author: BARROW, Justice.

text:
    CITY OF SAN ANTONIO et al., Appellants, v. Bill POULOS, Appellee.
    No. 14471.
    Court of Civil Appeals of Texas. San Antonio.
    April 20, 1966.
    Rehearing Denied May 18, 1966.

      Sam S. Wolf, City Atty., J. Bruce Ay-cock, William R. Ward, Asst. City Attys., San Antonio, for appellants.
    Jack Paul Leon, San Antonio, for appel-lee.
   BARROW, Justice.

Appellants, City of San Antonio, its Fire and Police Civil Service Commission, and Chief of Police, George W. Bichsel, appeal from a judgment of the 1 J6th District Court setting aside the Commission’s order of permanent dismissal of appellee, Bill Poulos.

On March S, 1965, the Chief indefinitely suspended Poulos and served written charges upon him, as required by Art. 1269m, § 16, Vernon’s Ann.Civ.St. On March 23, 1965, the Commission heard Poulos’ appeal from the suspension, and by a split vote found that the charges were true and ordered Poulos dismissed. Poulos appealed to the district court and, after a full hearing, the trial court found that the charges failed to allege a specific violation of any Civil Service rule, and further that the Commission’s order of dismissal was not reasonably supported by substantial evidence.

The written charges made against Poulos were that he had violated Rule XX, Sec. 120, of the personnel rules of the City of San Antonio, which provides that an officer may be removed for: Neglect of duty; Failure or refusal to carry out instructions, and Violation of any of the Rules and Regulations of the Department. Poulos was charged with violating Rules 16, 17, and 29 of the Police Department. Following these charges specific acts were alleged in detail.

It is seen that the Chief first stated the general charge and then specified the acts which support the charge. This form of preferring charges under the Civil Service Act has been upheld by this Court. Bolieu v. Firemen’s & Policemen’s Civil Service Comm., Tex.Civ.App., 330 S.W.2d 234, wr. ref. n. r. e.; Harless v. Bichsel, Tex.Civ.App., 327 S.W.2d 791, no wr. hist.

Poulos asserted, both before the Commission and the trial court, that the charges together with the acts alleged in support thereof were legally insufficient to allege a violation of any civil service rule. It is settled law that the original charges brought against the officer must be legally sufficient and that the Chief is restricted to his original written statement and charge. Art. 1269m, § 16; Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284 (1959).

The specific allegations set forth in the Chief’s charges are substantially as follows: Detective Poulos exhibited to Detective Gomez, for the purpose of sale, a Model 21, Winchester 12-gauge shotgun, with extra set of barrels, and with a serial number beginning with “147”. This was done under very suspicious circumstances — a piece of adhesive tape covered a part of the breech and Gomez was advised by Poulos not to look under the tape; Poulos advised that a friend could re-engrave over anything; and Poulos told Gomez he would not give a written receipt for the purchase. Gomez did not purchase, but subsequently checked the police burglary records and discovered the report of a burglary of Dr. Cowles’ residence and theft of a similar shotgun, which is a very expensive and, therefore, somewhat rare model, with serial number “14767” and with the name “A. C. Cowles” engraved •upon the breech. Gomez told Poulos of this burglary, but Poulos said he did not believe the gun he had was the same gun and filed no official report concerning the shotgun in his possession.

It was further alleged that Poulos was subsequently questioned and said that “Norman Spears” had given the gun to him for sale, although he later said “Earl M. Brooks” had asked him to sell the gun. The shotgun was returned to Brooks by Poulos, and Brooks returned it to Charlie Powers of Austin, who had initially requested sale of the gun.

It is seen that the crux of these allegations is that Poulos had in his possession and was attempting to resell a shotgun which had been stolen from the residence of Cowles. These allegations, if proven, would justify dismissal under either Rule 16 or Rule 17 of the police department regulations. Obviously a police officer, if he is to deal in guns or other property, should be required to exercise great diligence to ascertain that he is not acting as a fence for stolen property. Poulos was required to look under the tape, and if the gun was engraved with “Cowles’ ” name, or any other name, he was required to ascertain the source of the gun and to advise his superiors of any suspected violation. It is our opinion that the charges brought against Poulos were sufficient to justify a dismissal.

The primary question before us on this appeal is whether or not the finding of the Commission that these charges were proven has reasonable support in substantial evidence introduced in the trial court. The Commission having upheld these charges, it was the duty of the trial court to sustain and not set aside such findings, if they were reasonably supported by substantial evidence. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965; Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022; Stowe v. City of Corpus Christi, Tex.Civ.App., 358 S.W.2d 409, wr. ref. n. r. e.; Firemen’s & Policemen’s Civil Service Commission v. Shaw, Tex.Civ.App., 306 S.W.2d 160, wr. ref. n. r. e.

Although the crux of the allegations against Poulos was that he was fencing stolen property in attempting to sell this expensive shotgun, the appellants wholly failed to prove that the shotgun Poulos was attempting to sell was stolen from Cowles or from any other person. In fact, appellants’ counsel stated: “We are not even claiming it was the identical gun.” Therefore, Pou-los’ evidence that the gun did not have “Cowles” engraved on it, and that he did not have information regarding a felony or any other suspected violation, stands un-contradicted.

The finding of the Commission must therefore be supported, if at all, by the charge that Poulos violated Rule 29 by falsely stating that Spears had given the gun to him for sale, when in truth it had been Brooks. The evidence showed that about two weeks after Poulos showed the gun to Gomez, Poulos was called into the office of Captain Benfer, who was directly in charge of the detective division, and was interviewed concerning his resale of many guns, including the shotgun in question. This interview was characterized by all participants as an informal hearing. It is undisputed that Poulos was very evasive during this interview, and in connection with the shotgun involved in this trial, when pinned down, said this shotgun came from Spears. Captain Benfer was not satisfied with the answers of Poulos and ordered him to make a formal report. Poulos was not happy with the intimation that he was involved in a burglary, and on the following day went to see the Inspector over Captain Benfer and the Chief of Police. Poulos was told by the Chief to file the report, which he did later that day, and in this written report he identified Earl Brooks as the person who gave him the gun for resale. Captain Benfer testified that Brooks corroborated Poulos and apparently all of Pou-los’ other sales were also satisfactorily checked.

The question is thus presented as to whether the false statement made to Captain Benfer was a violation of Rule 29. It is our opinion that it cannot be so considered. This rule is restricted by its express terms to willful misrepresentations, false official statements or reports, perjury, or false testimony before “any court, grand jury, board or commission.” Undoubtedly there are other regulations which authorize a superior officer to interview his subordinates relative to their conduct as members of the force. If not, common sense would dictate the wisdom of such a regulation. Rule 29 does not apply, however, to a situation as presented here, where the officer made a false statement or is evasive during the course of an informal interview with his superior officer. Clearly, we have no authority to amend the rule or to construe the unambiguous language of same, regardless of the desirability of such a rule. A. M. Servicing Corp. of Dallas v. State, Tex.Civ.App., 380 S.W.2d 747, no writ.

Appellants further complain of the exclusion of official police records showing the report of the burglary of the Cowles residence as well as the testimony of Dr. Cowles that his shotgun was stolen. The reports of this burglary were properly proven up by the custodian and were admissible in evidence. Art. 3731a, Sec. 1, Vernon’s Ann.Civ.St.; Statler Hotels v. Herbert Rosenthal Jewelry Corp., Tex.Civ.App., 351 S.W.2d 579, wr. ref. n.r.e. The testimony of Dr. Cowles was admissible as original evidence. It is our opinion that the exclusion of this evidence was harmless in view of appellants’ admission that the shotgun exhibited by Poulos was not the shotgun stolen from Dr. Cowles.

The trial court did not err in refusing to permit appellants to impeach their witness Gomez by his prior inconsistent statement made to the Chief, where appellants admitted they were not surprised by his testimony. McCormick & Ray, Texas Law of Evidence, § 632; Morgan v. Stringer, 120 Tex. 220, 36 S.W.2d 468.

The trial court correctly held that substantial evidence was not introduced to support the finding of the Commission that Poulos violated any of the rules and regulations of the San Antonio Police Department as charged by the Chief of Police.

The judgment is affirmed.

      .
      “Rule 16: Officers shall report promptly (all violations coming to their attention, as well as) all information they may receive about any violation or suspected violation. (However, if the offense is committed in the officer’s presence, and he can make a legal arrest, he shall take this action and make proper report.)”
      “Rule 17: Officers having information regarding any felony (or any person wanted for a felony charge), and immediate action is not required, shall give all details to his Superior Officer and submit a written report as specified in the Reporting Regulations.”
      “Rule 29: No member of the Department shall wilfully misrepresent any matter, sign any false official statement or report, (perjure himself, or give false testimony, before any court, grand jury, board, hearing or commission).”
      The parts set off by parentheses were not included in the charges against Poulos.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Candelario S. RODRIGUEZ, Appellant, v. Manuel FLORES, Appellee.
    No. 14478.
    Court of Civil Appeals of Texas. San Antonio.
    May 11, 1966.
    Mann, Cronfel & Mann, Tom Goodwin, Laredo, for appellant.
    Robert O’Conor, Jr., Nat B. King, Laredo, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the 111th District Court of Webb County, Texas, by Manuel Flores against Candelario S. Rodriguez, seeking to recover a narrow parcel of land lying between Lots 9 and 10 in Block 37, Western Division of the City of Laredo. The parties stipulated that Manuel Flores owned all of Lot 9 and that Can-delario S. Rodriguez owned all of adjoining Lot 10; that the only issue before the court was the location of the true boundary line between the two lots.

The trial was before the court without the intervention of a jury and resulted in a judgment favorable to Flores. Rodriguez prosecuted an appeal which was filed in this Court on December 23, 1965. Thereafter, on January 31, 1966, while the case was pending in this Court, a motion made by Manuel Flores was granted by the trial court and judgment nunc pro tunc was entered as of November 22, 1965.

Appellant’s first point is to the effect that the court erred in rendering judgment for Flores for title and possession of Lot 9, by metes and bounds, because there is no evidence to support the judgment or the metes and bounds description recited therein, or in any event it is insufficient, or against the great weight and preponderance of the evidence.

This suit having been instituted by Manuel Flores, the owner of Lot 9, against Candelario S. Rodriguez, the owner of Lot 10, to determine the location on the ground of the common boundary line between their two adjacent lots, the burden of proof was upon Flores to show by the preponderance of the evidence the location of such boundary line upon the ground. 9 Tex.Jur.2d, Boundaries, § 62, p. 554; Hill v. Collier, Tex.Civ.App., 135 S.W. 1084, 1086.

Flores placed upon the witness stand one Paul Garza, who was an engineer, not a surveyor, who testified that he made a survey of Lots 9 and 10, and made a plat showing the result of this survey. The plat states that no stakes, markers or monuments were established by such survey. Garza testified that to determine the width of the lots, he went to the records of the City Engineer, “the records of the Tax Offices of the City, Neel Abstract, and checked back into the records of that property before going out to the field and established what those distances should be and then measured on the field and established that these distances are there on the field.” He began his survey from a pipe set in concrete which he believed to be the common corner of Lots 2, 3, 8 and 9, but he didn’t know who put the pipe there or how it was located. So far as this record shows this was an unestablished point. Brown v. Eubank, Tex.Civ.App., 378 S.W.2d 707; Johnson v. Hill, Tex.Civ.App., 301 S.W.2d 239. Garza stated that he disregarded the monument for Block 37 because of statements of persons living in the area. No maps or field notes were introduced in evidence to locate the pipe which he used as a starting point for his survey. Under such circumstances, there is no evidence in the record fixing on the ground the true boundary line between Lots Nos. 9 and 10. Thomson v. Langdon, 87 Tex. 254, 28 S.W. 931; Wood v. Stone, Tex.Civ.App., 359 S.W.2d 68; Humble Oil & Refining Co. v. State, Tex.Civ.App., 162 S.W.2d 119; State v. Ohio Oil Co., Tex.Civ.App., 173 S.W.2d 470.

There was introduced in evidence a letter reading as follows:

“LAREDO, TEXAS Nov 1961
LEO A NETZER EXECUTOR
Estate of A E Netzer
1314-16 Iturbide St
Laredo, Texas
With reference to Lot 10 Block 37, WD., which I recently purchased, I have fenced in this lot and have extended the South Fence eastward to include a strip of your Lot 9 for convenience and economy only. This fence has a gate with locks and at any time that you wish entrance or access to your strip, a key will be available to you at my place of business or residence 1317— 19 Iturbide.
If at any time you find it more desirable to have a gate over the strip I shall be glad to install it, or if necessary will remove. I hope you will permit the fence as no inconvenience to you is intended.
Yours very truly,
C. S. RODRIGUEZ”

This letter does not in any way help to fix the true boundary line between Lots 9 and 10. It is an acknowledgment by Rodriguez that by extending his fence to the building on Lot 9 he has taken in part of Lot 9 not belonging to him, but this strip may be from one inch to ten feet wide so far as this letter shows.

We do not find it necessary to pass upon the validity of the nunc pro tunc judgment, as the evidence is insufficient to' support either judgment.

It is important that the true boundary line between Lots 9 and 10 be established, neighbors need to know where their boundaries are located. Accordingly the judgment of the trial court is reversed and the cause remanded for a new trial.


author: HUGHES, Justice.

text:
    NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Appellant, v. ALLCO INSURANCE AGENCY, Appellee.
    No. 11390.
    Court of Civil Appeals of Texas. Austin.
    May 4, 1966.
    Rehearing Denied May 25, 1966.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appellant.
    Ñaman, Howell, Smith & Chase, George Chase, Waco, for appellee.
   HUGHES, Justice.

This suit was by National Automobile and Casualty Insurance Company, appellant, against Allco Insurance Agency, a partnership, appellee, seeking reimbursement for the amount paid by it to satisfy a claim on an insurance policy issued by it through appellee as its agent in Temple, Texas. The claim for reimbursement was based on allegations that appellee had failed to follow the instructions of appellant which would have resulted in cancellation of the policy before any liability on it arose.

Trial was to a jury which returned a verdict answering issues submitted to it favorable to appellee. Judgment was rendered that appellant take nothing by its suit.

Appellee was the agent of appellant under a written contract which provided, in part:

“1. The Company hereby grants authority to the Agent in the following territory, viz: Temple, Texas and Vicinity (but not exclusively) to solicit and submit applications for the classes of insurance and fidelity and surety bonds for which a commission is specified in the Commission Schedule which forms a part hereof; to issue and deliver policies, bonds, certificates, endorsements and binders which the Company may, from time to time, authorize to be issued and delivered; to collect and receipt for premiums thereon or therefor; to cancel such policies, bonds and obligations in the discretion of the Agent where cancellation is legally possible; and to retain out of premiums collected and paid over to the Company in accordance herewith, as full compensation on business placed with the Company by or through the Agent, commissions at the rates set forth in said Commission Schedule.
******
The Agent assumes responsibility for and agrees to pay to the Company all premiums, whether advance, deposit, renewal, addition or excess payroll audit premiums, on policies, bonds, or other contracts of insurance or suretyship issued by or through him, whether direct or for the account of other producers, and whether collected by the Agent or not;
Provided, that if the Agent shall return to the Company for cancellation, or shall effect cancellation of any such contract of insurance or suretyship, or renewal thereof, within sixty days from the effective date of such contract, or renewal thereof, and shall file with the Company acceptable evidence of such cancellation, then the Agency shall not he liable to the Company for the premium of any such contract if he is unable to collect same; and
Provided further, that if the Agent is unable to collect the premium on any such contract, or renewal thereof, which is cancelled after sixty days from its effective date, the Agent shall pay the pro rata premium from the effective date of such contract, or renewal thereof, to the date when the Agent files with the Company acceptable evidence of cancellation of such contract, or renewal thereof.
The Company reserves the right (a) to reject any risk submitted by the Agent, and the Agent shall not be entitled to any commissions on any such risk, and (b) to cancel direct any contract of insurance or suretyship at any time, but in the event of such cancellation the Company shall notify the Agent prior to giving notice thereof.”

Appellee, as agent for appellant, submitted an application for an automobile garage liability insurance policy on one Benny Stovall, the policy period being from May 14, 1964 to May 14, 1965.

This policy provided, in part:

“This policy may be cancelled by the company by writing to the named insured at the address shown in the policy a written notice stating that, when, not less than ten days thereafter, such cancellation shall be effective.”

In issuing the policy appellant wrote ap-pellee that this business was accepted “subject to a favorable inspection report” on all drivers. The report on Mr. Stovall was bad in that he had too many speeding tickets and too many other violations and two accidents in his lifetime, and on July 14, 1964, appellant wrote appellee so informing it and requesting, “Please return the captioned policy for cancellation within the next ten days.”

On July 21, 1964, appellee replied to appellant and, after making a plea for Mr. Stovall, stated, “Will you please reconsider your request for cancellation and advise * * * »

On July 31, 1964, appellant replied to appellee and concluded, “We regret very much that we must request the return of the policy for cancellation once more.”

On August 14,1964, appellant again wrote appellee advising it that unless the Stovall policy or “other valid cancellation evidence” was received in five days it would send direct notice of cancellation to the insured.

On August 19, 1964, appellee wrote appellant regarding the Stovall policy as follows: “Coverage written this date with the Western Alliance Insurance Company, Austin, Texas this date replaceing the above policy. Your policy will be place_in the mail Friday August 21, 1964 cancelled effective August 19, 1964.”

In truth, no such insurance was procured by appellee, nor was the policy with appellant mailed in or cancelled.

On August 28, 1964, appellant sent direct notice of cancellation to the insured effective September 9. Nothing more transpired between the parties between August 19, 1964 and September 8th, 1964, when Benny Stovall had an accident which resulted in payment of $9,500.00 by appellant in damages.

The evidence shows that appellee tried unsuccessfully to place the Stovall insurance with other companies.

Appellant pled that appellee was estopped to deny liability by the letter of August 19, from appellee to appellant, above quoted, and the jury made these findings regarding such plea: (1) Appellant was led thereby to believe that other insurance had been procured replacing its policy. (2) Appellant was led thereby to believe that its policy had been cancelled effective August 19. (3) Appellant relied on such letter in believing that other insurance had been procured and that its policy would be cancelled effective August 19. (4) Appellant did not have a right to rely on such letter after the Stovall policy had not been received by it by August 25, 1964.

Many other issues were submitted to and answered by the jury. These issues were requested by appellee and were submitted on the theory that this was a negligence case and that contributory negligence by appellant was a defense to the action. We will not set out these issues for the reason that we are of the opinion that contributory negligence on the part of appellant is not a defense to it.

Appellant did plead that appellee was negligent in failing to cancel such policy or in failing to return such policy for cancellation but no issues of primary negligence were tendered or submitted to the jury and attempted recovery on such grounds was abandoned. Appellant also pled that it had requested appellee to cancel such policy or return it for cancellation and that appel-lee had failed to do either and that for such failure appellee was liable to appellant as a matter of law for ensuing damages.

It is this latter pleading together with the plea of estoppel which, in our opinion, controls the nature of the case in this Court.

Unless appellee was under a duty as agent for appellant to cancel the Stovall policy its failure to do so, in the absence of fraud or estoppel, would not be actionable. If it did have such duty then it was the result of contractual relations between the parties and a breach of such duty would be a breach of contract.

There are cases which hold that a breach of contract may give use to a tort action as well as for breach of contract. Westbrook v. Watts, Tex.Civ.App., 268 S.W.2d 694, Waco, writ ref., n. r. e.

It is sufficient here to say that since appellant has waived his suit based on negligence that there can be no defense of contributory negligence interposed by appellee.

In Washington v. Mechanics and Traders Ins. Co., 174 Okl. 478, 50 P.2d 621, the Supreme Court of Oklahoma considered a case in which the Insurance Company instructed its agent to cancel a policy he had sold and delivered. The agent did not obey, a loss occurred and the company sued the agent and in holding him liable the Court stated:

“The neglect and failure of the agent, Edmondson, to carry out the instructions of plaintiff company, to cancel the Sallie Young policy, for more than five weeks, was not the exercise of good faith and reasonable diligence, as to which reasonable men could differ, and the fact that the plaintiff company had the same authority to cancel the policy would not excuse or justify the agent, Edmondson, in failing or refusing to allow its instructions.
This principle was laid down in 22 Cyc. 1438, which reads as follows: ‘So if the agent is directed by the company to cancel a policy and neglects to do so, and there has been a loss, he is liable to the company for the amount which the company has had to pay on such loss, notwithstanding contributory negligence of the company in failing to cancel the policy itself.’
In Westchester Fire Ins. Co. v. Bollin, 106 S.C. 45, 90 S.E. 327, it was held: ‘It is no defense to an action for an insurance agent’s failure to cancel a policy that the special agent who directed its cancellation had power to cancel it.’ At page 328 of 90 S.E., 106 S.C. 45, the court said: ‘A man had the right to transact his own business. He has the right to employ as many agents and give them as much power as he pleases. When one agent undertakes to do a certain piece of work, he cannot relieve himself of responsibility by showing that there were other agents who had the same power.’ ”

Other authorities to the same effect are American Insurance Co. of Newark, N. J. v. Martinek, 203 Mich. 108, 168 N.W. 982, Michigan Supreme Court, St. Paul Fire and Marine Insurance Co. v. Bigger, 105 Kan. 311, 182 P. 184, Kansas Supreme Court.

We quote the following from 44 C.J.S. Insurance § 158, as indicative of the liability of an insurance agent under circumstances present in this record:

“Where an agent, whose powers extend to the cancellation of policies, is directed by the company to cancel a policy, and he neglects to do so within a reasonable time and in the meantime there has been a loss, he is liable to the company for the amount which the latter is compelled to pay on such loss, unless he can show some valid reason for his failure to follow the company’s direction. His delay or failure to cancel the policy will not be excused by the fact that he believed that the company was mistaken as to the safety or danger of the risk, or as to the wisdom of retaining it, or by the fact that he requested the company to reconsider its order to cancel, or because the act of cancellation is gratuitous, or by the fact that he gave notice of the cancellation to the broker who negotiated the insurance and directed him to cancel it, or that a special agent who directed it had power to make the cancellation, or by the fact that the company did not itself proceed to cancel the policy on the failure of the agent to do so in accordance with his instructions. If the agent, when directed to cancel the policy, undertakes to do so, he cannot deny his obligation after the company has suffered a loss through his failure to make the cancellation.”

See Superior Fire Ins. Co. v. C. S. Lee Grain and Elevator Co., Tex.Civ.App., 261 S.W. 212, El Paso, n. w. h., Phoenix Ins. Co. v. Heath, 90 Utah 187, 61 P.2d 308, 106 A.L.R. 1391, Utah Supreme Court.

It is appellee’s position that it was not authorized to cancel policies of insurance issued by appellant, and that it was never requested to cancel the Stovall policy.

It is our opinion that the agency agreement between the parties clearly gave to appellee authority to cancel all policies, bonds or obligations which were issued or written by or through it at its discretion. This authority was essential to the agent for the reason that the agent was responsible for premiums, collected or uncollected.

There is no specific language in the agency agreement which authorizes or requires the agent to cancel policies at the direction of the company. The company does, however, expressly reserve the right to reject any risk submitted by the agent. The retention of this right necessarily includes all reasonable means of making it effective. The most practical method, it seems to us, would be to notify the agent of the rejection and request cancellation of the policy.

In any event, the parties here have placed a construction of the agency agreement in accordance with this interpretation of it by their acts and conduct and, in our opinion, are bound by such construction. 13 Tex.Jur.2d, Contracts, Sec. 128.

This practical construction of the agency agreement by the parties extends not only to the right of the company to require its agents to cancel policies where the risk was unsatisfactory but also to the method of cancellation. The company could, as the agreement provides, cancel direct, but the parties have acted to include other methods.

Appellant wrote to appellee requesting return of the Stovall policy for cancellation. Appellee answered by asking a reconsideration of the “request for cancellation.” Appellant, in reply, again requested “return of the policy for cancellation.” A few days later appellant wrote to appellee that if the “original policy or other valid cancellation evidence” was not forthcoming direct notice of cancellation would be sent the insured. Five days later appellee wrote appellant that the Stovall policy would be mailed August 21 “cancelled effective August 19.”

These communications conclusively establish, in our opinion, the understanding of appellee that it was to effect cancellation of the Stovall policy and that the method of cancellation was left to its discretion.

It is to be noted that appellee did not state that the policy was being returned for cancellation by the company but rather it would be mailed after its prior cancellation.

It is our opinion that appellant acted within the scope of its agreement with ap-pellee in directing it to procure cancellation of the Stovall insurance policy and that ap-pellee knowingly and dutifully undertook to bring this about but that, as a matter of law, it failed to discharge its duty in this regard and is responsible to appellant for the consequences of such failure.

We are also of the opinion that ap-pellee is estopped to deny its liability to appellant for the loss sustained by it under the Stovall policy because of the false representation to appellant that the Stovall policy had been cancelled, upon which representation appellant relied to its injury.

The jury answer that appellant did not have the right to rely on such letter after the Stovall policy was not received by August 25 is, we believe, without any evidence to support it.

Nothing transpired between the parties regarding the Stovall policy between August 19 letter and the arbitrary date of August 25. This period was marked only by the passage of time. The trial court and the jury gave appellant six days, at most, in which to make up its mind that appellee was not telling the truth, and to take action.

It is to be noted that the date fixed by the court and jury is just three days prior to the date on which appellant did cause direct notice of cancellation to be issued to Stovall.

Of course, if the policy had been mailed as promised it would have been received by appellant before August 25. Was appellant to assume because of the non-receipt of the Stovall policy by August 25, and nothing more, that all of the representations made in the August 19 letter were false? We believe that appellant had the right to assume the truthfulness of factual statements of past events i. e. “coverage written this date * * * replacing the Stovall policy” and “Cancelled effective August 19,1964,” without being alerted to their falsity by the nonperformance of the promise to mail the policy on August 21st. The cancellation of the policy was the primary concern of appellant, not its timely mailing.

Persons who make material false representations as to matters in which they have an interest with the knowledge that such false representations will be accepted and acted upon as true by the persons to whom they are made, are not to be excused from their wrongful conduct by tenuous argument, strained logic, or misplaced sympathy.

While the issue finding that appellant had no right to rely upon the August 19 letter after August 25 is not couched in negligence or contributory negligence terms, the principle applicable is the same. It is well settled that contributory negligence is no defense to a suit based on fraud, an essential element of estoppel. We quote the following from Southern States Life Insurance Company v. Newlon, Tex.Civ.App., 398 S.W.2d 622, Eastland, application for writ of error filed:

“We agree with appellee that the contributory negligence of Newlon is not a defense to this action based on fraud and and that a fraud-feasor cannot excuse his fraudulent acts by asserting that the defrauded person was unduly credulous and guilty of contributory negligence in believing the fraudulent statements made to him. We think the applicable law is stated in 37 C.J.S. Fraud § 30, page 274 as follows:
‘While it has been stated that there is a duty on the part of the representee to use some measure of protection and precaution to safeguard his interest, and that in dealing at arm’s length with the other party he must avail himself of the means of knowledge readily within his reach, see infra § 34, the rule has been enunciated that contributory negligence of the representee is no defense to an action based on fraud. Since the very purpose of fraud is to cheat its victim by making him negligent the precautions essential to prevent injury, and to deny relief because the victim was negligent would encourage dishonesty, and it is held that the fraud-feasor will not be heard to say that he is a person unworthy of belief and that plaintiff was negligent in trusting him and was cheated through his own credulity.’ ”

We also quote from City of Houston v. Howe & Wise, Tex.Civ.App., 373 S.W.2d 781, Houston, writ ref., n. r. e.:

“This rule seems to have been adopted in Texas for the first time by the Supreme Court in Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808, and was clearly stated by Justice Speer in Western Cottage Piano & Organ Co. v. Anderson, 45 Tex.Civ.App. 513, 101 S.W. 1061, as follows:
‘It is not the rule that a person injured by the fraudulent and false representations of another is held to the exercise of diligence to suspect and discover the falsity of such statements. In the absence of knowledge to the contrary, he would have a right to rely and act upon such statements, and certainly the wrongdoer in such a case cannot be heard to complain that the other should have disbelieved his solemn statements.’
This statement of the rule is well supported by authority. Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141; Moore v. Beakley, Tex.Com.App., 215 S.W. 957; Graves v. Haynes, Tex.Com.App., 231 S.W. 383; Wortman v. Young, Tex.Com.App., 235 S.W. 559; Guaranty Bond State Bank v. Kelley, Tex.Com.App., 13 S.W.2d 69; Crofford v. Bowden, Tex.Civ.App., 311 S.W.2d 954, writ ref.; Smith v. Bifano, Tex.Civ.App., 330 S.W.2d 473, writ ref., n. r. e.; Wren v. Bohannon, Tex.Civ.App., 256 S.W.2d 112; Schonrock v. Taylor, Tex.Civ.App., 212 S.W.2d 260, writ ref. It is unlikely that the statement in Thigpen v. Locke, supra, the Supreme Court of Texas intended to change this well established rule of law and we are unable to say that appellee had knowledge of facts demonstrating the falsity of the representation which the jury found Baldwin made to him. Under the circumstances of this case, there was no duty on appellee to investigate for the purpose of learning the truth of the representation.”

Under these authorities, it is our opinion that appellant did not lose the right to rely upon the factual, as distinguished from the promissory statements, in the August 19 letter by August 25 or August 28. The fact that the Stovall policy was not received within these dates did not we hold, as a matter of law, charge appellant with knowledge of the falsity of the statements in the letter that other coverage had been obtained and the Stovall policy cancelled.

We reverse the judgment of the trial court and render judgment against appellee for the sum of $9,500.00, with interest from this date at the rate of 6% per annum and for all costs in this behalf expended. This judgment will be against the individual members of the appellee partnership.

Reversed and rendered.

      . This partnership is composed of Franky Lee Cagle, Rose Marie Watts and Robert Walter Watts.

      . All letters for appellee were written by Robert Walter Watts.


author: COLEMAN, Justice.

text:
    Waggoner CARR, Attorney General of the State of Texas, Appellant, v. Doris Goodrich JONES, Appellee.
    No. 14815.
    Court of Civil Appeals of Texas. Houston.
    May 12, 1966.
    Rehearing Denied June 2, 1966.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright,’ Executive Asst. Atty. Gen., J. Arthur Sandlin, Harold G. Kennedy, Scott Garrison, Asst. Attys. Gen., Austin, for appellant.
    Dibrell, Dibrell & Greer, Roland L. Bas-sett, Galveston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment invalidating a testamentary trust created by the will of Henrietta Ord Jones.

By the tenth paragraph of this will, the residue of the estate of Henrietta Ord Jones was devised and bequeathed to certain trustees, who were directed to (1) “* * * provide for the maintenance and operation of the Anna Maxwell Jones Garden * * ” and (2) “ * * * also provide for the establishment and maintenance of a park or garden or other suitable memorial in memory of * * * John Maxwell Jones.”

By deed dated December 8, 1938, Henrietta Ord Jones conveyed the property known as the Anna Maxwell Jones Garden to a trustee for the use and benefit of the Galveston Civic League “so long as the hereinafter described real property is used and maintained by the Galveston Civic League as a park or garden to commemorate the memory of its founder, Anna Maxwell Jones * *

After the probate of the will in question, this property which was never formally dedicated to public use, was conveyed by the trustee to the estate of Henrietta Ord Jones. The only evidence concerning the nature of the use made of this property is found in the affidavit of W. E. Holt. He states that since 1924 the Garden has been (1) “open to the public” and (2) “kept as a public park.” This property is described as being the South One-half (½) of Lot One Hundred Ten (110) of Section One (1) of the Trimble and Lindsey Survey of Galveston Island, Galveston County, Texas.

There is an affidavit by appellee establishing that she qualified as a trustee of the trust in question and participated in the action of the trustees in maintaining and caring for the Anna Maxwell Jones Garden and that the trustees donated certain land to the City of Galveston to be used as part of the Municipal Golf Course as a memorial to John Maxwell Jones.

The will imposes no time limitation upon the duration of the trust. Unless it was created exclusively for charitable purposes, it is clearly void as a violation of the rule that indestructible private trusts of unlimited duration are unconstitutional. Article 1, Sec. 26, Texas Constitution, Vernon’s Ann.St.; Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247.

In Boyd v. Frost National Bank, 1946, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326, the court considered at length the question of what constitutes a charitable purpose and quoted with approval the classification found in II Restatement, Trusts, § 368, p. 1140:

“ ‘Charitable purposes include
(a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the promotion of health;
(e) governmental or municipal purposes;
(f) other purposes the accomplishment of which is beneficial to the community.’ ”

In Bogert, Handbook of the Law of Trusts, 4th Ed., pp. 167-168, this comment is found:

“There is an important class of charitable trusts which do not fall within the subdivisions previously mentioned. They are sometimes called ‘governmental’ trusts. Although their, limits are not clearly defined, they involve benefits to all the inhabitants of a community by making life there safer, more comfortable, or happier. To some extent they supplement the work which governmental agencies do or could perform.

“Further illustrations of these charitable trusts may be found in trusts to repair bridges and highways, to provide a fire engine and fire house, to assist a fire company to aid a life-saving station, to provide a fountain for furnishing drinking water or for ornamental purposes, and to construct a children’s playhouse and playground in a public park.

“Trusts for laying out and improving streets, planting shade trees, beautifying grounds, constructing or improving parks, making agricultural or horticultural improvements or providing municipal improvements, are valid charitable trusts, because of their enhancement of human comfort and happiness and the aesthetic pleasure which they give the residents of the cities or towns concerned.”

It would appear, therefore, that a trust set up for such purposes as the creation or maintenance of parks or gardens for the use or enjoyment of the public generally would constitute a trust for a purely charitable purpose. Here the trustees have been directed to provide for the maintenance and operation of the garden. It was open to the public at the time the trust was created. The trustees were directed to operate the garden and it will be presumed that they will so operate it as to ensure that its benefits enure to the public generally. This purpose of the trust in question, therefore, must be classified as purely charitable. Boyd v. Frost National Bank, supra; Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273; Taysum v. El Paso National Bank, Tex.Civ.App., 1952, 256 S.W.2d 172, error ref.

In Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, the Supreme Court held that where an executor was empowered to devote the decedent’s estate to such “charities or worthy objects” as the executor and decedent’s sister might select, a purely charitable trust was not created since under the terms of the will the executor was expressly authorized to use the estate for “worthy objects,” which might not be charitable at all.

Here the trustees are directed to provide for the establishment and maintenance of a park or garden or other suitable memorial in memory of John Maxwell Jones. This provision is clear and unambiguous. Decedent has directed that a memorial be established in memory of her father and that it be maintained for an indefinite time. The trustees were authorized to create a park or garden, but they might have commissioned a monument to be erected at the grave site or other suitable place. This authority was plainly granted them. A gift for the purpose of having a monument built is a private trust and is subject to the Rule against Perpetuities. Bogert, Handbook of the Law of Trusts, 4th Ed., Sec. 59, p. 161.

In 14 C.J.S. Charities § 22, pp. 456-457, the following text appears:

“Where charitable purposes are mingled with other purposes, or where the terms used are so broad that they include both charitable and noncharitable purposes, the whole gift fails as a charity for uncertainty. A class of cases exists, however, where there is a general overriding trust for charitable purposes, but some of the particular purposes to which the fund may be applied are not strictly charitable, or one of two alternative modes of application is invalid in law. In such cases the court will give effect to the general charitable trust, but the trustees are restricted from applying the fund to the purposes or in the manner which is objectionable. When so restrained, that part of the fund as to which an invalid trust is created belongs to the donor. In case the trusts were created by will, and an ascertainable portion of a fund or an estate was given on a void trust and the residue on a good charitable trust, the residue has the benefit of the failure of the prior trust. A bequest ‘to charitable and deserving objects’ has been held good as a charity.”

There is no direction in the will concerning the amount of money to be spent on one of the purposes as opposed to the other. The word “charity” does not appear in the will. The testatrix’ purpose was to secure and maintain suitable memorials for her father and mother. The charitable and non-charitable purposes are mingled and the whole gift must fail.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    HOUSTON TRANSIT COMPANY, Appellant, v. Alfred Paul FARRACK, Appellee.
    No. 14743.
    Court of Civil Appeals of Texas. Houston.
    May 5, 1966.

      Roger R. Wright, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    W. James Kronzer and Robert L. Steely, Houston, and Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellee.
   WERLEIN, Justice.

Appellee, Alfred Paul Farrack, an employee of appellant, sued appellant to recover damages for personal injuries sustained by him as a result of being crushed between a parked truck owned by appellant and a bus owned and operated by it. From the judgment of the court based on the jury verdict appellant has perfected its appeal.

The truck at the time of the injury to ap-pellee was parked facing west, close to the right hand curb of Sunset Boulevard in Houston, and was being used for the purpose of trimming tree branches overhanging the Boulevard in about the 2000 block thereof. At about 10 o’clock on the morning of October 12, 1959, appellant’s bus which was being operated in a westerly direction on Sunset Boulevard by a student bus driver under the instruction oí one Hartsfield, appellant’s regular bus driver, approached to about 10 feet to the rear of the truck where it stopped facing west in the lane next to the esplanade which separates traffic moving in an easterly direction on Sunset Boulevard from traffic moving in a westerly direction thereon. Appellee, who had been picking up and placing on the truck branches which an accompanying city employee had cut, and who was standing on the left side of the truck with his back thereto, motioned the bus to pass. Thereupon the driver of the bus started the bus, driving the same at about 5 miles per hour between the north curb of the esplanade, and the parked truck. After about 20 feet of the bus had passed appellee without incident he was pinned between the right side of the bus and the flat bed of the truck, and received serious injuries.

The jury found in answer to Special Issues Nos. 3, 4 and 5 that while passing the parked truck on the occasion in question the operator of the bus changed the course and direction of the bus without first ascertaining that such movement could be made in safety, and that such movement was negligence, and that such negligence was a proximate cause of the occurrence made the basis of the suit. To Special Issue No. 6 the jury found that while passing the parked truck on the occasion in question the operator of the bus did not turn the bus to the right when such would not have been done by a reasonably prudent person. Having thus answered Special Issue No. 6, the jury did not answer Special Issue No. 7 inquiring as to whether the act of turning was a proximate cause of the occurrence in question. Appellant complains that the court erred in permitting appellee a double submission of the same theory of recovery of liability inasmuch as Special Issues Nos. 3,4 and 5 submit the same theory of liability as Special Issues Nos. 6 and 7, and also that the court erred in entering judgment on the verdict because of a fatal conflict in the answers to said two sets of issues.

The evidence shows that there was ample space between the north curb of the esplanade and the truck for the bus to have passed without striking appellee who was standing with his back to the truck and facing the passing bus, had the latter proceeded straight ahead with its left wheels in close proximity to the esplanade curb. Since some 20 feet of the bus, which was approximately 34 feet long, safely passed appellee, it seems evident that the collision between the side of the bus and appellee occurred as a result of the bus driver turning the bus to the right while passing the parked truck, or as a result of the bus being driven at an angle away from the esplanade and toward the north curb of Sunset Boulevard, thus in either case narrowing the space between the bus and the truck. The jury did not find that there was no turn to the right by the bus at any time while passing, but that there was no turn to the right at a time when a prudent person would not have turned the bus to the right. The jury found, however, that the operator of the bus did change the course and direction of the bus while passing the truck, without first ascertaining that such movement could be made in safety.

It is our view that a careful analysis of the two sets of issues will disclose that they are not making an identical inquiry of the jury, and that there is no factual duplicity or undue emphasis resulting from such submission. Appellant asserts in its brief that the evidence, even taken in the light most favorable to the plaintiff, shows only a gradual movement of the bus to the right. If we assume the correctness of such statement, although there is evidence to the contrary, it is not believed that the jurors were so misled by the inquiries made in Special Issues Nos. 6 and 7 as to prompt them to affirmatively answer Special Issues 3, 4 and 5 as they did. It seems probable that the jury found that there was a movement of the bus to the right, and that such movement constituted a change in the course and direction of the bus that was negligence, rather than the mere turn to the right inquired about in Special Issue No. 6.

We are also of the opinion that appellee was entitled to a statutory submission of its theory of the case as well as a common law submission, even though the two sets of issues are somewhat similar. In Texas & N. O. R. Co. v. Day, 159 Tex. 101, 316 S.W.2d 402, 408, the court made the following statement: “Obviously, petitioner has not had a proper submission of its defenses under Article 6701d. Submission of petitioner’s common-law defense of failure of the truck operator to keep a proper lookout did not satisfy the requirements for submission of the statutory defenses.”

Special Issue No. 6 is a common-law submission of negligence on the part of the operator of the bus in turning the bus to the right when a reasonably prudent person would not have done so. Special Issue No. 3, on the other hand, is a statutory submission. Section 68(a), Article 6701d, Vernon’s Ann.Tex.St., provides, among other things, that no person shall turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. The two issues are not mutually coextensive. In order to answer Special Issue No. 3 as it did, the jury had to find that the operator of the bus changed its course and direction without first ascertaining that such movement could be made in safety, whereas Special Issue No. 6 merely inquires as to whether the operator turned the bus to the right when it would not have been done by a reasonably prudent person. The jury probably was of the opinion, as shown by its answers, that the driver made the change in the course and direction of the bus without first ascertaining that it could be done in safety, and that such conduct was negligence, whereas the mere turn of the bus to the right at some time while passing the truck, was not negligence. In other words, the turn in itself was not the result of negligence but the change in course and direction without first ascertaining that such change in the course and direction of the bus could be made in safety, did constitute negligence.

With respect to plaintiff being entitled to a common-law and a statutory submission even though the two sets of issues are substantially similar, see also Lubbock Bus Co. v. Pearson, Tex.Civ.App.1953, 266 S.W.2d 439, writ ref., n. r. e.; Dallas Railway & Terminal Company v. Black, 1953, 152 Tex. 343, 257 S.W.2d 416, 421; Airline Motor Coaches v. Guidry, Tex.Civ.App., 241 S.W.2d 203, 208, writ ref., n. r. e. It is also our view that the jury was in all probability not misled by the submission of the two sets of issues, and that appellant has failed to show that such submission, if error, was such as was reasonably calculated to cause and probably did cause the rendition of an improper verdict and judgment in the case. Rule 434, Texas Rules of Civil Procedure. See also Holmes v. J. C. Penney Co., Inc., Tex.Sup.1964, 382 S.W.2d 472, 474.

We are of the opinion that there is no necessary conflict between the answers of the jury in response to the two sets of issues. It is the duty of the trial court to reconcile apparent conflicts in the jury’s findings, if this can be reasonably done. Ford v. Carpenter, 1949, 147 Tex. 447, 216 S.W.2d 558. In the Guidry case, supra, the jury found that one Mrs. Bordages failed to give an adequate or sufficient signal of her intention to turn at the time and on the occasion in question, but they also found that she did not fail to give a visible signal of her intention to turn. The former affirmative finding was in answer to a common-law submission whereas the latter involved a statutory obligation. The Court of Civil Appeals in such case said:

“ ‘Statutory requirements with respect to the operation of motor vehicles do not abrogate the common-law duties of the owners or operators thereof with respect to persons or property on the highways, but prescribe rules of conduct in addition to, or in excess of, common-law requirements, and a lack of ordinary care is not excused by the circumstance that all expressed statutory requirements have been complied with.’ ”

See also T ray wick v. Goodrich, Tex.Sup. 1963, 364 S.W.2d 190, in which case the court reconciled the following findings by the jury:

“Under Special Issue No. 9 the jury found that Mrs. Ethridge failed to maintain a proper lookout on the occasion in question and that such failure was a proximate cause of the collision.

“Under Special Issue No. 13 the jury found that Mrs. Ethridge failed to ascertain or determine that the way was clear for her to enter the intersection before doing so, but that such failure was not negligence.”

The court in stating that the two issues were not coextensive inquiries, used the following language:

“Special Issue No. 9 is all-inclusive on the question as to whether the plaintiff kept and maintained the proper observation at all times on approaching, entering into and after she had entered upon the intersection up until the time of the collision. On the other hand No. 13 only inquires as to her conduct before entering the intersection. That issue is necessarily embraced within but not coextensive with Special Issue No. 9.”

In applying to the instant case the reasoning of the Supreme Court in the Traywick v. Goodrich case, supra, it is our view that the mere act of turning to the right only inquires as to a limited portion of the total movement of changing the course and movement of the vehicle and continuing the course of such conduct which resulted in crushing appellee between the bus and the truck. For other cases in which it has been held that no necessary conflict resulted, see Kimble v. Younger Bros.—J. M. English Truck Lines, Tex.Civ.App., 283 S.W.2d 254, writ ref., n. r. e.; Johnson v. East Texas Motor Freight Lines, Tex.Civ.App., 271 S.W.2d 708; Royal Crown Bottling Company v. Smith, Tex.Civ.App., 254 S.W.2d 225; Prater v. Holbrook, Tex.Civ.App., 251 S.W.2d 547.

The trial court did not err in overruling appellant’s motion for an instructed verdict. We shall not unduly extend this opinion by setting out at length the evidence which supports the court’s action in refusing to instruct a verdict in favor of appellant. It will suffice to refer briefly to a few portions of the testimony adduced at the trial. Police Officer Calloway testified that the bus which was headed in a westerly direction was “angled about 15 degrees toward the curb.” The regular bus driver, Hartsfield, testified that he thought there was plenty of room to go by whether or not appellee turned his body during the time the bus was passing. He also testified that if the bus was turned to the right the back portion of the bus would track over so as to narrow the space between the bus and the truck. Appellee testified that the bus veered over towards him and that such movement happened so quickly he didn’t have a chance to get out of the way. This evidence, as well as other evidence which we shall not set out, amply warranted the submission by the court of the special issues inquiring as to primary negligence on the part of appellant.

We have carefully read the statement of facts covering the occurrence in question, and in considering all of the evidence, both that favorable to the jury’s findings and that militating against their verdict, we have concluded that such findings and verdict are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

The jury found that the failure of appellee to move from the left side of the parked truck before the occurrence in question was not the sole proximate cause of the occurrence made the basis of this law suit. It is our view that such finding is supported by ample evidence. No issues were submitted on contributory negligence since the trial court after a preliminary hearing held that appellant was not a subscriber to the Workmen’s Compensation Act of the State of Texas, although eligible to be such subscriber, and that for such reason the common-law defenses of contributory negligence, fellow servant and assumed risk were unavailable to appellant. The court, over the objections and exceptions of appellant, refused appellant’s requested special issues based upon such common-law defenses. Appellant contends that the court erred in this respect for the reason that it was not required to carry Workmen’s Compensation insurance since it comes within the exception provided in Section 2 of Article 8306, Vernon’s Annotated Texas Statutes, which reads in part as follows:

“The provisions of this law shall not apply to actions to recover damages for personal injuries nor for death resulting from personal injuries sustained by domestic servants, farm laborers, ranch laborers, nor to employees of any firm, person or corporation having in his or their employ less than three (3) employees nor to the employees of any person, firm or corporation operating any steam, electric, street, or interurban railway as a common carrier.”

It is appellee’s position that the exception provided in Section 2 of Article 8306, V.A.T.S., does not apply to appellant since it does not now and has not for some 26 years operated a street railway. It has long since removed its rails from the streets of the City of Houston and substituted buses for street cars previously used. This presents for our determination a question of novel impression, to wit: whether a street railway company that has permanently abandoned its operation of street cars upon rails or fixed tracks and substituted therefor the use and operation of buses, still comes within the exception contained in Section 2 of Article 8306, V.A.T.S. The evidence shows that the Houston Electric Company was a Texas corporation chartered in 1901 “for the purpose of constructing, acquiring, maintaining and operating street and suburban railways for the transportation of passengers within and near the City of Houston, in Harris County, Texas.” In 1933 the corporation amended its charter changing the purpose for which it was formed to read:

“This corporation is formed for the purpose of constructing, acquiring, maintaining and operating street and suburban railways for the transportation of passengers within and near cities and towns, and of maintaining and operating motor busses for the purpose of carrying passengers for hire on the public roads, streets, plazas, alleys and highways within the corporate limits of any incorporated cities or towns and on public roads and highways within five (5) miles of the corporate limits of any such incorporated cities or towns.”

In 1946 the name of the corporation was changed from Houston Electric Company to Houston Transit Company, but there was no other change made in the corporation’s charter.

It is our view that the main reason for street railways having been exempted from the operation of the Workmen’s Compensation Act was the fact that the operation of such transportation system was subject to the Railroad Liability Act, Article 6432, V.A.T.S. Article 6432 provides:

“Every person, receiver, or corporation operating a railroad or street railway, the line of which shall be situated in whole or in part in this State, shall be liable for all damages sustained by any servant or employe thereof while engaged in the work of operating the cars, locomotives or trains of such person, receiver, or corporation, by reason of the negligence of any other servant or employe of such person, receiver or corporation, and the fact that such servants or employes were fellow-servants with each other shall not impair or destroy such liability.”

The “line” referred to in said Article manifestly refers to trackage, that is, to railroad and street car tracks. Article 6432 was enacted by the Legislature some twenty years prior to 1917 when the original Texas Workmen’s Compensation Law of 1913 was subjected to a major revision. It seems evident that the legislative intent was to exclude from the Workmen’s Compensation Act common carriers for hire of passengers or freight or both which operated on railroad or street car trackage, since such employees were in a class by themselves and were protected by the provisions of the Railroad Liability Act. Since appellant no longer operates cars upon trackage or lines situated in whole or in part in this State, it is no longer subject to the provisions of the Railroad Liability Act. It appears logical, therefore, that its employees should now be given the protection of the Workmen’s Compensation Law. The law is well settled that the Workmen’s Compensation Act is remedial legislation, and that where doubt exists as to whether a particular cause of action comes within the Act or not, the courts will favor the construction which favors bringing the case within such Act. Bailey v. American General Insurance Co., 1955, 154 Tex. 430, 279 S.W.2d 315. It would seem that the same reasoning should be applied in resolving any doubts concerning the eligibility of a company to become a subscriber to the Workmen’s Compensation Act. See Eastern Texas Electric Co. v. Woods, Tex.Civ.App., 230 S.W. 498.

Although not directly in point, the language of the Texas- Court of Criminal Appeals, in Patillo v. State, 120 Tex.Cr.R. 568, 47 S.W.2d 847, clearly indicates that that court definitely distinguished between a street car operated upon fixed tracks and motor buses. We quote from the court’s opinion as follows:

“In common language a train, street car, or interurban car is understood to be one which serves the public in conveying passengers or freight, or both, and which runs upon fixed tracks. ‘Bus’ is a contraction of the word ‘omnibus,’ and it is well understood to be a vehicle which serves the passenger public, but which does not operate upon fixed tracks. It certainly is not a ‘train,’ nor an ‘interurban car,’ and no one would understand in common language that, when a street car was mentioned, it had reference to a ‘bus.’ In Ex parte Vance, 42 Tex.Cr.R. 619, 62 S.W. 568, a very clear distinction was recognized between an omnibus and a street car, and an ordinance of the city of Forth Worth was held to discriminate in favor of the street car.”

Both appellant and appellee have referred to certain out-of-state cases but none of them is directly in point. In Utah Light & Traction Co. v. Public Service Commission, 101 Utah 99, 118 P.2d 683, 688, the court stated, “That an automobile corporation such as this is not a street railway was held in Utah Rapid Transit Co. v. Ogden City et al., 89 Utah 546, 58 P.2d 1.” In Bradley v. Degnon Contracting Co., 224 N.Y. 60, 120 N.E. 89, the court said in referring to railroads and street railroads: “Each, however, denotes an enterprise created and operated for the purpose of carrying upon a fixed track passengers and freight or passengers or freight for rates or tolls, without discrimination as to those who demand the transportation.”

The Texas Railroad Commission (unlike that of South Carolina which has power to supervise and regulate every utility in the state as stated in the case of City of Columbia v. Tatum, 174 S.C. 366, 177 S.E. 541, cited by appellant), has no power to regulate and control the operation of a bus company operating solely within the limits of the City of Houston, which is a Home Rule city. Subdivision 21 of Article 1175, V.A.T.S., authorizes Home Rule cities to regulate, license and fix the charges or fares charged by any person owning, operating, or controlling any vehicle of any character used for carrying passengers for hire or the transportation of freight for hire on the public streets and alleys of such city.

The Texas Motor Carrier Act manifests the intent to vest exclusive powers and full jurisdiction of public highways in the Railroad Commission, but such Act expressly excludes motor bus companies owned or operated wholly within the limits of any incorporated town or city, and the suburbs thereof. In City of Wichita Falls v. Bowen, 1944, 143 Tex. 45, 182 S.W.2d 695, 154 A.L.R. 1434, the court said:

“By the express terms of Section 1, Subdivision (c) of Article 911a, Vernon’s Texas Civil Statutes, the term ‘Motor Bus Company’ does not include such concerns in so far as they operate wholly within the corporate limits of any incorporated city or town. Clearly this statute operates to deny the Railroad Commission the power to regulate local business done by Motor Bus Companies in such municipalities.”

Although under the amendment to its charter in 1933 appellant had the right to operate street railways at the time of appellee’s injury, it had long prior thereto ceased to exercise such right. We are of the opinion, therefore, that at such time appellant was a local de facto motor bus company and that its business was not subject to regulation by the Texas Railroad Commission, and that it was no longer subject to the provisions of the Railroad Liability Act of this State. The trial court correctly held that appellant was eligible to be, but was not, a subscriber to the Workmen’s Compensation Act, and, therefore, it could not avail itself of the common law defenses of contributory negligence, fellow servant and assumed risk.

Appellant complains that Special Issue No. 10, the damage issue, permitted the jury' to consider elements of damage sustained by appellee which were not a direct and proximate result of the occurrence in question. The pertinent part of the damage issue reads as follows:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the Plaintiff, Alfred Paul Far-rack, for such injuries and damages as have been directly and proximately caused in the past and will in reasonable probability be directly and proximately caused in the future, if any, by reason of such injuries sustained by Alfred Paul Farrack as a direct result of the occurrence made the basis of this suit, taking into account such of the following elements of damages, if any, as you find are established by a preponderance of the evidence, and none other ?”

Then follow the elements of damages set out separately including physical pain, mental anguish, loss of capacity to work, etc. The following is an example of one of the elements to be considered by the jury: “1. Such physical pain, if any, as you find from a preponderance of the evidence that Alfred Paul Farrack has sustained from October 12, 1959, to the date of this trial as a direct result of the occurrence of October 12,1959 made the basis of this suit.”

Appellant takes the position that the rule which requires that damages be limited to those which result directly and proximately from the occurrence, also requires that each individual element of damage considered by the jury should also be so limited. Special Issue No. 10 specifically requires that the injuries and damages for which compensation may be recovered must have been directly and proximately caused by reason of the injury sustained as a direct result of the occurrence made the basis of the suit. It is our view that such issue is so worded that the jury could not be misled or consider elements of damage that were not proximately caused by the occurrence in question. It was not necessary to repeat the words “directly and proximately caused” in connection with each separate item or element of damages. The issue clearly and properly limited all elements of damage to foreseeable consequences. It is, of course, unnecessary that a defendant foresee the precise consequences of his wrongful act or omission if he can foresee that some injury of a like or similar nature will result therefrom.

Over the objection of appellant, the trial court admitted as res gestae the following statement made to the investigating police officer by the student bus driver who was not present at the trial:

“I was going west on Sunset and saw a company truck stopped at the curb. The driver was standing on the side of the truck and signaled the bus to come on through, but the rear side of the bus caught the pedestrian between the bus and the truck knocking him down.”

Such statement was made within fifteen minutes following the arrival of the officer at the scene of the accident and within twenty-four minutes from the time the accident occurred. At the time the statement was made appellee was still at the scene of the accident, bloody and in extreme pain. The occurrence was a gruesome one and there was considerable excitement with respect thereto. We cannot say that the statement was not a part of the res gestae. Lusinger v. Philpott, Tex.Civ.App., 392 S.W.2d 217, 221, writ ref., n. r. e.; Missouri-Pacific R. Co. v. Rose, Tex.Civ.App., 380 S.W.2d 41, writ ref., n. r. e.

In any event, no harm resulted to appellant by reason of the admission in evidence of such statement. There is no admission of fault on the part of the bus driver, and the statement itself is merely cumulative of other testimony and particularly of the statement elicited from the regular bus driver at the trial, who testified without objection to substantially the identical occurrence as related in the statement.

Judgment affirmed.


author: CHADICK, Chief Justice.

text:
    STRICKLAND TRANSPORTATION CO., Inc., Appellant, v. Hawkins INGRAM et al., Appellees.
    No. 7731.
    Court of Civil Appeals of Texas. Texarkana.
    April 26, 1966.
    Rehearing Denied May 24, 1966.

      Neal A. Hawthorn, Kenley & Boyland, Longview, for appellant.
    Fred Whitaker, Carthage, for appellee.
   CHADICK, Chief Justice.

This is a venue case. At the conclusion of a plea of privilege hearing the trial judge ruled that Subdivision 9a, Article 1995, Vernon’s Ann.Tex.Civ.St., authorized trial in Panola County of this, an automobile collision case. The trial court judgment overruling the plea of privilege is affirmed.

One of the venue facts, and the only one at issue in this appeal, is whether or not there is evidence that the driver of the truck figuring in the collision was at the time of the occurrence a servant, agent or representative of appellant, Strickland Transportation Company, Inc., and acting within the scope of his employment. For proof of this vital element of venue the ap-pellees rely upon a presumption of such facts arising when ownership of the vehicle was proven to be in appellant, Strickland Transportation Company, Inc. The appellant’s basic complaint is that there is no probative evidence that appellant owned the truck.

The evidence pertaining to this venue fact is brief. The quotation below from the testimony of Hawkins Ingram, one of the appellees, is all of the proof touching upon the fact. The statement of facts con-' tains this, to-wit:

“Q. You didn’t see anything. Now then, did you know how many drivers there were in that truck?
A. No, sir.
Q. Did you later learn through the highway department, the Sheriff’s Office, that there was one or two drivers ?
A. Yes, sir.
Q. How many drivers were there?
A. Two.
* * *
Q. All right. Did you later know that the drivers were Claude A. Wolver-ton and H. B. Beavers?
A. Yes, sir.
Q. Did you later learn that the truck was owned by the defendant, Strickland Transport Company, Incorporated of Dallas, Texas?
A. Yes, sir.
Q. Did you receive any injuries from this accident?
A. Yes, sir.
Q. Were you dazed or knocked unconscious in any way at the time?
A. Yes, sir.
Q. Just tell the Court briefly now, we don’t want to go into that, except just to show the injuries?
A. Well, at the time I was knocked almost unconscious, I wasn’t aware of everything that went on around me, but I was transferred from the scene of the accident to the hospital, Panola General Hospital”.

No objection was made to the admission of this testimony. The parties’ briefs make it known that a misunderstanding caused counsel for appellant to be absent from the hearing when this testimony was adduced; but revision is not sought on that account.

Article 1436-1, § 4, Vernon’s Ann.P.C. defines the owner of a motor vehicle for the purposes of the Certificate of Title Act; but the statutory definition is not a comprehensive pronouncement applicable under all circumstances. Pioneer Mut. Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202 (Comm.App. op. adpt). The owner of tangible personal property, such as a truck, is defined in 73 C.J.S. Property § 13, p. 181 in this language.

“The term ‘owner’ is a general term having a wide variety of meanings depending on the context and the circumstances in which it is used. Broadly, an ‘owner’ is one who has dominion over property which is the subject of ownership.”

For the purposes of this common law tort action the owner of the truck may be satisfactorily defined as a person or entity claiming ownership and having possession or exercising control over it. See Pioneer Mutual Compensation Company v. Diaz, supra; Realty Trust Co. v. Craddock, 131 Tex. 88, 112 S.W.2d 440. Manifestations of ownership appear to be capable of perception by the senses of a witness, that is, many cases hold a witness may testify directly as to ownership. See Campbell v. Peacock (Tex.Civ.App.1915) 176 S.W. 774, no writ; Evidence, 20 Am.Jur. 644 § 772.

Perception of fact by the senses of the witness, that is, firsthand knowledge, is a fundamental qualification of testimonial competency. The origin and viability of this qualification is found in the law’s requirement that the most reliable information underlie court decisions. 1 Texas Law of Evidence 578, § 793; McCormick on Evidence 19, § 10; Evidence, 20 Am.Juris. 634, § 765, and 97 C.J.S. Witnesses §§ 52 and 53. Of course there are exceptions to this general rule, as well established as the rule itself, but enumeration of such exceptions will serve no purpose at this point.

The intransitory verb “learn” used in Hawkins Ingram’s testimony relative to ownership of the truck, according to the Century Dictionary and Encyclopedia, means “To acquire or receive knowledge, information or intelligence; * * This definition gives the word a twofold, and for the purpose of this inquiry, an ambiguous meaning. It means both to receive knowledge and to receive information; which might be through the senses in the first instance and a hearsay statement in the other. The effort here is to determine whether Hawkins Ingram’s knowledge of the ownership of the truck was the result of facts perceptible to him, or is based on statements to him by persons in nowise connected with owership. If his knowledge was acquired from facts perceptible to him, his testimony would have probative force, but if he was informed of the ownership by statements of third persons, his testimony is hearsay and of no probative value. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912); “Incompetent Evidence Admitted Without Objection” (Tom McLeroy), 21 Texas Law Review 778.

The qualifying factor in Hawkins Ingram’s testimony that he later learned, that is, learned after the collision occurred, that Strickland Transportation Company, Inc., owned the truck at the time of collision confines the opportunity he had of gaining first hand knowledge of ownership to a time subsequent to collision. But this does not necessarily exclude acquisition of such knowledge. A witness may testify in accordance with his knowledge at the time his testimony is offered; he is not restricted to his knowledge at the time the event occurred. As an illustration in Cleveland Terminal & Valley R. R. Co. v. Marsh, 63 Ohio St. 236, 58 N.E. 821, 52 L.R.A. 142, a witness testified that a trainman obtained an object from the station agent which the witness observed closely. The witness did not know what the object was at the time he observed the transaction. At the time of testifying the witness knew it to be a signal torpedo by knowledge he obtained subsequent to first observing it. It was held that the witness might testify to the fact as he knew it to be at the time he testified. See also 97 C.J.S. Witnesses § 52c, p. 441; 58 Am.J. 90, § 114.

Testimony of a witness is admissible and therefore must be assumed to be endowed with probative value, when it is possible under the record for the witness to have obtained personal knowledge of the facts related. The hearsay character of the testimony must affirmatively appear before it may be disregarded on appeal. Jackes-Evans Mfg. Co. v. Goss (Tex.Civ.App.1923) 254 S.W. 320, no writ; Ft. Worth & Denver City Ry. Co. v. Ryan (Tex.Civ.App.1925), 271 S.W. 397, no writ; Heintz v. O’Donnell (1897), 17 Tex.Civ.App. 21, 42 S.W. 797, no writ. On the face of the record Hawkins Ingram’s testimony is not shown to be hearsay and as the record presents it he could have had first hand knowledge that Strickland Transportation Company, Inc., owned the truck at the time of the collision. This conclusion is supported by Missouri Pac. Ry. Co. v. Sherwood (Sp.Ct.1892) 84 Tex. 125, 19 S.W. 455, 17 L.R.A. 643, where it is said:

“The witness O’Neal testified that, at the time of the loss of the cotton in question, he was the general manager of Martin, Wise & Fitzhugh, located at Paris; that the 473 bales of cotton were destroyed by fire on November 14, 1887, at Greenville, and, as far as witness knows, were not delivered; that he knows this cotton was destroyed by fire at Greenville, Tex., November 14, 1887, of his own knowledge, as far as it is possible for him to know it without actually seeing it burn. Defendant objected to this testimony because it appeared that on November 14, 1887, witness lived at Paris, and was not at Greenville, and that his evidence as to the burning of the cotton is hearsay. We are unable to say that the knowledge of the witness, to the existence of which he swears, was founded on pure hearsay. There are conditions in which one can acquire knowledge without seeing. We cannot adjudge that the action of the court in admitting the evidence was erroneous. While it appears that the witness was at the time stated located in business at Paris, it does not appear that he was not at Greenville on November 14, 1887; and, while he did not see the fire which consumed the cotton, his statement may have been based on information derived from a source which would bind defendant. The cross-examiner did not sufficiently probe the sources of the witness’ knowledge to justify us in holding that it was founded entirely on hearsay, rendering his testimony inadmissible.”

The appellant’s points of error are overruled.

The author of “Evidence”, 24 T.J. 61, § 561 makes this statement:

“It is frequently difficult to determine whether proffered evidence is or is not hearsay. No problem arises where the hearsay nature of the evidence offered is clearly apparent on the face of the testimony, as where the witness testifies that he had ‘heard’, ‘learned’, ‘been told’, or been ‘informed’ of a certain matter.”

There are numerous cases cited to support this conclusion, a principal one is that of Lightfoot v. State, 123 Tex.Cr.R. 176, 58 S.W.2d 81. No effort will be made to reconcile these several cases with the result reached here, but for the reasons discussed this court has concluded that the evidence in question is not necessarily hearsay and has probative force. The use of the word learn by a witness is not invariably a harbinger of hearsay. The judgment of the trial court is affirmed.