author: HAMILTON, Justice.

text:
    The STATE of Texas, Petitioner, v. Ramon A. BENAVIDEZ and 32 Bottles of Beer, Respondent.
    No. A-9081.
    Supreme Court of Texas.
    Feb. 6, 1963.
    Will Wilson, Atty. Gen., Austin, Charles R. Lind, Sam R. Wilson, Norman V. Suarez and Paul Phy., Asst. Attys. Gen., Stephen L. Haley, County Atty., Seminole, for petitioner.
    Arthur G. Smith, Seminole, for respondent.
   HAMILTON, Justice.

This is an action brought by the State of Texas to forfeit 32 bottles of beer alleged to be “illicit beverages” under the Texas Liquor Control Act, Article 666 — 42, Vernon’s Annotated Texas Penal Code. Defendant Benavidez (respondent here) was tried in the county court of Gaines County for the crime of possessing alcoholic beverages in a dry area for the purpose of sale. The jury in that case found respondent not guilty and the county court rendered a judgment of acquittal. Thereafter, the State brought this suit in the district court of Gaines County to declare a forfeiture of the beer. Respondent’s defensive pleadings in the forfeiture suit included a plea in bar, in support of which respondent introduced the county court judgment of acquittal. When the State’s objection to the introduction of the county court judgment was overruled, the State and respondent entered into an agreed statement in which the parties stipulated the county court judgment and that both would introduce the same evidence as that adduced at the criminal trial on the issue of whether defendant possessed the liquor for purpose of sale or for private consumption. The district court sustained the plea in bar, stating “ * * * the court being of the opinion that forfeiture in such cases may be predicated only upon a conviction of the defendant, the State’s application for forfeiture is in all things denied and refused * * The case was dismissed without trial on the merits. The Court of Civil Appeals has affirmed. 356 S.W.2d 845.

The State contended in the Court of Civil Appeals that the trial court erred (1) in holding that the county court judgment of acquittal was admissible and (2) in hold-’ ing that the county court judgment was a bar to the forfeiture suit. The respondent’s theory of the case is that the forfeiture proceeding is in fact criminal in nature, though civil in form, and that bar by prior acquittal operates.

The Court of Civil Appeals devoted most of its opinion to the question of admissibility of the county court judgment in the district court forfeiture proceeding, holding it to be admissible and summarily holding that it operates as a bar by res judicata or estoppel by judgment. The Court of Civil Appeals overruled respondent’s contention that the forfeiture is criminal in nature. The State of Texas is petitioner. Both parties make essentially the same arguments in this court as made in the Court of Civil Appeals.

Article 666-4 (b) of the Texas Liquor Control Act provides:

“(b) It shall be unlawful for any person in any dry area to * * * possess for the purpose of sale, * * * any liquor, * * * beer or ale. * * * ”

Article 666-3a (4) of the Act defines “illicit beverage” as:

“(4) ‘Illicit Beverage’ shall mean and refer to any * * * alcoholic beverage possessed, * * * with intent to manufacture, sell, * * * in violation of the provisions of this Act.”

Article 666-42 authorizes seizure, forfeiture and sale:

“(a) All illicit beverages as defined by this Act * * *, may be seized * * *.
“(b) It shall be the duty of the Attorney General, the District Attorney, and the County Attorney, or any of them * * * to institute a suit for forfeiture of such alcoholic beverages and property, such suit to be brought in the name of the State of Texas against such beverages and property in any court of competent jurisdiction in the county wherein such seizure was made. Notice of pendency of such suit shall be served on any person found in possession of the beverages or property at the time of seizure in the manner prescribed by law and the case shall proceed to trial as other civil cases. * * * If upon the trial of such suit it is found that the alcoholic beverages are illicit, * * * then the court trying said cause shall render judgment forfeiting the beverages and property to the State of Texas and ordering the same disposed of as provided for by Section 30 of this Article, * *

Thus a finding on the fact issue as to whether or not the respondent possessed the beer for the purpose of sale defines both criminal liability (Art. 666-4) and an “illicit beverage” for purposes of forfeiture under Article 666-42.

There are but two grounds upon which respondent’s plea in bar can be sustained: first, bar by prior acquittal. By the express terms of Article 666-G2(b) the forfeiture proceeding is made a civil action; suit is brought in the name of the State of Texas against the beverage and not against the owner or possessor. Furthermore, the Texas cases have uniformly held that such forfeiture actions are civil suits. State v. Gray, 141 Tex. 604, 175 S.W.2d 224; State v. Meyers, 328 S.W.2d 321 (Tex.Civ.App.1959) writ ref’d n. r. e. See also State v. Compton, 142 Tex. 494, 179 S.W.2d 501; Lorance v. State, 172 S.W.2d 386 (Tex.Civ.App.1943) writ ref’d. Thus the owner or possessor of contraband sought to be forfeited is not being criminally tried in the forfeiture action as he must be in order to invoke bar by prior acquittal. Art. I, Sec. 14, Texas Constitution, Vernon’s Ann. St. Respondent contends that while the forfeiture proceeding may be civil in name and in form it is in fact an attempt by the State to try him a second time for the crime. Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886) is perhaps the best authority for this argument, but the holding of that "case has been severely criticized and rejected by most of the states and by the federal courts. Annotation, 27 A.L.R.2d 1137, 1142. See Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917, where it was held in spite of Coffey that Congress had the power to impose a civil remedial sanction (tax penalty) in aid of enforcement of the criminal prohibition without running afoul of the federal constitutional guarantee against double jeopardy.

The second ground upon which the plea in bar might be sustained is res judi-cata or estoppel by judgment. This is the ground upon which the Court of Civil Appeals has chosen to rest its holding, but we cannot agree with that holding. A prior adjudication of an issue in a criminal matter is not res judicata or estoppel by judgment to a subsequent civil action involving that same fact issue. Simpson v. City of Houston, 260 S.W.2d 94 (Tex.Civ.App.1953) writ ref’d n. r. e.; Pittman v. Stephens, 153 S.W.2d 314 (Tex.Civ.App.1941) writ ref’d n. r. e. We have not been directed to, nor have we found binding Texas decisions on this question, but a majority of the other American jurisdictions, we think correctly, follow the rule as stated above. The reasons given for the rule include difference between criminal and civil actions with respect to quantum of proof, different subject matter, different consequences, and a technical difference of defendants. See Annotation, 27 A.L.R. 2d 1137, supra.

The difference between the quanta of proof required in the criminal and civil actions is the most convincing. The judgment of acquittal in this case was no more than a finding by the jury that the State has failed to prove beyond a reasonable doubt that respondent intended to sell the beer; it is not a finding that the State has failed to prove respondent’s intent by a preponderance of the evidence as is required in civil cases.

We think that the question of bar by res judicata or estoppel by judgment is the only real issue in the case, but since the case must be remanded for trial and since the Court of Civil Appeals has given so much attention to its holding that the county court judgment was admissible as evidence, we feel that we should clear up any possible misunderstanding about that. We hold that the judgment will not be admissible as evidence on the trial of the ultimate issue in the forfeiture proceeding. Ordinarily acquittals in criminal actions are not admissible as evidence in subsequent civil proceedings involving common fact issues. March v. Walker, 48 Tex. 372; Shook v. Peters, 59 Tex. 393; Landa v. Obert, 78 Tex. 33, 14 SW. 297; 2 McCormick and Ray, Texas Law of Evidence 149, Sec. 1297 (2d ed., 1956).

The judgments of the Court of Civil Appeals and the trial court are reversed and the cause is remanded to the district court of Gaines County for trial.


source: Caselaw Access Project

author: TIREY; Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Elma E. HATCHER, a Widow, et al., Appellees.
    No. 4081.
    Court of Civil Appeals of Texas. Waco.
    Feb. 28, 1963.
    Rehearing Denied March 21, 1963.
    Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.

      Ñaman, Howell, Smith & Chase, Waco, for appellees.
   TIREY; Justice.

This is a compensation case. On a verdict favorable to plaintiffs the Court entered a judgment in their favor and against the insurance carrier for the sum of $35.00 per week for 360 weeks beginning December 8, 1961, and the further sum of $500.00 as funeral benefits, together with interest at the rate of 4% per annum on the unpaid installments of compensation and for costs. The Court further found that 29 weeks compensation had accrued, totaling $1015.-00, and fixed the interest thereon, and decreed accordingly. The Court also fixed attorneys’ fees at 30% of the recovery in favor of plaintiffs’ attorneys, and decreed accordingly.

The Court overruled defendant’s motion for judgment non obstante veredicto and its amended motion for new trial, and it perfected its appeal to this Court.

The judgment is assailed on five points, each containing sub-heads. They are substantially to the effect that the Court erred: (1) In failing to sustain defendant’s various motions for a directed verdict and judgment non obstante veredicto after plaintiffs failed in their burden to prove their case by a preponderance of credible, probative evidence. Then follows various sub-heads from (a) to (i) inclusive.

A statement is necessary. Plaintiffs grounded their cause of action on the fact that James O. Hatcher met his death while engaged as an employee of the Lone Star Gas Company on December 8, 1961, and while in the pursuance of his duties of employment he was required to deliver gas to customers of such company; that in making a delivery of gas before his death on December 8, 1961, the employee was required to unwind an unusually long and heavy high pressure hose from a large stationary reel on the back of the delivery truck, and that in order to transfer the gas from the truck to the customer’s tank it was necessary for said Hatcher to stretch out and pull the heavy hose over a distance of approximately 70 feet, and connect the hose to the customer’s tank; that after filling the tank the employee had to pull the hose and coil it around a large reel on the back of the truck; that in so doing it was necessary for him to raise the heavy hose and raise each coil above his head in order to rewind it around the reel; that the hose being heavy, stiff and hard to manage, the employee was subjected to an unusual strain and exertion; that in performing this labor he suffered a sudden and unexpected and unusual strain, which caused an infarction of his heart, or a heart attack, from which he died some few minutes later, and that the employee sustained an injury resulting in his death in the manner aforesaid, and by reason thereof his injuries and death were and are com-pensable.

Defendant went to trial on its first original answer in which it denied plaintiffs’ allegations, and further specifically plead that the employee did not sustain an accidental injury in the course of his employment; that on the contrary, the employee died as a result of causes or conditions unconnected with his employment. Hatcher was found dead on December 8, 1961 on South 4th Street near Garden Drive in the City of Waco, and he had previously left the home of Mr. and Mrs. Prickette just a few minutes before his death, and where he had filled a storage tank with butane gas. In leaving the Prickette home he had driven in the truck in a northerly direction on South 4th Street, and the truck was stopped and the left door was open, and the truck’s ignition was off, and Hatcher was lying face down in a ditch outside of the truck at the rear, out of the roadway. There was no eye witness to his death. There was no autopsy. Testimony was admitted regarding previous pains that Hatcher had experienced, over defendant’s objection, also with regard to the nature of the activity required in filling the butane tank. On the testimony tendered Df. M. W. Col-gin testified in answer to a hypothetical question to the effect that Hatcher had in reasonable probability suffered a myocardial infarction. It is appellant’s contention that Dr. Colgin predicated his opinion upon previous chest pains, and an unusual strain. The appellees challenge the foregoing statement and contend that the record shows that Dr. Colgin did not predicate his opinion upon an “unusual strain,” but rather upon the fact that the deceased was engaged in an activity which was unusual to his regular work.

It is the rule that the question as to whether the deceased received an accidental injury in the course of his employment which caused his death, and whether his injury was accidental, are questions for determination by the jury. See Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, points (2, 3); also Texas Employers Ins. Assn. v. Smith, Tex.Civ.App., 235 S.W.2d 234, (1950) writ refused. Mass. Bonding & Ins. Co. v. Massey, 123 F.2d 447, 5th Circuit.

Dr. M. W. Colgin was tendered as a witness and he qualified as an expert on internal medicine and heart diseases. Owing to the importance of his testimony, we quote the pertinent part of his testimony. Plaintiffs propounded the following hypothetical question:

“Q. * * * I am going to ask you to assume a colored man forty-six years of age, five feet, eight inches tall, who weighed 165 pounds, was married and had five children. He had worked for the same company for some sixteen years; was a trusted and well respected employee; he had for several years been employed as a general worker in the following capacities: He installed gas light fixtures at residences which involved digging a six inch trench for a gasoline, setting up fixtures and connecting the pipes to it. He installed butane tanks with the help of other men by setting blocks in place and lowering the tank on to the blocks' with a winch, washing and lubricating trucks. In the latter work he was furnished a power grease gun. He delivered appliances such as refrigerators and stoves by the use of man power help and a rolling dolly which was placed under the appliance. He had driven a truck to and from various locations, hauling supplies of one sort and another. He had tended the unloading of a tank car of butane gas by hooking a hose to the tank car and hooking the other end to the storage tank and supervising the running of a pump to take the gas from one to the other. He had delivered gas to retail customers in a company truck. The truck was equipped with a hundred feet of one inch ID high pressure hose that weighed about seventy to eighty pounds when stretched out as much as seventy-five feet. It had a large bronze globe valve and metal fittings on it. The hose is carried on the truck on a reel on the back end. The reel is some seven feet to the top of it from the ground. To fill the tank the truck is in most instances driven to the side of the customer’s tank. A loop of hose is removed from the reel by grasping the hose with both hands and lifting it over the top of the seven foot reel. The end of the hose is then connected on to the customer’s tank and the gas is pumped in by a power take-off pump on the truck motor. When the tank is full the hose is disconnected and placed back on the reel by catching it with both hands, raising it over the head with the loop projecting into the air and putting it over the seven foot reel. On December the 8th, 1961, this man had reported for work at 8:00 A. M., and had spent the morning installing a butane tank with the help of another man, and after lunch went to a-home on South 4th Street in Waco to make delivery of butane gas, driving one of the company’s regular trucks as before described. He went in the truck alone and drove into the driveway at the home. The weather was cold and misty rain. The customer’s tank at the home was seventy feet from where the truck was stopped in the driveway. In order to deliver the gas into the customer’s tank it was necessary to remove the hose from the reel and stretch the hose seventy feet from the delivery truck to the customer’s tank, connect it up and pump the gas in. The hose then was put back on to the truck by pulling the end closest to the truck and looping it over the seven foot reel, one loop at a time until it was all back on the reel. This task was unusual to the work that this man normally did. He then backed the truck out of the driveway and drove it north on 4th Street for several blocks, where the truck was found stopped and the man was found lying dead on the ground behind the truck. All of this took place within ten minutes after the completion of the delivery of the gas into the customer’s tank. This man was in apparent good health, had had no illnesses or diseases in recent years. His only physical complaint had been a pain in the chest in 1958 which radiated into his arm; another pain in his chest in the spring of 1961 which radiated into his arm; and another pain in his chest on November 30, 1961, which also radiated into his arm. Now. Doctor, based upon the information which I have supplied you in the hypothetical question, do you have an opinion as to the reasonable probable cause of this man’s death? Just state ‘yes’ or ‘no’.
“A. Yes.”

(At this point counsel for appellant asked permission to take the witness on voir dire, which was refused by the Court, to which appellant excepted).

There was no other objection to the question at the time it was propounded.

“Q. Doctor, will you state to the jury your opinion as to the probable cause of this man’s death?
“A. From the history that has been given to me the most reasonable diagnosis would be that the person had a myocardial infarction from which he died. Now this diagnosis is based— this opinion rather is based upon the fact that he had previously had three episodes of chest pain radiating in to the shoulders and arms. In all instances the diagnosis of angina pectoris or coronary artery disease has to be eliminated first. When s person has such pain, such symptoms, I would interpret those symptoms as those being due to angina pectoris. Such a person of course is much more subject to having a myocardial infarction or coronary occlusion and when such a person has died suddenly especially after participating in some activity to which he is not ordinarily accustomed to, the most probable mode of dying would be a coronary occlusion or myocardial infarction.”
He further testified in part:
“Q. First would you explain what the word ‘infarction’ is?
“A. Infarction is where there is actual damage. Angina Pectoris denotes a condition where there is not actual damage to the heart muscle itself. You rest and you have an adequate supply of blood again. Or you can take nitroglycerin and it dilates the blood vessels and permits more blood to enter and there is no actual damage to the heart muscle * * *.
“Q. Doctor, can you from the hypothetical question that has been submitted to you, and the fact that this man completed this task, which was unusual to his normal work, and within ten minutes after he died — I mean in ten minutes after he completed the task he was found dead — do you have an opinion as to when this infarction took place, that is, in relation to the time of his death?”

(Appellant objected to this question and it was overruled).

“Q. How soon did it take place?
“A. Of course, it’s quite likely that it could have occurred at the time of the exertion. It is possible that it might have occurred previously when he had chest pains previously, and that with the exertion he did that particular morning, that the added burden could have caused further infarction.
“Q. I am talking about the damage that was done that produced the death now, Doctor. In reasonable probability when did that occur with relation to the—
“A. Within a reasonable probability I would think that at the time of the exertion.”

Dr. Colgin further testified on cross-examination in part:

“Q. What are the other symptoms of myocardial infarction besides this pain in the chest and perhaps in the arm?
“A. Of course pain is the most important symptom to the patient. Rather it has many descriptions. It’s usually a rather constricting pain. It’s usually accompanied by shortness of breath, by weakness, by excessive perspiration. There are often times symptoms referrable to the stomach. The persons may have nausea and vomiting and they often interpret the symptoms as an upset stomach or indigestion. Of course, depending upon the severity of it, they can go into shock and can expire in a very short time if it’s a massive infarction.
“Q. Other than the possibility of referred pain or psychosomatic pain what other possibilities would explain chest pain, Doctor?
******
“A. Well, of course we can start almost anywhere. Any disease involving the muscles of the chest can produce chest pains. Any condition involving the nerves of the — going to the chest — can produce pain. There are diseases involving the thoracic vertebrae which can produce chest pains. Gall stones are well known to produce pains similar to that of heart disease. Peptic ulcers, cardiac spasm, esophageal diverticul, shingles. It wouldn’t produce the chest pain. * * * There are injuries which can produce chest pain. There are other forms of heart disease that can produce chest pain. Pleurisy and pneumonia. There is a very long list of diseases which can produce chest pains.
“Q. * * * Now you spoke of other forms of heart disease. What other forms of heart disease, Doctor, could cause a death, a rather sudden death under the circumstances described ?
“A. Well, a sudden heart failure from any type of heart disease can produce sudden death. An acute overwhelming myocarditis from various' virus infections can produce sudden death.
“Q. In other words you could have the overwhelming myocarditis without a history or recent history of exertion; is that right?
“A. Yes sir, * *
“Q. Can death result from aneu-rysyms as you have described them without a history, quite recent, within the previous — ?
“A. Oh, yes, they can. They can occur with or without exertion.
“Q. All right, sir. Any other heart conditions that can produce death?
“A. The heart itself can rupture. There can be ruptures of the pampilary muscles which lead to the valves of the heart. There can be tumors in the heart which form a thrombus which can produce sudden death. A pericar-ditis or blood of a particular hemo-pericardium where blood gets in between the heart and the pericardium can produce sudden death. Of course, there are many vessels of the — I mean many conditions affecting the blood vessels themselves that can produce sudden death, not involving the heart itself.
“q. * * * Then of these rather numerous other heart conditions other than myocardial infarction which could result without a history of recent exertion, or a number of different heart conditions such as you have described, which could result in death without there being immediate sudden exertion or over exertion; is that correct ?
“A. They can produce death, yes.
“Q. And as a matter even with a myocardial infarction, which you feel this may have been, this can happen without a history of recent strenuous exertion or unusual exertion, can it not?
' “A. Yes, it can.
* * * * * *
“Q. Doctor, are there other, other than heart conditions, are there other diseases or defects or medical explanations that could account for a man doing a job such as pulling a hose and connecting it to a tank and returning the hose and then driving a truck and being found dead five or ten minutes later in a ditch on the right hand side of the truck? Are there other medical explanations that could be considered other than myocardial infarction?
“A. Yes.
“Q. If you didn’t have the pain in the chest the only reason you would be inclined to favor myocardial infarction would be because of the statistical average among people generally?
“A. Yes sir. Of course the chest pain I think is significant.
“Q. Now, Doctor, if James O. Hatcher had had these chest pains and if it had been medically determined that it was not a heart condition, then would you be disposed to believe that except on the basis of statistics of a number of people, that as far as this particular individual was concerned that you would have to consider as equally consistent not necessarily any one of the other heart conditions or the other conditions you have described, but the totality of them as equally consistent with the idea of his having died as a result of myocardial infarction ?
“A. I think you can eliminate, which is difficult to do, the presence of coronary artery disease, any one of many conditions could produce sudden death. Statistically, as I said, coronary artery disease is the most common cause, but any one of the conditions I mentioned, and many others, could produce that.
******
“A. I would say that without an autopsy it’s impossible to establish the exact cause of death.
“Q. To know absolutely to a reasonable medical certainty; is that right?
“A. I would further say that with the history of chest pains radiating to the shoulder and a person forty-six years of age who was otherwise healthy, who was taking no drugs or anything else which could in themselves produce death, who was not known to be otherwise ill, who had had no other symptoms suggestive of any other disease, that the most likely cause of death would be a myocardial infarction.
“Q. All right, sir, but you could not determine with any reasonable degree of medical certainty in the absence of an autopsy or more information than you have been given in the hypothetical question ?
“A. That’s right.”

On re-direct examination Dr. Colgin testified in part:

“Q. Dr. Colgin, Mr. Westbrook has gone into a lengthy questioning concerning possibilities of causes of death. He has gone into a number of possibilities of chest — troubles that would produce chest pains. Did I — in asking the hypothetical question (which are the facts in this case) did I give you any symptom which would lead you to believe that any of the situations which he brought on existed in this particular case?
“A. No sir. Of course, the cause of chest pains is baffling in many instances. The symptoms that you mentioned, as I said before, certainly sounded like anginapectoris and such condition would have to be eliminated before you could even consider any other disease.
“Q. Did I give you any history in connection with this that would lead you to believe that these were phycho-somatic pains?
“A. No sir.
“Q. Did I give you any reason to believe that this was due to gall stones or anything like those other things that he asked you about?
“A. No sir.
“Q. After all of the questioning of Mr. Westbrook I will go back to the original hypothetical question which I submitted to you, Doctor, and which you, as I understand, said that this man suffered a myocardial infarction which was damage to the structure of his body and that that resulted in his death and that that infarction was brought on by the strain or unusual exertion that he put forth just prior to that. Now do you wish to change any part of that statement?
“A. I believe not.”

Going back to appellant’s point one, which is: Did the Court err in failing to sustain its motion for directed verdict and judgment non obstante veredicto, because of its contention that plaintiffs had failed to carry their burden and prove their cause of action by a preponderance of the credible, legal probative evidence? We think the answer is “No.” Since the verdict was favorable to plaintiffs we must look at the record in the light most favorable to plaintiffs. See opinion of this Court in Traders & Gen. Ins. Co. v. Rooth, Tex.Civ.App., 268 S.W.2d 539, n. r. e., and cases there cited. Of course, we must look at this record as a whole and all of the statements contained in the hypothetical question propounded to Dr. Colgin on which he based his opinion that Hatcher died as a result of myocardial infarction, yet, at the same time, in view of the fact that he said that he considered the chest pains of deceased significant, the disposition of this case must turn on the question as to whether that testimony was hearsay and was, therefore, without probative force. It is true that the record shows that appellant filed its motion to suppress the testimony of the plaintiffs with regard to previous complaints during the decedent’s lifetime of bodily pain on the ground that they were prejudicial and statements of hearsay, and that they were not admissible under the exceptions to the hearsay rule, and thereafter, filed its motion to strike the testimony of Dr. Colgin on the ground that plaintiffs had failed to produce sufficient evidence of probative force to support the essential assumptions in the hypothetical question propounded to him.

Going back to the record it will be recalled that the widow testified to declarations of pain in the chest by the deceased in 1958 (neither the day nor month is given).

“Q. When was the next one?
“A. That was in the early spring of 1961. He had the same — made the same complaint as if it was violent. He wasn’t a person to complain. He mentioned that it also cramped his arm.
“Q. Did he make another one?
“A. Yes sir, in 1961. That was in November, the last of November.
“Q. What type of pain was that?
“A. That was a chest pain also.
“Q. What day in November was that?
“A. That was the 30th of November.
“Q. That was eight days prior to his death ?
“A. Yes sir.
“Q. Did he explain to you whether that pain also radiated into his arm?
“A. yes sir.
“Q. Did he make any other complaints to you at any time concerning his physical condition?
“A. No sir.
“Q. Did he ever complain about being sick or hurting or anything like that?
“A. No sir.
“Q. Those were the only complaints that he made in the last few years ?
“A. Yes sir.”

(Testimony was tendered as to other declarations but perhaps the foregoing are-the most pertinent).

Much has been written on this question and it has given this Court much concern under the record here made, but as we view the opinion of our Supreme Court in Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, we are of the view that the testimony of the widow and the other witnesses as to declaration of pain prior to the death of the deceased, brings this cause of action within the rule announced in the Carter case, supra. As to statements of pain or suffering made by deceased prior to the injury, see Wigmore on Evidence in Sections 1718 and 1719; also Selected Writings on Evidence and Trial, Association of American Law Schools, pages 938 and 939. As we read our decisions subsequent to the Carter case none of them modify or change the rule stated. The opinion of our Supreme Court in Casualty Ins. Co. of California v. Salinas, 160 Tex. 445, 333 S.W.2d 109, deals with declarations of pain by an injured party after the injury, but we see nothing in the opinion that changes the statement of the rule in the Carter case, supra. We have carefully considered the recent opinion of our Supreme Court in Truck Ins. Exchange v. Michling, Tex., 364 S.W.2d 172. See Texas Supreme Court Journal dated January 19, 1963, Vol. 6, No. 15, p. 238. We see nothing in this opinion that changes or modifies the statement of the rule in the Carter case, supra. Moreover, the factual situation in the Michling case is in no wise similar to the factual situation in the Carter case, or the case at bar. The opinion in the Michling case points out:

“There is not any independent proof that Hugo Michling suffered any injury at approximately the time and place alleged. There appeared' to be no iron bar across the bulldozer seat. There was no testimony from any other source that he was present at his place of employment on the day of the alleged injury. The time records of his employer indicated that Michling worked Friday, April 11th, until noon and that he did not work on the 12th. The operating records kept by his employer indicated that none of the tractors owned by the employer were in operation on that date.”

We think the distinction is obvious in the case at bar. The deceased had worked every work day for his employer except one during the 16 years of employment and on the day that he met'his death he had just completed one of his tasks in his line of duty, and had proceeded only a short distance from the home where he filled a butane gas tank of a customer of his employer when his truck was found on the side of South 4th Street headed in a northerly direction with the left door of the truck open, with the ignition turned off, unexplained, and the employee lying on the side of the road, almost in a ditch, with his face down. We believe the factual distinction in the case at bar with the Michling case is obvious, and that the case at bar is well within the rule applied to the factual situation in the Carter case. We are of the view that a careful reading of these cases will sustain this view. Moreover, we think one of the outstanding decisions in the Texas cases concerning the exception to the hearsay rule is found in an opinion of the late Justice Alexander in Prater v. Traders & Gen. Ins. Co., Tex.Civ.App., 83 S.W.2d 1038, n. w. h. The action was one in compensation and the pertinent testimony related to the testimony of the widow concerning declarations of her husband to her before he left on a tour of duty on the night on which he was injured in an automobile accident resulting in his death. The opinion of Justice Alexander in the Prater case is most interesting, and we believe it is accurate and in accord with the holding of our Supreme Court in the Carter case, supra, and he cites a wealth of authority which sustains the views there stated. In the Prater case we find this significant statement:

“Although evidence of the conscious declarations of a person as indications of his state of mind has in it some of the elements of hearsay, yet it closely resembles evidence of the natural expressions of feeling, which has always-been regarded in the law not as hearsay, but as original evidence, * * * and when the person making the declarations is dead, such evidence is often not only the best, but the only, evidence of what was in his mind at the time. * * * ”

Among the cases cited by Justice Alexander in the above matter is Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, and Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909-912, 36 L.Ed. 706. The Prater case has been cited many times, with approval, by our Appellate Courts. See Elledge v. Great American Indemnity Co., Tex.Civ.App., 312 S.W.2d 722. The Supreme Court granted a writ in the case, but affirmed the decision of the Houston Court in a per curiam opinion, 159 Tex. 288, 320 S.W.2d 328, in which per curiam opinion they cited the Prater case, supra.

Since the deceased was found dead in the course of his employment under the circumstances here detailed, and as outlined in the hypothetical question propounded to Dr. Colgin, and since the Doctor’s statement to the effect that the chest pains were significant in forming his opinion, we are of the view that under the Carter case, supra, and the other authorities here cited, that the declarations of pain by the deceased constitute an exception to the hearsay rule, and that they are sufficient to support the jury’s verdict to the effect that Hatcher received an accidental injury resulting in his death in the course of his employment.

We have carefully considered each of the other errors complained of in appellant’s brief and each of the sub-heads contained under each point, and we are of the view that none presents reversable error, and each is overruled under Rules 434 and 503 of Texas Rules of Civil Procedure, and do not believe that a discussion thereof would be of any precedential value and, moreover, such discussion would unduly extend this opinion.

Accordingly, the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    NEDERLANDSCH - AMERIKAANSCHE STOOMVAART-MAATSCHAPPiJ; STOOMVAART-MAATSCHAPPIJ; HOLLAND-AMERICA LINE, Appellant, v. Mrs. Connie VASSALLO et al., Appellees.
    No. 13965.
    Court of Civil Appeals of Texas. Houston.
    Feb. 14, 1963.
    Rehearing Denied March 14, 1963.

      Fulbright, Crooker, Freeman, Bates & Jaworski, S. G. Kolius, Carl G. Stearns, Ed Bluestein, Jr., Houston, for appellant.
    Mandell & Wright, Arthur J. Mandell, Houston, for appellees Connie Vassallo and Minors.
    E. D. Vickery, Gus A. Schill, Jr., Houston, Royston, Rayzor & Cook, Houston, of counsel for appellee Texports Stevedor-ing Co., Inc.,
   COLEMAN, Justice.

This is an appeal by Holland-America Line from a judgment denying it indemnity against Texports Stevedoring Company, Inc. Both Holland-America Line and Tex-ports Stevedoring Company, Inc. have appealed from that portion of the trial court’s judgment awarding interest to the plaintiffs, the widow and surviving children of Roland Vassallo.

Roland Vassallo received injuries resulting in his death while employed as a stevedore by Texports aboard the SS Eemdyk, which was owned and operated by Holland-America Line. Mrs. Connie Vassallo brought suit for damages against Holland-America Line, who impleaded Texports as a third party defendant to obtain indemnity under the applicable federal maritime' law.

The answers made by a jury established that Vassallo met his death from a combination of causes: the defective condition of one of the vessel’s winches, the negligence of the ship owner, the negligence of Texports, and Vassallo’s contributory negligence. On June 26, 1959, judgment was entered that plaintiffs take nothing. On appeal the judgment of the trial court was reversed by the Supreme Court of Texas and the case was remanded to the trial court with instructions to enter judgment in favor of the plaintiffs in accordance with the opinion. Vassallo v. Nederl-Amerik Stoomv Maats Holland Tex., 344 S.W.2d 421.

On September 20, 1961, the trial court entered its second judgment awarding plaintiffs damages against the ship owner. The judgment denied the ship owner’s plea for indemnity and awarded interest on the damages at the rate of 6% from June 26, 1959, the date of the first judgment.

Holland-America Line has predicated its appeal on two points: (1) The Trial Court erred in entering judgment that the shipowner take nothing from the Stevedore in the Shipowner’s third party action for indemnity because the findings of the jury established under the controlling maritime law that the Stevedore breached its implied contractual warranty of safe and workmanlike service and those findings required the entry of judgment for the Shipowner; and (2) The Trial Court erred in entering judgment that interest on the plaintiffs’ recovery was to accumulate from June 26, 19S9, the date of the original judgment (wherein plaintiffs took nothing), rather than from September 20, 1961, the date of the judgment which first created an obligation on the part of appellant to pay damages to the plaintiffs.

The following facts are established by the answers to special issues submitted to the jury:

Special Issues Nos. 1 and 2: That the port winch serving the forward part of No. 5 hatch was defective, which was a proximate cause of the accident.
Special Issues Nos. 3 and 4: That the shipowner negligently failed to keep this winch in repair and such failure was a proximate cause of the accident.
Special Issues Nos. 5, 6 and 7: That the shipowner negligently failed to supply Vassallo with a reasonably safe place to work, which was a proximate cause of the accident.
Special Issues Nos. 15 and 16: That Vassallo failed to keep a proper lookout for his own safety which was a proximate cause of the accident.
Special Issue Nos. 17, 18 and 19: That Vassallo negligently gave the operator of the port winch a signal to operate the winch while the port winch line was attached to the beam bridle and while his hand was in a position to be caught between the beam bridle chain and the beam, which was a proximate cause of the accident.
Special Issues Nos. 21 and 22: That Vassallo negligently failed to remove his hand from between the beam bridle chain and the beam, which was a proximate cause of the accident.
Special Issues Nos. 30 and 31: That the Stevedore negligently continued to use the winch with knowledge that it was defective, which was a proximate cause of the accident.
Special Issue Nos. 32 and 33: That the Stevedore negligently continued to use the winch with knowledge that the shipowner had not kept it in repair, which was a proximate cause of the accident.
Special Issues Nos. 34 and 35: That the Stevedore negligently continued stevedoring operations with knowledge that Vassallo had not been furnished a reasonably safe place to work, which was a proximate cause of the accident.
Special Issues Nos. 38 and 39: That the Stevedore’s winch operator, Clyde Townsend, moved the winch control lever into hoist position just before the accident occurred, though this was not found to be negligent.
Special Issues Nos. 42, 43 and 44: That the Stevedore’s winch operator, Clyde Townsend, knew or should have known the port winch had an “on” and “off” switch, and that just before the accident he left his winch without cutting off such switch, though this was not found to be negligent.
Special Issues Nos. 46 and 47: That the Stevedore’s winch operator, Clyde Townsend, just prior to the accident failed to make such use of the foot brake on the port winch as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, though this was not found to be negligent.
Special Issues Nos. 49, 50, 51, 52 and 53: That the port winch was defective when turned over to the longshoremen, that the shipowner knew or should have known this for a sufficient period of time for repairs to have been made, that it was negligent in not making repairs and such negligence was a proximate cause of the accident.
Special Issues Nos. 54, 55 and 56: That the shipowner negligently permitted loading operations to continue after it knew or should have known of the defective condition of the port winch, which was a proximate cause of the accident.
Special Issues 57, 58, 59 and 60: That the shipowner failed to supply Vassallo with a reasonably safe place to work, that it knew or should have known the place was not reasonably safe, and that it negligently failed to make the place reasonably safe after it knew or should have known that it was not safe, which failure was a proximate cause of the accident.
Special Issues Nos. 61, 62 and 64: That the shipowner negligently permitted loading operations to continue after it knew or should have known that the place supplied to Vassallo was not reasonably safe, which was a proximate cause of the accident.

It was stipulated that there was a written contract between Texports Stevedoring Company, Inc. and Holland-America Line for the Stevedoring work aboard the SS Eemdyk on May 26, 1957, containing many provisions, among which is the following: “The work at all times to be under direct supervision of the agents of Holland America Line in consultation with their representatives, who will decide as to the number of gangs and hatches to be worked, storage of cargo * * etc. It was also stipulated that the contract contained no provision whereby either party assumed any responsibility for damages resulting from death other than that assumed by Texports under applicable Workmen’s Compensation Acts. The contract document was not introduced into evidence.

The liability of the stevedore to indemnify the ship owner can arise only by reason of breach of contract. American Mutual Liability Ins. Company v. Matthews, 2 Cir., 1950, 182 F.2d 322; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corporation, 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. Negligence of the stevedore is pertinent only insofar as it amounts to a breach of contract. Ryan Stevedoring Company v. Pan-Atlantic Steamship Corporation, 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. Here the jury found that the stevedore continued to use the defective winch with knowledge of the defect and that such conduct was negligent and a proximate cause of the injury to the longshoreman (for which the ship was required to pay damages).

In the Ryan case, supra, the court held:

“The shipowner here holds petitioner’s uncontroverted agreement to perform all of the shipowner’s steve-doring operations at the time and place where the cargo in question was loaded. That agreement necessarily includes petitioner’s obligation not only to stow the pulp rolls, but to stow them properly and safely. Competency and safety of stowage are inescapable elements of the service undertaken. This obligation is not a quasi-contractual obligation implied in law or arising out of a noncontractual relationship. It is of the essence of petitioner’s stevedoring contract. It is petitioner’s warranty of workmanlike service that is comparable to a manufacturer’s warranty of the soundness of its manufactured product. The shipowner’s action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner’s stevedoring service.”

In Weyerhaeuser Steamship Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 78 S.Ct. 438, 442, 2 L.Ed.2d 491, the court said:

“We believe that respondent’s contractual obligation to perform its duties with reasonable safety related not only to the handling of cargo, as in Ryan, but also to the use of equipment incidental thereto, such as the winch shelter involved here, [citing cases] If in that regard respondent rendered a substandard performance which led to foreseeable liability of petitioner, the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery.”

The doctrine of the Ryan case was further extended in Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413. In this case the Supreme Court pointed out that while the vessel was unseaworthy in that a circuit breaker attached to a winch was set to cut off at a load considerably in excess of the safe working load of the cargo gear, the negligence of employees of the stevedore in moving a boom brought into play the unseaworthy condition of the circuit breaker, thereby causing the accident. The court held that this negligence amounted to a breach of the warranty of workmanlike service.

The jury has found that the continued use of the defective winch with knowledge of its defective condition was negligence on the part of the stevedoring company. Applying the doctrine of the Weyerhaeuser case, the stevedoring company reasonably could foresee that such conduct would cause an accident for which Holland-America Line would be liable because of the unseaworthy condition of the winch. The stevedoring company questions the conclusion that the jury finding of negligence necessarily presupposes a finding of the violation of a duty owed by it to the ship owner as well as a violation of a duty owed to the longshoreman. It contends that the contractual duty to unload the ship with reasonable safety, as applied to its use of equipment supplied by the ship, extends no further than to require it to operate such defective equipment with reasonable care. It contends that its duty to the ship does not require a refusal to use defective equipment. The contention seems to be that the stevedoring company’s duty of reasonable care to its employee might be breached by use of defective equipment even though the equipment was used with the utmost care, but that the use of defective equipment under such circumstances would not constitute a breach of its contractual duty to the ship to perform the stevedoring operations in a reasonably safe and workmanlike manner, and that evidence sufficient to persuade the jury that its conduct was negligent insofar as the employee was concerned would not necessarily convince the jury that the same conduct would be negligent insofar as the ship is concerned. While this objection to the court’s charge was made in the trial court, no specific counterpoint is raised on appeal. Texports argues that the finding should not be held a finding of negligence toward the ship and that the appellants have not secured proper jury findings of breach of contract and, by failing to request submission of proper issues, have waived recovery on the theory of breach of contract. In support of their theory the contractor has cited Smith v. Pan-Atlantic Steamship Corporation, D.C., 161 F.Supp. 422, aff’d per curiam 254 F.2d 600, 3rd Cir., 1958, in which the court said that it may have been negligence for the stevedore to continue to use a defective winch rather than to walk off the job, but it was “in furtherance of his contract rather than a breach of it, and the shipowner could hardly hold him liable for trying to complete the work.”

In Hodgson v. Lloyd Brasileiro Patrimonio Nacional; Hodgson v. Murphy-Cook & Co., 294 F.2d 32, 3rd Cir., 1961, cert. den. 369 U.S. 848, 82 S.Ct. 931, 8 L.Ed.2d 8, 1962, the court held that whether the stevedoring company’s conduct in continuing to operate a winch known to be defective constituted a breach of its contract to perform its services in a workmanlike, proper and reasonably safe manner was a question of fact for the jury, as was the question of whether its conduct “brought into play” the unseaworthiness of the vessel. In its opinion the court calls attention to the fact that the stevedoring company received “a categorical assurance from the ship owner’s crew that it (the winch) was ‘O.K.’ ” and on this basis distinguishes Calderola v. Cunard S. S. Co., 2 Cir., 279 F.2d 475; Smith v. Jugosalvenska Linijska Plovidea, 4 Cir., 1960, 278 F.2d 176; Weigel v. The M/V Belgrano, D.C.D.Or. 1960, 188 F.Supp. 605, and Hugev v. Dampskisaktieselskabet International, D.C.S.D.Cal.1959, 170 F.Supp. 601, affirmed, 9 Cir., 274 F.2d 875, cert. den. 1960, 363 U.S. 803, 80 S.Ct. 1237, 4 L.Ed.2d 1147.

In the Hugev case, supra, the court said:

“* * * the obligation is one implied in fact, and not in law, and the ■content of this implied-in-fact obligation on the part of the stevedoring contractor is to perform the stevedoring service for his customer, the shipowner, in a workmanlike manner and with reasonable safety to persons and property. * * *
“ * * * It includes also the duty •to suspend the loading or unloading ■operations on its own initiative, and thus to avoid injury or damage, when- ■ ever the stevedore realizes that it would be unsafe under the circumstanc•es to proceed. United States v. Arrow Stevedoring Co., 9 Cir., 1949, 175 F.2d 329, certiorari denied, 1949, 338 U.S. 904, 70 S.Ct. 307, 94 L.Ed. 557; The Adah, 2 Cir., 1919, 258 F. 377, 380; The Robert R., 2 Cir., 1918, 255 F. 37, 39; Smith v. Nicholson Transit Co., D.C.W.D.N.Y.1941, 39 F.Supp. 795, 797. So if the stevedoring contractor renders a substandard performance which fore-seeingly leads to the shipowner’s liability to a longshoreman, the shipowner would be 'entitled to indemnity absent conduct on its part sufficient to preclude recovery.’ [citing authority].”

The jury’s finding in this case that ‘Texports’ conduct in continuing to use a ■ defective winch with knowledge of the defective condition was negligence and a proximate cause of the accident constitutes findings of fact sufficient to require the conclusion of law that Texports had violated its warranty to perform its services with reasonable safety to members of its working force.

In the Hugev case that court also held that a material breach of the contract on the part of the ship owner would preclude his recovery of indemnity under the rule of the Weyerhaeuser case, supra. It held that the implied warranty of seaworthiness does not extend to the stevedoring contractor and that the obligations due the contractor by the ship owner must be found in its contract, either expressly, or implied in fact from the circumstances surrounding the contract and its performance.

The court in the Hugev case found three implied-in-fact obligations on the part of the ship owner, only one of which is applicable under the facts of this case. This obligation on the ship owner is “to exercise ordinary care under the circumstances to place the ship on which the stevedoring work is to be done, and the equipment and appliances aboard ship, in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the exercise of ordinary care under the circumstances to load or discharge the cargo, as the case may be, in a workmanlike manner and with reasonable safety to persons and property.”

Merely furnishing defective equipment is not such a breach of the contract on the part of the ship owner as to forfeit any right to indemnity which he might have by reason of a breach of warranty on the part of the stevedoring contractor. Crumady v. Joachim Hendrik Fisser, supra; Weyerhaeuser Steamship Co. v. Nacirema Operating Co., supra.

While the jury found the ship owner negligent in certain respects, negligence will not defeat the right to indemnity unless such negligence constitutes a breach of the contract with the stevedoring contractor. Conduct which might be a breach of a duty owed by the ship owner to a seaman or longshoreman would not necessarily amount to a breach of this contract. Thus, in Weyerhaeuser breach of a legal duty to inspect, detect and correct an unsafe condition did not defeat the ship owner’s right to indemnity.

The jury found that after the ship owner knew, or should have known, of the defective condition of the winch, he negligently failed to make necessary repairs, but the stipulation of the parties does not show a contractual duty to make repairs. While no case has been cited holding that there is implied in fact a contractual duty to make repairs, the holding in the Hugev case impliedly negatives such a duty.

The jury found that the ship owner also permitted loading operations to continue after he knew, or should have known, that the winch was defective and that this constituted negligence, and a proximate cause of the accident. In support of the judgment it will be assumed that the trial court concluded that this conduct was a breach of that provision of the contract providing that the work was to be done under the direct supervision of agents of Holland-America Line.

In Von Rosenberg v. Lovett, Tex.Civ.App., 173 S.W. 508, writ ref., the court said: “To supervise does not mean to do the work in detail, but to see that it is done. It means to oversee, with power of direction.”

A common meaning of “supervise” is “to superintend,” which was defined by the Supreme Court of Texas in Burrell Engineering & Construction Co. v. Grisier, 111 Tex. 477, 240 S.W. 899, as meaning: “To have charge and direction of; to direct the course and oversee the details; to regulate with authority; to manage; to have or exercise the charge and oversight of; to oversee with the power of direction; to take care of with authority; to oversee; to overlook.”

The reasoning of the Supreme Court of the United States in the Ryan case, supra, requires a holding that where there is an agreement to supervise the stevedoring operation, there is implied in fact a covenant to carry out this work in a careful and workmanlike manner. A negligent failure to stop the work after discovering that the winch was defective, or after receiving notice of its defective condition, would as a matter of law amount to a breach of this covenant. While in this case the ship owner did not assure the stevedoring company that the winch was safe (as in the Hodgson case, supra), the company had a contractual right to expect that the ship’s officers would discover unsafe conditions and stop the work until they were corrected. This breach of contract is conduct on the part of the ship owner sufficient to preclude recovery of indemnity. Weyerhaeuser Steamship Company v. Nacirema Operating Co., supra; Hodgson v. Lloyd Brasileiro Patrimonio Nacional; Hodgson v. Murphy-Cook & Co., supra; Hugev v. Dampskisaktieselskabet International, supra.

It might be argued that the agreement to supervise applied only to such matters as determining the number of gangs, hatches to be worked and stowage of cargo. Since the contract provides that “The work at all times to be under direct supervision * * it seems reasonable to conclude that all of the work would be supervised by agents of Holland-America Line.

On June 26, 1959 the trial court entered its original judgment in this case denying plaintiffs recovery. The Supreme Court reversed and remanded the cause with instructions to enter judgment for plaintiffs in accordance with its opinion. This was an instruction to enter the judgment which the trial court should have entered on July 26, 1959. The judgment properly included interest at the rate of 6% per annum from that date. Houston Gas & Fuel Company v. Perry, 127 Tex. 102, 91 S.W.2d 1052, opinion adopted; Texas Power Corp. v. Kuehler, Tex.Com.App., 52 S.W.2d 76; Smith v. American Fire & Casualty Company, Tex.Civ.App., 242 S.W.2d 448; Parkerson v. American Hospital & Life Ins. Co., Tex.Civ.App., 322 S.W.2d 27, writ dism.; D. C. Hall Transport, Inc. v. Hard, Tex.Civ.App., 355 S.W.2d 257, ref. n. r. e. Tex., 358 S.W.2d 117.

The judgment of the trial court is affirmed.


text:
    G. A. BURBRIDGE et ux., Appellants, v. RICH PROPERTIES, INC., Appellee.
    No. 14078.
    Court of Civil Appeals of Texas. Houston.
    Feb. 28, 1963.
    Rehearing Denied March 21, 1963.

      Ray Stevens, Roy Simmons, Jr., Houston, for appellants.
    Joel W. Cook, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment for the damage suffered by appellee, Rich Properties, Inc., caused by water impounded on the property owned by G. A. Burbridge and wife, appellants, seeping or flowing into property owned by appellee; enjoining appellants from permitting water to be impounded on their property or permitting the flow or seepage of water from their property onto or against the south wall of a building owned by appellee; requiring the removal of part of a building owned by appellants, and enjoining them from erecting future buildings using the wall of appel-lee’s building as one of such future building’s walls, and from erecting a wall not of masonary construction 8 inches or more in thickness within 13 inches of appellee’s building; and restraining appellants from installing air conditioning equipment or awnings which project on or over the property owned by appellee.

Appellants have briefed three points of error, reading:

"First Point. This case should be reversed because the Special Issues submitted to and answered by the jury do not support the judgment entered by the trial court.

"Second Point. This case should be reversed and rendered for Defendants because the trial court erred in not sustaining defendants’ Motion for Judgment.

"Third Point. The trial court erred in not sustaining Defendants’ Motion to disregard Special Issues No. 3, 4, and 8.”

All of these points are too general and are multifarious. Texas Emp. Ins. Ass’n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893, ref., n.r.e.; Colorado River Western Ry. v. Texas & N. O. R. Co., Tex.Civ.App., 283 S.W.2d 768, ref., n.r.e.; Jones v. Hortenstine, Tex.Civ.App., 291 S.W.2d 761; McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643; Carrick v. Hedrick, Tex.Civ.App., 351 S.W.2d 659.

Where a point of error presented by appellant’s brief is imperfectly drawn, but is sufficient to direct the court’s attention to an error on the part of the trial court, this Court is only required to pass on the merits of the point of error in the light of the statement thereunder. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197.

A careful consideration of the argument and statement contained in appellants’ brief under Point One leads to the conclusion that it is appellants’ contention that the award of damages to appel-lee is not supported by the verdict of the jury in that such verdict does not establish either the impoundment or diversion of water in violation of Article 7589a, Vernon’s Ann.Civ.St., or the maintenance of a nuisance, by appellants. It is appellants’ contention that these were the only theories of recovery supported by the pleadings on which the trial was held, other than a cause of action based on negligence which was expressly abandoned.

Article 7589a, V.A.C.S., provides:

“It shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State or to permit a diversion thereof caused by him to continue after the passage of this Act or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this Act in such manner as to damage the property of another, by the overflow of such water so diverted or impounded, and that in all such cases the injured party shall have remedies, both at law and in equity, including damages occasioned thereby, * *

In Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451, the Supreme Court considered the history of the subject of surface water rights and the state of the law in Texas prior to the adoption of the Act of 1915, the provisions of which are now incorporated in Article 7589a, supra, and said: “The act of 1915 changed the rule and gave a cause of action where the owner of one estate so used his property as to injure an adjacent tenement.” The court further held:

“The word ‘overflow’ is, of course, capable of the meaning attributed to it by the Court of Civil Appeals — that is, ‘to flow over the bounds, over the brim’ — but its meaning also is, ‘to flow over; to cover with or as with water or other fluid; to spread over, to inundate.’ Webster’s New International Dictionary. Giving the word the meaning just quoted from the dictionary, it is apparent when one wrongfully diverts surface water and causes it to flow over another’s land, causing damage, his acts are within the prohibitory terms of the statute, and a cause of action arises.”

In Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, the court rejected the doctrine that one who impounds surface water on his premises, and without negligence on his part, permits the escape of such water, is liable for the damage caused thereby to the lands of another, announced in Rylands v. Fletcher, L.R. 3, H.L. 330. The court also discussed Texas & P. R. Co. v. O’Mahoney, 24 Tex.Civ.App. 631, 60 S.W. 902, and Texas & P. R. Co. v. Frazer, Tex.Civ.App., 182 S.W. 1161. In the O’Mahoney case the railroad company constructed an artificial pond on its own land, by means of a dam diverted a natural stream thereto, and maintained the water level so high that by reason of its pressure the water percolated through the dam and destroyed plaintiff’s land. Referring to this case the Supreme Court said:

“It is obvious from the statement made by the court that the railroad company had not only created a nuisance as a matter of undisputed fact, but had, in violation of the Constitution, substantially taken a portion of O’Mahoney’s property; and, of course, in such a case proof of negligence was not necessary.”

In referring to the Frazer case, the Supreme Court said:

“This tortous act of the railway company in diverting surface water from its natural course, and concentrating it above the plaintiff’s land in this case, was the real basis of the action, and as to which there was no dispute. Had no reservoir been constructed and the diverted waters been thrown upon the plaintiff’s land to his damage, he would have had a cause of action without the necessity of alleging negligence.” (emphasis supplied)

While in the Turner case the court held that there was no liability for damage caused by the escape of salt water from a pond without proof of negligence, it specifically pointed out that the suit was not brought for the wrongful diversion or impounding of surface waters to another’s injury and that Article 7589a had no application to the case.

In Blocher v. McArthur, Tex.Civ.App., 303 S.W.2d 529, ref., n. r. e., a landowner raised the level of his lot, causing rain water to concentrate on the five feet of property between his neighbor’s basement apartment and his property line and to overflow through a window into the apartment. On the complaint of his neighbor, and at the neighbor’s suggestion, a retaining wall high enough to prevent the overflow was constructed, which caused the water held behind the wall to seep through the ground into the apartment. There were jury findings that the plaintiff was negligent in failing to provide adequate drainage, and in failing to construct the apartment in a good and workmanlike manner so as to prevent subsurface water seeping into the apartment. There were also jury findings that the defendant diverted the natural flow of surface waters from his property to that of plaintiff and created a nuisance by building the retaining wall, and that both of these actions were proximate causes of the plaintiff’s damage. The trial court entered a take nothing judgment which was reversed and rendered and recovery was allowed for the damage which occurred after the wall was constructed as well as for that sustained prior to its construction.

The court held that the undisputed evidence showed that the retaining wall was an instrumentality causing the diversion of surface water, which flowed into plaintiff’s apartment, and that by reason of Art. 7589a defendant was liable for the resulting damage. The court also held that the plaintiffs were not estopped to recover the damage resulting from the nuisance created by the construction of the retaining wall, and consequent impounding of surface water, by reason of the fact that the wall was constructed at their request since there was no finding that they could have reasonably anticipated that the wall could cause water to seep into the apartment.

“It is the generally accepted view that a landowner has no natural right, by means of any building or other structure placed on his land, to discharge on adj oining premises the water which may accumulate from snow or other natural causes. Therefore one who constructs a roof in such a way that it will manifestly collect water and discharge it on the adjoining land is guilty of a trespass and liable for all damages resulting therefrom. The above statement applies, not only when water is discharged directly from the building to an adjoining land, but also where it falls first on the premises where it accumulates and then flows on the adjoining premises. R.C.L. vol. 1, pp. 374 and 374, and cases cited in notes. Such continuing trespass is considered a private nuisance, and the adjoining owner is entitled to an injunction restraining its maintenance in such manner that the rain formed thereon will not injure his property. R.C.L. vol. 20, pp. 434 and 435, and cases referred to in the notes.” Shuttles v. Butcher, Tex.Civ.App., 1 S.W.2d 661, err. ref.

The trial court was not required to submit special issues to the jury as to facts which were not in dispute. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517.

In this case certain facts are established by the evidence without dispute. Appellants and appellee owned adjoining lots. At about the same time they began construction of improvements on their lots. Appellee built a masonry building up to or over the common property line. Appellants poured a concrete floor on the area between the south wall of appellee’s building and an existing structure on their lot, and in front of this structure up to the building line on San Jacinto Street. Appellants constructed a wall along the front building line and then, using the south wall of the Rich Building as their north wall, constructed a roof over the paved surface which was flashed into the wall of the Rich Building and joined to the old house. The area between the old house and a garage at the back of it was also roofed over and enclosed. In 1956 the same parties reached an agreement in compromise of a pending lawsuit whereby the boundary line between their lots was established and appellee agreed that appellants could continue their use of the south wall of the Rich Building until “Burbridge’s said building is altered where same abuts upon said Rich Building.”

In 1959 the old structure forming part of the Burbridge Building was damaged by fire to such an extent that it had to be removed. The roof of that part of the new construction fronting on San Jacinto Street was damaged and some of the rafters and studs adjoining the south wall of the Rich Building were charred to the extent that they had to be removed when that portion of the building was repaired. Appellants were unable to secure a building permit from the City of Houston to repair the portions of the building remaining after the center structure was removed. However, during 1960 they made repairs without a permit sufficient to keep out water.

G. A. Burbridge testified that prior to January, 1960, the hole in the roof of the front structure had been repaired so that it would turn water, but that it was possible that water could enter from the east where it had joined the old building. He said that there was water about an inch high in his building when he inspected it after a complaint by appellee. In answer to the question: “Actually, there is water standing in there quite frequently, isn’t there?” he testified that he did not recall seeing water standing there quite frequently. He testified that he went over there once in a while, but not after every rain.

There was other testimony by interested witnesses that water was standing in that part of the building following every rain .after the fire and before the roof and east wall were replaced. Herbert C. Cowell, an architect called as a witness by appellee, testified that in August, 1960, he inspected the -premises by court order with the permission ■of the parties, and that he made tests which • demonstrated that water accumulating in a pool in the front part of the Burbridge Building would remain in a depression adjacent to the south wall of the Rich Building .and would seep into the floor area of the Rich Building. He also testified that water accumulating in the area where the old building stood flowed into the front part of -.the Burbridge Building and then would seep through the wall into the Rich Building. Pictures introduced into evidence and identified by both parties demonstrate that rain would unquestionably enter the front portion of the Burbridge Building. While there was a conflict of testimony as to where the water which seeped into the Rich Building entered, there was no denial that water accumulated in the Burbridge Building or that water seeped into the Rich Building.

The jury found that substantial quantities of water entered the Rich Building from the Burbridge Building. This finding, together with the undisputed evidence that water was permitted to accumulate in the Burbridge Building, required the rendition of that part of the judgment awarding damages.

Appellants contend that the trial court erred in not sustaining their motion to disregard Special Issues Nos. 3, 4 and 8. No motion to disregard the answers to special issues is found in the transcript, however appellants’ motion for judgment does contain such a request. This motion for judgment will be considered as a motion for judgment notwithstanding the verdict. Since the trial court was requested to disregard the answers to Issues 3, 4 and 8 for assigned reasons, and since the motion for new trial called the trial court’s attention to the claimed errors, this assignment may be considered by this Court. Jinks v. Whitaker, Tex.Civ.App., 195 S.W.2d 814, error ref., n. r. e. 145 Tex. 318, 198 S.W.2d 85.

The trial court is authorized to disregard the answer to a special issue only where there is no evidence having probative force upon which the jury could have made the answer. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. In this case the Supreme Court reaffirmed the rule set out in Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616, reading:

“It was the jury’s province to weigh all of the evidence and to decide what credence should be given to the whole or to any part of the testimony of each witness. ‘The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.’ Stephenville, N. & S. T. R. Co. v. Shelton, Tex.Com.App., 208 S.W. 915, 916.”

Applying these rules,.it is clear that the trial court did not err in refusing to disregard the jury findings.

Appellants urge that the action of the trial court in denying their motion for judgment was error because even though the pertinent findings of the jury are considered there is no sufficient basis for the rendition of a judgment for appellee. Appellants’ point of error does not single out any particular part of the trial court’s judgment as being erroneous. We have held that appellee was entitled to a judgment for damages. Judgment on the entire case could not have been rendered for appellants. Appellants’ point, therefore, does not present error.

In the argument under Point of Error No. Two, appellants say that certain issues should be disregarded because they are evidentiary in nature and constitute comments on the weight of the evidence. The trial court is not authorized to disregard the answer to an issue for such reasons. Rule 301, Texas Rules of Civil Procedure.

The jury found that the Burbridge Building was altered by appellants after the contract of October 2, 1956, and that appellee will suffer damage unless the Burbridge Buildings are made to conform to the requirements of the Building Code of the City of Houston. Since the building has been altered, appellants no longer have a contractual right to use the south wall of the Rich Building and, under the terms of the contract, must erect their own wall. Applicable ordinances of the City of Houston were in evidence. The findings of the jury, together with facts established by the undisputed evidence, authorize the injunctive features of the judgment of the trial court.

The judgment of the trial court is affirmed.


author: PHILLIPS, Justice. HUGPIES

text:
    Robert S. CALVERT, Comptroller of Public Accounts et al., Appellants, v. CANTEEN COMPANY et al., Appellees.
    No. 11050.
    Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1963.
    Rehearing Denied March 13, 1963.

      Will Wilson, Atty. Gen., H. Grady Chandler, William E. Allen, Asst. Attys. Gen., Austin, for appellants.
    Heath & Davis, Austin, for appellees.
   PHILLIPS, Justice.

This suit was brought in the District Court of Travis County, Texas, by the Neelley Vending Company, Canteen Co., B & M Vending Company and Tom E. Conner-Business Investments for themselves and for all others similarly situated as a class, hereinafter referred to as plaintiffs, against Robert S. Calvert, Comptroller of Public Accounts of the State of Texas, Jesse James, State Treasurer of the State of Texas and Will Wilson, Attorney General of Texas, hereinafter referred to as defendants. This suit is brought as a class action.

The following is taken from the stipulations agreed upon between the parties.

Each of the plaintiffs has qualified under the provisions of Chapter 24, Acts of the 57th Legislature, First Called Session, 1961, commonly known as the Limited Sales, Excise and Use Tax Act, Chapter 20, Title 122-A, Taxation-General, Revised Civil Statutes, 1925, V.A.T.S.Tax.-Gen. art. 20.-01 et seq,, and has received from the defendant Comptroller sales tax permits as authorized and required by the Act.

Each of the plaintiffs is in the business of making retail sales of tangible personal property from mechanical vending machines, and since the effective date of said Act, each of the plaintiffs has made retail sales of tangible personal property within this State from such mechanical vending machines. The property being so sold is candy, chewing gum, coffee, soda water or soft drinks, and other such items, with the sales price of each such separate item being twenty-four cents or less to the purchaser or consumer. For instance, the plaintiff Tom E. Conner-Business Investments makes sales from mechanical vending machines limited to chewing gum with a sales price of one cent each to the purchaser or consumer, and each of the other plaintiffs make sales of such property from such machines with prices ranging from the one cent chewing gum item to other items costing twenty-four cents or less each.

Since the effective date of the Act, the plaintiffs have within the time required by said Act, and as required by the defendant Comptroller, filed with the defendant Comptroller a report on the form prescribed enumerating all retail sales of such tangible personal property made by the plaintiffs, and the plaintiffs have paid the Comptroller a tax required by the Comptroller of two percent of all receipts by plaintiffs from the total sales of such tangible personal property from the mechanical vending machines.

At the time of making such payments to the defendant Comptroller, each of the plaintiffs made such payments under protest in writing, fully setting out in detail each and every ground or reason why the plaintiffs contend-that the Comptroller’s demand that they pay such tax is unlawful and unauthorized by said Act. Subsequently, each of said plaintiffs filed with the Comptroller detailed written requests or claims that the money be refunded to the plaintiffs, or that said sums be applied and credited to future tax payment under said Act, which written requests or claims were filed in accordance with Article 20.10 of said Act. Thereafter, a public hearing was held before the Comptroller at which each of the plaintiffs was represented and evidence and argument presented to the Comptroller. Thereafter, the defendant Comptroller on April 24, 1962, issued an order to each of the plaintiffs giving notice of disallowance of such requests or claims for refunds of such sums paid under protest.

The defendant Comptroller requires each of the plaintiffs to pay a two per cent tax of the total gross receipts such plaintiffs have from such sales of such tangible personal property from the mechanical vending machines, even though the sales price to the consumers or purchasers of each such item of tangible personal property is twenty-four cents or less, and even though the plaintiffs are prohibited by said Act from collecting from the consumer or purchaser of such tangible personal property the two per cent sales tax on each of such sales of twenty-four cents or less, and cannot therefore collect said tax from the consumer.

The Trial Court held that the requirement of the Comptroller that the plaintiffs pay a two per cent tax on the total gross receipts of plaintiffs from their respective total sales of such tangible personal property to the consumers for one cent to twenty-four cents for each such separate sale, is not authorized by and is contrary to the provisions of the said Limited Sales, Excise and Use Tax Act. The Court found that both plaintiffs and defendants acknowledged to the Court that the Act levied and imposed the tax upon the consumer, and the Court further found that Article 20.02 thereof specifically provides that the tax imposed by said Act shall be collected from the consumer, not the retailer, and that as to each retail sale of tangible personal property of one cent to twenty-four cents, said Article specifically provides that there shall be no tax and no-tax shall be collected on such retail sales, and in requiring the plaintiffs, as retailers, to pay the taxes as they did, the Comptroller was acting contrary to the express terms of the statute. The Court further ordered the Comptroller to refund plaintiffs the sums paid under his ruling.

This Court holds that the judgment of the Trial Court is correct.

The provisions of the above mentioned Act pertinent to this opinion are as follows r

“Art. 20.02. Imposition of Limited Sales Tax
“There is hereby imposed upon each separate sale at retail of tangible personal property made within this State a limited sales tax at the rate of two-per cent (2%) of the sale price of each item or article of tangible personal property when sold at retail in this-State.
“(A) Method of Collection and Rate-of Limited .Sales Tax. The tax hereby imposed shall be collected by the retailer from the consumer.
“(1) The tax shall be as follows and' shall be collected by using the following bracket system formula on each retail sale:
Amount Tax
$ .01 to $ .24 No Tax
.25 to .74 $ .01
.75 to 1.24 .02
1.25 to 1.74 .03
1.75 to 2.24 .04
Provided, further, that for each additional fifty cents (50⅜ of purchase,, or fraction thereof, one cent (10)-limited sales tax shall be collected! thereon.
* * * * * ¡fe.
“Art. 20.05 Return and Payments
“(B) Method Retailer is to Use in Computing Tax. The limited sales tax levied under Article 20.02 hereof shall be computed and paid to the Comptroller on the basis of two percent (2%) of all receipts from the total sales of such tangible personal property sold by such retailer under said Article.”

This is the first time that a court has been asked to construe these provisions of the Act.

The defendants contend that Section (B) of Art. 20.05 requires that the tax be computed and paid on the basis of two per cent of “all” receipts from the “total” sales. Defendants further argue that the only exceptions are found in Article 20.04 of the Act, which does not include an exemption for sales of less than twenty-five cents. All receipts from such sales are, therefore, to be used in the computation of the tax to be paid by the retailer to the State.

Defendants contend that their position is a reasonable one in that the Act incorporates the “bracket system formula”, (Par. (A), Art. 20.02) and since there is no medium of exchange whereby this two per cent can be collected from the purchaser on sales below twenty-four cents,, the retailer may and does collect more than two per cent in some of the lower brackets taxed. In this way the ordinary retailer in computing his overall tax on his gross receipts will average two per cent. Defendants argue that even though the plaintiffs do not collect any tax whatsoever, they are still liable for the tax on their total sales.

In support of their argument, the defendants rely on White v. Washington, Supreme Court of Washington, (1957), 49 Wash.2d 716, 306 P.2d 230; Smokey Mountain Canteen Company v. Kizer, Supreme Court of Tennessee, (1952), 193 Tenn. 598, 247 S.W.2d 69; Piedmont Canteen Service, Inc. v. Johnson, Supreme Court of North Carolina, (1962), 256 N.C. 155, 123 S.E.2d 582; and, Stevens Enterprises, Inc. v. Kansas, Kansas Supreme Court, (1956), 179 Kan. 696, 298 P.2d 326.

A sales tax is the creature of the legislature and must be interpreted by the courts as written. The cases cited by the defendants involve statutes wholly different from the Texas Act. The tax in these cases is on the privilege of doing business, the incidence of such tax being placed on the retailer with the right of recoupment against the purchaser.

In White v. Washington, cited above, the court allowed a tax on the gross receipts on sales from vending machines. The statute involved gave the tax commissioner the power to adopt rules as to the “schedule of collection” so as to eliminate the collections of fractions of one cent and so as to provide that the “aggregate collections of all taxes by the seller shall, * * * equal the amount of the tax imposed”, R.C.W. 82.08.-060. In his schedule, the tax commissioner set up a bracket system which provided that there would be no tax on items from one cent to thirteen cents.

The Washington Act states, “ * * * [t]he tax accrued under the provisions of this chapter, whether or not collected from the buyer shall be paid by the seller * * ” R.C.W. 82.08.070, and “The commission may authorize a seller to pay the tax levied under this chapter upon sales made through vending machines * * * or where sales are made under conditions of business such as to render impracticable the collection of the tax as a separate item * * * [t]he commission, by regulation, may provide that the applicant, under this section, furnish a proper bond sufficient to secure the payment of the tax.” R.C.W. 82.08.080.

Thus the bracket system under the Washington Act is an administrative device adopted by the tax commission to permit the retailer to collect from the purchaser, as nearly as possible, the amount levied against the retailer.

In the Kizer case, cited above, where a tax on sales from vending machines was upheld, the court described the Tennessee Act as being a tax on the vendor for the privilege of doing business. The Act contains no bracket system within itself but it does provide for the tax commissioner to install such a system. The schedule adopted by the Commissioner excluded the sales from one cent to fourteen cents from the tax.. Under the provisions of this act, the tax is computed on gross sales.

In Piedmont Canteen Service, Inc. v. Johnson and Stevens Enterprises, Inc., Kansas, cited above, the court upheld taxes on sales from vending machines, however, both Acts imposed a tax on the vendor for the privilege of doing business and both were expressly taxes on gross receipts.

Paragraph (A) of Article 20.02 of the Texas Act requires that the tax shall be collected by the retailer from the consumer. Subparagraph (1) states that no tax shall be collected on sales of one cent (.01^) to twenty-four cents (24‡). This section describes the method of collecting the tax.

Paragraph (B) of Article 20.05 states that the tax levied under Article 20.02 hereof shall be computed and paid to the Comptroller on the basis of two per cent of all receipts from the total sales of such tangible personal property sold by such retailer under said Article. Paragraph (B) is the method the retailer is to use in computing the tax. In the one sentence that is Paragraph (B), Article 20.02 is referred to twice in describing first the tax and secondly the method of ascertaining the amount levied thereunder. Paragraph (A) and Paragraph (B) supplement one another and must be read together.

The construction urged by the defendants would make this tax one on gross receipts as was expressly done by statute in the cases they rely on.

Article 20.05, Paragraph (E), authorizes the retailer to deduct and withhold from the taxes paid to the State one per cent thereof to reimburse the retailer for the cost of collecting the tax. A prepayment of tax authorizes the retailer to deduct two per cent as reimbursement for collection of the tax. The tax is levied against the consumer, the retailer is merely the collector. The tax is on the sale transaction and sales of one cent to twenty-four cents are not taxed.

Where a statute duly enacted by the Legislature is involved, the courts must first look to the statute itself for meaning. The wording of the statute is clear and unambiguous and this Court must give it effect according to its terms. See Gately v. Humphrey, 151 Tex. 588, 254 S.W.2d 98.

The judgment of the Trial Court is affirmed.

HUGPIES

(dissenting).

The first sentence of Art. 20.02, Taxation-General, V.A.C.S., reads:

“There is hereby imposed upon each separate sale at retail of tangible personal property made within this State a limited sales tax at the rate of two per cent (2%) of the sale price of each item or article of tangible personal property when sold at retail in this State.”

The term “sale price” is defined in Sec. (L) (1) Art. 20.01, id., as follows:

“ ‘Sales Price’ means the total amount for which tangible personal property is sold, valued in money, whether paid in money or otherwise, without any deduction on account of any of the following:”

Section (B) of Art. 20.05, id., reads:

“Method Retailer is to Use in Computing Tax. The limited sales tax levied under Article 20.02 hereof shall be computed and paid to the Comptroller on the basis of two percent (2%) of all receipts from the total sales of such tangible personal property sold by such retailer under said Article.”

The term “receipts” is defined in Sec. (D), Art. 20.01, id., as follows:

“Receipts.

“(1) ‘Receipts’ means the total amount of the sale or lease or rental price, as the case may be, of the retail sales of retailers, valued in money, whether received in money or otherwise, without any deduction on account of any of the following:”

Art. 20.04, id., entitled “Exemptions”, does not exempt sales less than twenty five cents.

The troublesome provision is, of course, Sec. (A) of Art. 20.02, id., which reads:

“Method of Collection and Rate of Limited Sales Tax. The tax hereby imposed shall be collected by the retailer from the consumer.
“(1) The tax shall be as follows and shall be collected by using the following bracket system formula on each retail sale:
$ .01 to $ .24 No Tax
.25 to .74 $ .01
.75 to 1.24 .02
1.25 to 1.74 .03
1.75 to 2.24 .04
Provided, further, that for each additional fifty cents (50$⅞) of purchase, or fraction thereof, one cent (1⅜⅞) limited sales tax shall be collected thereon.
“(2) The use of tokens or stamps for the purpose of collecting or of enforcing the collection of the tax imposed in this Chapter or for any other purpose in connection with such tax is prohibited.”

It is my opinion that this section when considered with the other provisions of the Act, particularly those above noted, fixes only the amount of the tax imposed upon retail sales and the receipts therefrom which may be collected from the individual purchaser. It may, at first blush, seem very unfair that the tax levied on sales under twenty five cents cannot be collected, as such, from the individual purchaser even though the retailer is required to account for such sales in remitting the tax due by him to the State. There are at least two sound answers to this criticism, (1) the retailer may recoup his tax losses on sales under twenty five cents by collecting from the purchaser more taxes on other sales than he is required to remit to the State (2) the retailer may increase the price of his product.

This Limited Sales Tax is obviously a bracket tax insofar as the purchaser is concerned. He does not always pay a tax of two per centum. Sometimes, he pays more; sometimes, he pays less. It is only when the sale price is exactly fifty cents, or some multiple thereof, that the purchaser pays to the retailer an exact two per cent tax. The first sale price on which a tax is collected by the retailer from the purchaser is twenty five cents. This tax is one cent, a four per centum tax; yet the retailer pays to the State on this sale a tax of only two per cen-tum. Within this same bracket range for collecting taxes from the purchaser is a sale of seventy four cents. The tax collected is one cent, a rate of tax of 1.4 per centum. In the next higher bracket for collecting the tax from the purchaser is a seventy five cent sale. Here the tax is two cents, a rate of 2.7 per centum. In this same bracket a sale of $1.24 is taxed at a rate of 1.6 per centum.

It is obvious that the Act does not purport to authorize or guarantee to the retailer that he will under all circumstances collect from the purchaser on each sale the equivalent of the tax which he must remit to the State. The Act very plainly invokes the law of averages to balance its impact upon retailer and purchaser in order to justify its fairness and to give validity to the provision that the tax imposed is to he collected by the retailer from the consumer.

Other Courts have considered similar statutes. I quote from White v. Washington, 49 Wash.2d 716, 306 P.2d 230, Supreme Court, as follows:

“* * * [I]f the bracket schedule is examined, it will be seen that on sales at or near the top of each bracket, the full amount of the tax is not collected from the buyer. The theory of the bracket system is that, on sales involving fractions of less than one half cent, the seller will absorb the tax; where as on sales involving a tax of more than one half cent or less than one cent, the buyer will pay an amount in excess of the actual tax. It is an overall application, the system is supposed to yield 3 percent on all sales, and this is generally found to be true. Of course, there are exceptions, where a seller deals in commodities all of which sell at a price which falls above or below a position in the bracket which yields exactly 3 percent. * * *
“It is true that it classifies sales for the purpose of applying the rate, but the rate remains constant throughout the schedule, and the schedule applies alike to every seller. In its general application, it imposes no hardship. It is only when a seller chooses to sell only items which are priced at a point on the schedule where less than the full tax is to be collected that he is forced to absorb part or all of the tax, and this is the exception rather than the rule.”

Of similar import is the decision in Smokey Mountain Canteen Company v. Kizer, 193 Tenn. 598, 247 S.W.2d 69, Supreme Court, and Stevens Enterprises, Inc. v. Kansas, 179 Kan. 696, 298 P.2d 326, Supreme Court. See also Piedmont Canteen Service, Inc. v. Johnson, 256 N.C. 155, 123 S.E.2d 582, Supreme Court, W. S. Libby v. Johnson, 148 Me. 410, 94 A.2d 907, New York Automatic Canteen Co. v. New York City, 8 A.D.2d 385, 188 N.Y.S.2d 119, 8 N.Y.2d 853, 203 N.Y.S. 905, 168 N.E.2d 709 and F. W. Woolworth v. Gray, 77 N.D. 757, 46 N.W.2d 295.

Appellees cite Winslow-Spacarb, Inc. v. Evatt, 144 Ohio 471, 59 N.E.2d 924, Supreme Court, as involving “a taxing statute and factual situation which more nearly approaches the ones presented to this Court than any other case found by appellees or cited by appellants.” I have examined this case. There the taxpayer had devices which delivered but a single drink for the price of five cents. The taxing statute, Gen.Code, § 5546-2, as the Court said “definitely states” and the Court quoted and italicized, “If the price is less than nine cents, no tax shall be imposed.” The Court very properly held that the statute meant what it said.

The Act before us is not a price fixing statute. The retailer may, so far as this Act is concerned, adjust his prices to meet any need occasioned by the imposition of this tax. Witness the rise in the prices of gasoline, cigarettes, beer, whiskey and other commodities subject to excise taxes when such taxes are increased. This is the only manner in which the retailer can protect himself from the effect of such tax levies. Appellees may go and do likewise. In fact, the Act seems to authorize this relief. In Sec. (D) (3), Art. 20.01, id., it is provided that “For purposes of the limited sales tax, if the retailer establishes to the satisfaction of the Comptroller that the limited sales tax has been added to the total amount of the sale price and has not been absorbed by him, the total amount of the sale price shall be deemed to be the amount received exclusive of the tax imposed.”

It is my opinion that the Act fairly imposes a tax upon appellees and that they should pay it. I, therefore, respectfully dissent.

      . The deductions named are not relevant here.

      . The deductions named are not relevant here.