author: CHAPMAN, Justice.

text:
    CENTRAL AMERICAN LIFE INSURANCE COMPANY, Appellant, v. Russell S. HARDIN et al., Appellees.
    No. 7231.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1963.
    Rehearing Denied May 6, 1963.

      Nelson, McCleskey & Harriger, Lubbock, for appellant.
    Cleddie F. Edwards; Campbell, Brock, Wright & Waters, Lubbock, for appellees.
   CHAPMAN, Justice.

Appellant, Central American Life Insurance Company, a domestic life insurance company with its home office in the City of Lubbock, Lubbock County, Texas, filed this suit in that county against the county, City of Lubbock and Lubbock Independent School District to set aside all ad valorem tax assessments that had been made upon its personal property, basing its cause of action upon the proposition .that all such assessments were and are governed by the formula provided in Article 4.01 of the Insurance Code in Vernon’s Texas Civil Statutes and that such assessments were made under a system in conflict therewith. The years involved are 1956 through 1961.

It was stipulated that all procedural steps necessary for a proper contest of the assessments had been made.

The case was tried to the court, which denied the recovery sought by the insurance company and rendered judgment for all taxing units. It is from that judgment appeal is perfected to this court.

Thus, the basic question to be decided is whether the insurance company is authorized by Article 4.01 to deduct its reserve from the total valuation of its assets, including furniture, fixtures, and automobiles. (All emphases herein are ours.)

With the exception of the 1957 amendment hereinafter referred to the statutory provisions under consideration have been a part of the insurance statutes of this state since Acts 1909, Ch. 108, entitled “Insurance — Authorizing Incorporation Of Life, Accident, and Health Insurance Companies.” Section 25, the applicable section thereof, reads as follows:

“Insurance companies incorporated under the laws of this State shall hereafter be required to render for State, county and municipal taxation all of their real estate as other real estate is rendered and all of the personal property of such insurance companies shall be valued as other property is valued for assessment in this State in the following manner: From the total valuation of its assets shall be deducted the reserve, being the amount of debts of insurance companies by reason of their outstanding policies in gross, and from the remainder shall be deducted the assessed value of all real estate owned by the company and the remainder shall be the assessed taxable value of its personal property. Home insur-anee companies shall not be required to pay any occupation or gross receipt tax.”

Section 25 of Acts 1909 above quoted was brought forward as Article 4764 in the Revised Statutes of 1911, as Article 4754 of the Revised Statutes of 1925, and in Article 4.01 of the Insurance Code, Acts 1951, 52nd Legislature, Chapter 491 in the exact same language and with only minor changes in punctuation. The only substantive change since 1909 was made in the 1957 amendment to Article 4.01 with the following two sentences:

“All real estate, furniture, fixtures, and automobiles owned by any such company shall be rendered for taxation in the city and in the county where such property is located. All other personal property owned by such company shall be rendered for taxation in the city and county where the principal business office of any such company is fixed by its charter.”

The provision for valuation of the personal property of domestic life insurance companies for purposes of taxation has been in the statute from the beginning and provides that all personal property of such insurance companies shall be valued by deducting the reserve (the amount of the debts of the companies due to their outstanding policies in gross) from the total valuation of its assets, and from the remainder deducting the assessed value of all real estate owned by the company, that remainder then being the assessed taxable value of its personal property.

The term “all personal property”, included in Article 3.15 of the Insurance Code before its amendment, was in 1956 held to be all personal property of every character, and not restricted to “intangible personal property.” City of Dallas v. Texas Prudential Insurance Co., 156 Tex. 36, 291 S.W.2d 693. That case also held furniture and fixtures, some of the same type personal property here involved, are included within the meaning of the words, “all personal property.” There is a definite analogy to the instant case because of the use of the same phrase in Article 4.01. In construing its predecessor, Article 4764, with respect to the deduction of the reserve from the total valuation of Amicable Life Insurance Company assets, our Sup. Ct.Comm. (opinion adopted) in City of Waco v. Amicable Life Insurance Co., 248 S.W. 332, 335, said:

“But the statute does not provide for the deduction to be made from any particular character of assets. It is general, and taken from the gross.”

In construing the same statutory provision in City of Waco v. Texas Life Insurance Co., 248 S.W. 315, 318, our Sup.Ct.Comm. (opinion adopted), said:

“It is observed that the statute prescribes that, after the deductions provided for, ‘the remainder shall be the assessed taxable value of its personal property.’ This provision is clear, direct, and positive. There is no exception, modification, or method of evasion.”

Therefore, since the remainder referred' to in the statute has consistently been held by such authorities as those just cited to have been arrived at by using the taxable value of all personal property of the insurance companies (valued as other property is valued for assessment in this state) , without exception, we believe it would require us to hold that furniture, fixtures, and automobiles should be included in the total value from which the remainder is computed unless the 1957 amendment changes such rule.

We think it is significant to notice that the 1957 amendment was passed at the first session of the Legislature following the Supreme Court opinion in Prudential, supra. In that case the court said:

“It is evident by the enactment of Article 3.15, 3.16 and 4.01, supra, that the Legislature intended that all personal property of a domestic life insurance company should be taxed according to a formula based on the difference between the total assets (excluding real estate) and the gross reserves on policies, and that the taxable situs of all personal property of every character and description should be at the home office of the company, and we so hold.”

The Prudential case having held that the taxable situs of all personal property of every character and description <of a domestic life insurance company should be at the home office of the company the next Legislature added the two sentences to Article 4.01 to make a new rule for the situs of all furniture, fixtures, and automobiles; i. e., that they should be rendered for taxation in the city and county where located, but that all other personal property should be rendered at the principal business office of the company fixed by its charter.

We believe what we have just said is made evident by the entire caption of the 1957 amendment and the emergency clause of the amending act. The caption reads as follows:

“An Act relating to the situs, of personal property of domestic insurance companies for the purpose of taxation; amending Articles 3.15, 3.16 and 4.01 of the Insurance Code, so as to place the sittos of certain tangible personal property of all types of insurance companies organized under the laws of this State at the place where such property is located, and to place the situs of all other personal property at the principal place of business of the company; providing an effective date; and declaring an emergency.”

The emergency clause of the amending act stated:

“The fact that the present law fixing taxable situs of all personal property of domestic life, health and accident, insurance companies at the home office of the company unjustly deprives other counties and cities in which branch offices are located of the right to tax any personal property of the company creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and this Rule is hereby suspended, and that this Act take effect and be in force from and after January 1, 1958, and it is so enacted.” 1957 Texas Session Laws, pp. 812, 814.

As may be seen from the caption, the 1957 act makes no reference whatever to an amendment of the Articles therein mentioned so as to make a change in the method of arriving at the value of personal property of such companies for purposes of state, county, and municipal taxation. The distinction between furniture, fixtures, and automobiles and other personal property in the amendment seems to us to he material only for the purpose of determining the situs or place where such property is taxable and has no relation to the method or formula for valuing personal property of domestic insurance companies different to that provided by the legislatures and approved by the courts for many years. The emergency clause states clearly the reason for the amendment; i. e., in order that counties and cities in which branch offices are located may not be deprived of the right to tax any of the personal property of the companies there located.

The trial court in its conclusions of law and the taxing units’ contentions before this court are to the effect that appellees’ construction of Article 4.01 was necessary to avoid a violation of the Constitution of Texas, Article 8, Sections 1 and 2, Vernon’s Ann.St., requiring equality and uniformity in taxation and specifying exemptions.

As we understand the record, the company has rendered and valued its furniture, fixtures and automobiles by including them in the total valuation of its assets from which its reserve is deducted. The validity of such procedure has been approved by our courts for many years. City of Waco v. Texas Life Insurance Co., supra; City of Waco v. Amicable Life Insurance Co., supra; City of Galveston v. American National Insurance Co., supra; Glass v. Great Southern Life Insurance Co., Tex.Civ.App., 170 S.W.2d 247 (refused WM); Bryan v. Central American Life Insurance Co., Tex.Civ.App., 296 S.W.2d 628 (NRE).

Those decisions uphold the validity of the renditions of all personal property in the manner rendered by the company in the instant case and claimed by it on this appeal to be a proper method and formula, which permits a deduction of the reserves from the gross. This does not permit an escape of taxation because the reserve is not an asset but a debt. The court in Amicable, supra, stated:

“ * * * the reserve is treated as a debt or liability, and the deduction allowed is not in any sense the removal of any specific part of the assets of the company from taxation. * * * Article 4764 does not exempt any fund or assets of the company from taxation as constituting a reserve fund, but on the contrary specifically denominates the reserve a debt, and authorizes a deduction of that debt from the gross value of the company’s property."

Following the 1925 codification of our statutes and before the adoption of the Insurance Code, Article 5057a constituted in substance what is now the second paragraph of Article 4.01 of the Insurance Code having to do with domestic fire and casualty insurance companies. The consti--tutionality of the deduction of the reserve-for unrendered premiums, authorized by Article 5057a just mentioned and by the-second paragraph of Article 4.01, was attacked by the Highland Park Independent School District on essentially the same-grounds claimed by appellees herein. The Supreme Court upheld the constitutionality of the statute in the following language:

“The question is not one primarily of exemption of property from taxation, but is the fixing of a standard of valuation of personal property for taxation. In light of the fact that these reserves are required by law for the protection of policyholders, and in reality constitute the very basis upon which the stability and solvency of insurance companies depend, and in view of the further fact that they unquestionably represent a fund held in trust for the . protection of policyholders, which fund, potentially at least, may be completely appropriated to payment of liabilities, certainly justify the Legislature in classifying them as deductible indebtedness. The question is not one of lack of power, but purely of the exercise of discretion and judgment on the part of the Legislature.” Republic Insurance Co. v. Highland Park Ind. School Dist. of Dallas County, 129 Tex. 55, 102 S.W.2d 184.

In the instant case, as in the case just cited and quoted from, the question involved is not one of exemption from taxation but the arrangement of a standard or formula for the valuation of personal property for taxation. Therefore, we hold the trial court was in error in its interpretation of Article 4.01.

The judgment herein is reversed and rendered and the taxing units are permanently enjoined from the collection of taxes they have asserted to be due against appellant for the years 1956 through 1961. All costs are adjudged against the appellees.

      . The obligation or debt of the company by reason of its outstanding policies in gross.

      . City of Galveston v. American National Insurance Co., Tex.Civ.App., 14 S.W.2d 897 (writ refused).


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    Francisca R. PEREZ, a Feme Sole, Appellant, v. H.G. GEORGE et al., Appellees.
    No. 11084.

      Court of Civil Appeals of Texas. Austin.
    May 1, 1963.
    Rehearing Denied May 15, 1963.
    Raymond E. Ehrlich, Pharr; Miller F. Armstrong, Jr., Weslaco, for appellant.
    J.D. Vollmer, Mercedes, for appellees.
   PHILLIPS, Justice.

This is an appeal from a summary judgment granted by the Trial Court to the defendants below and appellees in this court, in response to a suit for damages brought by the plaintiff or appellant here, allegedly arising from the wrongful eviction of appellant from her home.

The appellant, Francisca R. Perez brought suit against H. G. George, Eli Rios, and other defendants for damages for the wrongful eviction of appellant from her home under an alias writ of restitution on a judgment for possession that had been previously obtained in the justice court.

Appellant alleged that in 1959 she purchased a home in Mercedes, Texas from appellees H. G. George and Eli Rios; that she was in default for the payments due for October, 1960 and November, 1960 in the amount of $60 each; that a suit for possession was filed by appellee Rios against the appellant in the Justice of the Peace Court and that judgment for possession was entered on November 16, 1960; that on December 7, 1960, she settled the judgment for possession by paying the ar-rearages under her contract, the current monthly payment, court costs and attorney’s fees of the appellee in the case; that one of the provisions of the payment was that the judgment would be fully settled and ■satisfied; that thereafter plaintiff again became in default of her contract; that ap-pellees H. G. George and Eli Rios did not file a suit for possession based on the latter default, but caused an alias writ of restitution to be issued on February 8, 1961 ¡based on the settled judgment and caused ■appellant to be forcibly evicted from her lióme.

By answer appellees denied the terms •of the settlement agreement; alleged that •appellant breached the settlement agreement; that appellant did not act in good faith in performing the provisions of the ■settlement agreement, then pleaded the judgment in the Justice of the Peace Court ■as res adjudicata and collateral estoppel.

As an alternative defense, appellees contend that they are entitled to possession ■of the property under the original contract of sale entered into between the parties inasmuch that if there had been ■a settlement agreement, the original contract of sale had been reinstated; that this original contract of sale had been breached by appellant's alleged defaults in payments since the settlement agreement.

After filing the above mentioned answers, the appellees filed a motion for summary judgment stating that there was no genuine issue of any material fact and prayed for judgment on the two theories set out ■in the answers described above.

Appellant filed a controverting affidavit •stating under oath the terms of the settlement agreement and further that no other agreement had been entered into between ■the parties.

The court granted appellees’ motion for ■summary judgment.

The record presented this court discloses an issue of fact as to whether or not there was an agreement and payment that satisfied and extinguished the judgment that appellees obtained against the -appellant in the Justice Court. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

If the judgment had been satisfied and extinguished, there was no basis for appellees’ writ for possession and the writ was invalid. Steger Lumber Co. v. McSwain, Tex.Civ.App., 184 S.W. 292, no writ history, 34 Tex.Jur.2d, Sections 644 and 646 and the cases there cited.

Appellees contend that even though their judgment obtained in the Justice Court should be satisfied and extinguished, that appellant still is subject to the original contract of sale under which she entered into possession of the property. This contract which was made a part of appel-lees’ pleadings and was entered into evidence specifically states that appellees will be entitled to possession of the property upon default and also entitled to retain whatever payments appellant has made as liquidated damages. Appellees further contend that the eviction of appellant was valid even though the writ used to obtain possession was wrongfully procured and cites Willis v. Mays, Tex.Civ.App., 177 S.W.2d 1000, writ ref., w. o. m., as authority. We hold that appellees are correct in this contention. Willis v. Mays, supra, holds that when a purchaser defaults in payment or performance under facts such as are presented in this case, his right to possession terminates and that he cannot maintain an action for damages for taking the property even though the writ is wrongfully procured, since the vendor has done no more by the writ than his contract gave him the right to do with it. The invalidity of the writ is not the determining point of this lawsuit.

Appellant has alleged and there is evidence supporting the allegation in her deposition that five men called at her home and evicted her; that all of her household furniture was moved out of the house over her protestations and severely damaged. Several of the men who evicted her and allegedly damaged her furniture are -defendants here. Thus a fact situation as to damages has been presented that the court could not have properly dealt with in this summary proceeding. The judgment of the Trial Court is reversed and remanded for trial.

Reversed and remanded.


author: GRISSOM, Chief Justice.

text:
    CITY OF ABILENE, Appellant, v. Raymond T. BYNUM et ux., Appellees.
    No. 3740.
    Court of Civil Appeals of Texas. Eastland.
    April 26, 1963.
    Rehearing Denied May 24, 1963.
    John W. Davidson, City Atty., Abilene, for appellant.
    Brooks & Fergus, Abilene, for appellees.
   GRISSOM, Chief Justice.

Raymond T. Bynum and wife sued the City of Abilene for damages to their farm alleged to have been caused by odors, insects and sewage from the city’s new sewer farm, which it built adjoining plaintiffs’ land. A jury found that the City’s sewage disposal operation caused objectionable matter, such as noxious fumes, odors, insects or sewer effluent to come upon plaintiffs’ land; that same caused a depreciation in its market value; that the damage was permanent; that prior thereto plaintiffs’ land had a market value of $86,000.00 and afterwards its market value was $36,000.00. Issue number 6 and the jury’s answer were as follows:

“Do you find from a preponderance of the evidence that the Plaintiffs had knowledge of the extent of the damages, i-f any, in the depreciation of the value of their property, if any, by reason of the sewage disposal operation in question, before January 17, 1959?— They did not have.”

The court rendered judgment for the plaintiffs for $50,000.00 and the City has appealed.

The City objected to the submission of issue 6, among other -reasons, because it set forth an improper test and because “it asks whether or not plaintiffs had knowledge of the extent of the damage, if any, when the true test should be when the damage became apparent — .” The City also asked the court to submit an issue inquiring when it became apparent to plaintiffs that damage “would” result to their land. Appellant contends that the court erred in overruling its motion for a directed verdict because plaintiffs’ cause of action for damages, caused by “odors and insects”, was barred by the two year statute of limitation. In the City’s motion for a directed verdict, it alleged that the evidence conclusively showed that the damages complained of arose, and were apparent to plaintiffs, in July, 1958, and that, since this suit was not filed until January 17, 1961, that plaintiffs’ cause of action was barred by the two year statute of limitation. As we understand the record the new sewer farm adjoining plaintiffs’ land was completed and the first load of sewage was sent to it in July, 1958, but there was not a complete change to the new sewer farm until the fall of 1959, when the old sewer farm was abandoned and all the City’s sewage was diverted to the new sewer farm. As we understand plaintiffs’ contention, it is that, although there were at times odors from the new sewage farm from the time of its first use, they were not such as to cause damage to plaintiffs’ land until the fall of 1959. We understand the City’s contention to be that, as a matter of law, plaintiffs’ cause of action arose in July, 1958, when the new sewer farm was completed and first used, and that damage to the land then became apparent to plaintiffs. The issue of limitation was seriously contested. We are forced to the conclusion that the issue on limitation was improper and that such submission constitutes reversible error. Plaintiffs cite decisions to'the effect that a plaintiff has the right to wait until he knows the extent of his damages before limitation begins to run. However, none of them approve submission of an issue inquiring, as was done here, when plaintiff knew “the extent” of his damage. On the contrary, such has been, in effect, held to oe erroneous. In Tennessee Gas Transmission Company v. Fromme, 153 Tex. 352, 269 S.W.2d 336, our Supreme Court held that plaintiff’s cause of action accrued when defendant began “wrongfully” discharging water on plaintiff’s land “not on the date when the extent of the damages to the land were fully ascertainable.” In Houston Water-Works Company v. Kennedy, 70 Tex. 233, 8 S.W. 36, the court held that if the original act were lawful the cause of action did not accrue until injury was sustained. See also Stillwell v. City of Ft. Worth, Tex.Com.App., 140 Tex. 560, 169 S.W.2d 486; American Indemnity Company v. Ernst & Ernst, Tex.Civ.App., 106 S.W.2d 763, 765 (Writ Ref.); Gulf Refining Company v. Nabers, 134 S.W.2d 843; and City of Athens v. Evans, Tex.Com.App., 63 S.W.2d 379. The action of the City in building and using its sewer farm was lawful and plaintiffs had no cause of action until their land was damaged by its use. 37 Tex.Jur.2d, Section 67, page 192, 194; Puretex Lemon Juice, Inc. v. S. Riekes and Sons, Tex.Civ.App., 351 S.W.2d 119, 122 (Ref. N.R.E.); City of Houston v. Parr, Tex.Civ.App., 47 S.W. 393 (Writ Ref.).

In Beck v. American Rio Grande Land and Irrigation Company, Tex.Civ.App., 39 S.W.2d 640, 641 (Writ Ref.), it was held that limitation for recovery of damages to 'land caused by water seepage ran from the time the injury to plaintiff’s land became apparent, or should have been discovered by due diligence. See also Geochemical Surveys v. Dietz, Tex.Civ.App., 340 S.W.2d 114, 117 (Ref. N.R.E.); Houston Natural Gas Corporation v. Pearce, Tex.Civ.App., 311 S.W.2d 899, 910 (Ref. N.R.E.); Linkenhoger v. American Fidelity and Casualty Company, Inc., 152 Tex. 534, 260 S.W.2d 884; City of Abilene v. Downs, 359 S.W.2d 642, 646 and Lance v. City of Mission, Tex.Civ.App., 308 S.W.2d 546.

We have considered all remaining points and have concluded that they do not present reversible error. They are overruled.

Since the foregoing was written our Supreme Court has decided the case of City of Abilene v. Downs, 367 S.W.2d 153. Upon another trial the court will, of course, comply with that decision.

The judgment is reversed and the cause is remanded.


author: NORTHCUTT, Justice.

text:
    Harvey BRASWELL d/b/a Harvey’s Surplus & Salvage, Appellant, v. FIRST STATE BANK OF AMARILLO, Texas, Appellee.
    No. 7259.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1963.
    Rehearing Denied May 6, 1963.
    Clayton, Martin & Harris, Amarillo-, for appellant.
    Lumpkin, Watson, Dunlap & Smith,, Amarillo, for appellee.
   NORTHCUTT, Justice.

On March 30, 1962, Harvey Braswell d/b/a Harvey’s Surplus & Salvage issued and delivered his check to one B. J. Coode in the sum of $570. The check was drawn’ upon his account with the North State Bank of Amarillo, Amarillo, Texas, and made payable to the order of B. J. Coode. On April 18, 1962, the check was endorsed by B. J. Coode as follows: “Pay to the-order of First State Bank, Amarillo',, Texas.” On the same day, Coode’s account was credited by the First State Bank for the full amount of the check. Before the check was received for payment by the North State-Bank, Braswell stopped payment upon the check. On April 18,. 1962, at the' time the check was deposited, Coode had a balance of 47 cents (47‡) and on the same day, after crediting Coode’s account with the $570, Coode withdrew $400 and then- on April 20, 1962, withdrew $150',, leaving credit to Coode’s account in the sum of $20.47. It is agreed that the First State Bank processed the check through the normal banking clearing house routine forwarding the same to the North State Bank on the same day it was received. The North State Bank, the drawee bank, did not return such check to the First State Bank until April 24, 1962. It was on April 24, 1962, that the First State Bank was informed that payment of such check had been stopped, which information being furnished by the return of the check unpaid.

The First State Bank, as plaintiff, brought this suit against Harvey Braswell d/b/a Harvey’s Surplus & Salvage and Harvey Braswell individually as defendant to recover the amount as represented by said check. The defendant answered contending the consideration for the check failed and B. J. Coode was not the owner thereof for value without notice of such failure of consideration but on the contrary knew the consideration had failed; then contended the check entered into the hands of the First State Bank for collection and the bank was the agent of Braswell for collection purposes and was not the owner of the check. The case was tried to the court without a jury and judgment was granted for the First State Bank for the $570 as represented by the check. From that judgment Braswell perfected this appeal. For convenience the parties will hereafter be referred to as they were in the trial court; the First State Bank as plaintiff and Braswell as defendant.

The defendant presents this appeal upon five points of error contending the court erred as a matter of law in holding that the plaintiff under the facts of this case became the owner and holder of the check; that plaintiff became the innocent purchaser of the check; that plaintiff became holder in due course of the check and in failing to hold plaintiff was the agent of B. J. Coode; further contending there was no evidence to support the finding of the trial court that the plaintiff acquired the check as a holder in due course.

It is undisputed that at the time Coode withdrew the funds represented by the check plaintiff had no notice of any infirmity in the check or of the transaction it represented. The first notice the plaintiff had of the stopping payment order of defendant was on April 24, 1962, when the check was returned unpaid. When the proceeds from the check were withdrawn by Coode, the plaintiff became the owner and holder of the check in due course. First Nat. Bank of Quitman v. Moore, Tex.Civ.App., 220 S.W.2d 694 (writ dismissed); Holt v. First State Bank of Miami, Tex.Civ.App., 74 S.W.2d 1050 (writ dismissed); City State Bank in Wellington v. Lummus, Tex.Civ.App., 277 S.W.2d 262 (NRE); and United States Cold Storage Corp. v. First Nat. Bank of Fort Worth, Tex.Civ.App., 350 S.W.2d 856.

It is stated in the case of First Nat. Bank of Quitman v. Moore, Tex.Civ.App., 220 S.W.2d 694 (writ dismissed) as follows :

“It must be remembered that appellee Moore issued and placed in circulation the check here in controversy as a negotiable instrument. He should have known that rights of other persons would or might attach to it in due course, and that such persons would suffer damages if he were permitted to void the check as he and Deaton attempted to do two days after it had left his hands, and one day after it had been bought and paid for by the appellant bank.”

We are of the opinion the plaintiff was the holder in due course of such check for valuable consideration and entitled to recover thereon. Judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    C. H. LANGDEAU, Temporary Receiver, Appellant, v. Alma H. ERWIN et al., Appellees.
    No. 11092.
    Court of Civil Appeals of Texas. Austin.
    May 1, 1963.
    Rehearing Denied May 15, 1963.

      John R. Grace, Kerns B. Taylor, Harold G. Kennedy, Austin, for appellant.
    John Peace, San Antonio, J. B. Langham, Luther Rutherford, Perry Rowan Smith, San Antonio, of counsel, for appellees.
   ARCHER, Chief Justice.

This is an appeal from an order overruling a Plea of Privilege.

On June 1, 1962, the 53rd Judicial District Court of Travis County, in Cause No. 126,740, entitled State of Texas v. Government Services Insurance Underwriters et al., entered a Temporary Restraining Order and appointed appellant Receiver; and on June 21, 1962, a temporary injunction was granted.

On July 4, 1962, pursuant to an application of rehabilitation the court dismissed the Receiver.

On July 6, 1962, another petition in the nature of a Quo Warranto was filed by the State in the 53rd Judicial District Court ■in Cause No. 127,201, against Government Services Insurance Underwriters et al. and on the same day a temporary restraining order was granted and appellant was appointed temporary Receiver.

On July 9th, 1962, the appellees filed their petition in the 37th Judicial District Court of Bexar County against appellant and the Bexar County National Bank, seeking a judgment cancelling a promissory note and collateral pledge agreement executed by Alma H. Erwin (without the joinder of her husband), to Government Services Insurance Underwriters and for the recovery from the defendants the pledged securities held in a safe deposit box in the bank.

On July 13, 1962, the District Court in Cause No. 127;201 granted a temporary injunction against the Underwriters et al., and continued the appointment of appellant as temporary Receiver.

On July 18, 1962, appellant filed a Plea of Privilege in the cause in the District Court of Bexar County, which was controverted by appellees.

On September 21, 1962, the causes, Nos. 126,740 and 127,201 in the District Court of Travis County, were consolidated under Cause No. 126,740.

On September 27, 1962, appellant filed an application for continuance, pursuant to Article 21.28, Section 4(e) of the Texas Insurance Code, V.A.T.S., which was denied, and a hearing on the Plea of Privilege had. On November 20, 1962, the trial court overruled appellant’s Plea of Privilege.

The appellant asserts that no exception to the general venue provisions guaranteeing suit in the county of defendant’s residence exists in this case, and further that Article 21.28, Section 3, requires the filing of a claim with the receiver as a venue prerequisite to filing of suit anywhere and that this has not been complied with, and further, that the court erred in overruling appellant’s application for continuance. Ap-pellees, in their controverting affidavit, asserted that venue in Bexar County is allowed under Subdivision 4 of Article 1995; Subdivision 10 of Article 1995, Subdivision 29a of Article 1995, Article 2311, Vernon’s Ann.Civ.St., but at the hearing on the plea urged only Subdivision 10 of Article 1995, as being controlling in a disposition of this case.

The appeal is predicated on four points assigned as error, and are that the court erred in refusing to sustain the Plea of Privilege, because no exception to exclusive venue in the county of appellant’s residence exists in this cause; because the action of appel-lees was not in fact or in law a suit for the recovery of personal property; because ap-pellees have not filed a claim with the Receiver as required by Article 21.28, Section 3, of the Insurance Code, and finally in denying the application for continuance.

One of the appellees, Mrs. Alma H. Erwin, a married woman, without the joinder of her husband, executed a note on May 22, 1962, payable to Government Services Insurance Underwriters, secured by a collateral pledge of stocks and bonds and were her separate property, and her husband did not join in any of the instruments, as required by Article 4614, V.A.C.S.

Government Services Insurance Underwriters is a reciprocal insurance company, operating under the provisions of Chapter 19, Insurance Code, and Government Services Underwriters, Inc. is the attorney-in-fact for the Government Services Insurance Underwriters, and was organized under the Texas Business Corporation Act.

Both of these entities, as well as the Bex-ar County National Bank, are residents and domiciled in Bexar County.

On July 5, 1962, when the two entities were not in receivership, Mrs. Erwin elected to exercise her right of coverture to declare the note, collateral pledge, and the transfer and assignment of her stocks and bonds void, and this suit was filed to recover possession of her stocks and bonds, and after the bank refused to deliver the same, because of conflicting claims of ownership.

As hereinabove stated on July 6, 1962, the two corporations were again placed in temporary receivership.

. We believe that the trial court correctly overruled appellant’s plea of privilege, because the venue of the suit is governed by the provisions of Subdivision 10 of Article 1995.

Subdivision 10 reads as follows:

“10. Personal Property.—
“Suit for the recovery of personal property may be brought in any county where the property may be or where the defendant resides.”

The controlling venue facts under Exception 10 are:

“(a) The petition must show that the suit is brought to recover personal property located in the county where the suit is filed;
“(b) The plaintiff must prove that the property is located in such county.” Hearn v. Frazier, Tex.Civ.App., 228 S.W.2d 582, er. dism.

According to appellees’ (plaintiffs’) petition, the suit was to recover possession of her stocks and bonds.

All interested parties were before the court and the court could adjudicate the rights of the parties. Kirkland v. Kirkland, Tex.Civ.App., 324 S.W.2d 21, no writ history.

In Downing v. Slattery, Tex.Civ.App., 144 S.W.2d 371, er. dism., the court stated:

“In the hearing on the issues raised by plea of privilege and controverting affidavit the venue facts alone are in issue. It is not a trial on the merits.
“In a suit for the recovery of personal property the main and controlling venue fact is the location of the property in the county where venue is sought to be maintained. (Citing cases.)
“In our opinion the matter as to the want of jurisdiction of the court is for the trial on the merits. If the petition fails to state a cause of action or to show jurisdiction it may be cured by amendment.”

Appellant takes the position that Subdivision 10 does not apply, based on the proposition that a married woman’s note is not void, but only voidable and that Mrs. Erwin first had to cancel the note and pledge before she is entitled to a return of the pledged stocks and bonds.

Since, as we have stated, all parties necessary to the ultimate relief sought are before the court, it is of no particular significance on venue under Subdivision 10 as to how appellee seeks to recover possession of her separate property, if that is the purpose of her suit.

Article 4614, V.A.C.S., reads in part:

“(c) If the wife shall not elect to have sole management, control, and disposition of her separate property, the join-der of the husband shall be necessary to the encumbrance or conveyance by the wife of her lands, and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this law.”

It is apparent that the only way a married woman can validly transfer her stocks and bonds is by complying with the statute. Speer’s Marital Rights in Texas, 4th Edition, Section 291, page 421, and Section 562, page 244.

In Austin v. Dickson, Tex.Civ.App., 7 S.W.2d 147, no writ history, the court held:

“The evidence showed that the shares of stock belonged to the separate estate of Mrs. Dickson, but had been pledged by her husband as security for the payment of his notes with her consent. Her name had been signed by him to a blank transfer on the back of the certificates with her consent; but the husband’s name was not signed to those certificates nor to any other form of transfer. * * * Upon those facts the court concluded as a matter of law that the pledge of the stock as collateral security was void because the transfer was not evidenced by the joint signature of Dickson and his wife as required by law* * *."

In Austin v. United Credits Corporation, Tex.Civ.App., 268 S.W.2d 793, no writ history, the court held:

“Appellee stresses the point that a married woman’s unauthorized contract is not void, but merely voidable. There are many expressions in the books to that effect. It is voidable at her instance, and not at the instance of the party contracting with her. J. B. Watkins Land Mortgage Company v. Campbell, Tex.Civ.App., 81 S.W. 560; Frazier v. Lambert, 53 Tex.Civ.App. 506, 115 S.W. 1174. And when she ‘avoids’ the contract, we think it is thenceforth ‘void.’ Webster’s International Dictionary. We also find expressions in the cases to the •effect that a note signed by a wife without being joined by her husband is a ‘nullity’ and she cannot be bound thereon. Shaw v. Proctor, Tex.Civ.App., 193 S.W. 1104; and in Cruger v. McCracken, 87 Tex. 584, 30 S.W. 537, it is said that a married woman’s •contract for a purpose other than such as is expressly authorized has been uniformly held ‘void.’ ”

Exception 4 of Article 1995 reads:

“4. Defendants in different counties. —If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

This exception is construed in Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, and a further discussion is not needful.

In Gambrell v. Tatum, Tex.Civ.App., 228 S.W. 287, Tatum brought a suit in Swisher County complaining of First National Bank, a resident defendant and Gam-brell, a resident of Baylor County, who filed his plea of privilege to be sued in the county of his residence which was controverted by plaintiff who admitted that Gambrell’s residence was in Baylor County, but asserting that under Subdivision 4, the suit was properly brought in Swisher County because the Bank was a resident of such county. The plea of privilege was overruled. The judgment of the trial court was affirmed by the Court of Civil Appeals, stating:

“This sum is in controversy, and is a part of the cause of action of which the bank as a stakeholder is trustee, and as such is interested in the subject-matter. Subdivision 4 * * * in authorizing a suit in the county of the residence of one of the defendants, contemplates a real defendant, and one against whom the plaintiff has a cause of action.
* ⅝ * * * *
“The bank, being in possession of part of the money * * * was a proper party to the suit. If he was a stakeholder the plaintiff may join the depositor and the stakeholder to determine to whom it should be paid.”

Stewart v. McLean, Tex.Civ.App., 210 S.W.2d 274, no writ history; Parchman v. Parchman, Tex.Civ.App., 239 S.W.2d 902, no writ history.

It must be conceded that the trial court impliedly found that a bona fide cause of action was shown against the defendant, Bexar County National Bank, whose vice-president, Mr. Dixon, testified that the bank would not give the stocks and bonds to the plaintiffs until some court orders it to do so.

As stated in James v. Drye, 159 Tex. 321, 320 S.W.2d 319, the rule is:

“On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.”

See Langdeau v. Burke, Tex., 358 S.W.2d 553.

In appellant’s brief it stated that “The title to the securities are not contested by this suit, they are the property of the ap-pellees.”

The question of the propriety of the court in overruling appellant’s application for continuance is not one to be resolved in a venue case.

The judgment of the trial court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Charles O. THORNTON, Appellant, v. RIO GRANDE NATIONAL LIFE INSURANCE COMPANY et al., Appellees.
    No. 4119.
    Court of Civil Appeals of Texas. Waco.
    May 2, 1963.
    Rehearing Denied May 23, 1963.
    Homer L. Cox, Houston, for appellant.
    Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Dallas, Steeger, Dohoney, Jones & Caldwell, Franklin C. Jones, Jr.,

      Houston, George R. Alexander, Jr., Dallas, for appellees.
   McDONALD, Chief Justice.

Plaintiff Thornton worked for defendant Rio Grande Insurance Company for some 5 years, first as an office manager and later as an agent. Defendants Johnson, Gayle, Kavanaugh and Lee are employees of defendant Rio Grande Insurance Co. On June 9, 1960, plaintiff voluntarily quit his job as agent. Plaintiff alleged that at the time of quitting, he gave defendant Johnson (office manager of Rio Grande) all of the moneys he had collected, and a final “tabulation summary” of moneys collected; that defendant Johnson discarded and destroyed such tabulation summary; that defendants Johnson and Gayle made an office audit of plaintiff’s accounts with the Company, which showed a shortage in moneys turned in by plaintiff; that defendant Kavanaugh made a “field audit” of plaintiff’s accounts with the Company, which likewise showed a shortage; that defendant Lee made an affidavit that she had reviewed the records of plaintiff’s shortage, and that same were true and correct. Plaintiff alleges that defendants Johnson and Gayle “knew” he was not short when they prepared the audit reflecting shortage; and that defendants Johnson, Gayle, Kavanaugh and Lee notified defendant Rio Grande that a shortage existed in plaintiff’s accounts; that defendant Rio Grande notified the State Insurance Commission; that the State Insurance Commission cancelled his license to sell insurance.

Plaintiff further alleges that defendants Johnson and Gayle were negligent in destroying his final tabulation sheet and in not notifying him of its destruction; that defendants Johnson, Gayle, Kavanaugh and Lee breached a duty to him to notify him of the alleged shortages before advising the Company, and were guilty of negligence in not notifying him of the alleged shortages in his accounts, before reporting same to Rio Grande; and that Rio Grande breached a duty to him in not notifying him of the alleged shortages, and was guilty of negligence in not notifying him of same before reporting the matter to the State Insurance Commission. Plaintiff alleges that all of such negligence was a proximate cause of his injuries and damages in the amount of $180,000. Plaintiff alleges that defendants’ actions were willful and malicious and grossly negligent, and prays for $100,000 exemplary damages.

Plaintiff further alleged that defendant, Rio Grande, owed him $230 for vacation pay and $500 from his Permanent Reserve Fund on deposit with the Company.

Plaintiff introduced evidence that he was not short in his accounts; that defendants Johnson, Gayle, Kavanaugh and Lee participated in preparation of audits and reports, which they forwarded to defendant Rio Grande, which .reflected a shortage in his accounts; that defendant Rio Grande notified the State Insurance Commission that plaintiff was short in his accounts; and the Commission cancelled his license to sell insurance; and that he has been financially damaged by loss of such license.

Trial was to a jury, but at the close of plaintiff’s evidence, the Trial Judge granted defendants’ motion for instructed verdict, and entered judgment that plaintiff take nothing.

Plaintiff appeals, contending that the Trial Court er.red in granting motion for instructed verdict, and in not submitting fact issues to the jury.,

There is no question, and plaintiff concedes that defendant Rio Grande had the duty to render a report to the Insurance Commissioner. (Sec. 11, Art. 21.07-1 Insurance Code, V.A.T.S.). Such .reports are privileged communications and cannot be made the basis for a suit for libel, without regard to the truth or falsity of the communications. The act of the Insurance Company filing such instrument with the Insurance Commission is an act for which the law provides no redress in damage for the plaintiff. Aransas Harbor Terminal Ry. Co. v. Taber, (Tex.Com.App.) 235 S.W. 841; Reagan v. Guardian Life Ins. Co., Sup.Ct., 140 Tex. 105, 166 S.W.2d 909.

Plaintiff contends that his pleadings and evidence raise a question as to whether defendant’s employees had the duty to tell him they had discovered an apparent shortage, and give him the opportunity to straighten the matter out, before reporting the matter forward to the Company; and that the Company had the same duty to him, before reporting the matter to the Insurance Commission; that failure to do this constituted negligence and a proximate cause of his damages. There is no showing that the defendants owed plaintiff the duty he contends, and we hold that the defendants owed plaintiff no such duty. Plaintiff alleged that defendants Johnson and Gayle “knew” he was not short when they reported the “shortage” to the Company. There is no evidence to this effect. Neither is there any evidence that any of the defendants acted with wilfulness or with malice.

Plaintiff contends that defendants acted in a “negligent manner” in determining an alleged shortage in his accounts, and in .reporting same to the Company, and to the Insurance Commission. There is no evidence in support of this contention, except plaintiff’s own testimony that he was not short; and this cannot constitute evidence of a “negligent” determination of shortage on the part of defendants.

On plaintiff’s claim for $230 vacation pay and $500 in his Permanent Reserve Fund, we think a factual issue has been made, and that the Trial Court instruction that plaintiff take nothing as regards this portion of the cause is erroneous.

The judgment appealed from is affirmed as to all of plaintiff’s cause of action, except that portion for $230 and $500 against the defendant Rio Grande, which portion is reversed and remanded.

Costs are adjudged one-half against plaintiff and one-half against defendant,. Rio Grande.

Affirmed in part. Reversed and remanded in part.


author: WERLEIN, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Bobby J. CAMP, Appellee.
    No. 14099.
    Court of Civil Appeals of Texas. Houston.
    May 9, 1963.
    Rehearing Denied May 30, 1963.

      Ramey, Brelsford, Hull & Flock, Donald Carroll, Tyler, for appellant.
    Gordon Wellborn, Houston, Phenix & Keeling, Rex Houston, Henderson, John B. McDonald, Palestine, for appellee.
   WERLEIN, Justice.

This is a workmen’s compensation case in which judgment was rendered on the jury verdict in favor of appellee for total, permanent incapacity benefits and certain medical expenses.

Appellee undertook to establish his average weekly wage under Article 8309, Sec. 1(1), which provides:

“If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, for at least two hundred ten (210) days of the year immediately preceding the injury, his average weekly wage shall consist of three hundred (300) times the average daily wage or salary which he shall have earned during the days that he actually worked in such year, divided by fifty-two (52).”

The jury found in answer to Special Issue 13 that appellee had worked in the employment in which he was working when injured, whether for the same employer or not, at least 210 days during the year immediately preceding the date. of his injury on April 28, 1961.

Appellant’s complaint in its first six Points is that the finding of the jury to said Issue is not supported by any evidence, is against the weight and preponderance of the evidence, and that since appellee failed to establish his average weekly wage, the judgment of the court for weekly compensation in excess of the minimum of $9.00 per week is excessive.

The only direct evidence as to the number of days appellee worked in the same employment consists of his testimony. There is no dispute as to his daily wage on the days he worked, nor that appellant voluntarily paid him compensation benefits of $35.00 per week for some 19 10/35 weeks following his injury, or a total of $675.00, before cutting him off, for which amount appellant was given credit in the court’s judgment.

Appellee testified in substance that roughnecks work seven days per week and that from April 28, 1960 to'April 28, 1961, the date of the accident, he worked as a roughneck as many as 210 days; that he stayed in the oil fields from May, 1956 to September, I960; that in September, 1960 until December 9, 1960 he did some welding for another employer; that he then worked three weeks for Brown & Root; that between December 9, 1960 and January, 1961, he also did 9 days’ roughneck work for Sam Trent Drilling Co.; and that he went to work for B. G. Byars Drilling Co. the early part of February, 1961 as a roughneck and was working for Byars at the time the accident occurred on April 28, 1961.

On cross-examination appellee again testified that he had worked as a roughneck at least 210 days from April 28, 1960 until April 28, 1961. When pressed by appellant’s counsel, he stated he felt sure he had worked that many days, but wouldn’t swear to it on his death bed if his life depended upon it; that he stayed pretty busy that year, and that when a rig goes down, “You can’t sit around and wait for that rig to start back up. You have got to hunt another job.” Appellee was unable to give the specific dates that he worked for various drillers. There appears to be some confusion and contradiction in his testimony given on cross-examination, but the record does not show that it was impossible for him to have worked as many as 210 days as a roughneck. Neither appellant nor appellee introduced work or time slips or records which might have definitely showed the dates appellee did roughneck work and for whom. We cannot say that the finding of the jury, that appellee did work 210 days in the kind of employment that he was engaged in at the time he was injured, is so against the great weight and preponderance of the evidence at to be manifestly wrong and unjust.

Furthermore, the law is well settled in this State that the voluntary payment of compensation by the workmen’s compensation carrier, in the absence of a showing of fraud, accident, mistake or misrepresentation, constitutes an admission that the amount of compensation paid per week is based upon the proper wage rate. There is nothing in the record showing that appellant claims that the payment by it to appellee of 19 10/35 weeks’ compensation in the amount of $35.00 per week was induced by fraud, accident or mistake, or any effort to compromise. Its admission consisting of such payment would in itself justify and authorize a recovery by appel-lee of compensation at the rate of $35.00 per week. Texas Employers Ins. Ass’n v. Grimes, Tev.Civ.App., 268 S.W.2d 786, ref., n. r. e.; Traders & General Ins. Co. v. Harper, Tex.Civ.App., 140 S.W.2d 593, error ref.; Texas Employers Ins. Ass’n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041; Texas Employers Ins. Ass’n v. Hodnett, Tex.Civ.App., 216 S.W.2d 301, ref. n. r. e.; Fidelity Union Casualty Co. v. Dapperman, Tex.Civ.App., 47 S.W.2d 408, error dism.

After his injury, appellee went to Dr. P. M. DeCharles, of Tyler, Texas, for care and treatment. Appellant later assumed the responsibility for treatment of appellee by Dr. DeCharles and has taken care of all his charges. Appellee continued under Dr. DeCharles’ care until September 12, 1961, when Dr. DeCharles released him, and reported such fact to appellant. At the same time appellee’s compensation benefits were cut off by appellant.

The evidence is undisputed that appellee was operated on by Dr. DeCharles for a ruptured disk. Appellee testified that at the time Dr. DeCharles released him he did not feel that he could work or climb an oil field derrick, or stand on the ground and handle heavy long pieces of pipe or do any type of manual labor that required lifting or bending; that after Dr. De-Charles released him he went to see Dr. Bone at Henderson and was given some medicine, heat treatments, and massage of his back. Dr. Bone testified that appellee’s complaints of pain and suffering were genuine ; that he was still treating him at the time of the trial, and that the treatment given was necessary to relieve appellee of part of the effects of his injury. He testified that his total charges of $45.00 were reasonable and the customary charges.

Article 8306, Sec. 7, provides m part that:

“If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association.”

This provision is not qualified by Article 8306, Sec. 7a, which does not apply to a factual situation such as that in the instant case.

The question is whether appellant, after having had notice of appellee’s injury failed to provide reasonable medical aid “as and when needed”. The statement of Dr. DeCharles at the time he released ap-pellee that he had done all that he could do, was in effect a refusal by him to render additional medical services. There is evidence that at such time appellee was still suffering from pain in his back and incapacity to work, and that he informed Dr. DeCharles that he was not “getting along too good”. The treatment given ap-pellee by Dr. Bone was necessary to relieve some of the pain and effects resulting from his injury. It is our view that the jury’s findings to the effect that the services provided appellee by Dr. Bone subsequent to September, 1961, were reasonably required to relieve him from the effects of his injury, and that appellant failed to furnish such services to appellee, find support in the evidence. Travelers Insurance Company v. Hernandez, 5 Cir. 1960, 276 F.2d 267.

We have read the entire statement of facts and applying the test enunciated by our Supreme Court in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and Tudor v. Tudor, 1958, 158 Tex. 559, 314 S.W.2d 793, we have concluded that the jury’s findings of total and permanent incapacity are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Indeed, the jury’s findings are amply supported by the evidence.

Judgment affirmed.


text:
    AMERICAN EMPIRE LIFE INSURANCE COMPANY, Appellant, v. CITY OF AUSTIN et al., Appellees.
    No. 11075.
    Court of Civil Appeals of Texas. Austin.
    May 8, 1963.
    Rehearing Denied May 29, 1963.

      Rankin, Kern, Martinez and De La Garza, McAllen, for appellant.
    Doren R. Eskew, City Atty., Thomas P. de Steiguer, Asst. City Atty., J. C. Hinsley, Austin, for appellee.
   ARCHER, Chief Justice.

Appellant as plaintiff filed this suit against appellees as defendants alleging that appel-lees have demanded that plaintiff pay taxes based on a void and illegal assessment, and have threatened to file suit against plaintiff and will do so unless enjoined to enforce collection of taxes illegally assessed, and sought an order enjoining and mandamus-ing defendants to reassess taxes on all personal property in the City and Austin Independent School District for the year 1957, enjoining the defendants from collecting or attempting to collect taxes illegally levied.

The defendants filed a plea in abatement, answer and cross-action, asking the Court to dismiss the plaintiff’s suit because filed too late, being filed two years and four months after the tax plan was put into effect, and a large percent of taxes for the year 1957 had been collected.

The plaintiff’s suit was severed from the defendants’ cross-action.

Hearing was had on plaintiff’s suit and the Court sustained the plea in abatement and dismissed the case.

The appeal is founded on eight points and are to the effect that the Court erred in sustaining the plea in abatement, because it was no more than a general demurrer, and the Court was required to look alone to the facts alleged in the petition and take them as true; because plaintiff had exhausted all administrative remedies and because the assessment of the 1957 personal property taxes against plaintiff was void and unconstitutional, and plaintiff as a matter of law, on the facts set out in its pleading, was entitled to an injunction; because the suit was timely filed and the plaintiff was entitled to a declaratory action to determine the validity of the taxes, and whether plaintiff had been discriminated against, and because under the pleading is entitled to a mandamus to compel the defendants to cancel the assessment and to reassess the taxes in accordance with the law.

The appellees take the position that the plea in abatement was properly sustained because the assessment of the 1957 personal property taxes was not void, and because the suit was not timely filed, and a dismissal of plaintiff’s suit was the proper procedure.

Appellant’s Original Petition was filed February 10, 1960, and an Amended Petition on June 28, 1962, alleging that certain of its personal property was assessed, and that appellees omitted from assessment for taxation certain personal property of certain persons, firms and corporations, the result of a definite plan, and that appellant had appeared before the Board of Equalization and to the City Council, and no relief was obtained, but that payment of the taxes was demanded.

Appellant does not contend that its property had been assessed in excess of market value and not taxed in proportion to its value, but that the invalidity of the assessment is based on the claim that appellees failed to assess certain other properties.

The failure to assess the personal properties of various other property owners for taxation does not invalidate the assessment of other properties, and in some instances even where the failure or omission is by the design of the taxing official.

In Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879, the Supreme Court said:

“It is settled that ‘the government does not lose its right to taxes justly owing on one parcel of property, by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable.’ ”

and that

“Thus, the fact that other property in the city was not assessed for taxation presents no defense to the suit against the petitioner for taxes not shown to be within themselves excessive.”

In order to prevail, an owner attacking a plan or scheme used by the taxing authorities in fixing values for taxation, the taxpayer must not only show that the plan was an arbitrary and illegal one, but must also show that the use of such plan operated to his substantial injury. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569.

In City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, our Supreme Court stated that the deliberate adoption of a plan for the omission from the tax rolls of a large volume of property, was in contravention of the constitutional and statutory provisions for equality and uniformity of taxes, etc., but then stated:

“Once such a plan is put into effect the litigant may defeat the recovery of taxes only to the extent that they are excessive and he must assume the burden of proving excessiveness. * * * The difficulties to be encountered in making the necessary proof as a basis for relief is the penalty the taxpayer must pay for sitting idly by while taxing authorities put into effect a plan of taxation which deliberately permits certain classes of property to escape taxation.”

In Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, the Supreme Court pointed out the manner in which a property owner might discharge the burden to show his injury.

The question of discrimination to a taxpayer because of the omission of properties from the tax roll is discussed in City of Orange, Texas v. Livingston Shipbuilding Company, 258 F.2d 240, Court of Appeals, 5th Circuit.

State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847; City of San Marcos v. Zimmerman, Tex.Civ.App., 361 S.W.2d 929, er. ref., n. r. e.

As has been noted appellant filed its suit on February 10, 1960, and the 1957 taxes became due October 1, 1957, and became delinquent on February 1, 1958, which was more than two years prior to the filing of appellant’s suit.

The cases such as City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820, er. ref., and City of Wichita Falls v. Cooper, Tex.Civ.App., 170 S.W.2d 777, er. ref., cited by appellant are not like the present case, since suits had been timely filed and before the tax rolls had been made up, or before the taxes were due or payable.

The plea in abatement filed by appellees was not as a demurrer or special exception but as an actual plea in abatement of the suit.

In sustaining the plea and dismissing the suit, the order of the Court reads:

“and the court having considered the same and heard the evidence relative thereto, finds that the taxes for the year 1957 were levied by the City Council of the City of Austin by Ordinance duly enacted on the 27th day of September, 1957, that the Plaintiff did not file its Original Petition in this cause until the 10th day of February, 1960, that by the time the Plaintiff’s Original1 Petition in this suit was filed taxes for the year 1957 had been levied and assessed by Defendants and that approximately 95% thereof had been paid by the taxpayers against whom assessed, and that by reason of such facts the Plaintiff is not entitled to prosecute this suit for the relief sought herein, ⅜: ⅜ ⅜ a

In McDougald v. First Nat. Bank of Beaumont, Tex.Civ.App., 239 S.W.2d 145, er. ref., n. r. e., the purpose of a plea in abatement is explained.

The judgment of the Trial Court is affirmed.

Affirmed.


text:
    Clay J. HERBSLEB, d/b/a Contractors Industrial Service Engineers, Appellant, v. George DUTY, d/b/a Duty Construction Company and Duty Construction Company, Appellee.
    No. 4113.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1963.
    L. H. Lynch, Houston, for appellee.
   McDONALD, Chief Justice.

Plaintiff Herbsleb brought this suit against defendant Duty for 2 weeks’ rental fee of a bulldozer in the amount of $525., and for $300. attorneys’ fees. Plaintiff swore to his petition. Defendant answered by general denial. Trial was before the court without a jury, which, after hearing, entered judgment for plaintiff for the $525. bulldozer rental, and found that plaintiff was not entitled to recover attorneys’ fees.

Plaintiff appeals, contending that the trial court erred in holding that attorneys’ fees cannot be awarded under Article 2226, T.R. C.S., Vernon’s Ann.Civ.St.

Article 2226, T.R.C.S. reads:

“Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, may present the same to such person * * * and if * * * not been paid * * * may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, * *

Plaintiff’s claim is for $525. for rental of a Caterpiller dozer. Rentals of equipment are not expressly covered by the statute. Plaintiff cannot recover attorney’s fees unless his suit was “founded upon a sworn account.”

The fact that plaintiff swore to his pleading, does not make such suit “one upon a sworn account.”

Our Supreme Court in Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 holds:

“ * * * Respondent contends that the above language of Article 2226 means that an attorney’s fee is recoverable if suit is upon a sworn account as defined by Rule 185, Texas Rules of Civil Procedure. This rule is not a rule of substantive law but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery or defense, and is not the basis for any cause or causes of action. * * * a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, * *

It follows that attorney’s fees in a suit for rentals of equipment are not provided for by Article 2226, and the fact that plaintiff swears to its petition, cannot constitute such action “a suit founded upon a sworn account”, within the meaning of Article 2226, T.R.C.S.

Plaintiff’s point is overruled and the judgment of the trial court is affirmed.

L


author: FANNING, Justice.

text:
    Clara JOHNSON, Appellant, v. JULIETTE FOWLER HOME, INC., and Shiloh Methodist Cemetery Association of Caddo Parish, Louisiana, Appellees.
    No. 7484.
    Court of Civil Appeals of Texas. Texarkana.
    March 26, 1963.
    Rehearing Denied May 21, 1963.
    J. E. Jackson, Carthage, for appellant.
    Davis Bailey, Carthage, for appellees.
   FANNING, Justice.

Clara Johnson filed a claim against the estate of Mrs. Georgia A. Johnson, deceased, which claim was approved in the amount of $3517.66 by the probate court of Panola County, Texas. Appellees herein appealed to the District Court. Trial was had in the District Court, and four special issues were submitted to a jury.

Special Issue No. 1 and the answer of the jury thereto were as follows:

“Do you find from a preponderance of the evidence that Mrs. Clara Johnson advanced funds in payment of drug bills, doctor bills and nursing bills for and on behalf of Mrs. Georgia A. Johnson during her lifetime?
“Answer ‘Yes’ or ‘No’.
“ANSWER: No.”

The remaining conditionally submitted issues were not answered by the jury.

The trial court refused appellant’s motion for judgment n. o. v., and rendered judgment for appellees denying appellant’s claim. Appellant’s motion for new trial was overruled and appellant has appealed.

Appellant by her points 1, 2, 3, and 4 contends in essence that appellees failed to show by any proof that they had any interest in the estate of Georgia A. Johnson, deceased, or that they would suffer any injury by reason of appellant’s claim.

Appellant filed no verified pleading denying the truth of the pleadings of appellees with respect to the capacities in which appellees contested the claim of appellant and the interests that appellees pleaded that they had in the matter in dispute. Since appellees sufficiently set forth in their pleading their interests and capacities entitling them to contest appellant’s claim, and since appellant failed to file a verified denial of such allegations, formal proof of such pleaded interests and capacities was not required. Rule 93, Texas Rules of Civil Procedure; Boothe v. Blanchette, Tex. Civ.App., 208 S.W.2d 105; Barney v. Huff, Adm., Tex.Civ.App., 326 S.W.2d 617, wr. ref., n. r. e.; Joy v. Joy, Tex.Civ.App., 156 S.W.2d 547, wr. ref. Appellant’s points 1 through 4, inch, are overruled.

Appellant by her points 6, 7, 8, 9 and 11 contends to the effect that there was no evidence to support the answer of the jury to special issue No. 1.

Mrs. Clara Johnson, appellant-claimant, testified to the effect that Mrs. Georgia A. Johnson resided in the home of herself and her husband, Edgar Johnson (the son of Mrs. Georgia A. Johnson), from July 1957 until August 18, 1959, when Mrs. Georgia A. Johnson died; that during such period Mrs. Georgia A. Johnson was an invalid and was cared for by Clara Johnson and a colored nurse, Pinkie Young; that she paid the various sums listed in the claim to Pinkie Young as nursing fees, and also paid certain listed medical and drug bills. Appellees introduced in evidence various royalty checks aggregating a substantial amount, payable to Mrs. Georgia Johnson, which checks appear to have been last endorsed by Edgar Johnson, the husband of Clara Johnson. Appellant on cross-examination testified that she paid the nursing bills and drug bills out of capital funds of a grocery store she and her husband operated — her explanation in this regard was questioned by a vigorous cross-examination. Appellant further testified to the effect that the claim was justly due and that all offsets, payments and credits had been allowed and that there were no counter-claims against her for any debts that claimant owed the estate.

On June 2, 1958, Mrs. Georgia A. Johnson conveyed the acreage and estate in the lands devised to her by her daughter, Cora Johnson, deceased, (which was a life estate) to Jesse Johnson, Ethel Johnson, Edgar Johnson and Clara Johnson. After this deed was executed and from July 22, 1958 to July 16, 1959, the royalty checks between said dates were payable to Mrs. Georgia A. Johnson, Jim Johnson, Ethel Johnson, Edgar Johnson, and Clara Johnson, with the name of Georgia A. Johnson appearing as the top endorser on said checks.

Pinkie Young, the colored nurse, testified to the effect that she nursed Mrs. Georgia A. Johnson for the period above referred to and was paid for her nursing services by Clara Johnson, and that medicine was bought by Mr. and Mrs. Edgar Johnson. She also testified she signed ■ the. penciled receipts on notebook paper introduced in evidence about which she and Mrs. Clara Johnson were vigorously cross-examined.

There is a complete absence of any testimony in the record to show that Mrs. Georgia A. Johnson ever contracted to pay or authorized the payment of the nursing, medical and drug bills in question. Also there is no testimony in the record as to the reasonableness of the nursing charges, medical and drug bills.

The burden was not on contestants-appellees to disprove the claim of Mrs. Clara Johnson. The burden was on appellant-claimant to establish by a preponderance of the evidence the validity of her claim. The jury was the judge of the credibility of the witnesses and of the weight to be given their testimony. Mrs. Clara Johnson, the appellant-claimant, was also an interested witness in the cause. It is our view that the jury, in the exercise of its proper jury function, under the record in this cause was not compelled by the evidence to answer Issue No. 1 in the affirmative, but was authorized, within the exercise of its proper jury function, to answer Issue No. 1 in the negative, as they did so answer said issue. Appellant’s points 6, 7, 8, 9 and 11 are overruled.

It is our further view, after a careful consideration of the entire record as a whole in the light of the rules announced in the case of In Re: King’s Estate, ISO Tex. 662, 244 S.W.2d 660, that the jury’s answer to Special Issue No. 1 was not so against the great weight and overwhelming preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellant’s 10th point is overruled.

None of appellant’s remaining points are deemed as presenting reversible error, and the same are respectfully overruled.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    E. H. GENDKE, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 4100.
    Court of Civil Appeals of Texas. Waco.
    May 2, 1963.
    Rehearing Denied May 23,1963.

      Eugene A. Smith, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, Walter E. Workman, Houston, for appellee.
   WILSON, Justice.

Claimant appeals from a take-nothing judgment rendered on an adverse jury verdict in his action seeking workmen’s compensation benefits for a specific injury alleged to have been sustained to his left leg. The jury returned negative answers to issues inquiring whether the accidental injury alleged was a producing cause of any loss of use of the leg.

Claimant presents 12 points, none of which reflect reversible error in our opinion, but he presents other points relating to exclusion of evidence which we unanimously conclude require reversal.

Plaintiff testified he tripped on a hoop and fell, striking his knee on cement. He lost no time from work but was examined and treated by several physicians. He had sustained prior injuries and incapacity, and there was adequate evidence from which the jury could properly find the injury claimed was not the producing cause of incapacity. There was also evidence which would have amply supported a finding of producing cause, at least, of partial loss of use. Claimant testified the injury alleged affected his walking by requiring his leg to be moved under tension to prevent knee joint movement, producing “a severe limp”, as a result of which he held his foot “to the side, which wears my shoes off on the outer side.” He exhibited such a shoe to the jury. He testified his right leg, previously injured at knee and ankle, did not then cause this limp, although he was limping at the time of the accident; that “I have some limp wherever I go, whether it be in church, here, or anywhere else.” He adduced medical testimony that an examination 20 months after the claimed injury showed “he was walking with a limp on the left knee.”

After plaintiff rested the insurance carrier presented as evidence only the testimony of one medical witness, who testified that it would be expected there would be a difference in circumference of right and left leg if claimant “favored the knee”, because “if the knee hurt, you unconsciously favor it”, and “if the muscles were the same size we knew he didn’t have very much wrong with the knee.” This doctor testified he examined claimant 14 months after date of accident, on four intervening occasions, and 17 months after date of injury, at which time the leg muscles were of the same size. “Q. Do you recall whether Mr. Gendke had any sort of a limp or unusual gait? A. No, I don’t recall any, and I certainly don’t mention anything about it as far as I can see in my notes. Let’s see if he had a complaint. No, he didn’t have any complaint of any limp.”

On cross-examination he testified one could not “limp and favor his leg and still not have any wasting of the muscle down there”, because if one walks with a limp, bending the knee, disuse results in muscle atrophy. By agreement he measured the two legs at the trial, finding the right leg to be one-fourth inch larger than the left. He testified abnormal shoe wear on the side would not be attributable to knee limp, which would cause wear at toe and heel, but was “due to something in the foot.”

Defendant rested at the end of the second trial day. The following morning the insurance carrier made a motion to restrict claimant’s rebuttal evidence “to rebuttal of medical evidence only”, the motion reciting claimant had brought nine lay witnesses to court and announced he intended to prove these witnesses had observed claimant limping- on various occasions; that such evidence was properly a part of plaintiff’s case in chief, and not in rebuttal of medical evidence. Claimant’s response was that since testimony of ap-pellee’s medical witness was to the effect claimant did not limp, the evidence offered was in rebuttal. The court replied that appellee’s witness “didn’t testify he didn’t limp, he testified he never saw him,” and that claimant already had in evidence testimony that he limped. Appellee’s motion was sustained and the evidence of all these witnesses was excluded.

The bill of exception shows one of the tendered witnesses, a minister, would have testified he had observed claimant limping virtually every Sunday for the past three or four years, as church usher. Other witnesses, fellow-employees, would have testified claimant had an unusual walk; he limped on his left leg, and they saw him limping at work each day.

Appellee says there was broad discretion in determining whether a party is permitted to introduce purely cumulative evidence, and the court’s ruling will not be reversed unless abuse is shown. We recognize that rule, but it is not our problem. The issue here is not whether the evidence was purely cumulative; the primary question is whether it was rebuttal. Rule 265, Texas Rules of Civil Procedure provides that after the parties have introduced their evidence they “shall then be confined to rebutting testimony on each side.”

The problem is not whether the court could have properly limited the number of witnesses. Appellee successfully moved to suppress the testimony of all. Neither is the question whether plaintiff should have introduced the testimony as a part of his case in chief, if it was rebuttal evidence. We are mindful of the compelling pressures which require a conscientious judge in the heaviest litigation area cf the state to expedite the disposition of a case, and doubtless the action in this case was prompted by such urgency.

In Markham v. Carothers, 47 Tex. 21, 27 the Supreme Court said that although the purport of evidence excluded was to strengthen evidence originally introduced, since it was in direct answer to the adversary’s evidence it was admissible in rebuttal. Exclusion there was not based on failure to put on the entire case in chief, but because the evidence was an effort to discredit a previous witness. “We recognize the rule that in regard to the time and manner of introduction of testimony, much is left to the discretion of the presiding judge; but as the evidence in this case was excluded, not because the presiding judge held that in fairness it should have been introduced before, but on legal grounds, which are untenable, we hold that its exclusion was erroneous.” Following the decision, in Ayers v. Harris, 77 Tex. 108, 13 S.W. 768, 773, the Supreme Court said that if the defendants had offered any evidence disputing the testimony of plaintiff’s witness who testified to existence of blaze marks on trees, or negativing existence of a blazed line, “notwithstanding it was of the same character as that first introduced by plaintiff, and proper to be introduced in support of the issues made by his own pleadings, ought to have been admitted, and its exclusion would have required a reversal of the case.” The rule has consistently been that plaintiff may “reserve confirmatory proof in support of the very points made in the opening till he finds on what points his opening case is attacked, and then fortify it upon those points”, the court there said.

The testimony offered was both directly in rebuttal of defendant’s evidence on the primary issue of loss of use, as well as being available on the matter of credibility. In our opinion sustaining of appellee’s motion to prohibit introduction of evidence from any of these witnesses was error; and from the entire record we think it requires reversal.

Reversed and remanded.


author: STEPHENSON, Justice.

text:
    STATE of Texas ex rel. George DISHMAN et al. v. Charles H. MEYER.
    No. 6587.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 21, 1963.
    Rebearing Denied May 22, 1903.
    W. G. Walley, W. C. Lindsey, Dist. Atty., Beaumont, for appellants.
    Adams & Browne, Beaumont, for appel-lee.
   STEPHENSON, Justice.

This action was brought in the name of the State of Texas and others to remove Charlie H. Meyer from the office of sheriff of Jefferson County, Texas. This suit was filed in the 60th Judicial District Court in Jefferson County. May 22, 1962, an application for a non-suit was granted. May 31, 1962, a similar removal suit was filed in the 136th Judicial District Court in Jefferson County, and an order entered of temporary removal of Charlie H. Meyer and appointment of Richard E. Culbertson as Acting Sheriff. On the same date Charlie H. Meyer filed a petition to reinstate the removal suit in the 60th Judicial District Court and a petition for an injunction to restrain Richard E. Culbertson from acting as sheriff. May 31, 1962, the Judge of the 60th Judicial District Court signed an order restraining Richard E. Culbertson from acting as sheriff and setting a hearing on a temporary injunction for June 1, 1962. On June 1, 1962 an order was entered by the presiding judge of the 60th Judicial District Court continuing the restraining order in effect and resetting the date for hearing for June 6, 1962. On June 6, 1962 an order was entered in the 60th Judicial District Court reinstating the removal suit, enjoining Richard E. Culbertson from acting as sheriff, and restraining the District Attorney and W. G. Walley from taking any further action in the case pending in the 136th Judicial District Court. Notice of appeal to the Court of Civil Appeals was given in the 60th Judicial District Court June 12, 1962, and cost bond was filed June 19, 1962. June 13, 1962 a transcript of this record was ordered. This transcript was filed in the District Clerk’s office June 22, 1962, and in this Court of Civil Appeals July 6, 1962. The statement of facts is dated June 25, 1962 and was filed in this Court of Civil Appeals June 25, 1962. June 20, 1962 leave was granted by the Supreme Court of Texas permitting the State of Texas to file an original petition for mandamus and prohibition, and on July 2, 1962 a mandamus was issued and opinion rendered. The Judge of the 60th Judicial District Court was ordered to expunge the order of June 6, 1962 from the docket of such court, holding the same to be null and void. State ex rel. Dishman v. Gary, Tex., 359 S.W. 2d 456.

The opinion of the Supreme Court determined all of the issues pending before this Court of Civil Appeals and this case thereby became moot. We recognize the general rule to be that an appellate court will not ordinarily decide abstract and moot questions merely to determine the question of liability for costs. We are not assuming jurisdiction of this case in order to decide which party is right, so that the costs may be taxed. The merits of this case were determined by the Supreme Court in the mandamus proceeding. The rule has long been established that when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed. It is so ordered. Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725.

The only question left to be determined, is the assessment of the costs. By following the rule of Guajardo v. Alamo Lumber Company, supra, of setting aside all previous orders and dismissing the case, the appellants are the successful parties to this appeal. Appellee contends first that it was the acts of the appellants which caused this case to become moot and therefore the costs should be taxed against appellants. This statement is not entirely accurate. It is true the appellants filed their petition for mandamus and prohibition in the Supreme Court, but this action did not render the appeal to the Court of Civil Appeals moot. It was the action of the Supreme Court in granting such petition which rendered this present case moot. Appellee also contends appellants proceeded with this appeal after filing their petition for mandamus in the Supreme Court and should therefore be required to pay the costs. The rule is that if an appeal is unnecessary for the protection of the appellant, the cost of appeal may be taxed against him. 15 Tex.Jur.2d, page 115, see. 96. We cannot say the appeal was unnecessary in this case.

When the Judge of the 60th District Court entered the order reinstating the removal suit, and enjoining Richard E. Culbertson, the District Attorney and W. G. Walley, as above set forth, there were at least two possible courses which could be taken. One was by appeal from such order to the Court of Civil Appeals, and the other by an original petition for mandamus and prohibition in the Supreme Court of the State of Texas. Neither cause is exclusive. An abundance of precaution resulted in both courses of action being taken. There is no rule prohibiting this. The granting or refusing an original mandamus by the Supreme Court is discretionary. The Supreme Court could have concluded that relator could have gotten the same relief in the Court of Civil Appeals and declined to grant such writ on the ground that because of the great volume of business coming before the Supreme Court, our judicial system could operate more efficiently if litigants are .required to present applications of such nature before the Court of Civil Appeals in the first instance. The Supreme Court may have written in this case as it did in Dallas Railway and Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081:

“We have heretofore in several instances taken jurisdiction of similar actions, but, on account of the great increase in the volume of litigation coming before this court, we have concluded to adopt the policy of requiring that relief of this nature be sought first in the Court of Civil Appeals.”

In the case of Hidalgo County Water Imp. Dist. #2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, the Supreme Court announced the same rule as the Watkins case, supra, but added, to the last line above quoted:

“That .rule will not be followed in a case like the instant one, where the question involved is of great importance to the State as a whole.”

The rules provide for certain steps to be taken in order to perfect an appeal to the Court of Civil Appeals, and each step must be taken within a prescribed time. Appellants could not wait to see what the outcome of their petition to the Supreme Court would be, before taking such steps.

Even though appellants were permitted by the Supreme Court to file their petition for mandamus and prohibition June 20, 1962, no one could be certain what the final action of the Supreme Court would be and whether or not the petition would be granted or denied. The questions before this Court of Civil Appeals and the Supreme Court were not identical. As stated by the Supreme Court in its opinion in the mandamus :

“The appeal from the temporary injunction which the State took to the Court of Civil Appeals from the in-junctive order restraining Richard E. Culbertson from acting as sheriff is inadequate to grant the State the relief to which it is entitled. The Court of Civil Appeals in passing upon the question of whether the trial judge abused his discretion in granting the temporary injunction may or may not pass upon the basic order which purports to reinstate Cause No. B-77,303 upon the docket of the 60th District Court. This is the order which brings about the seeming jurisdictional conflict between two co-ordinate courts and is the order, together with its incidental in-junctive provisions which the State is entitled to have expunged from the record.”

The Supreme Court’s opinion is dated July 2, 1962, and the record shows that the transcript and statement of facts had been completed and filed before that date.

By voluntarily taking a non-suit, the appellants were the unsuccessful parties, and all costs accrued to this point should be paid by them. All costs incurred in the trial court up to and including the order granting the non-suit are taxed against appellants. By filing the motion for reinstatement, and petition for injunctions against Richard E. Culbertson, the District Attorney and W. G. Walley, the appellee is responsible for all that followed, including the order of the trial court, and the subsequent appeal to this Court. All other costs incurred in the trial court and in this Court of Civil Appeals are taxed against appellee.

Case dismissed.


text:
    Arno HELDT, Roland Heldt, d/b/a Heldt Bros. Tractor Corporation and/or Heldt Brothers Garage, Incorporated, Appellants, v. John W. MARTIN, Appellee.
    No. 11096.
    Court of Civil Appeals of Texas. Austin.
    May 1, 1963.
    Rebearing Denied May 22, 1963.
    Lloyd, Lloyd & Dean, Alice, for appellant.
    Utter & Chase, Corpus Christi, Robinson, Strawn & Robinson, Raymondville, for ap-pellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the trial court overruling appellants’ plea of privilege.

This suit was filed August 1, 1962, as a common law action for damages for injuries alleged to have been received on or about November 13, 1959, while working for Falco Drilling Company on the substructure of a drilling rig, alleging that the front end of a truck belonging to defendants struck the substructure causing plaintiff to fall a distance of 12 feet, and receiving injuries from such fall and alleging negligence of the defendants.

On August 24, 1962, the defendants filed a plea of privilege to be sued in Jim Wells County and for a transfer of the cause to such county.

A controverting affidavit was filed on August 30, 1962, and a hearing was set for November 8, 1962.

On November 2, 1962, the defendants filed a special exception pointing out that the controverting affidavit, including the petition shows that the cause of action was barred by the two year statute of limitation and, as a matter of law, plaintiff had failed to allege a cause of action maintainable against defendants in Willacy County.

On November 7, 1962, the Texas Employers’ Insurance Association filed a plea of intervention and the defendants filed a plea of privilege to the intervention plea seeking to have it transferred to Jim Wells County. No controverting affidavit was filed by in-tervenor and the only appearances were for the plaintiff and the defendants on November 8, 1962. Intervenor did file an affidavit controverting the plea of privilege on November 17, 1962, nine days after the date set for a hearing.

During the hearing on the plea of privilege and the controverting affidavit beginning on November 8, 1962, plaintiff took a nonsuit on his cause against Heldt Brothers Tractor Corporation and Heldt Brothers Garage, Incorporated and the hearings were heard with John W. Martin as plaintiff and Arno Heldt and Roland Heldt, both individually and doing business as Heldt Brothers Trucks, as defendants.

On the hearing the plaintiff offered in evidence over the objection of the defendants, his testimony that in a previous case he had recovered Workmen’s Compensation from intervenor for his injuries.

On December 13, 1962, the court rendered and signed the judgment overruling the Special Exception of the defendants and overruling the plea of privilege.

The appeal is founded on five points assigned as error and are to the effect that the court erred in overruling the Special Exception because the petition and the controverting affidavit showed on their face that the suit was filed more than three years and eight months after his injuries occurred and was barred by the two year statute of limitation; in considering any evidence that would avoid, toll or suspend the bar of limitation, and finally that neither plaintiff’s controverting affidavit nor his petition made a part thereof alleged that he had previously filed suit for and recovered workman’s compensation for injuries involved in this case; that the trial court erred in permitting the plaintiff to testify he had filed such a suit and recovered compensation.

Plaintiff seeks to retain venue in Willacy County under Subdivision 9a, Article 1995, Vernon’s Ann.Civ.St., based on the asserted negligence of defendants in Willacy County which allegedly caused the injuries complained of.

Appellee’s counterpoints are that his petition does not show on its face that it was barred by the two year statute of limitations because limitations within the meaning of Article 5526 did not start running against him within the provisions of Article 8307, Section 6a, V.A.C.S. until May 25, 1962, the date appellee and intervenor settled appel-lee’s compensation suit by judgment; that venue was properly sustained in Willacy County, because the suit was a third party action by appellee and the intervenor within the provisions of Article 8307, Section 6a; that limitations being a matter of law for the court to decide, the court correctly ruled on the pleadings and evidence that venue was in Willacy County within the provisions of Article 1995, Subdivision 9a, the appellee having properly proved all venue facts within such exception to the venue statute; that this being a third party damage suit against appellants within the provisions of Article 8307, Section 6a, the cause was properly brought in the name of John W. Martin; the rights of intervenor are contingent upon the rights of appellee’s recovery against appellants, who cannot complain of the relationship existing between appellee and the insurer; and said cause of action being merged in appellee’s cause of action as shown by his petition and the pleadings of the insurer.

Appellants’ position is that Article 5526 does not start operating as a period of limitations within the provisions of Article 8307, Section 6a, until there has been a final determination of the compensation action.

Appellants have by their special exceptions challenged the sufficiency of appellee’s controverting plea and the petition made a part thereof.

We then are concerned with the propriety of the use of a special exception raising the question of limitation in a hearing on a plea of privilege.

The question of limitation is a defensive plea and properly raised on a trial on the merits, and not a proper question on a venue hearing.

Newman v. Texas Farm Products Company, Tex.Civ.App., 346 S.W.2d 151, no writ history; Tex.Jur. Vol. 43-B, Venue, Sec. 152, p. 365; Commercial Standard Insurance Company v. Caylor, Tex.Civ.App., 333 S.W.2d 161, no writ history.

We do not believe that the decision by the Supreme Court in Leonard v. Maxwell, 365 S.W.2d 340, is controlling in this instant cause as it was not decided with regard to special exceptions directed at plaintiff’s pleading with regard to limitation, the court held that plaintiff had not properly incorporated the venue facts necessary in his controverting affidavit.

The judgment of the trial court is affirmed.

Affirmed.


author: RENFRO, Justice.

text:
    Paul N. RENEGAR, Appellant, v. Alvin LOUIS, Appellee.
    No. 16414.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1963.
    Rehearing Denied May 24, 1963.
    John Whiteside, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, David O. Belew, Jr., and Sloan B. Blair, Fort Worth, for appellee.
   RENFRO, Justice.

Passenger cars driven by Mrs. Renegar and defendant Louis collided in the intersection of Bewley and Webster Streets in Haltom City. Mrs. Renegar was traveling east on Webster; Louis was traveling south on Bewley. At the time of impact the Renegar car was in its proper lane and all but two or three feet of the car had crossed the center line of Bewley. The left side of the Louis car, as it proceeded south, was one foot over the center line of Bewley Street. The front end of the Louis car struck the left rear side of the Renegar car about three feet from the rear bumper.

The accident occurred near noon on a clear day. The asphalt streets were dry. Both streets were thirty feet in width.

There were no stop signs or other traffic signals confronting either driver.

The jury found that Mrs. Renegar sustained damages in the amount of $12,101.00.

The jury found, however, that the failure of Mrs. Renegar to keep a proper lookout was a proximate cause of the accident.

Plaintiff appealed from a take nothing judgment on points of error which attacked the findings on Mrs. Renegar’s failure to keep a proper lookout and proximate cause as being without support in the evidence, or as being against the great weight of the evidence.

There was evidence that Louis, as he approached the intersection, could see in Mrs. Renegar’s direction “better than half” a city block. Photographs introduced in evidence apparently support his estimate. (The jury found that Louis failed to keep a proper lookout.) Mrs. Renegar testified that the pictures fairly and reasonably show what she would have seen had she looked in Louis’ direction. She testified there were no “hills or anything” to obstruct her view; she could see to her left just as well as Louis could look to his right; there was nothing to obstruct the view between her and the approaching car; she did not see the Louis car until she entered the intersection.

Ordinarily, proper lookout is a question for the jury. Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

Although Mrs. Renegar had the right of way — the jury so found — that did not excuse her from exercising ordinary care for her own safety. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95.

The evidence is sufficient to support the jury’s conclusion that Mrs. Renegar did not keep a proper lookout as she approached the intersection, and that, had she looked, she would have discovered the Louis car in time to have taken action to avoid the collision. Jury findings on failure to keep proper lookout in similar fact situations were upheld in Joe D. Hughes, Inc., v. Moran, Tex.Civ.App., 325 S.W.2d 829; Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

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