. Sanders, Dean F. Arnold, Walter F. Moudy and Caldwell, Blackwell, Sanders & Matheny, Kansas City, for appellants.
    Ben W. Swofford, Kansas City, and William C. Bland, Springfield, for respondent, Swofford, Smith & Waisblum, Kansas City, of counsel.
   COIL, Commissioner.

Johnnie Compton, plaintiff below, was a front-seat passenger in an automobile which collided with defendants’ oncoming truck. He claimed $201,150 as damages for alleged personal injuries. The jury returned a defendants’ verdict and the trial court granted plaintiff a new trial for the stated reason that it erred in giving instruction 13.

About 7:30 in the morning of June 30, 1957, Johnnie was on his way to work in an automobile driven by his friend, Jesse Chaney. When the Chaney car had proceeded south on U. S. Highway 65 to a point a short distance south of 65’s junction with state highway 76 in Taney County, it collided with a northbound, double-deck, flat-bed truck loaded with hogs. The collision occurred at or just south of the middle of a blind, sharp curve and on the east side of the road. The black-top highway was about 20 to 23 feet wide and was wet at the time of the accident. The automobile’s right front struck the left side of the truck toward the front. Plaintiff’s testimony was that a safe speed for driving that highway generally was 50 miles per hour and, for the particular curve when wet, 40 to 45 m. p. h.; that as Chaney approached he was driving 50 m. p. h. and slowed his car as he entered the curve; that as Chaney was negotiating the curve, traveling on his own right-hand (west) side of the highway, there suddenly appeared in front of them on their (west) side a northbound truck; that just before the collision he remembered that the Chaney automobile suddenly swerved to its left.

Chaney was killed and thus plaintiff and the defendants, occupants of the truck, were the only available eyewitnesses.

Defendants, employed in Kansas City banks, were returning from the State of Louisiana where, as a joint venture, they had purchased a truckload of hogs and were transporting them to a Kansas farm. Defendant Shreve, who was not driving, testified that as the truck proceeded north-wardly into the curve it was on its right (east) side of the highway and was traveling about 20 or 30 m. p. h.; that he saw the Chaney automobile about 300 feet in front of the truck and as the car rounded the curve it “came on across” to their side of the road. The truck slowed and was turned to the right and the front of the automobile hit the left front of the truck. Defendant Meadows, who was driving the truck at the time of the accident, testified that as he approached the curve he was driving on his right side of the road at 25 t-o 30 m. p. h.; that he saw the Chaney automobile when it was about 300 feet away and it was then on its wrong (east) side of the highway and was traveling “upward of 70” and it “seemed like it was hopping or bouncing along”; that he applied the brakes and pulled to the right and had reduced his speed to 10 or 15 m. p. h. at the time of the collision.

The collision occurred on the east side of the highway. While there was testimony adduced by both parties as to the marks made by both vehicles (defendants’ evidence showed tire and skid marks made by the Chaney car about 100 feet long) the evidence was conflicting as to whether any of the truck’s skid marks were west of the highway’s center line and whether some of the tire marks attributed to the Chaney automobile were in fact made by another car at a prior time.

Plaintiff’s recovery theory was that defendants negligently drove their truck on the wrong side of the highway in close proximity to Chaney’s car and that Chaney justifiably swerved left to avoid a collision and that, apparently at the same time, defendants turned right and the collision occurred. The only negligence on which plaintiff sought to recover was that defendants allegedly drove their truck on the wrong side of the road immediately prior to the collision.

Defendants’ instruction 12 told the jury that if defendants’ truck was at all times east of the center line after the vehicles were in each other’s view, their verdict must be for the defendants. Instruction 13 was: “The Court instructs the jury that if you find and believe from the evidence that t-he speed of the Chaney automobile on the curve mentioned in evidence caused said automobile to veer to the east side of the highway and to collide with defendants’ truck, if so, then your verdict must be for defendants.”

Defendants were entitled to negative plaintiff’s recovery theory both by conversing plaintiff’s submission of the cause of the Chaney car going to the wrong side of the road as defendants did by instruction 12, and by hypothesizing facts which, if found to he true, would negative the cause of the accident as submitted by plaintiff. McCormick v. Kansas City, Mo., 262 S.W.2d 868, 872. Instruction 13 falls in the latter category in that it hypothesized speed as the cause of the Chaney car going to the east side of the highway, thus purporting to negative plaintiff’s sole recovery theory that it was defendants’ negligence in driving on the wrong side of the road which caused the Chaney car to go to the east side of the highway and into collision with the truck.

When the opposing theories are analyzed it appears that plaintiff intended to submit that the Chaney car went to the east side of the highway as the result of its being intentionally turned or swerved to avoid an apparent collision; while defendants intended to submit that the Chaney car went to the east side of the road solely because of its speed; that is, that the automobile was out of control to the extent that because of its speed the driver could not have prevented its going to the east side of the road.

It seems to us that the trouble with instruction 13 is that the unqualified and unamplified submission that the “speed of the Chaney automobile on the curve mentioned in evidence caused said automobile to veer to the east side” does not clearly and effectively negative defendants’ submitted negligence as a contributing cause. While we do not agree with plaintiff that instruction 13 is “in fact a sole cause instruction,” we do agree that to clearly and, therefore, properly submit the issue it intended to submit under the facts and circumstances of this case it was essential that instruction 13 eliminate defendants’ negligence as submitted by plaintiff as a concurring cause; and that such could be done, as in a sole cause instruction, by specifically negativing defendants’ submitted negligence.

It is apparent that a jury would understand that instruction 13, considered in the light of 12, impliedly assumed that defendants’ truck was being driven on the wrong side of the highway immediately before the collision. That must be true else there was no reason to have given instruction 13, for if the jury found that the truck was not driven on the wrong side of the road, it was directed to find for defendants by instruction 12. Consequently, it seems probable that the jury would understand that instruction 13 meant that even if the jury believed that defendants negligently drove their truck on the wrong side of the road immediately prior to the collision, nevertheless, if the jury also believed that the speed of the Chaney automobile caused it to “veer” to the east side of the highway, the jury was to find for defendants. Now, such a direction would be correct only if the jury understood that it had to find that “speed” was the sole cause of the collision in the sense that defendants’ driving on the wrong side of the road was not a contributing cause.

There was no direct evidence in this case that the speed of the Chaney car alone caused it to “veer” to the east side of the highway, nor was there evidence which would indicate that the jury would understand that by finding the Chaney car “veered” it was finding that the speed was so great that the driver could not have avoided going to the east side of the road. As we have noted heretofore, one defendant testified that he could not estimate the speed of the Chaney car and it “just came on across to our side of the road” as it was negotiating the curve. The other defendant testified that when he saw the Chaney car about 300 feet away it was traveling fast, “upward of 70,” and that it “looked like it was coming just hopping along like it was light on its feet, like it was kind of bouncing along,” and that at that time it was on the east side of the highway. We do not mean to say that there was not sufficient evidence to justify an inference by the jury that the Chaney car was going so fast that it could not negotiate the curve without going to the outside of the curve and onto the wrong side of the road. We have called attention to defendants’ testimony to indicate that there was not before the jury any direct evidence of defendants’ theory as submitted in instruction 13 that the Chaney car “veered” in the sense of being out of control or, as stated in appellants’ brief, that the speed on the curve caused the automobile “to hop or skid across the center line and into collision with defendants’ truck.” The testimony as to “hopping along” and “bouncing along” was as to the Chaney car after it was on defendants’ side of the road. The absence of such direct testimony is important only to demonstrate that the evidence in this case was not such that, because of it, we may say confidently that the jury understood from the unamplified submission of instruction 13 that prerequisite to a defendants’ verdict it needed to find that defendants’ negligence in driving on the wrong side of the road was not a contributing cause of the collision.

We are of the view that the instruction was fatally deficient because it did not eliminate clearly and effectively defendants’ submitted negligence as a contributing cause of the accident.

It follows that the trial court correctly granted plaintiff a new trial for error in giving instruction 13. We need not rule plaintiff’s additional contention that he was entitled to a new trial for the further reason that the court erred in giving instruction 14 on contributory negligence. Defendants will have an opportunity to consider that instruction in the light of plaintiff’s attacks upon it prior to another trial. We do observe in passing, however, that the instruction should indicate clearly that plaintiff had an adequate opportunity to influence the situation for safety by requiring a finding that plaintiff had notice of impending danger in time for his warning or cautioning the driver to have been effective. See Boedeker v. Wright, Mo., 312 S.W.2d 829, 836, 837.

The trial court’s order granting plaintiff a new trial is affirmed and the case is remanded.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


author: BARRETT, Commissioner.

text:
    Paul SAVILLE and Marvin Saville, Appellants, v. Limuel BRADSHAW and Mrs. Limuel Bradshaw, Respondents.
    No. 48946.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.

      Frederick E. Steck, Sikeston, for appellant.
    Weber Gilmore, Sikeston, for respondent.
   BARRETT, Commissioner.

This action was initiated by the plaintiff brothers, Paul and Marvin Saville, against Limuel Bradshaw and his wife as a suit to quiet the title to a lot in Morehouse. The plaintiffs alleged that by reason of thirty-one years’ adverse possession they were the fee simple owners of the lot and that the defendant and his wife claimed some interest in it by reason of a sheriff’s deed for delinquent taxes for the year 1934. The defendants filed an answer in which they asserted fee simple ownership by reason of the tax deed. They also filed a counterclaim in which they sought an order requiring the plaintiffs to vacate the premises and damages of $1,000. The trial court entered judgment against the plaintiffs on their petition and in favor of the defendants on their counterclaim and the plaintiffs have appealed.

The following are the circumstances relied on by the plaintiffs as establishing as a matter of law adverse possession for at least ten years and consequently fee simple title to the lot as against the defendants’ tax deed. In September 1928 the plaintiffs’ father, Harley Saville, purchased the lot from Dan Baker, “he did pay it out at so much, and paid it every two weeks * * * and I think it was five dollars."1 In any event, Baker gave Mr. Saville a warranty deed to the lot and the Savilles and their children moved onto the property and lived there continuously until the father and mother died in 1956. Paul Saville is now aged 52 years and Marvin is 48. They moved to the lot with their parents in 1928 and one or the other of them has lived there since 1956. In 1928 there was a two-room house on the lot and a beehive factory building, the house burned in 1930 and the Savilles moved into the factory building. Paul tore the building down in 1957 and has built a four-room house on the lot which he says is of the value of $1,500. Paul's title to the lot, in addition to his interest as a surviving son, consists of quitclaim deeds from three of his sisters and brothers. Marvin has no deed, he claims “a half * * as an heir” of his father and mother. The plaintiffs’ father and mother paid the taxes on the lot until 1934 but since that date the Savilles have paid no taxes, the plaintiffs say that they offered to pay the taxes but “they” refused to accept them. Since 1934 the respondents Bradshaw have paid the taxes and neither Paul nor Marvin have said anything to Mr. Bradshaw about it. Marvin said, “I couldn’t get that close to him, and I thought he might be a good friend to pay my taxes like that, and I sure appreciated it.” Both Paul and Marvin say that they did not know that the land sold for taxes in 1934. They have paid no rent and claim that Bradshaw has never been on the premises and has made no improvements. They do concede that in June 1956 Bradshaw gave them written notice to vacate the premises and that thereafter Paul built the four-room house.

In these circumstances the appellants say that “plaintiffs’ father bought this property on September 5, 1928, and he and his family immediately moved on the premises raising his family adverse to all since he took possession under a Warranty Deed * * * and he had actual continuous, adverse possession of these premises until he died on March 16, 1956. Plaintiffs’ father did not record his Warranty Deed to the lot which was dated September 5, 1928, until September 19, 1939. Defendant bought this property at a Tax Sale on December 28, 1934, but did not record his deed until October 17, 1944, after plaintiffs’ father recorded his deed on September 19, 1939. * * * Not only did plaintiffs’ father own this lot by virtue of being in adverse possession for more than 10 years, but plaintiffs had a superior record title than defendant because he recorded his deed on September 19, 1939, while defendant did not record his tax deed which he received in 1934 until October 17, 1944.” Therefore the appellants conclude that “When defendant bought this lot for taxes in 1934, he took subject to the title of plaintiffs’ father who was in open, notorious and adverse possession of the lot when record title at the time of the Tax Sale was in another.”

The respondent, Limuel Bradshaw, to show that the Savilles’ occupancy of the lot was permissive and not adverse testified that he bought this particular lot along with other lots at a tax sale in 1934 and then he said, “his father and mother (Paul Sa-ville’s) were living there and pretty old, and they didn’t stay at home too much, the kids didn’t. * * * they didn’t have any system of Relief at that time and they were pretty old and I just told them they could go ahead and stay there as long as they lived and didn’t have to worry and that is why the old man and woman stayed there.” Later he said that he didn’t do too much to the lot “because I promised them that place and let them live there, and I didn’t disturb it * * Appellants’ counsel objected to these statements and this testimony: “We object to that as it is hearsay and objectionable, for that reason, and it is a violation of the Dead Man’s Statute and having told the deceased, Harley Sa-ville, and would be a self-serving declaration, and we object to it on those grounds.” In the circumstances of this case, particularly in view of the essential issue involved, Mr. Bradshaw’s testimony should have been excluded. Lambert v. Rodier, Mo.App., 194 S.W.2d 934; Bagnell v. Chemical Bank of Sweet Springs, 76 Mo.App. 121, 125. As the court said in Eaton v. Cates, Mo., 175 S.W. 950, 953, an adverse possession case, “We are of the opinion that William Eaton, Sr., was not a competent witness to testify as to the conversations which were offered to be proven by him which he had with his brother James, regarding the terms and conditions upon which the land and personal property mentioned were placed in the hands of James Eaton, at the time the witness went to California. At the time William Eaton was offered as a witness, James Eaton, the husband and father of the defendants, was dead. Under both the letter and spirit of section 6354, R.S.1909, (V.A.M.S. § 491.010, Mo.R.S.1959) William Eaton was disqualified from testifying regarding those matters.”

Normally, since this was a court-tried case, the erroneous admission of this testimony would not demand the granting of a new trial. Since this was a court-tried case, this court, normally, would review the case upon the law and the evidence anew and ignore the improperly admitted evidence (Sup.Ct.Rule 73.01(d), V.A.M.R.) and finally enter such judgment as the trial court ought to have entered or “as to the appellate court shall seem agreeable to law.” Sup.Ct.Rule 83.13. It is not possible upon this record however to apply these general rules and confidently dispose of this appeal. The participants in this trial, the parties and their counsel, may have had personal knowledge of all the facts stated or assumed in their briefs, particularly, to illustrate, of the facts set forth in the preceding quotations from the appellants’ brief, but certain of these essential and compelling facts and testimony do not appear in this transcript and of course are not available to this court. The exhibits, if any, were not offered in evidence and certain crucial dates are not established. By answer to interrogatories, by stipulation of the parties and otherwise, it was established that Harley Saville purchased the lot from Baker in 1928, moved onto the premises and lived there until his death in 1956, but it does not appear from the transcript when his deed was recorded. As to the defendants’ tax deed there was a stipulation: “It is agreed that Mr. Gilmore’s client (Bradshaw) received a Sheriff’s Deed, which he received at a Tax Sale on the 28th day of December, 1934,” but the record does not show when that instrument was recorded, and it does not show against whom the tax proceedings were directed and there is here no attack upon that deed or the proceedings upon which it is based. In this latter connection see the following cases: Gaines v. Saunders, 87 Mo. 557; Adams v. Gossom, 228 Mo. 566, 129 S.W. 16; King v. Fasching, Mo., 234 S.W.2d 549; Shaw v. Armstrong, Mo., 235 S.W.2d 851 and the law review notes 16 Mo.L.R. 395, 16 Mo.L.R. 461.

This is not to indicate to the parties how the case should be tried, what evidence should be admitted or rejected, and it is not to indicate the theories upon which it should be tried or decided in the trial or appellate court. It is sufficient to state that in the present posture of the record, the theories of the parties are not completely articulated and this court is left with the alternative of deciding the case on the basis of various presumptions and the burden of proof. State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174; 3 Am. Jur.2d (Adverse Possession), Secs. 248, 249. In this connection there is the problem of the force and effect of the tax sale (annotations 136 A.L.R. 1349, 50 A.L.R.2d 600) and the character of the holding after 1934. In other words, the burden of proof and the indicated presumptions may or may not result in assumptions plainly contrary to the fact. In this immediate connection see 2 C.J.S. Adverse Possession § 87, p. 640; § 105, p. 659, and the note to Miller v. Berry, Mo.App., 270 S.W.2d 666 in 21 Mo.L.R. 91 and annotation 170 A.L.R. 776.

For the reasons indicated the judgment is reversed and the cause remanded for such further action as the parties deem advisable.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Jack L. CLAY, Superintendent, Division of Insurance, Department of Business and Administration of the state of Missouri, Plaintiff-Respondent, v. INDEPENDENCE MUTUAL INSURANCE COMPANY, a Corporation, Defendant; In the Matter of Jack J. WILLE and Priscilia F. Jennings, Doing Business as Time Insurance Agency, Defendants-Appellants.
    No. 49012.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    As Modified Sept. 10, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 10, 1962.

      James & Hasler and John D. Hasler, St-Louis, for appellants.
    Bond & Dominique, John O. Bond, P. Pierre Dominique, Jefferson City, for plaintiff-respondent.
   HOUSER, Commissioner.

Proceeding by the superintendent of insurance against Jack J. Wille and Priscilla F. Jennings, partners doing business as Time Insurance Agency (hereinafter “Time”), to recover premiums and unearned commissions claimed due the superintendent as receiver of Independence Mutual Insurance Company, a corporation (hereinafter “Independence”), on policies written by Time in Independence prior to the receivership, and to recover attorney’s fees. From a judgment for the superintendent for $7,520.77 the partners in Time have appealed. We have jurisdiction because a state officer as such is a party.

On May 11, 1959 the superintendent of insurance, acting under § 375.560, sought and procured an order of the circuit court authorizing him to take charge of the property, assets, records, books and papers of Independence, and to receive its premiums and other income until final decree; temporarily enjoining Independence from further transaction of business, and ordering it and its officers, employees and agents immediately to turn over to the superintendent all of its property, assets, etc., in or under its or their possession or control. The basis of the action was that the surplus funds of Independence were exhausted and impaired ; that the company was insolvent and in such a condition that its further transaction of business would be hazardous to policyholders, creditors and the public.

Time represented Independence under a written agency agreement dated October 16, 1958. Time was given power to bind the company for various kinds of insurance and was bound to forward monthly reports of all premiums on business becoming effective prior to the last day of the preceding month and to pay the balance shown therein, whether collected or not, not later than 45 days after the end of the accounting month. Out of premiums collected Time was to retain certain commissions. By Paragraph 4 Time agreed that all premiums it received on business of the company should be held by Time “as a Trustee of the company until delivered to the company.” Time was to “refund ratably to the Company commissions on cancelled policies * * * at the same rate at which such commissions were originally retained.” Time agreed “to start cancellation proceedings immediately upon instructions from the Company,” and that “any business written [t]hereunder [might] be cancelled by the Company.” In May, 1959 Time had on its books four or five hundred policies written for its insureds in Independence. On May 11, 1959 Time cancelled two policies by previous orders of Independence. On May 12 Time had on hand and in its possession $3,300 or $3,400 of premiums collected from insureds in Independence. On every policy issued Time had collected some money but not all premiums had then been paid in full on all policies issued. Time had not remitted these premiums, less commissions, to Independence. They were not all due as of May 12, because of the 45- to 60-day time lapse between the date a policy was written and the date the charge therefor appeared on the monthly report. On May 12 Wille and Jennings had no actual knowledge of the action of the circuit court the previous day. On May 12 the partners in Time determined to cancel every policy written by Time in Independence, because they were dissatisfied with the claims service, accounting procedures and underwriting of Independence. Time had not been requested by Independence to so cancel. On that date Jennings started a cancellation program by having an office girl start “pulling files” on policies in force in Independence, and by sending out notices of cancellation of 56 policies (12 or 15% of the total number of Independence policies on the books of Time). While some of Time’s insureds asked Time to cancel their policies with Independence “it would be safe to say that most” of the 56 insureds whose policies were attempted to be cancelled on May 12 had not asked Time to cancel and that “in most instances” Time cancelled on its own accord. The first notice of any proceedings against Independence received by the partners of Time was a newspaper article printed May 13. Upon reading the article Time ceased cancellation of policies. Time took the premiums on hand and used them to acquire insurance for the same 56 insureds for the remainder of the terms of the policies, in a different company represented by Time (Guaranty Insurance Exchange, hereinafter “Guaranty”). Time paid the premiums on the substituted policies with the money previously collected from the same insureds and not yet transmitted to Independence. The replacement policies in Guaranty were written (typed) May 14 or 15, 1959, effective May 20. The premiums on these new policies were paid by Time to Guaranty in July. The partners in Time considered the .$3,300 or $3,400 on hand not due Independence; that they were holding it for payment of Time’s account with Guaranty; that the only amount they owed Independence was the amount of the premiums less the credit due for cancellations ($207.25). It was Wille’s practice, when it was known that insureds were “unhappy” in Independence and the insured would qualify for admittance in another company, to “cancel them out of one and put them into another.” He considered this “the agent’s prerogative” and that “by virtue o<f the cancellations and rewriting into Guaranty, the funds no longer then were held in trust for Independence, but then became the funds held in trust for Guaranty,” for the payment of Time’s account with Guaranty.

On June 2, 1959, following a hearing, the circuit court entered its order, judgment and decree continuing and making permanent its order of May 11; permanently enjoining Independence from further transaction of business and permanently dissolving Independence on that date; vesting title in fee simple absolute in the superintendent to all property, assets, evidences of debt, records, books and papers of Independence for the use and benefit of creditors, policyholders and stockholders and others interested in the assets; terminating and can-celling all policies of insurance issued by Independence and directing that its business and affairs be liquidated, settled and wound up pursuant to court order under the statutes.

By letter dated October 9, 1959 the superintendent demanded payment by Time of the sum of $3,329.33 representing premiums collected by Time on policies written in Independence, but not remitted. Time’s answer was that the net balance due the company was $207.25, calculated as follows : $3,494.57, the balance due May 5, less credit claimed due Time for April and May items of $3,287.32 [the cancellations]. Time’s letter further stated that Time had uncollected premiums on policies in the course of financing in the sum of $232.55.

On February 26, 1960 the superintendent, as receiver for Independence, not satisfied with this explanation, filed the instant proceedings by motion in the case against Independence, naming Wille and Jennings as defendants, asking the court to order defendants to pay the receiver $3,329.33 for premiums collected but not remitted, plus interest, and $750 attorney’s fees, alleging that under, the agency ■ agreement $3,329.33 of premiums 'collected from insureds of Independence were the property of Independence and its receiver, held by Wille and Jennings in a fiduciary capacity as trustees for Indpendence, for which they were accountable to the receiver. Defendants Wille and Jennings answered, denying any liability, pleading lack of notice of the proceedings in circuit court, failure to make them parties thereto and consequent lack of jurisdiction over defendants, the right of defendants to cancel policies written by them, and that the policies were cancelled before they had knowledge of the institution of the proceedings in circuit court.

The superintendent filed an amended motion in two counts, repleading the previous motion as Count I, adding Count II praying for an order on defendants to pay the receiver $3,370.66 unearned commissions which the receiver claimed defendants were obliged to refund by reason of the cancellation of the policies ordered by the court June 2, 1959, and increasing the claim for attorney’s fees to $1,000.

Trial without a jury in circuit court resulted in a judgment and decree for the superintendent for $3,397.98 on the account, including interest, $3,122.79 for unearned commissions, and $1,000 expenses and attorney’s fees, in the aggregate sum of $7,520.77. This appeal followed the overruling of Time’s motion for new trial.

The first issue raised on this appeal is whether the receiver is entitled to recover from the insurance agency unearned premiums shown by the monthly reports to be owing but not remitted to the insurance company, on the 56 cancelled policies. By contract Time was obligated to pay Independence the balance shown on monthly reports. Both by contract and by statute a trust or fiduciary relationship existed between Time and Independence as to all premiums received by Time on business of Independence. As a trustee it was Time’s duty, without alternative or option, to pay the balances shown at the specified times, Trice v. Lancaster, Mo.App., 270 S.W.2d 519, 525, 526, and the use of the trust funds in Time’s possession to purchase other insurance for Time’s policyholders was a gratuitous and voluntary act on the part of Time, not binding upon the receiver.

Time’s excuse for noncompliance with this duty (that acting within its authority, Time cancelled these policies in the ordinary course of business and transferred the risks to another company) is no excuse in law, and the circuit court properly ruled that Time is liable to the receiver for the unearned premiums.

Even in the case of a going eon--cern an insurance agent has no power ter cancel policies on his own initiative and-transfer the risk to another company by substituting the latter’s policy for the sub-' sisting policy, in the absence of consent oí the insured, Wilson v. National Ben Franklin Fire Ins. Co., Mo.App., 266 S.W. 338; Dowell v. Commonwealth Ins. Co., 215 Mo.App. 600, 256 S.W. 1074; Anno., 83 A.L.R. 298, 300, special authority, waiver or ratification (no certain and substantial evidence of which was shown). 45 C.J.S. Insurance, § 444 d.; 83 A.L.R. 300. Time’s purported cancellations in mass on May 12 and its transfer of the risks to Guaranty were in excess of its authority as agent of the company, and wrongful, not having been done at the request of the insureds, or at the request of Independence, but to serve the personal interests of the partners in'Time in preserving the good will of their policyholders. German-American Ins. Co. of New York v. Tribble & Pratt, 86 Mo. App. 546, 554, 555. In this case the effort of Time to effect a mass cancellation was done after entry of a court judgment placing the superintendent of insurance in charge of the property, etc. of Independence as receiver and enjoining it from the further transaction of business, the effect of which was an adjudication of insolvency by which the rights of the receiver became fixed, Wheeler v. Clark, Tex.Civ.App., 306 S.W.2d 158; Commonwealth ex rel. Todd v. Guardian Fire Ins. Co. of Pennsylvania, 65 Pa.Super. 203, 208; the corporate property, including the premiums on the books of Time, became bound by the injunction, regardless of the knowledge of the partners in Time, O’Neil v. Burnett, 263 Pa. 216, 106 A. 246; no business could be transacted with Independence; Time’s agency agreement was terminated, 44 C.J.S. Insurance, § 133b (3) ; the rights of creditors in insolvent concerns attached, Commonwealth ex rel. Todd v. Guardian Fire Ins. Co., supra, and the receiver succeeded to the right of Independence to payment of the unremitted unearned premiums. Following this adjudication policyholders who had paid premiums for a term extending beyond May 11, the date of the judgment of insolvency, and June 2, the date of the judgment of dissolution, could not cancel under the provisions of their policies and thereby become entitled to refund in full of unearned premiums because this would involve the prohibited transaction of business with Independence and give them a preference. Thereafter the policyholders, as creditors of the company, had claims against the receiver for their unearned premiums. Green v. American Life & Accident Ins. Co., Mo. App., 112 S.W.2d 924 [4], To permit Time to use the unearned premiums in its hands to purchase other insurance for these policyholders would result in refunds in full to the policyholders, thus creating a preference over other insureds and creditors. Langdeau v. Bouknight, Tex.Sup., 344 S. W.2d 435; Bohlinger v. Mayville Realty Co., Sup., 135 N.Y.S.2d 865, affirmed App.Div., 141 N.Y.S.2d 509; Eng v. Wheeler, Tex.Civ.App., 302 S.W.2d 263; Bohlinger v. Ward & Co., 20 N.J. 331, 120 A.2d 1; Maloney v. Rhode Island Ins. Co., 115 Cal.App.2d 238, 251 P.2d 1027; Commonwealth ex rel. Todd v. Guardian Fire Insurance Co., supra. What the policyholders could not do for themselves on May 12 Time could not do for them, even if Time had their consent.

The second question is whether the receiver is entitled to recover from Time commissions on premiums unearned because of the June 2 court order cancelling all Independence policies. By a plain and unambiguous provision of the agency agreement it was the obligation of Time to ratably refund commissions on cancelled policies. When the receiver was appointed and all policies of Independence were can-celled by the Circuit Court of Cole County Time was duty bound under its contract to ratably refund to the receiver the commissions it had retained on all policies of Independence it had written but for which it had not previously accounted to Independence. Langdeau v. Bouknight, supra; Eng v. Wheeler, supra; Wheeler v. Clark, Tex.Civ.App., 306 S.W.2d 158, 159. What the court of appeals said in Wheeler v. Clark, supra, 306 S.W.2d loc. cit. 160, is appropriate here: “When a Receiver was appointed and the policies were cancelled, the liability of the parties was then and there fixed. The Receiver owed the duty to pay to the policyholders the unearned premiums and [the agent] was obligated to pay the Receiver his unearned commissions, which he had theretofore retained. He could not change the situation by going out and voluntarily paying to the policyholders the unearned premiums.”

The third issue involves the propriety of awarding an attorney’s fee in favor of the superintendent against Wille and Jennings. From the recitals in the judgment we believe the court proceeded on the theory that it had power to assess an attorney’s fee against these private litigants because they knowingly and intentionally retained and converted to their use trust funds which they wrongfully refused to deliver to the receiver, whereby the receiver was put to trouble, expense and attorney’s fees, but the court had no power to assess attorney’s fees in favor of the superintendent on this basis. The employment and compensation of counsel by the superintendent of insurance is regulated by statute, which provides an exclusive method of defraying the expenses of enforcing the insurance laws. Ordinarily fees of counsel employed by the superintendent to assist in the enforcement of the insurance laws are required to be paid in the same manner as other departmental expenses, namely, out of appropriations or by assessment against the company, but in proceedings to enjoin, rehabilitate, dissolve, wind up or otherwise dispose of the assets of insurance companies § 375.740 provides that the superintendent ■“shall have power and authority * * * through the course of the whole case, to employ the necessary legal counsel * * subject to the approval of the court as to the amount of compensation to be paid them, and the expenses of such employment, together with all necessary expenses in the settlement of the business of the company, or the collection, disposition or distribution of its assets shall be taxed as costs, and paid by the superintendent out of the assets of such company; or, in case it is reinsured, by the reinsuring company, or, if the company proceeded against has no assets, then as by law in such cases provided, * * Leggett v. Missouri State Life Ins. Co., Mo.Sup., 342 S.W.2d 833, 934.

Accordingly, the judgment is reversed and remanded with instructions to enter a new judgment and decree as of June 1, 1961, in words and figures the same as the original judgment and decree of that date, excepting the provision as to attorney’s fees, which shall be so amended as to exclude recovery of an attorney’s fee against the partners in Time, and shall assess the attorney’s fee as provided by law.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . All section references are to RSMo 1949, V.A.M.S.

      . Agency Agreement, par. 3: “The Agent shall forward to the Company on or before the-day of each month an accurate report of all premiums on business becoming effective prior to the last day of the preceding month and not previously reported. The Agent agrees to pay the balance shown therein, whether collected or not, not later than 45 days after the end of the month for which the account is rendered.”

      . Agency agreement, par. 4: “The Agent agrees that all premiums received by the Agent on business of the Company are the property of the Company and shall be held by him as a trustee for the Company until delivered to the Company. The privilege of retaining commissions from the premiums received by the Agent shall1 not be construed as changing the relationship of the respective parties hereto.”'

      .Section 375.290: “Any person who shall * * ⅜ act as agent for any insurance company * * * who shall receive or collect moneys * * * on any account whatsoever, as' such agent, for any in- ■ surance company % * * shall be held responsible in a trust or fiduciary capacity . to such company for any money so collected or received by him for such company.”

      . “The Agent may retain, out of premiums collected, as full compensation on business placed with the Company, commissions as set forth in the Schedule. He shall refund ratably to the Company commissions on cancelled policies or refunded premiums at the same rate at which such commissions were originally retained.”