author: CHADICK, Chief Justice. FANNING, Justice DAVIS, Justice

text:
    NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Vivian S. BLACK, Appellee.
    No. 7409.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 2, 1962.
    Rehearing Denied Oet. 30, 1962.
    Norman C. Russell, Victor Hlavinka, Texarkana, for appellant.
    Robert L. Dalby, Texarkana, for appel-lee.
   ON APPELLEE’S MOTION FOR RE-HEARING

CHADICK, Chief Justice.

Since it appears to me that a published opinion would be of no benefit to the bench or bar because of the diversity of views expressed by the members of this court in reaching a decision, I am withdrawing my opinion dated the 28 day of August, 1962, and order the case remanded for fuller development in a new trial. Remand rather than rendition seems to be in the interest of justice as the factual basis of the case was not fully developed.

FANNING, Justice

(concurring on reversal and remand).

My concurring opinion in affirmance, of June 26, 1962, is withdrawn and the following opinion is substituted in lieu thereof.

Originally it was my view, as expressed in my opinion of June 26th, 1962, that the terms “employee” and “full-time employee”, not having been defined in the insurance policy, (in connection with the insertion of the provision in the policy to the effect that “all present employees” were eligible for insurance) should be given a broad and liberal construction and one most favorable to the insured. It was also my original view, as expressed in said opinion, that the judgment of the trial court could be affirmed on the theories of waiver and estoppel.

However, upon careful re-study and reconsideration of this cause, it is now my considered view that the judgment of af-firmance was erroneous and that the judgment of the trial court should either be reversed and rendered or reversed and remanded.

I am now convinced that the proper rule of construction to be applied in this cause to determine the meaning of the terms “employee” and “full-time employee” is the rule that language used in insurance policies is given its usual and popular meaning unless it is ambiguous or it is shown that the parties intended it to have a special meaning. Insurance 32 Tex.Jur.(2) 115, Sec. 57.

The insured, Mr. E. C. Black, was a director or member of the Board of the Texarkana Water & Sewer Systems, and the record indicates that he occupied the status of a “public officer”, although the record is not as fully and properly developed on this matter as it probably should be.

Public officer has been variously defined, and in 67 C.J.S. Officers § 2, pp. 101-102, the term is referred to:

“ * * * an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law; a person whose duty it is to perform an agency for the state; an officer who discharges any duty in the discharge of which the public is interested or who is invested with the authority and is required to perform the duties of a public office; one who has some duty to perform concerning the public.”

Knox et al. v. Johnson, Tex.Civ.App., 141 S.W.2d 698, in discussing the definition of a public officer cites with approval the rule laid down in 53 A.L.R. 595, as follows:

‘It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.’ ”

The rule laid down in 53 A.L.R. 595 is also in harmony with the definition of a public officer given by the Supreme Court of Texas in Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120.

The determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the public largely independent of the control of others. Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578.

An employee is one who works for an employer; a person working far a salary or a wage. The word is applied to any one so working, but usually only to clerks, workmen, laborers, etc., and but rarely to officers of a government or corporation. United States v. Schlierholz, 8 Cir., 137 F. 616, 624.

It is my view that the term “public officer”, as used in its usual and popular meaning, does not have the connotation that a public officer is an “employee”. For a public officer to be held to be an employee, it is thought that it would have to be done under a very broad and a very liberal definition or construction.

If the record in this cause conclusively showed that Mr. Black was a “public officer”, it would be my view that he would neither be an “employee” nor a “full-time employee” and under such circumstances the judgment of the trial court should be reversed and rendered in favor of appellant.

It is now my further considered view that the judgment of the trial court can not be supported upon the theories of waiver and estoppel, as there was no showing made in the record that any statements that may have been made by the soliciting agent of appellant insurance company was to have been either authorized, known or ratified by the appellant insurance company. See the following authorities: Washington National Ins. Co. v. Craddock, Tex.Com.App., 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854; Southern Surety Company v. Inabnit et al., 119 Tex. 67, 24 S.W.2d 375; Great American Casualty Company v. Eichelberger, Tcx.Civ.App., 37 S.W.2d 1050, wr. ref.; Traders & General Insurance Company v. Lange, Tex.Civ.App., 354 S.W.2d 178, wr. ref.; n. r. e. In Traders & General Insurance Company v. Lange, supra, it was stated:

“Regardless of what Neil Cooper said, or did, there is no evidence in the record to show that his principal, the appellant insurance company, did any act or made any omission which would indicate that the principal knew about Cooper’s representations or acts, or ever ■ ratified such acts, and under this record there is no pertinent act or omission traceable directly to the principal.”

I am inclined to the view that the most serious question in this cause is whether the cause should be reversed and rendered on the record before us or reversed and remanded in the interests of justice, for fuller development of the evidence on the questions of whether the insured occupied the status of a “public officer” and whether he was either an “employee” or a “full-time employee”. While perhaps this cause could very well be reversed and rendered under the .record, before us, I am agreeable to the disposition that this cause be reversed and remanded, in the interests of justice, for a fuller, more complete and more proper development of the evidence in the cause with respect to whether the insured was a “public officer”, and whether he was either an “employee” or a “full-time employee”. I therefore accordingly concur in the order of reversal and remand.

DAVIS, Justice

(dissenting).

When this case was originally submitted to the court I drew it and wrote an opinion. Judge FANNING concurred, and Judge CHADICK dissented. I now file the opinion, with minor changes and an addition, as my dissent.

“The appellant, Northwestern National Life Insurance Company, on October 15, 1956, issued its group life policy insuring the employees of Texarkana Water and Sewer Systems. Appellant supplied a group enrollment card for the enrollment of the employees. E. C. Black, and two others, were on the Board of Public Utilities for the City of Texarkana, Arkansas. They secured their authority from the City Council, and by Sections 9978, 9979, 10,022, 10,-023 and 10,024 of Pope’s Digest of the Statutes of the State of Arkansas. This fact was proved by the introduction of the Ordinance of the City of Texarkana, Arkansas, by the ■ appellant. The Statutes of the State of Arkansas are neither plead nor proved. On September 10, 1956, Mr. Black executed an enrollment card, naming Vivian S. Black as beneficiary. A certificate of insurance was issued by appellant to E. C. Black on October 15, 1956, with Vivian S. Black as beneficiary. All premiums were paid through January 24, 1960, the date of the death of E. C. Black.

“After the death of E. C. Black, proof of death was filed with the appellant showing the deceased was a member of the Board of Public Utilities, and that his earnings were $20.00 per month. Appellant denied liability upon the basis that M.r. Black was not a ‘full-time’ employee, and denied that he had the status of an employee as he was a member of the Board of Public Utilities which governed and ran the Water and Sewer Systems. The ap-pellee, Vivian S. Black, as beneficiary, sued in the District Court of Bowie County, Texas, alleging that the deceased was a full-time employee; and, alternatively that the Company was estopped to deny coverage by reason of acceptance of the premiums.

“According to the evidence there was much discussion with the agent of the insurance company prior to the agreement to purchase the group policy. The attorney for the Water and Sewer System, John D. Raifaelli, testified in part as follows:

“ ‘On one occasion we were told that the “key men” and the Board Members would be able to carry more than One Thousand Dollars of life insurance. The above statements are the reasons why we saw fit to change our insurance. At that time we were carrying insurance with another company.’

“On another occasion Mr. Raifaelli testified that Black was a ‘full-time’ employee of the Texarkana Water and Sewer System as follows:

“ ‘If you mean full-time employee is one who works from a certain hour to a certain hour, no; if you mean someone who is on call twenty-four hours a day, yes.’

“In a jury trial, the jury found that the deceased was a ‘full-time’ employee; and, that the appellant was estopped to deny coverage. Judgment was entered for the ap-pellee. Appellant’s motions for instructed verdict and for judgment notwithstanding the verdict were overruled. Appeal is made pursuant to Rule 324 Texas Rules Civ.Procedure. The appellant brings forward the following point of error:

“ ‘POINT 1:

“ ‘The trial court erred in denying Appellant’s Motion for Instructed Verdict (Tr. P. IS); in denying Appel-ant’s Requested Instruction concerning “full-time employee” and in overruling Appellant’s objections and exceptions to the court’s charge (Supp.Tr.P. 1-6); in denying Appellant’s Motion for Judgment Notwithstanding Verdict as there was no evidence to support jury findings; and in entering judgment for Appellee; for the reasons that
“ ‘(a) E. C. Black was not an employee, full-time or otherwise, of Tex-arkana Water and Sewer Systems, but rather he was a member of the Board of Public Utilities which governed and fixed policy for operation of said systems ; no evidence exists to sustain the “full-time employee” status; and the court’s definition of “full-time employee” is erroneous. (Germane to Motion for Instructed Verdict, Tr. p. 15-17; Motion for Judgment Notwithstanding Verdict, Tr. p. 24-25; and Defendant’s Objections and exceptions to Courts Charge, Supp.Tr. p. 1-6).
“ ‘The Company is not estopped to deny the employee status of E. C. Black by reason of acceptance of premiums. Unless E. C. Black enjoyed the status of. a “full-time employee” and was thereby covered under the terms of the policy, then coverage cannot be created by estoppel where in fact no coverage previously existed. Estoppel arises to protect a contractual right previously held from a defense, and estoppel cannot be used to create a right or extend a contract where such right or contract did not previously exist. (Germane to Defendant’s Objections and Exceptions to Court’s Charge, Supp.Tr. p. 3-6; Motion for Instructed Verdict, Tr. p. 15-17; and Motion for Judgment Notwithstanding Verdict, Tr. p. 24-25).’

“The point of error raises the following points:

“1). The error of the trial court in denying appellant’s motion for instructed verdict.
“2). The error of the trial court in denying appellant’s requested instruction concerning ‘full-time employee’.
“3). The error of the trial court in overruling appellant’s objections and exceptions to the court’s charge.
“4). The error of the trial court in denying appellant’s motion for judgment notwithstanding the verdict.
“5). The error of the trial court in entering judgment for the appellee because there was no evidence to support the jury findings.
“6). The error of the trial court in rendering judgment for appellee because E. C. Black was not a full-time employee of the Texarkana Water and Sewer Systems.
“7). The error of the trial court in his definition of a ‘full-time employee’.
“8). The error of the trial court in entering judgment for appellee because appellant is not estopped to deny the employee status of E. C. Black.
“9). The error of the trial court in submitting the issues to the jury and rendering judgment thereon on the issue of estoppel because there was no evidence to support such issue.
“10). The error of the trial court in rendering judgment for the appel-lee on the issue of estoppel, because estoppel can not be used to create a right or extend a contract where such right or contract did not previously exist.

“In the trial, it was proved that E. C. Black was an employee of the Texarkana Water and Sewer Systems, and was a member of the Board of Utilities of the City of Texarkana, Arkansas. He had been such an employee since October 26, 1948. The. certificate of insurance, the basis of this suit, was not issued until October 15, 1956. Mr. Black drew $20.00 per month from the Texarkana Water and Sewer Systems for his services until the time of his death. It was the duty of the Board of Public Utilities to run the Texarkana Water and Sewer Systems. They had monthly meetings, and many called meetings. For many years he was Chairman of the Board of Public Utilities of the Texarkana Water and Sewer Systems. In addition to attending the Board meetings, he was on call for twenty-four hours a day on the complaints of citizens of the City of Texarkana, Arkansas. He would often go to their places and inspect the various complaints and report his findings to the Manager of the Texarkana Water and Sewer Systems. The Texarkana Water and Sewer Systems could not execute checks in excess of certain amounts without the signature of E. C. Black. According to the evidence, he went to the office of Texarkana Water and Sewer Systems on many days to sign the checks. According to the evidence, Mr. Black was an employee of the Texarkana Water and Sewer Systems and there were no other duties imposed upon him by the City Ordinance nor the City Council. Upon trial of the case, the appellee offered in evidence the group life policy. The only thing about employees in the policy is the following:

“ T. DEFINITION OF THE TERM “EMPLOYEES”:
“ ‘The term “employees” as used herein means all full-time employees employed and compensated by the employer.
“ ‘2. ELIGIBILITY OF
EMPLOYEES:
“ ‘All present employees and each eligible for insurance hereunder on the effective date hereof. All ©the? ggesest «⅞⅝-g-loyees and- New employees shall be eligible for insurance hereunder on the 1st day of the policy month coinciding with or next following the date of commencing continuous service with the employer.’ (Emphasis added)

“There was some evidence introduced that appellee’s group policy was not filed with the Texarkana Water and Sewer System, and the same had to be secured from the appellant. A certificate of insurance issued to Mr. Black does not say anything about what constitutes an employee or a full-time employee. No one with the Water System had seen the group policy prior to Mr. Black’s death.

“In submitting the case to the jury the trial court defined a full-time employee as follows:

“ ‘By the term “full-time employee”, as used herein, is meant an employee who receives compensation from an employer for services rendered to the employer during the period of time such compensation is paid. The term may be used to distinguish a permanent employee from a transitory employee who is engaged to work only certain months of the year o.r particular days of the week.’

“Appellee takes the position that the evidence is sufficient to support the jury finding that Mr. Black was a full-time employee. Appellant had notice of its intention to insure the key men and the Board Members of the Texarkana Water and Sewer Systems prior to the time it issued the group policy. 2 Tex.Juris.2d 628-634, Secs. 182 through 186; Adams v. LaSalle Life Ins. Co. (Tex.Civ.App.), 99 S.W.2d 386, err. dism.

“As to the clear intent that Mr. Black was considered an eligible employee, look to the phraseology and delineations in Sec. 2 of the eligibility of employees. As pointed out hereinabove in the exact quotation from the policy, ‘All present employees are each eligible for insurance under the policy.’ (Emphasis added) There are two lines in which the Agent could have written in the exceptions that are now claimed by the insurance company. As further evidence of the fact that they intended to insure the Board Members he then struck out the following: ‘All other present employees and’. Then it is noted: ‘New employees shall be eligible for insurance hereunder on the 1st day of the policy month coinciding with or next following the date of commencing continuous service with the employer.’ (Emphasis added.) Considering the theory of law that is followed by all courts that an insurance contract must be considered in favor of the insured, it is held that E. C. Black was insured under the group policy.

“An employee in an insurance policy is construed in a different manner than under Workmen’s Compensation law or Labor law. Appellant takes issue with the foregoing instruction, but under the facts in this case, the instruction is clear. In Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899, employment is defined as follows: ‘Employment means act of employing, state of being employed, that which engages or occupies, that which consumes time or attention, office or post of business, service or occupation.’

“A full-time employee is described in Bakkensen v. John Hancock Mutual Life Ins. Co., 222 Or. 484, 353 P.2d 558, as follows :

“ ‘Since only full-time employees were eligible for insurance if covered by a union agreement and since plaintiff was subject to such an agreement, we now consider the question of whether or not plaintiff was a full-time employee. It appears that plaintiff was at all times required to be available for work even though his services might not be required. In the case of Harlan v. Washington Nat. Ins. Co., 388 Pa. 88, 130 A. 2d 140, 143, wherein the question was whether or not a seasonal or transitory employee was a full-time employee within the meaning of that term as contained in a group policy of life insurance, it was stated:
“ ‘ “Full time employment does not m,ean full time pay. It means being available for full employment; and full employment does not mean a hand at the helm through the entire voyage; it means standing by to take over when the exigencies of the passage required the application of one’s skill acquired over many journeys of the past.”
" ‘We adopt this definition with reference to this case and, therefore, hold that since plaintiff was required to be available for work during the whole term of his employment he was in fact a full-time employee.’

See the following cases: Renee v. Corsi, Industrial Com’r, 293 N.Y. 501, 58 N.E.2d 513; Independence Indemnity Co. v. Industrial Accident Commission of California, 203 Cal. 51, 262 P. 757; Industrial Fibre Co. v. State, 31 Ohio App. 347, 166 N.E. 418.

“E. C. Black died January 24, 1960. Appellant issued the notice of cancellation as of February 1, 1960, after the loss occurred. 32 T.J.2d 167-169, § 87, 88, and 89. But this does not prevent the appellant from trying to repudiate the contract. Green v. Hanover Fire Ins. Co. (Tex.Civ.App.) 264 S.W. 153, n. w. h.

“Mr. Black was led to believe that he had a valid policy of insurance. There was paid thirty-nine consecutive months of insurance premiums. Appellant had notice that Mr. Black was a member of the Board of Public Utilities of the Water and Sewer Systems of Texarkana, Arkansas. They issued a group policy insuring all ‘present’ employees on October 15, 1956. Having received the premiums through and including the death of Mr. Black they are estopped to deny liability. Springfield Fire & Marine Ins. Co. v. Brown, (Tex.Civ.App.) 13 S.W. 2d 916, n. w. h.; Austin Fire Ins. Co. v. Polemanakos (Tex.Com.App.) 207 S.W. 922; The Maccabees v. Helton et al. (Tex.Civ.App.) 70 S.W.2d 354, er. ref.; Southern Underwriters v. Jones (Tex.Civ.App.) 13 S.W.2d 435, er. ref.

“The evidence is sufficient to support the jury’s finding. The points of error are overruled and the judgment of the trial court is affirmed.

June 26, 1962 “MATT DAVIS ASSOCIATE JUSTICE”

Filed June 26, 1962.

I drew the case and discussed dismissing it because of the form of the point of error. The point is multifarious and raises some points that can not be considered. Under the holding in Wagner v. Foster et al., 161 Tex. 333, 341 S.W.2d 887, the points of error discussed in the foregoing opinion and some of them discussed in the opinions of Chadick and Fanning are not raised in the motion for judgment non obstante vere-dicto.

Under the group life insurance policy, E. C. Black was a full-time employee as a matter of law. He was not an officer of the City of Texarkana, Arkansas. The Ordinance that was introduced in evidence, in truth and in fact, made him an employee of the Texarkana Water and Sewer Systems. He was paid twenty dollars per month by the Texarkana Water and Sewer Systems for his services. Under the phraseology of the group life policy, he was an insured employee.

I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    Carroll H. MAXWELL, Appellant, v. H. A. MADDOX et al., Trustees of the Church of Christ of Richardson, Texas, Appellees.
    No. 11034.
    Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1962.
    Rehearing Denied Nov. 28, 1962.

      Spafford, Ledbetter, Freedman, Hamlin & Gay, Warren Whitham, Dallas, for appellant.
    Wynne, McKenzie, Stroud, Jaffe & Tins-ley, Jack W. Hawkins, Dallas, for appel-lees.
   ARCHER, Chief Justice.

This is a suit in trespass to try title brought by appellees against appellant. The matter in controversy between the parties is whether a strip approximately twenty (20) feet in width along the entire west side of appellees’ property is a public road or street by virtue of an implied common law dedication. The Trial Court, without the intervention of a jury, found that the strip of land in controversy was not a public street and entered judgment for appel-lees.

The appeal is based on four points assigned as error by the court in failing to find that the strip of land was a public road or street by virtue of a common law dedication, in finding that the church did not dedicate the strip to the City of Richardson as a public street, that the strip is not a public thoroughfare, that the church has title to the strip free of all dedications of every nature, that neither appellant nor the public has any right to use the strip, and that the church is entitled to exclusive use of the strip because the evidence shows that there has been an implied common law dedication of the strip as a public road or street by the appellees.

The third point is that the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust; and finally that there is no evidence to support the findings and judgment of the court, in that the appellant and the public are not bound by private arrangements between appellees and Messrs. Cas-sidy and Holley, and the court erred in permitting witnesses Green, Maddox and Wallace to testify that they did not intend to dedicate the strip as a public street or road.

We believe that the strip of land in controversy, sometimes called Cliff Lane, and at other times called Church or Cliff Street, was a public road or street by virtue of an implied common law dedication and that the Trial Court erred in not so holding and finding and we reverse and render judgment for the appellant.

We are inserting herein a map showing portions of the church property, the entire street area, and the property on the western side of the street or road known as the James, Holley and Cassidy lots. There is also shown the property now owned by appellant Maxwell.

The church owned the property including the strip. Sometime in 1950 the church built a chain link fence on its property, 20 feet from its western boundary thus leaving an area 20 feet wide and approximately 297 feet in length, which extended in front of the James, Holley and Cassidy houses and providing an outlet for the occupants of the four houses.

This strip was used by the occupants of the houses, their guests and the public in general having occasion to use the area.

We insert herein Defendant’s Exhibit Nos. 6, 7 and 13, pictures of the area showing the streets, and the adjacent properties, which reflect a well defined road or street known or called Cliff Street.

One of the appellees, C. L. Green, testified that he was the overseer of the church property and an elder, and had known the property since 1946, and was a regular attendant at the church; that the strip involved in this litigation was a grass and weed patch, with a little area where Mr. James would park; that he knew Mr. Cas-sidy in his lifetime, that in about 1950 Cassidy faced two houses’ toward the church property. That the fence was built to keep people from using the property and going in various directions in trucks and cars. That the church elders contacted the parties owning land on the west side of the church property and told them that the church was going to build a fence to protect the property but wanted to be neighbors and would allow a temporary usage, and that the fence was temporary, and had no objection to Mr. Cassidy and his tenants using the property.

Mr. Cassidy said he would appreciate the use and would make a contribution to the church which he did in the sum of $118.59, which was ½ of the down payment on the fence; that similar agreements were made with Mr. Holley and Mr. James. Other members of the official board of the church testified in substance similar to that given by Mr, Green and we see no need to recite such.

The street or road was improved by the county by placing asphalt on the strip, which was all right with the church. The strip was not used by people coming to church after the fence was erected but was used generally by people coming to the Cassidy, Holley and James houses.

After the apartment house was built the church removed the fence and had posts set as barriers in front of the Cassidy property. The two houses had been removed. The fence was removed in July 1960.

A gas line was laid in the street area in 1952, and no objection thereto was made by the church officials, and no effort has been made to cause a removal of the gas line.

Mail was delivered to occupants of the four houses and deliveries made by concerns having business with the occupants.

On January 30, 1952, the Board of Commissioners of the City of Richardson, by resolution, officially accepted Cliff Lane as a public street. The appellees are not making any objection to the use of the strip of land, called Cliff Lane by the occupants of either the Holley or James houses.

In this case we are concerned only with an implied dedication under the common law. In Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, our Supreme Court held that dedication of land to public use need not be shown by deed, nor for any particular length of time, and that:

“Our courts recognize the doctrine that a dedication of land to public use need not be shown by deed, nor by public use for any particular length of time. It is sufficient if the record shows unequivocal acts or declarations of the landowner, dedicating same to public use, and where others act on the faith of such dedication, the landowner will be estopped to deny the dedication, or to make any future use of the property
inconsistent with any purpose for which the land was dedicated. Common-law dedications, such as the one here involved, are subdivided into two classes, express and implied. ‘In both it is necessary that there should he an appropriation of land by the owner to public use, in the one case by some express manifestation of his purpose to devote the land to the public use, in the other by some act or course of conduct from which the law will imply such an intent.’
“ ‘It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. * * . * If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent.’ ”

City of Houston v. Hughes, Tex.Civ.App., 284 S.W.2d 249, error ref. N.R.E.

We have given careful consideration to the able brief filed by counsel for appel-lees and the authorities cited but believe that the decision in this case is controlled by the Owens v. Hockett case, supra, and that of City of Houston v. Hughes, supra.

The judgment of the Trial Court is reversed and judgment is here rendered establishing the strip of laud as a public road or street known as Cliff Lane, in accordance with the field notes.

Reversed and rendered.


text:
    W. W. BANKS, Administrator, Appellant, v. The STATE of Texas et al., Appellees.
    No. 11030.
    Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1962.
    Rehearing Denied Nov. 21,1962.

      Jay S. Fichtner, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., A. D. Jim Bowie, Don T. Cates, Homer G. Montgomery, Ted Z. Robertson, Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment in favor of the State of Texas and the County of Dallas, requiring the Administrator to pay a commission of one-half of one percent of the actual cash receipts of the Administrator of the Estate of Jewel Marie Banks, Deceased, amounting to $1,111.71 as a commission to the Probate Judge. There is no issue as to the amount due, if any.

The appeal is based on the error of the Trial Court in requiring the Administrator to pay a commission before discharging him and his surety, because the statute requiring payment of- such commission has been repealed.

Article 3926, Vernon’s Ann.Civ.St., is the provision of the code upon which the Probate Judge predicates his requirement that a commission be paid.

Originally the commissions paid under Article 3926 were personal to the official and represented his personal fund, and from which and other funds, compensation was paid such official as fees of office.

With the enactment of Section 61, Article 16 of our Constitution, Vernon’s Ann.St., such monies constituted “fees of office,” but to which the official had no personal claim. State v. Glass, Tex.Civ.App., 167 S.W.2d 296, error ref. (141 Tex. 83, 170 S.W.2d 470). All similar fees of office became payable to the Treasury, out of which salaries are paid. Sec. 14, Article 3883i, V.A.C.S.

There is no conflict between Sections 11 and 14 of Article 3883i, but indicate a continued recognition of the Legislature of the two types of monies receivable of the affected public officials. Section 11 cannot be construed as repealing fees and commissions of office, since Section 14 requires that such fees and commissions be paid into the treasury.

There can be no question but that the purpose and effect of the amendment to the Constitution was to abolish the fee system of compensating named officers and placing them on a salary basis. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509; Settegast v. Harris County, Tex.Civ.App., 159 S.W.2d 543, error ref.

The judgment of the Trial Court is affirmed.

Affirmed.


author: HUGHES, Justice.

text:
    C. A. ABRAMS, d/b/a C. A. Abrams and Company, Appellant, v. W. S. BRENT et al., Appellees.
    No. 11029.
    Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1962.
    Rehearing Denied Nov. 28, 1962.

      Leflcowitz, Green, Ginsberg, Eades & Gilmore, Dallas, for appellant.
    W. J. Durham, Dallas, for appellees.
   HUGHES, Justice.

C. A. Abrams, d/b/a C. A. Abrams and Company, Contractor, sued W. S. Brent, pastor, and eleven trustees of the Mount Horeb Missionary Baptist Church for damages for breach of a written contract to construct a new building for the church.

Trial was to a jury. When appellant rested his case, the Trial Court withdrew the case from the jury and rendered judgment for appellees.

It was stipulated by the parties that the Mount Horeb Missionary Baptist Church was an unincorporated religious association with an independent congregational form of government, and that the pastor and deacons of the church have no authority to act for the church except by a majority vote of the congregation.

Mr. Horace Joiner who had been a member of the church for thirty-two years and one of its trustees for twenty-seven years and one of appellees testified to the manner in which the church conducted its business affairs. We quote his testimony regarding the matter in controversy:

“Q Did you act as a trustee in the purchase of the lot on which this church was to be built.
“A Yes, sir.
“Q Now, after that lot had been purchased, was there any discussion with the congregation as to the opening up of negotiations to get a builder to build a church on that lot?
“A Yes, sir.
“Q Would you explain to the Court and Jury how the group that was to obtain a contractor was appointed, or was authorized?
“A Well, we was authorized to look out for the lot at first, and then we was authorized by the church to build a church.
“Q All right; now, was there any action taken on a Sunday when the church congregation was in session with reference to the trustees looking for a contractor?
“A Well, they acknowledged us; it was on Sunday. And everybody stood up in our behalf.
“Q All right now; approximately when was this that everybody stood up?
“A I really don’t remember.
“Q Was is before the contract papers were signed ?
‘■'A Before? Let’s see; it was — they acknowledged us — that was before they were signed.
“Q All right, now; go ahead and explain what the minister did and what the congregation did.
“A Well, the congregation stood up to acknowledge us; and after they stood up, then the pastor went down through the congregation to see that everybody was standing up. That was the day they acknowledged the trustee board. Then when it was over, he told us, he said, ‘Now these are the men responsible for building your church’. Them was the last words he said.
“Q All right, now; who were the trustees that were acknowledged that day?
“A Well, it was eleven of us.”

Mr. Stanley Jackson, church trustee and one of appellees, testified regarding the same congregational meeting, “Reverend Brent, he was authorizing the trustees to go out and seek a contract, to secure a loan, for the purpose of building the new building we were to build, and we were to go out and find a contract and bring it back to the church. * * * He (Rev. Brent) was getting a vote from the church.”

Mr. Jackson further testified that Reverend Brent on this occasion told the congregation he wanted them to appoint a committee of trustees “To seek for a building contractor and a loan.”

All of appellees were church trustees except Reverend Brent.

The action of the church, above indicated, was by a majority of its congregation.

It is not clear just when the congregational meeting above referred to was held. It is shown that it was before the contract and other instruments relating to the construction of the church were signed by the trustees.

The testimony shows that during the months of May and June, 1960, Reverend Brent and some of the church trustees visited appellant in San Antonio and negotiated with him regarding the construction of the church. Other meetings for the same purpose were held in Dallas between appellant and the trustees. On July 6, 1960, a Builder’s and Mechanic’s Lien Contract having been previously signed was acknowledged before a Notary Public by appellant and ap-pellees, except Reverend Brent, acting as trustees for the Mount Horeb Missionary Baptist Church for the construction of a church building in accordance with certain plans and specifications prepared by Architect Lawrence A. Collins in consideration of the payment of $10,000.00 cash and deferred payments amounting to $210,000.00. A note in such sum was similarly executed by the trustees in their representative capacity. This instrument recites that “This is an obligation of the Mount Horeb Missionary Baptist Church, Dallas, Texas, and the undersigned Pastor and Trustees of said church certify that they, and each of them, have been granted proper and sufficient authority by the church to so execute the same.” The pastor did not sign the note.

As further security for the payment of the church obligations to appellant, the pastor, the eleven trustees and 206 members of the congregation signed limited personal guarantees in his favor.

After execution of the building contract, the church held ground breaking ceremonies on the lot site. Publicity of this event was given in the press; the pastor announced it in the church; pictures were taken, and the proceedings were televised. “ * * * it was a big ground breaking. * * * they had a feast that afternoon and everybody enjoyed themselves. * * * quite a large group” was there.

Following the execution of the contract, appellant, at the request of Reverend Brent, procured a building permit for the construction of the church. Appellant in preparing to commence construction of the church incurred $1309.22 in expenses, which consisted of moving his equipment from San Antonio, constructing a tool house at the site and in procuring credit reports for the finance company which was to lend to the church a portion of the building cost.

The rules for granting directed verdicts or in withdrawing cases from a jury are well settled and will not be fully restated here. See McDonald, Tex.Civ. Practice, Vol. 3, Sec. 11.28. Briefly, the Court is required to view the evidence in a light most favorable to the party against whom the motion is directed, and indulge every reasonable inference therefrom favorable to such party, and to discard and not consider all evidence favorable to the moving party not of a conclusive nature. In applying this rule to this case, it is our opinion that the Trial Court erred in withdrawing the case from the jury.

We believe that liberally construing the evidence it is not unreasonable to infer therefrom that the congregation authorized the eleven trustees to build a church for them and that this authorization would include all matters incidental or reasonably necessary to the fulfillment of this objective. Certainly, it would include the procurement of a contractor and the execution of a building contract. These are customary and essential requirements in the construction of a building of the size contemplated here.

We are also of the opinion that the conduct of the congregation, or considerable numbers of it, and the pastor in executing individual guarantees for performance of the church’s obligation under the building contract and in participating in the ground breaking ceremonies are admissible and relevant to establishment of the true meaning of the authority given by the congregation to the eleven trustees in the event such authority is ambiguous and we are in error in holding the original authorization sufficient within itself to sustain the validity of the contract.

It is also our opinion that the evidence clearly raises fact issues with respect to estoppel of the congregation to deny the authority of the trustees in executing the contract and ratification of such authority, all as pleaded by appellant.

Appellees’ First Counterpoint is to the effect that no breach of the contract by the church is shown by the evidence. Appellees at great length by a current pleading alleged the non-existence of any binding contract on the church or its pastor or appellee trustees. This was a repudiation of the contract. Repudiation of a contract is a breach of contract. 13 Tex.Jur.2d, Contracts, Sec. 306. Furthermore, appellant testified that one of the church trustees ordered him to move his tool house from the church property. This is some evidence of the breach of contract by the church. The record reflects that the church was not built, and, assuming that there was a valid contract, there is no pleading that the church was ready, able or willing to perform the contract. Appellees merely deny the existence of a contract. We overrule this counterpoint.

In view of a re-trial, we believe it our duty to express an opinion upon the question of the personal liability of appellees upon the building contract and note executed by the trustees in their trust capacities.

In Mood v. Methodist Episcopal Church South, Tex.Civ.App., 289 S.W. 461, affirmed Tex.Com.App., 296 S.W. 506, Tex.Com.App., 300 S.W. 30, rehearing overruled, it is held that members of an unincorporated religious association who incur a debt for the association or who assent to its creation are personally liable therefor. See also Redden v. Capps, 15 S.W.2d 670, El Paso Civil Appeals; 76 C J.S. Religious Societies, § 29-f; 45 American Jur., Religious Societies, Sec. 25. Of course, personal liability could be contracted against.

The judgment of the Trial Court is reversed and this cause is remanded.

Reversed and remanded.

      . In St. Louis Union Trust Co. v. Oregon Annual Conference of the Methodist Episcopal Church, 14 E.Supp. 35, the Court stated:
      “The attempt of congregations to escape liability for indebtedness incurred for the society, by persons not specifically authorized, is not novel in American church law. Such endeavors are inherent in such loose structures composed of persons of little business training, predisposed to look to the glory of the end desired, rather than to the consequences of failure. Under such circumstances, the judicial tendency has been to hold these bodies liable if the acts primarily unauthorized, have been ratified. But the debt must have been incurred in a project within proper church purposes. The sovereign authority must have been informed as to the facts, although proof of this may be inferential. If these conditions concur simultaneously, any acts which indicate approval of a course of action or acknowledgment of the obligation is sufficient.”


author: WERLEIN, Justice.

text:
    ORKIN EXTERMINATING COMPANY, Inc., Appellant, v. GULF COAST RICE MILLS, Appellee.
    No. 13998.
    Court of Civil Appeals of Texas. Houston.
    Nov. 8, 1962.
    Rehearing Denied Nov. 29, 1962.

      See also 347 S.W.2d 250.
    The Kempers, John D. Richardson, Houston, for appellant-appellee, Orkin Exterminating Co., Inc.
    Carnes & Martin, Burke M. Martin, Houston, for appellee-appellant, Gulf Coast Rice Mills.
   WERLEIN, Justice.

This suit was brought by plaintiff, Gulf Coast Rice Mills, against Orkin Exterminating Company to recover damages allegedly growing out of breach of contract and negligence of the defendant. Both plaintiff and defendant have perfected appeals to this Court from the judgment rendered by the trial court on the second trial of the case. From the judgment of the District Court rendered on the first trial, an appeal was taken by the defendant and the judgment was reversed and the cause remanded by the Waco Court of Civil Appeals. Orkin Exterminating Company, Inc. v. Gulf Coast Rice Mills, Tex.Civ.App., 343 S.W.2d 768, dism. w. o. j.

A summary of plaintiff’s pleadings, which were identical on both trials, is given in the opinion of the Waco Court. We quote from such summary as follows:

“Plaintiff alleged that it entered into a written contract with Orkin in 1952 under the terms of which Orkin was to exterminate and control insects, rodents, and pests in plaintiff’s mill; that in August, 1955, Orkin sprayed plaintiff’s mill with an insecticide or pesticide known as Lindane; that Lindane is poisonous and prohibited by law to be so used; that the application of Lindane to the mill rendered the rice unusable; that the use of Lindane on the interior of the mill was negligence; caused the rice to be unfit for use and adulterated; caused the Federal authorities to prohibit sale of the rice; caused the rice to be injurious to health and unsafe within the meaning of the Federal Food and Drug Act. 21 U.S. C.A. § 301 et seq.; that the foregoing were proximate causes of damages suffered by plaintiff which were alleged to be some $96,000 (expense for remilling the rice and loss of profits incurred while so remilling the rice.) ”

The plaintiff also alleged violations of certain provisions of the laws of the State of Texas and ordinances of the City of Houston, and pled that Orkin had defaulted and breached its contract in some 17 particulars. These breaches are summarized in the opinion of the Waco Court of Civil Appeals. That Court on the record before it held that the trial court erred in granting the partially instructed verdict for the plaintiff, thereby withdrawing from the jury any issues as to whether defendant breached its contract, or defaulted upon its express or implied warranty, since there were numerous disputed fact issues in the contract and breach of warranty phases of the contract. With respect to the tort phase of the case, the Court held that the record did not support any recovery.

On the second trial, the court overruled plaintiff’s and defendant’s motions for an instructed verdict, and submitted the case on seven special issues to which the jury found in substance: (1) that the application of Lindane in August, 1955, to the rice and premises of plaintiff was a proximate cause of damages sustained by plaintiff; (2) that such application to the rice may have rendered it injurious to health; (3) that such application was a proximate cause of plaintiff’s damages, and (4) was negligence; (5) that such negligence was a proximate cause of plaintiff’s damages; (6) that $27,-790.07 was the sum of money that would fairly and reasonably compensate plaintiff for such damages as were caused by application of Lindane to the rice and premises of plaintiff, taking into account (a) cost of remilling the rice, (b) cost of cleaning plaintiff’s premises and (c) difference between reasonable market value of rice before and after remilling, directly resulting from the application of Lindane in August, 1955; and (7) that $15,000.00 would fairly and reasonably compensate plaintiff for such damages as were directly and proximately caused by loss of use of plaintiff’s mill reasonably and necessarily consumed in remil-ling the milled rice.

The trial court on hearing defendant’s motion for judgment non obstante veredic-to, reduced the jury’s finding of $27,790.07 in answer to Special Issue (6) to $21,245.-32 because plaintiff’s pleading limited such items of damages to that amount, and otherwise overruled such motion and entered judgment for plaintiff in the total sum of $36,246.32, being the reduced amount of the verdict plus $1.00 nominal damages for breach of contract insurance provisions.

Orkin contends that the trial court erred in overruling its motion for an instructed verdict and judgment non obstante vere-dicto when there was no evidence to support any cause of action or legal theory of recovery, and the law of the case and the evidence showed that the record did not support recovery on the tort phase of the case. Orkin states that the statement of the nature of the case on pages 768-772 of the opinion of the Waco Court is correct and it adopts the same. It asserts that the pleadings and evidence were the same in both trials, except for defendant’s additional allegation as to the law of the case made in its third amended original answer filed subsequent to the opinion handed down by the Waco Court. The Waco Court’s summary of the evidence adduced on the first trial is as follows:

“The record reflects that plaintiff Rice Mills entered into a written contract with defendant Orkin Exterminating Company in 1952, under which Orkin was to exterminate insects and rodents in plaintiff’s mill; that the insect and rodent situation became so bad that in August, 1955 Orkin sprayed with an insecticide known as Lindane. Thereafter, the Federal Food and Drug Administration and the State Health Department and the City of Houston made some investigation of the use of Lindane at the Rice Mill. All agencies finally in effect delegated to Inspector Moses of the Federal Food and Drug Administration the right to act for them. Inspector Moses told the Rice Mill that the use of Lindane had violated the law; that the Mill was in serious trouble; that the Mill could ship no rice; that such rice was unfit for human consumption; that the rice would be condemned; the buildings padlocked and the Mill and its offices subject to prosecution both civilly and criminally. Inspector Moses’ (and the government’s) position was that no amount of Lindane was permitted on rice; that no tolerance was established for it, and for that reason the rice was contaminated, and would have to be re-milled. The plaintiff Rice Mill relied on what Inspector Moses told it (speaking for the Federal, State and City Health Departments), and without contesting, disputing, or litigating, the validity or legality of the claims of Inspector Moses and/or the 3 Health Departments, plaintiff proceeded to remill the rice at an expense of some $46,245. and during such period lost profits which the jury found to be $40,000.
“As further pertinent, we note that the record reflects that some 95 % of the plaintiff’s rice was intended for export to a foreign country. The record further reflects that a great many samplings of the rice were tested for Lin-dane and that the results of such samplings ran from none up to 3.6 parts of Lindane per million parts of rice. It is further reflected that such amounts are not injurious to health, in any manner.”

It is Orkin’s contention that the facts in evidence pertaining to the negligence phase of the case are substantially the same as on the first trial, and that for such reason the specific findings of law made by the Waco Court are binding upon this Court as the law of the case. We think it unnecessary to set out such findings since they may be found on pages 771-772 of the Court’s opinion. It is our view that there are some substantial differences between the evidence adduced at the first trial and at the second trial. Several medical witnesses testified on the first trial who did not testify on the second trial. The applicable ordinances of the City of Houston were not introduced on the first trial but were introduced on the second trial. On the second trial, there is no evidence that the City and State agencies delegated to Inspector Moses the right to act for them, although they may have agreed that Federal, State and City food laws have been violated. Other differences will appear in the course of this opinion.

Plaintiff asserts that the answers of the jury to the special issues submitted constitute finding's against Orkin on both the contract and tort phases of the case. Plaintiff requested certain more specific issues with respect to breaches of contract by Orkin, which were refused by the trial court. Any error of the trial court in refusing such issues has not been preserved by plaintiff and cannot be considered by this Court. The special issues submitted are limited to the use and application of Lindane and do not encompass any damages resulting from infestation of the rice by insects or rodents.

The contract does not make specific mention of Lindane. It specifies the scope of work and controlled service to be rendered by Orkin, and with respect to material to be used provides: “The materials used shall conform to Federal, State and local ordinances and laws, and shall be acceptable to the rice milling industry.” Plaintiff argues that Orkin in using Lindane violated the provisions of the contract and breached its implied warranty to use proper materials, and was guilty of violations of the Federal Food, Drug, & Cosmetic Act, in that (1) it violated 21 U.S.C. § 342(a) (2) since no amount of Lindane whatever was permitted on milled rice; and (2) it violated 21 U.S.C. § 342(a) (1) in that it contained a poisonous and deleterious substance “which may render” the rice injurious to health. Plaintiff further contends that the undisputed evidence also shows violations of the Pure Food laws of the State of Texas and violations of the City of Houston ordinances.

Our inquiry is limited to alleged violations of the contract in the use and application of Lindane and to determining whether there is any evidence supporting the findings of the jury with respect thereto on either or both the contract and tort phases of the case. We are unable to say as a matter of law that Orkin breached its contract and implied warranty with respect to the infestation of the rice. In this respect we are in accord with the law of the case as determined by the Waco Court. But even if we were to hold that there were such breaches as a matter of law, we would still be unable to determine how much damage resulted therefrom in the absence of a jury finding, and no issues were submitted with respect to such damage, although there was some evidence that the rice would probably have been remilled because of the infestation regardless of the use of Lindane.

Plaintiff pleaded that the spraying of an insecticide or pesticide on plaintiff’s rice, rendering it unfit for sale, was a violation of Sections 861-880 of the Houston City Ordinances of 1942. Section 868 of such Ordinances provides that for the purpose of Article IV, entitled “Pure Food & Drugs,” an article shall be deemed adulterated (c) Food-(S) “If it contains any added poisons or other added deleterious ingredient which may render such article injurious to health * * Section 866 provides: “No person shall, within the City, manufacture for sale, have in his possession with intent to sell or exchange, any article of food or drugs which is adulterated or misbranded within the meaning of this article.” Section 873 provides for prosecution and punishment for violations of the foregoing sections.

The record in this case reflects that Lin-dane is a poisonous or deleterious ingredient and that it was added to the rice by Orkin in blowing Lindane dust all over the rice in plaintiff’s mill. It was not necessary to show that the food containing an added poisonous or deleterious substance must affect the public health in order for it to be condemned. All that need be established is that the added poisonous or deleterious substance must be such as may render such article injurious to health. United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658. There is substantial evidence showing that Lindane in any quantity on rice may render such article injurious to health. The jury’s finding to Special Issue No. 2 finds support in the evidence. There is no assignment that any of the jury’s findings are against the weight and preponderance of the evidence, and if there were such assignment, we could not consider it since defendant appeals from the court’s refusal to grant an instructed verdict and judgment non obstante vere-dicto.

Plaintiff also pleaded that by spraying such rice and adulterating it and rendering it unfit for sale, Orkin violated Articles 4471 and 4472 of the Texas Revised Civil Statutes, and Articles 706, 707 and 717 of the Texas Penal Code. These provisions are substantially the same as those provided in the City of Houston ordinances. The violation of such statutes would subject plaintiff to criminal prosecution by the State, and to confiscation of the rice.

There is evidence in the record before us that Orkin applied Lindane to plaintiff’s stores of rice, including both milled and unmilled rice. No claim for damages has been made by plaintiff for the unmilled rice, since it would necessarily have to be milled and milling would remove the Lin-dane.

The Waco Court on the .record before it found in effect that there had been no violation of the Federal statutes relied upon by plaintiff. We think the record on this appeal shows certain violations. Sec. 342 provides: “A food shall be deemed to be adulterated — (a) (1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health * * *; or (2) (A) if it bears or contains any added poisonous or added deleterious substance * * * which is unsafe within the meaning of section 346a * The exceptions in Section 342(a) (2) (A) do not apply to milled rice and are inapplicable to the facts of this case. Section 346 with respect to tolerances for poisonous ingredients provides: “Any poisonous or deleterious substance added to any food, except where such substance is required in the production thereof or cannot be avoided by good manufacturing practice shall be deemed to be unsafe for the purposes of the application of clause (2) (A) of section 342(a) of this title.” The evidence and the record before us show that Lindane was not required in the production of rice and that its use could have been-avoided. Indeed, Lindane had been used only once in connection with plaintiff’s mill from 1940 to 1955, and then it was used without the knowledge of the plaintiff or the health authorities. From the time of the application in August, 1955 Lindane has not been used down to the date of the second trial in 1961. Moreover, no allowance or tolerance was established for the use of Lindane on milled rice.

Plaintiff asserts that on the second trial the evidence shows that Lindane was on all the samples of rice that were taken and analyzed, except one sample that had been remilled. Even if plaintiff is mistaken in such assertion, there is nevertheless evidence showing that a number of samples were taken and that the results of many samplings showed from 0.2 to 3.6 parts per million of Lindane, and that the addition of such parts of Lindane to milled rice may render it injurious to health. Manifestly it would be impossible to segregate from the stores of contaminated milled rice in question some unknown quantity of rice that might not have had Lindane on it in such quantities.

Since no tolerance for Lindane on milled rice as applicable to the facts of this case had been established by the Secretary of Health, Education & Welfare, the addition of any amount of Lindane to such milled rice was in violation of Section 342 (a) (2) of the Federal Food, Drug, & Cosmetic Act, and especially so if it may have rendered the rice injurious to health. The Act in question is quite specific, as stated by the Supreme Court of the United States in the recent case of Flemming v. Florida Citrus Exchange, 358 U.S. 153, 79 S.Ct. 160, 3 L.Ed.2d 188:

“Here again, in our construction of this explicit Act, we must be sensitive to what Congress has written, and recall that ‘It is for us to ascertain — neither to add nor to subtract, neither to delete nor to distort.’ 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566.”

Section 3.41, Title 21, 1955, Code of Federal Regulations, provides: “(a) The amendment in clause (2) of section 402(a) of the Federal Food, Drug, and Cosmetic Act shall become effective on the dates specified for the following pesticide chemicals : * * * (2) Effective date October 31, 1955: * * * Lindane: * * * Grain (from treating storage bins).” On the second trial it was established that plaintiff had never had any treating storage bins. The 1954 amendment to Section 342(a) (2) as provided in Section 5 of the Act of July 22, 1954 as applicable to the facts of the case before us, became effective one year following the date of the enactment of the Act or on July 22, 1955, and was in full force and effect in August, 1955, when the Lindane was applied to plaintiff’s rice. Section 120.1(e), Title 21, 1955, Code of Federal Regulations, entitled “Definitions, Interpretations, and Exemptions,” provides in substance that the term “Raw agricultural commodities” does not include foods that have been processed, fabricated, or manufactured by cooking, freezing, dehydrating, or milling. Since plaintiff’s grain had been milled and was not a raw agricultural commodity, no tolerance had been established for it. Therefore, the application of any amount of Lindane was prohibited since it would add to the milled rice a poisonous or deleterious substance that may be injurious to health as shown by the evidence adduced on the second trial.

At the time of the occurrence in question, the Federal Food, Drug, and Cosmetic Act, Section 381(d), 21 U.S.C.A., provided with respect to exports that a food intended for export shall not be deemed to be adulterated or misbranded if it accords to the specifications of the foreign purchaser, is not in conflict with the laws of the country to which it is intended for export, and is labeled on the outside of the shipping package to show that it is intended for export. “But if such article is sold or offered for sale in domestic commerce, this subsection shall not exempt it from any of the provisions of this chapter.” While there is some evidence that as much as 95% of plaintiff’s rice had been exported during some prior years, the evidence does not show that the rice in question was labeled for export or that it would necessarily be exported. It was held subject to sale in domestic markets as well as foreign markets. Furthermore, the undisputed testimony of plaintiff’s general manager Smith who negotiated contracts with foreign buyers, was to the effect that he could not have sold to any foreign purchasers any rice containing Lin-dane.

Defendant contends, however, that plaintiff voluntarily remilled its rice, and that it was not forced to do so by the Federal, State or City authorities. We think this contention is without merit. Under the evidence adduced on the second trial, it appears that plaintiff was placed in such position by Orkin that it could not keep the rice in its possession, sell or exchange the same without being subject to criminal prosecution and punishment under Section 873 of the Ordinances of the City of Houston, and under Article 717, Texas Penal Code. Additionally, the rice could be condemned, confiscated, forfeited and destroyed under Article 4470, Texas Revised Civil Statutes. The evidence shows that the State agency was prepared to take action if plaintiff’s rice was sold or offered for sale with Lindane on it. Also, the shipment of such rice in interstate commerce would have subjected plaintiff to penalties under Sections 333 and 334 of the Federal Act. Having placed the plaintiff in the situation where it could neither .retain nor sell the rice in question without violating the Pure Food laws of the City, State and Federal governments, and subjecting itself to prosecution and penalties, the defendant is not in a position to urge that plaintiff acted voluntarily and not under coercion in remilling' the rice and thereby preventing such prosecution and penalties, and at the same time mitigating the damages which might have resulted from confiscation and destruction of the rice by the State or other governmental authority.

The cases cited by defendant with respect to voluntary payments are inapplicable to the factual situation in the present case. The retention or sale or offer to sell the rice in question constituted a violation of law, making plaintiff’s action necessary to avoid prosecution, penalties and seizure of the rice. Under these circumstances plaintiff’s act in remilling the rice was not voluntary but coerced as a matter of law. Where one risks prosecution, penalties and forfeiture of his property for noncompliance with law, his act in complying cannot be said to be voluntary. National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687; Crow v. City of Corpus Christi, 146 Tex. 558, 209 S.W.2d 922; District of Columbia v. American Security & Trust Co., 292 U.S.App.D.C. 33, 202 F.2d 21; St. John’s Electric Co. v. City of St. Augustine, Fla., 81 Fla. 588, 88 So. 387; 17-A Amer.Jur. Duress and Undue Influence §§ 7, 14, p. 875; 21 Tex.Jur. 2d Duress & Coercion § 2, p. 116.

Plaintiff on its appeal complains that the trial court erred in excluding certain evidence relative to lost profits and in denying its motion for lost profits before judgment. We have been unable to find in the record any request by plaintiff for submission of any issue on lost profits as such. The answer of the jury to Special Issue No. 7 awarding damages in the sum of $15,000.00 for the loss of use of plaintiff’s mill consumed in remilling the milled rice, necessarily includes lost profits. No judgment for lost profits in any other amount could have been entered without plaintiff’s compliance with Rule 301, Texas Rules of Civil Procedure. There was no such compliance.

Plaintiff has cited a number of cases in support of the rule that where a business is already established and making a profit, it is permissible to show the amount of business done in corresponding periods of time not too remote, and the rule that uncertainty of proof as to the amount of lost profits will not defeat recovery so long as there is no uncertainty as to the fact of legal damages. These general rules are not questioned by defendant. In the instant case plaintiff’s witness was asked to give oral testimony from some records as.to the amount of rice purchased by plaintiff in October, November and December of 1953, to which question defendant objected because there had been no showing of any comparison between conditions during such period of time and the period of time in issue in this law suit. The objection was sustained. Plaintiff’s witness was also asked whether he had an opinion as to the amount of rice he would have bought, to which question the defendant objected as not being based upon facts. No other evidence along such line was offered, although in its bill of exception in the jury’s absence such witness testified that he thought “it would be reasonable to suppose” that they would have bought at least 100,000 additional barrels and that he thought “it is reasonable to suppose we would have made at least 50 cents a barrel.” We cannot say that the court improperly excluded such testimony, but if there was any error in such connection, we think the exclusion was not harmful in view of all the records and testimony relative to earnings and profits of the business that were admitted in evidence.

In its sixth Point, plaintiff asserts that the court erred in denying interest before judgment upon its damages. Plaintiff sued not only for its damages but for interest thereon as damages. It states in its brief that it continued to sustain damages until June 7, 1956. It is our view that the plaintiff is entitled as a matter of law to 6% interest as damages on the $36,246.32 from that date until date of judgment, such interest amounting to $12,239.17. The Texas Co. v. The State of Texas, 154 Tex. 494, 281 S.W.2d 83; Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Tortuguero Logging Operation, Ltd. v. Houston, Tex.Civ.App., 349 S.W.2d 315; Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627.

We think there is no merit in plaintiff’s contention that it was entitled to a directed verdict or in its contention that the court erred in granting a partial summary judgment for defendant in connection with plaintiff’s claim for gross negligence and exemplary damages. A careful review of the record shows that there is no evidence that would warrant submission of an issue in connection with alleged gross negligence on the part of the defendant.

The judgment of the Trial Court is reformed by adding thereto interest to date of judgment in the sum of $12,239.17, and, as reformed is affirmed.


author: RICHARDS, Justice.

text:
    J. R. GRAY COMPANY, Inc., Appellant, v. Merlin E. JACOBS, Jr., Appellee.
    No. 11023.
    Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1962.
    Rehearing Denied Nov. 28,1962.

      Hassell & Hassell, Dallas, Arthur P. Bagby, Austin, for appellant.
    Cookston & Wise, Dallas, for appellee.
   RICHARDS, Justice.

Merlin E. Jacobs, Jr., appellee, brought suit against J. R. Gray Company, Inc., appellant, for the recovery of commissions under the terms of a written contract on ttie sales of two aircraft owned by appellant and in the alternative, asking that he recover a reasonable fee under the contract for services rendered in making the sales. On the trial before the court without a jury, the Trial Court, having denied recovery of commissions under the contract since there was no “gross profit” from the sales, entered judgment for appellee for $1,338.41 as a reasonable fee for making the sales. At the request of appellant the Trial Court made findings of fact and conclusions of law but refused the additional findings of fact requested by appellant. Appellant has perfected this appeal.

In its first and third points of error appellant complains (1) that the Trial Court erred in construing the contract of employment in holding that the contract was ambiguous as a matter of law and (2) that in admitting extrinsic evidence respecting the alleged ambiguity in the contract, the Trial Court was in error since the terms of the contract were plain and unambiguous.

Appellee asserts in his three cross-points of error that the Trial Court erred in finding that “adjusted gross profit” is the equivalent as “gross profit” since the latter term has a clear and well defined meaning which was agreed to by both parties during the trial; that the finding of the Trial Court that “no gross profit” was made by appellant on the sales in question was not supported by any evidence since by its own records and testimony appellant made a “gross profit” on the sales in question; and that the Court’s finding that appellee acquiesced in appellant’s practice in treating “gross net profits” as actual “gross profits” is contrary to the law and the evidence since (1) it is uncontra-dicted that appellee was not in privity with appellant’s records nor its method of computing same and (2) such parol proof of a contrary custom or usage would vary the clear and express terms of the contract.

The pertinent parts of the contract or agreement entered into September 27, 1960 between appellant and appellee, effective from July 1, 1960 are as follows:

“1. J. E. Gray Company, Inc. will pay M. E. Jacobs, Jr., a salary of $600.00 per month.
“2. J. E. Gray Company, Inc. will pay a commission on the sale of new and used airplanes sold by M. E. Jacobs, Jr. as follows:
“A. New Aircraft — 12% of the gross profit.
“B. Used Aircraft — 12% of the gross profit.
“C. Aircraft sold on brokerage— 20% of the net fee received by the company.
“D. In the event of a new or used aircraft owned by the company is offered for sale and there is no gross profit involved, a fiat fee will be assigned to the airplane and all sales personnel will be informed.” (Italics supplied.)

The uncontradicted evidence shows that in accordance with the terms of this contract, appellee sold two airplanes, one a D-50 Twin Bonanza TB to Moran Brothers for a gross sale price of $86,430.00, the total cost of which was $65,121.89, or a difference of $21,298.11. The second sale of a 1961 Bonanza M-35 was made to Russell Firestone, Jr. at a gross sale price of $29,401.00, the cost of which was $25,616.25, or a difference of $3,784.75.

Appellant’s sales records show the Firestone transaction as follows:

"1. List Price $33,905
2. Selling Price 29,401.00
3. Cost — Invoice $24,866.25
Plus — Internal 750.00
4. Total Cost 25,616.25
5. Gross Profit 3,784.75
6. Trade-in Allowance 22,787.28
Model — K35 Year — 1959
7. Wholesale Value 17,000.00
Difference — over allowance 5,787.28
8. Adjusted Gross (2,002.53)”

and the Moran Brothers’ sale as follows:

“1. List Price $99,860.00’
Selling Price 86,430.00'
Cost — Invoice $64,807.50
Plus — Internal 324.39
Total Cost 65,121.89*
Gross Profit 21,298.11
Trade-in Allowance 48,430.00
Model — B50 Year — 1954
Wholesale Value 25,000.00
Difference 23,430.00
8. Adjusted Gross (2,131.89 )"

The Trial Court made the following findings of fact:

• “4. On or about December 9, 1960, within the period covered by said contract, plaintiff as salesman for defendant, sold to Moran Brothers a certain D-50-C 1960 model Beechcraft airplane for a stated selling price of $86,-430.00, less an agreed trade-in allowance of $48,540.00.
“5. Such sale was approved and confirmed by defendant.
“6. The airplane traded in by Moran Brothers was valued by defendant 'at $25,000.00, and the fair market value thereof, on a wholesale basis, was $25,-000.00.
“7. In accordance with defendant’s established practice, the difference of $23,430.00, between the trade-in allowance of $48,430.00 and the wholesale value of $25,000.00 was treated by defendant as an ‘over-allowance’.
“8. The stated selling price was not the true selling price, but was only a trading figure, which included the amount of the over-allowance. The actual selling price upon which defendant calculated its ‘adjusted gross profit’ for its general accounting purposes, as well as for the purpose of determining salesmen’s commission, was the stated selling price, less the ‘over-allowance’.
“9. Defendant’s practice, which had been established before the transaction in question, was to determine its adjusted gross profit on such sales by calculating the excess, if any, of the actual selling price (the stated selling price less the ‘over-allowance’) over the inventory cost of the airplane sold.
“10. Before the time of the transaction in question, plaintiff had acquiesced in defendant’s practice of treating the ‘adjusted gross profit’, as above determined, as the ‘gross profit’ upon which plaintiff’s commissions were determined according to the terms of the contract.
“11. No ‘gross profit’, as that term is used in the contract, was realized by defendant on the sale to Moran Brothers above mentioned.
“17. On or about March 6, 1961, plaintiff, as salesman for defendant, negotiated the lease of a certain Model N-35 Beechcraft airplane to Russell Firestone, Jr., and as part of such transaction defendant agreed to cancel a previous lease for defendant to Firestone of another airplane.
“18. In accordance with defendant’s established practice, such lease was treated by both plaintiff and defendant as the same as a sale for purposes of calculating the salesman’s commission, and figures were established by the parties to the sale corresponding ■ to the stated selling price, the trade-in allowance, and the value of the airplane traded in.
“19. The stated selling price established for the lease transaction to Firestone was $29,401.00.
“20. The trade-in allowance established by the parties for the airplane traded in (that is, the cancellation of the prior lease) was $22,787.28.
“21. The airplane traded in by Fire'stone was valued by defendant at $17,-000.00, and the fair market value thereof on a wholesale basis, was $17,000.00.
“22. No gross profit was realized by defendant on the lease to Firestone of March 6, 1961.”

Appellant’s contention is that the term “gross profit” as used in the contract was to be construed as an “adjusted gross profit” and therefore since the “adjusted gross profit” of each of these sales showed a loss, appellee was not entitled to any commission under the terms of the contract. Ap-pellee, on the other hand, contends that the term “gross profit” has a fixed and definite legal meaning and hence he was entitled to be paid a commission of 12% of $21,-289.11, the “gross profit” on the Moran sale and of $3,784.75, the “gross profit” on the Firestone sale.

On trial the court asked counsel for both appellant and appellee their position as to whether the term “gross profit” is ambiguous, stating that it did not seem to him that the term was clear in itself without some explanation by extrinsic evidence and construction by the parties. Appellant’s attorney stated that “gross profit is ordinarily the difference between the selling price and the cost of the article, exclusive of overhead, rent, electricity, commission, etc.” to which the Court replied “Well, that is the sense in which it seems to be used on this card.” Appellee’s attorney agreed with that definition. But appellant contended that there were actually two gross profits as represented in their record, one being on a cash sale, while on a “trade-in”, the “adjusted gross profit” is actually the “gross profit” from an accounting standpoint. Ap-pellee counters that the wording of the contract was plain and unambiguous and did not authorize any adjustment of the “gross profit” as the basis of his commissions.

“Gross profit” is a term having a clear and precise legal meaning. It has been defined as “the excess of the selling price over the cost price without deducting the expenses of resale and other costs of doing business.” 38 C.J.S. Gross, p. 1082. The term has also been defined as “the excess of price received over the price paid for goods before deductions are made for the cost of operation.” Hill v. City of Richmond, 181 Va. 744, 26 S.E.2d 48, 54; Coates v. Lakeview Oil & Refining Co., 20 Cal.App.2d 113, 66 P.2d 463, 466.

A contract is to be construed under its plain language and where the words used are not susceptible of more than one meaning, there is nothing to be construed. It is only where there is uncertainty as to the meaning of a contract or some portion thereof that rules of construction are to be applied. General American Indemnity Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660, 661. To construe the term “gross profit” to mean “adjusted gross profit” as appellant contends, with which contention the Trial Court agreed, would be to make an entirely new contract between the parties. The Trial Court “is not at liberty to revise an agreement while professing to construe it,” nor does it have the right to make a contract for the parties different from that actually entered into by them. General American Indemnity Co. v. Pepper, supra.

We hold that since the term “gross profit” has a clear and precise legal meaning, the wording of the contract is clear and unambiguous and plainly states the rights of the parties. Therefore the Trial Court erred in concluding as a matter of law that since the contract does not expressly provide for a commission in case of the sales involved here, where there is no “gross profit” and no flat fee is assigned, the intention of the parties cannot be definitely determined either from the express language of the contract or by necessary implication and to that extent the contract is ambiguous.

This construction was evidently based upon an erroneous assumption by the Trial Court that there was no “gross profit” in either sale. The Trial Court’s findings of fact Nos. 11 and 22, supra, that there was no “group profit” arising from either sale was based upon the testimony by appellant’s witnesses as to the “established practice” used by appellant in ascertaining the “gross profit” of a sale where a “trade-in” was involved by a different accounting method from that used in computing the “gross profit” in a sale for cash.

Where a contract plainly states the rights of the parties, proof of general1 custom or practice is not necessary or proper in its construction, the intention of the parties being derived from the language used where its meaning is clear and unambiguous. Government Personnel Mutual Life Ins. Co. v. Wear, Tex.Civ.App., 247 S.W.2d 284, 288, aff. and mod. on other grounds, 151 Tex. 454. 251 S.W.2d 525. “Parol evidence is not admissible to show that parties to a contract used language in a sense different from its ordinary meaning, for that would effectively vary the terms of the contract.” Morrison v. Hazzard, 99 Tex. 583, 92 S.W. 33, 35. The Trial Court erred in admitting evidence for the purpose of showing appellant’s general custom or practice in computing its “gross profit” for accounting purposes as an “adjusted gross profit” where “trade-ins” are involved.

In addition, the Trial Court’s finding of fact No. 10 that before the Moran Brothers’ sale was made, appellee had acquiesced in appellant’s practice in treating the “adjusted gross profit” as the “gross profit” upon which his commissions were determined under the contract is without any support in the evidence. Appellant’s sales record cards on the two transactions supra kept by appellant’s officer were for all practical purposes not available to ap-pellee. Appellant’s witness George J. Hubbard, who was vice president and sales manager of appellant at the time of the transactions, testified that the sales record cards in question, which were the only set of cards kept at the Company, were kept in his file box in his desk drawer; that while the drawer was unlocked part of the time, it was not a customary practice for him to allow any of the employees or salesmen to go through his desk at any time they desired and that to his knowledge he never saw anyone do that. The witness also stated that the entry of the ■‘gross profit” was made subsequent to each sale.

It seems clear that since appellee was not apprised by appellant’s officers or personnel as to the method used in computing the “gross profit” or the “adjusted gross profit” at the time the sales were made and he did not have access to or see the records showing such computations, he could not be considered to have acquiesced in the Company’s practice or custom of accounting.

The Trial Court having erred in finding that there was no “gross profit” resulting from the sales to Moran Brothers and Firestone, which under the uncontra-dicted testimony were procured and made by appellee, appellee is entitled to recover the commissions due him under the written contract for each of these sales amounting to 12% of $21,298.11, the “gross profit” on the Moran Brothers sale and 12% of $3,-784.75, the “gross profit” on the Russell Firestone, Jr. sale. Appellant’s 1st and 3rd points of error and appellee’s 1st, 2nd and 3rd cross-points of error are sustained.

Appellant’s 2nd point of error is that the Trial Court erred in its construction of the contract in holding that the sales in controversy were not within the express terms of such contract and since there was no “gross profit” in the sales that appellee was entitled to seek compensation in excess of his salary provided in the contract.

Appellant’s 4th, 5th, 6th and 7th points of error, contend that the Trial Court erred 'in concluding as a matter of law that in the absence of any contractual provision which expressly or impliedly excludes payment of a commission on the sales, appel-lee was entitled to a commission for his services in making such sales and that in the absence of any agreement fixing the amount of such commissions, appellee was entitled to a reasonable commission on each sale because plaintiff was paid a salary and the contract on its face was not subject to the construction that further compensation was payable, and in addition, there was no evidence as to what a reasonable commission for making the sales would be.

It should be noted that paragraph •“D” provides that in the event of a new or used aircraft owned by appellant is offered for sale and “there is no gross profit involved” a flat fee will be assigned to the airplane. Appellant admitted that in neither of the transactions was any flat fee assigned to appellee. In fact at the time ap-pellee severed his connection with appellant, it was not known to either party whether there would be any “gross profit” resulting from the Firestone sale. The Trial Court, in entering judgment in favor of appellee in the sum of $1338.41 under his alternative cause of action in quantum meruit, did so under the theory that since there was no “gross profit” involved in either of the sales and no flat fee had been assigned in accordance with paragraph “D”, appellee was entitled to recover in quantum meruit a reasonable fee for services rendered.

Since we have already held that there was a “gross profit” resulting from each of the sales, paragraph “D” of the contract has no application and therefore there can be no basis for recovery for appellee’s cause of action in quantum meruit. It thus becomes unnecessary for us to discuss or rule upon appellant’s points of error 2, 4, 5, 6 and 7.

Appellee’s 4th cross-point of error urges that the Trial Court’s finding of no “gross profit” on the Firestone sale was contrary to all of the evidence because of the statement in appellant’s records that it made $3,784.75 “gross profit” on the sale of the new aircraft, plus an admitted additional profit of $3,000.00 from the sale of the “trade-in” or a total amount of $6,-784.75. In view of our holding that ap-pellee is entitled to recover his 12% commission on the “gross profit” of $3,784.75 on the Firestone original sale under the terms of the contract, he is not entitled to recover a commission on the additional $3,000.00 profit resulting from the sale of the aircraft received as a “trade-in” on the original sale since each sale constitutes an entirely different transaction. Appellee admitted he rendered no services in the sale of the aircraft received as a “trade-in” on the original sale. Appellant’s 4th cross-point of error is overruled.

The judgment of the Trial Court is reversed and judgment rendered that appellee Merlin E. Jacobs, Jr. recover from appellant J. R. Gray Company, Inc., the sum of $3,009.93, being 12% of the sum of $25,-082.86, the gross profits resulting from the sales made by Jacobs of appellant’s aircraft to Moran Brothers and Russell Firestone, Jr. under the terms of the written contract dated September 27, 1960. All costs of court are taxed against appellant.

Reversed and rendered.


author: WILSON, Justice.

text:
    James CHATMAN, Appellant, v. FERD STAFFEL COMPANY et al., Appellees.
    No. 4049.
    Court of Civil Appeals of Texas. Waco.
    Nov. 8, 1962.
    Rehearing Denied Nov. 29,1962.

      Lieck & Lieck, San Antonio, for appellant.
    Gran vil W. Smith, Carl Wright Johnson, Alfred W. Offer, San Antonio, for appel-lees.
   WILSON, Justice.

Appellant sued appellees, alleging one of them manufactured, and the other sold to him, an insecticide, use of which resulted in his personal injury. The manufacturer pleaded a release executed by appellant, which the seller also relied on. Appellant answered that the release was obtained by fraud, and the consideration paid therefor was inadequate.

The court ordered severance, over appellant’s objection, of the issue of whether he released the manufacturer from liability, directing a separate trial on that issue before trial of the other issues for “convenience of the court, the parties, and the jury, and to avoid prejudice.” The jury found that the release was explained to appellant when he executed it, and judgment was rendered that appellant take nothing.

Appellant urges the severance and separate trial of the issue of the effectiveness of the release was erroneous under Rule 174(b), Texas Rules of Civil Procedure. He relies on Hey v. Hughes, 158 Tex. 362, 311 S.W.2d 648; and T. & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963. The Thompson case was decided before the Rule was adopted. Iley v. Hughes determined that separate trial of liability and damage issues was not authorized by the Rule.

The question is controlled by Meridith v. Massie, Tex.Civ.App., 173 S.W.2d 799, 800, writ refused, where it was held to be within the court’s discretion to order separate trial of the issue of limitation and “issues like these, which are determinative of the entire case”. A like holding was made in Bowie v. Sorrell, 209 F.2d 49, 4th Cir., 43 A.L.R.2d 781, construing Federal Rule 42 (b) which is identical to the Texas Rule. It was there said the trial judge was authorized to try separately the issue of validity of a release. The contention is overruled.

Complaint is made of refusal of appellant’s series of requested issues inquiring whether appellee represented to appellant that he was only signing a check for medical bills. The substance of that issue was submitted, without objection, conditioned upon a negative answer to the issue as to whether the release was explained to appellant, and the complaint is therefore untenable.

Objection is urged to admission of evidence. Some of the evidence does not bear on the release issues. As to other portions, the substance was admitted from other sources or in another form without objection. Some of the evidence was inadmissible, but harmless. The points do not present reversible error.

Appellee’s counsel, in argument to the jury, stated that since all other issues were conditioned on a negative answer to the first, if the first issue was answered in the affirmative it would not be necessary to answer the rest, “and we can go home.” Appellant objected neither to the argument nor the conditional submission. He now says this argument was erroneous as improperly informing the jury of the effect of its answers. It told the jury little more than did the court’s charge with appellant’s acquiescence, and hence was not reversible error. Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 87.

Appellant presents 41 points of error. We have considered each, and under the record, in our opinion, none presents reversible error. Affirmed.


text:
    The STATE of Texas, Appellant, v. L. C. TRAYLOR et al., Independent Executors of the Estate of M. G. Perry, Deceased, Appellees.
    No. 4052.
    Court of Civil Appeals of Texas. Waco.
    Nov. 1, 1962.
    Rehearing Denied Nov. 21, 1962.
    Will Wilson, Atty. Gen., Tom Burris and Ben M. Harrison, Asst. Attys. Gen., Austin, for appellant.
    Matthews, Nowlin, MacFarlane & Barrett, San Antonio, for appellees..
   WILSON, Justice.

The State appeals from judgment approving final account of independent executors and directing distribution of assets of testator’s estate.

The will named independent executors, one of whom was testator’s widow, and devised to these same persons as trustees one-half of all properties of which testator died seized for the use of his widow during her life, with remainder to trustees of a foundation previously created by him and his wife. The other one-half he devised to the persons named as independent executors as trustees for the use óf the foundation. The latter trust likewise was to terminate at the death of testator’s widow, the remainder vesting in the trustees of the foundation.

The will by its terms disposed of the entire community estate of testator and his widow conditioned upon her acceptance. She elected not to take thereunder, but to claim and take her share of the community property.

The independent executors filed a final account containing- an inventory listing all properties received, including the entire community estate of testator and his widow. It recited the widow was entitled to receive specified properties in distribution to the extent of her full community interest therein, and contained recitations concerning acquisition and nature of properties so specified. The executors stated that because of expense and difficulty of establishing and evaluating community claims for reimbursement, certain lands had been treated by them as community property, and the interests of the testator’s estate would be served by dividing them equally between the widow and the .testamentary trustees; and that other assets held by them in community with the survivor should be divided in kind. They requested approval of the account and an order directing partition and distribution in accordance therewith. The testator’s daughter appeared, averring the account was complete and correct; and the trustees of the foundation filed a waiver reciting that beneficiary did not wish to contest it.

The Attorney General filed opposition under Art. 4412a, Vernon’s Ann.Tex. Civ.St., asserting that certain items of property listed in the account as community were in fact separate property of the testator ; that the court should so determine, and they should be set over in full to the trustees-of the testamentary trust. The Attorney General contends the survivor had only a claim for reimbursement for community expenditures for permanent improvements or purchase price as to these items. The probate court approved the account and directed distribution as proposed thereby.

On appeal to the district court appellant’s plea to the j urisdiction was overruled. That court also approved the account and directed a like distribution.

Appellant here says neither court below had jurisdiction of the subject matter because a question of title to realty was involved over which the district court had exclusive original jurisdiction. Appellant says its opposition filed in the probate court “framed an issue of title to land” divesting that court, and the district court on appeal, of jurisdiction.

If it be that appellant may invoke the court’s jurisdiction to determine the nature and ownership of property when that was neither an issue in nor subject matter of the cause as appellant found it, and thereupon assert its own pleading has ousted jurisdiction (a question we do not decide), we are of the opinion the probate court, and the district court on appeal nevertheless had jurisdiction. Neither the executors, the surviving spouse, testator’s only child, the testamentary trustees nor the trustees of the income and remainder beneficiary objected to the final account. The executors did not undertake to conclusively fix the status or title of property as separate or community in the account; they so treated some property in order to settle and extinguish the survivor’s community claims. There is no. assertion the proposed distribution is inequitable or that the foundation trust estate will be prejudiced thereby. Since all testator’s estate, separate and community, passed into the testamentary trust upon the widow’s, election, the independent executors were authorized to settle her community claims, from the aggregate of such properties, and the recitations in the final account reflecting the circumstances, motives and reasoning on which their judgment and action in administering the estate was based did not place title to realty in issue. The court was not called upon by the request to approve the account, or the request for order for distribution, to determine questions of title. Consequently, the status of property so used was, at most, incidental to the subject matter involved; and although the parties devote much of their briefs to contentions as to its actual nature, we think that question is immaterial here. See Probate Code Secs. 150,. 177(b), 234, V.A.T.S.; Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248, 250; Kelley v. Harsch, Tex.Civ.App., 161 S.W.2d 563, 566; 34 Tex.L.Rev. 694. We do not construe Art. 4412a, Sec. 5 as meaning the court is precluded from approving the final account and entering the present order, under the provisions of Probate Code Sec. 234, or otherwise, merely because the Attorney General withholds consent. We think the requirements of Sec. 5 were met in this case when he was made a party. This was not an agreed, or consent judgment such as is contemplated by that section; it was an adversary proceeding.

Other questions presented were not preserved below for review. The judgment is affirmed.