author: HAUL, C. J.

text:
    CURLEE CLOTHING CO. v. WICKLIFFE.
    No, 3578.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1931.
    Rehearing Denied May 6, 1931.

      J. R. Ogle and Smoot & Smoot, all of Wichita Falls, for appellant.
    L. W. Allred, of Chillicothe, for appellee.
   HAUL, C. J.

The appellant clothing company sued the appellee Wickliffe in Wichita county to recover upon two promissory notes, one for the sum of $200 and the other for the sum of $173.31.

The notes are dated at Chillicothe, Tex., and are in the usual form, and when executed the place of payment was left blank. The uncontroverted testimony established the following facts:. The appellant had an open account against Wickliffe for $573, which it placed in the hands of its attorney Ogle, residing in Wichita Falls, for collection. After some correspondence, Wickliffe agreed to pay $200 cash and give the two notes sued on for the remainder. Ogle sent the two blank notes, which were filled out by Wickliffe and returned to Ogle, and both notes, as stated, left the place of payment in the printed form blank. A few days after the receipt of the notes, Ogle filled the blanks by writing therein the words, “Wichita Fails,” as the place of payment, and July 12th wrote Wickliffe stating what he had done and further that he had never taken notes that were payable at- any other place than Wichita Falls and he hoped it would be satisfactory to Wick-liffe. On July 16th, without replying directly to this letter, Wickliffe wrote Ogle thanking him for his courtesies, forbearance, etc., and inclosing a cheek for $200, which the drawee bank refused to .pay. 'On the date the first note became due, defendant wrote Ogle, asking for additional time, promising payment, but mentioned that the check and notes were payable, in. Hardeman county. It does not appear that Wickliffe ever made any specific objection to the act of Ogle in filling the blanks in the two notes.

The court found that the defendant Wick-liffe was living at Chillicothe at the time of the execution of the notes and since. The remaining findings are in accordance with the statement hereinbefore made.

Wickliffe filed his plea of privilege to be sued in Hardeman comity, the county of his residence. The plaintiffs filed a controverting affidavit, alleging that the venue was properly laid in Wichita county, because the notes were payable there. The court concluded as a matter of law that filling in the place of payment which Wickliffe had left blank in the notes was a material alteration and had no force in fixing the .venue in Wichita county, and sustained the plea of privilege.

The appellant. has filed a lengthy brief, citing authorities principally upon the right of Ogle to fill in the blanks left in the notes by Wickliffe. There is some confusion in the Texas cases upon the right of a holder of a promissory note to fill in the blanks left by the maker, but in our opinion it is not necessary to decide this question in order to dispose of the principal contention.

R. S. art. 1995 provides that:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:. * * * .
“5. Contract in. writing. — If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either, in such county or where the defendant has his domicile.”

It may be admitted that the place of payment expressed in a negotiable note is a material part of the instrument, but the notes as executed were completed instruments when they left Wickliffe’s hands, even though no place of payment had been written into the blank form. In that condition, under the law, they weré payable in Hardeman county, which was the county of the maker’s residence. Under this article of the statute there must be an express contract to pay a note in a county other than that of the maker’s residence, or else the court must be able to say that the Contract- necessarily involves an obligation to perform in that county. Davis v. Gouldy (Tex. Civ. App.) 243 S. W. 715. A written contract which does not clearly provide for performance in a county other than that of the residence of the party for whose failure to perform suit is brought in another county does not discharge plaintiff’s burden of establishing venue therein. Brooks Supply Co. v. Senter Bros. & Co. (Tex. Civ. App.) 245 S. W. 101; Ketner v. Radford Grocery Co. (Tex. Civ. App.) 299 S. W. 680.

It is held in Turner v. Ephriam (Tex. Civ. App.) 28 S.W.(2d) 608, and in General Motors Acceptance Corporation v. Christian (Tex. Civ. App.) 11 S.W.(2d) 620, that under the statute prescribing that the maker must be sued in the county' of his residence unless he has contracted to perform in a particular county, the place of performance other than the county of his residence must be expressly fixed at the time the contract between the parties is executed.

According to the tenor of the notes at the time the maker executed and mailed them to Ogle, a suit thereon could be main-' tained only in Hardeman county. Without the knowledge ór consent of the maker, the appellant’s attorneys so altered the notes as to make them payable in Wichita county. The .appellee never entered into any such contract, and under the statute which requires an express agreement, he cannot be held to answer in Wichita county, under the doctrine of ratification.

We think a correct judgment has been entered, and it is affirmed.


source: Caselaw Access Project

author: GALLAGHER, C. J.

license: Public Domain

text:
    SOUTHERN UNDERWRITERS v. WILLIAMS LUMBER CO.
    No. 1033.
    Court of Civil Appeals of Texas. Waco.
    April 16, 1931.
    Rehearing Denied May 7, 1931.
    R. G. Storey, of Dallas, for appellant.
    E. A. Rice, of Cleburne, for appellee. ■
   GALLAGHER, C. J.

This suit was instituted by appellee, Williams Lumber Company, a copartnership, against appellant, Southern Underwriters, an insurance exchange, to recover on a fire insurance policy issued by it, the sum of $5,-894.48-, the alleged value of appellees’ property destroyed by fire. Said policy purported to be perpetual and covered certain buildings, sheds, and stocks of merchandise constituting a retail lumber yard. It was dated December 28, 1916, and provided that, if an annual premium- of $49 was not paid within thirty days after January 30th of each year, the same should be null and void. Appellant alleged that the annual premium due January .30, 1930, had not been paid, that the policy sued on, at the expiration of thirty days thereafter, became null and void, and that its liability thereon then terminated.. Appellees pleaded in reply thereto that appellant had waived prompt payment of annual premiums, and that it had for a term of eight years immediately preceding treated the policy as in force and had accepted premiums thereon long after the same became due and as of the original due date thereof. Appellees further pleaded that after the fire, notwithstanding the annual premium due January 30, 1930, had not been paid, appellant promised to pay the loss sustained by them and assured them that the policy was still in force and protected them from further loss on that part of the property covered thereby which had not been destroyed by such fire. Appellees also fen-' dered the sum of $49, being the amount of the annual premium due January 30, 1930, and paid the same into court. ,

The case was tried by the court without a jury and judgment rendered in favor of ap-pellees against appellant for the sum of $3,- ■ 872.75, with legal interest thereon. Hence this appeal.

Opinion.

Appellant by various assignments of error assails the action of the trial court in rendering judgment for appellees. Appellant contends by various propositions presented thereunder that appellees forfeited all rights under the policy sued on by their failure to pay the annual premium due January 30, 1930, within thirty days after that date. Appellant further contends therein that the findings of the trial court that it had waived prompt payment of annual premiums at the time specified in the policy and its right to forfeit such policy for failure to make such payments, that such policy was in full force and effect at the time of the fire, and that appellant, after the fire, with full knowledge of the facts, had waived any right to assert the forfeiture of such policy, are all without support in the evidence and contrary thereto.

The policy sued on provided that an annual premium should be paid thereon on the 30th day of January of each year or within thirty days thereafter, and that, if such premium was not paid within such time, such policy should be null and void. Appellee Williams testified that he was the managing partner, and that from the issuance of said policy in December, 1916, until the year 1922, he paid the premiums thereon promptly within the time specified.. Appellees introduced in evidence formal receipts from appellant acknowledging the payment of such premiums for the years 1917 and 1918. Each of said receipts contained the following recital: “Our policy which you hold is perpetual. It does not expire until cancelled by you or by this exchange. Consequently you do not require a new policy.” Said witness further testified that he did not pay the annual premium on said policy for the year 1922 within the stipulated time; that some time in April thereafter appellant’s agent Crouch, who had taken his original application for said policy, called and reminded him that he had not paid such premium; that he explained to him that January 30th was taxpaying time, and that he was generally short of money at such time, and that that was the reason why he had not sent a check for the premium; that said agent then offered to receive such premium, and that he gave him a check therefor; that he asked him in that connection if he would have to have a new policy since the old one was out of date; that the agent told him that he did not have to have a new policy; that his policy was perpetual and ran until it was canceled by the exchange or by him, and that he could thereafter pay the premium at any time during the year; that he asked the agent if he would call to collect the premium each ■year; that he replied that'he had a large territory to cover, but he would probably be there some time during the year; that thereafter witness waited until said agent came .and then gave him a check for the year’s premium. Appellees introduced checks showing that they paid the annual premium on said policy for the year 1923 to said agent on October 26th of said year; for the year 1924 on October 20th of said year; for the year 1926 on July 18th of said year; and for the year 1929 on April 5th of said year. They also introduced a draft drawn by appellant on them on June 1, 1925, for $he premium for that year. They also introduced a receipt from appellant dated October-, 1927, for the premium for that year, and another receipt dated May 25, 1928, for the premium for that year. All except a small amount of the property covered by the policy sued on was destroyed by fire on March 16, 1930. The premium for that year had not been paid. Appellees notified appellant by wire at once, and appellant sent its adjuster to examine into the circumstances of the fire and the amount of the loss. Said adjuster required appellees to sign the usual non-waiver agreement. He. then. required a detailed statement of the loss, which appellees prepared and forwarded to him. Shortly thereafter the adjuster informed appellees that he could not do anything about the loss, and referred them to the exchange at its office in San Antonio. Appellee Williams then went to San Antonio, called at the office' of the exchange, and had a conversation with Mr. Carter, an executive officer thereof. He testified that Carter told him in that connection' that they could claim that the policy was forfeited because the annual premium for that year had not been paid, but that it would look a little funny to cancel the policy after a fire when they had been taking ap-pellee’s money year after year after the due date. He further testified that Carter said: “We are going to pay you, Williams, I don’t know just what, but after I come back from New York I will put it up to the board and we will settle this business.” He further testified that Carter told him in that connection that said policy was still in force on that part of the property insured which was not destroyed by the fire. He further testified that Carter was present in the courtroom, sitting by appellant’s counsel at the time. Appellees also introduced an itemized statement of the property destroyed and the value thereof. Appellee Williams was the only witness who testified. There was no attempt made to contradict his testimony in any particular. The court filed comprehensive findings of fact, and included therein a specific finding that the acts of Crouch in authorizing appellees to delay the payment of premiums were fully ratified by -appellant, and that appellees relied thereon in deferring payment of premium for the year 1930.

Appellant in the propositions presented asserts that the testimony fails to show that Crouch had authority to agree that .appel-lees might defer the payment of premiums without forfeiture of their rights under the policy, and that appellant acquiesced in such agreement and ratified the same. The initial authority of the agent Crouch in the premises is, we think, immaterial. Three times during the eight successive years that appellant received and accepted the payment of past-due premiums, such payment was not made until the latter part of October. Nearly nine months of the current year had then elapsed, and only a little over three months of liability on the policy remained. If ap-pellees had understood that liability on said policy had been suspended for nine months, and that they had been without protection from loss or damage by fire for. such period, as now contended by appellant, we can hardly conceive that they would have paid a full year’s premium to have said policy reinstated for the short period of three months. Appellant must necessarily have known that appel-lees understood that said premium was for an entire year’s protection. The record further shows that appellantj without, so • far as shown, any suggestion on the part of Crouch, drew a draft on appellees for the annual premium for the year 1925 on June 1st of that year, and that appellees paid said draft. The record further shows that it issued its receipts from its home office for the annual premiums for the years 1927 and 192S long after the expiration of the thirty days’ grace allowed for the payment of such premiums. These facts were sufficient to sustain the court’s finding that the exchange itself, as distinguished from its agent Crouch, waived the payment of premiums within the time limited by the terms of the policy, and justified appellees in believing that failure to' make prompt payment of such premiums did not avoid the protection promised by their policy. Dunken v. Aetna Life Ins. Co. (Tex. Civ. App.) 221 S. W. 691; Globe Mutual Life Ins. Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387; McCorkle v. Texas Benevolent Ass’n, 71 Tex. 149, 8 S. W. 516.

Appellant assails the finding of the court that after the fire, and with full knowledge that the annual premium for the current year had not been paid, it recognized its liability for the loss and declared that said policy was still in full force and effect as to the property covered thereby which was not destroyed by the fire, on the ground that Carter’s authority in the premises was not shown. Appellees’ testimony on this issue was not controverted. It showed that Carter claimed to be an executive officer of the exchange, that he was in charge of its home office, and that he was cognizant of all the facts concerning the fire. This, with the further fact that he was present in court, apparently representing the exchange at the trial, fully justified the court’s finding. We 'also think that his declarations to appellee Williams at that time were, when considered as a whole, outside of the terms of the non-waiver agreement. The testimony supports .the finding that appellant, acting through said Carter, waived any right to defeat its liability for the loss sustained by appellees by reason of such fire on the ground that the policy at and prior to such fire had become null and void for failure to pay the current annual premium. Equitable Life Assurance Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625; Law v. Texas State Mutual Fire Ins. Co. (Tex. Com. App.) 12 S.W.(2d) 539; Id. (Tex. Com. App.) 16 S.W.(2d) 277.

Appellees have filed cross-assignments of error in which they assert that the recovery-allowed by the court for loss on their stock of merchandise is less than justified and required by the evidence. The policy sued on covered four separate buildings, all of which were a total loss. The court allowed the full amount claimed for the loss of such buildings. Said buildings were designated as the lumber shed, office building, frame building, and cement building, respectively. The insurance on stock was distributed as follows; $5,000 on lumber, timber, laths, shingles, pickets, posts, sash, doors, blinds, etc., while contained in the lumber shed or in the yard immediately adjacent thereto; $275 on office furniture and fixtures, hardware, and paints, etc., while contained in- the office building, and $400 on lime, cement, sash, doors, blinds, etc., while contained in the frame building. The cement building was empty at the time the policy was issued, and the same contained no provision for the insurance of merchandise while contained ir, such building. The testimony showed that appellees’ entire stock of merchandise was stored in said four buildings at the time of the fire. The court found that the loss on the stock contained in the lumber shed at that time was $1,872.75, on the stock contained in the office building $916.38, on the stock contained in the frame building $962.78, and on the stock contained in the cement ■building $5S4.10, and that the total loss sustained by appellees on their stock of merchandise was $4,336.01. The court held as a matter of law that appellees could not recover for loss of merchandise contained in the office building in excess of $275, the amount specified in the policy, and that they could not recover for loss of merchandise contained in the frame building in excess of $400, the amount specified in the policy.’ He further found that appellees could not recover anything for the loss of merchandise contained in the cement building because the policy did not provide for liability for sucb loss. Tbe court restricted appellees’ recovery to tbe sum of $1,872.75 for loss on merchandise contained in tbe lumber sbed, $275 for loss on merchandise contained in tbe office building, and $400 for loss on merchandise contained in tbe frame building, amounting in tbe aggregate to $2,547.75. Appellees contend they should have recovered tbe full amount of their loss on their stock of merchandise.

Appellees failed to except to the judgment rendered by the court. The court in his conclusions of law recited that appellees’ motion for judgment for the full amount of the loss sustained by them was overruled. No such motion is contained in the record. Neither is it shown that appellees excepted to the action of the court in refusing the same. Appellees are therefore not entitled to have such action reviewed. Duren v. Houston & T. C. Railway Co., 86 Tex. 287, 291, par. 3, 24 S.W. 258; Continental Ins. Co. v. Milliken, 64 Tex. 46, 49; Rossetti v. Benavides (Tex. Civ. App.) 195 S. W. 208, 211, par. 9; Garitty v. Halbert (Tex. Civ. App.) 235 S. W. 231, 235, par. 2; Levy v. Engle Bros. Co. (Tex. Civ. App.) 192 S. W. 548, 549, par. 3; Jones v. Baugh (Tex. Civ. App.) 277 S. W. 1091.

We have, however, examined appel-lees’ contention on its merits. Appellees cite in support thereof article 4930 of the Revised Statutes, as amended by Acts 1927, c. 33, | 1 (Vernon's Ann. Civ. St. art. 4930). Said article provides, in substance, that no breach or violation by the insured of any warranty, condition, or provision of a fire insurance policy shall constitute a defense to a suit for loss thereon, unless the same contributed to the destruction of the property. They also cite and rely on Allemania Fire Insurance Co. v. Angier (Tex. Civ. App.) 214 S. W. 450, and Standard Eire Insurance Co. v. Buckingham (Tex. Civ. App.) 211 S. W. 531. These cases hold that, where, by the terms of a policy, the property described therein is insured at a particular location and not elsewhere, the removal thereof to another location, though a breach' of such condition, does not avoid the policy unless it is shown affirmatively that the removal contributed to cause the loss. Such a situation was considered by the Commission of Appeals in Fireman’s Insurance Co. v. Alonzo, 112 Tex. 283, 246 S. W. 82. The court there held that such removal violated a contractual provision of the policy, that the effect of such violation was to suspend the policy while the property remained at any other location except that stipulated, and that no recovery could be had for the destruction of the property while away from the stipulated location. .Such holding is in accord with the general rule that, if property is insured “while contained in” a certain building,, the location of the property must be regarded as an element of the risk, and that no recovery can be had for loss if such property is destroyed elsewhere. 6 Cooley’s Briefs on Insurance (2d Ed.) pp. 4921 et seq. These authorities are in harmony with the further rule that the location and situation of property as given in the policy constitute an essential element of description, and, where the same is not located as described, no recovery can be had for the loss thereof. First Nat. Bank v. Lancashire Ins. Co., 62 Tex. 461, 464; 2 Cooley’s Briefs on Insurance (2d Ed.) p. 1197 et seq. We are .of the opinion that the provisions of the policy sued on constituted a contractual distribution of the risk and a limitation of liability for the loss of the stock of merchandise contained in each of the respective buildings nafned therein. Appellant was therefore not liable beyond the amount stipulated for the merchandise contained in the office building and the frame building, nor for any amount for merchandise contained in the cement building. See, aiso, Parker-Russell Mining & Mfg. Co. v. Insurance Co. of North America, 209 Mo. App. 503, 240 S. W. 248, 251, pars. 3 to 5 inclusive, and authorities there cited; Benton v. Farmers’ Mutual Fire Ins. Co., 102 Mich. 281, 60 N. W. 691, 26 L. R. A. 237. We are not unmindful of the fact that by the terms of the policy the stock of merchandise in the lumber shed and in the yard immediately adjacent thereto was insured for the sum of $5,000, and that only $1,872.75 was recovered for loss thereon. Appellee Williams testified that they did not keep any of their stock of lumber, etc., outside in the yard, but kept it all in the lumber shed; that the estimated value of the contents of said shed at the time the policy was written was about $6,500; that at the time of the fire their lumber, etc., was stored in the lumber shed, their lime, etc., in the frame building, and their office furniture and fixtures and paints, etc., in the office building; that they had never kept any of the stock outside; that all the buildings were separate and contained separate materials. Said witness further testified that a part of the lumber contained in the lumber shed was saved, and, in that immediate connection, that they had more than five or six thousand dollars worth of lumber in that shed at the time of the fire, but that the loss on the contents of such building was the sum of $1,872.75 only, as aforesaid. The distance from the lumber shed to the cement building was not shown. Ap-pellees contend in this connection that the stock stored in the cement building was “in the yard immediately adjacent” to.the lumber shed within the terms of the policy. We think, in view of the foregoing testimony, that the holding of the trial court to the contrary should be sustained.

The judgment of the trial court is affirmed.


author: PEBPHREY, C. J.

text:
    TEXAS INDEMNITY INS. CO. v. GANNON et al.
    No. 2520.
    Court of Civil Appeals of Texas. M Paso.
    April 2, 1931.
    Rehearing Denied May 7, 1931.
    Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    Wm. M. Cramer and R. H. Vogel, both of Dallas, and J. B. Cotten,- of Crane, for appel-lees.
   PEBPHREY, C. J.

Appellee Charles Gannon was, on July 11, 1929, in the employ of the Magnolia Petroleum Company, as a roustabout on the Magnolia Petroleum Company-Hardwicke lease in Crane county, Tex.

Magnolia Petroleum Company was a subscriber under the Workmen’s Compensation Act of Texas (Vernon’s Ann. Civ. St. arts. 8306-8309), carrying a policy with appellant, Texas Indemnity Insurance Company.

Appellee filed a claim with the Industrial Accident Board in which he claimed to have received injury to his eyes, throat, mouth, bronchial tubes, lungs, and other members oí his body from gas escaping from a tank which he was tearing down.

Appellee, being dissatisfied with the award made by the Industrial Accident Board, filed this suit in the district court of Crane county.

In his petition appellee alleged that on or about July 11, 1929, he was working near a battery of tanks which contained and emitted poisonous gas; that he breathed and inhaled said gas; that his nose, mouth, bronchial tubes, and lungs were burned and irritated thereby, causing his kidneys and digestive system to be irreparably damaged; that the functions of his heart and blood stream were impaired; that he suffered a loss of weight of 25 pounds; that he lost his appetite, was unable to sleep, and suffered from a general anaemic condition; that he developed tuberculosis, and is totally and permanently disabled.

Appellant answered by a general demurrer and a general denial.

In response to special issues, the jury found that appellee sustained an accidental injury on or about July 11, 1929; that such injury was sustained in the course of his employment with the Magnolia Petroleum Company; that such injury resulted in total incapacity; that such incapacity is permanent; that a manifest hardship would result from the payment of compensation in weekly installments; that appellee’s average daily wage was $5; and that his physical condition is not the result of an occupational disease. Judgment was rendered for appellee in the sum of $5,-874.82, against the Texas Indemnity Insurance Company, and it has appealed.

Opinion.

Appellant’s first six; propositions are to ),he effect that there was no evidence that the injury resulted in total incapacity to appellee, or that such total incapacity was permanent, and that, appellee’s own evidence showing that he was at the time of trial employed in a gainful occupation, the evidence was insufficient to sustain the findings of the jury that he was totally and permanently incapacitated.

We have carefully studied the evidence introduced by appellee, and think it is amply sufficient to present both issues, and that, if ■believed by the jury, supports their findings.

Appellee’s testimony as to how the accident happened and the results therefrom reads:

“I sat around there all during the noon hour and tried to work again that afternoon, and I couldn’t; I went in at five o’clock and went to bed; I couldn’t eat my supper, and I didn’t eat any breakfast; I vomited during the night and in a week or a few days I developed a cough, and kept vomiting and coughing up blood, and my condition has gone down since and now my chest hurts me in here, and my throat here (indicating) hurts me, and my chest now hurts all the time and now and then a pain goes through my heart, every day or two, sometimes two or three times a day, and when I exert myself I give out of breath and I can’t do any heavy work at ¿11. Whenever I try to do heavy work now I feel exhausted, get nervous and weak, and I have to sit down and rest, and I turn blind, see black spots ahead of me, and I have a headache a good deal. As to how long those spells last when I get one of them: ‘sometimes an hour or two.’ Before the accident I weighed between one hundred and eighty-five and one' hundred and ninety pounds. I weigh about a hundred and sixty pounds now. Before the accident I had a good appetite, and since that time I haven’t had any appetite at all. Before that time I rested good at nights, I don’t rest any at all now at nights. I get up in the mornings now feeling about as tired as I did when I went to bed. ⅜. * ⅜ In about a week or two after I was gassed I noticed I was losing weight, and I went down gradually. I have been weighing about a hundred and sixty for the last four months. I have experienced trouble with my kidneys since that accident out there. They do not act the same as they did before the accident; they keep me awake at nights and hurt a good deal. I have to get up at nights with them; I have to get up three or four times a night. That has been my condition since that accident out there. I never had any trouble at all with my kidneys before that time. * * * in my present condition I am not able to work at the same class of work I was doing before the accident. I have worked at lighter jobs since that time. As to how long I have worked at these other jobs since that time; ‘about fifteen or sixteen weeks altogether.’ During that time I didn’t feel like working; I did not feel like doing anything. I worked at that time because I either had to work or starve. During that time, during the time I worked I was in pain. I suffered pain in through my chest and my throat. I do not feel like I did before I had that accident. I have tried to do the same kind of work I did before I had the accident. I was not able to do the same kind of work that I did before I had the accident. As to what my trouble was: T just wasn’t physically able to do that kind of work.’ My breath was short; I can’t hardly breathe whenever I try to do heavy work or exert myself; I exert myself and I give out of breath, and I have those spells that I told you about with my head and eyes. I still cough up blood once in a while. That happens about once a week, or sometimes twice in a week, or whenever I exert myself at any kind of hard work I have a bad coughing spell and cough up blood. Whenever I exert myself it seems like my stomach turns right over and makes me sick at my stomach, and causes me to vomit. s * ,⅜ As to what the condition of my heart is now: ‘My heart appears to be weak, and every few days, or every day, sometimes two or three times a day, there is a pain shoots through it, and seems like it takes a jumping spell, and flutter's and jumps in there, then stops, then another pain shoots through it.’ As to how often that happens: ‘If I exert myself it happens pretty often, but if I don’t, maybe it will go two or three days without affecting me any.’ ” . _ .

Dr. Cooper testified:

“I have examined Mr; Gannon twice professionally. When I examined liim the first time I went all over him with reference to his ’entire body, and examined his chest well. * * ⅜ i^rom that examination I found a dullness in the left lung, dry rales, and a disturbed heart action. * * s In the condition he was any hard work would be depressing on his heart, and also his lungs. That would undermine his health. * * * I have examined him since that time. If I am not mistaken I examined him either Monday or Tuesday of last week. The best I could determine he was in just about the same condition at that time as he was in January when I examined him. I did not find any special change in his condition either way. As to whether or not I would say the condition I found him in on the two examinations would be permanent; ‘It had been permanent from January until June, there had been no perceptible change in his condition. For him to be put to a task would cause pain in his lungs, and also a pain around his heart, and maybe in his heart.’ * * ,⅜ As to whether I would say he is totally and permanently disabled for oil field work: T would say lie is totally and permanently disabled for that work.’ * * ⅜ As to what effect it would have on him if he had. gone where there wasn’t any gas and had done manual labor: ‘well, we will say he goes two hundred miles or two thousand miles from any gas or goes to digging ditches — the heart was in a weakened condition where it failed to compensate properly — what I mean by that is it is labored for existence, and his lungs inflamed to an extent it was difficult for him-to breathe, and there were dry cells in there, and giving him a great deal of pain when he got a deep breath, naturally we all know that when a man gets'in that condition and try to do manual labor he is knocked out, he cannot work. As to whether or not the effect would be, it would put him where he could not work, he could not'.’ ”

Dr. R. E. Bledsoe, who made an X-ray of appellee’s chest, testified that he formed the opinion from interpreting the X-ray photographs of appellee’s chest that he was suffering from “pulmonary tuberculosis.”

Dr. J. P. French testified that he examined appellee, and that from his examination he formed the opinion' that he was unable to work at that- time; that he considered the condition permanent; that he considered him totally disabled to do hard manual labor, as that of a roustabout in an oil field; and that he considered that condition permanent.

From the above testimony we are of the opinion that the question of whether appel-lee had been totally and permanently disabled by the injury was for the jury, and that the fact that he had done other lighter work and was regularly employed at,the time of trial would not, as a matter of law, preclude him from claiming such total and permanent disability. Ætna Life Ins. Co. v. Bulgier et al. (Tex. Civ. App.) 19 S.W.(2d) 821; Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 297 S. W. 799; Home Life & Accident Co. v. Corsey (Tex. Civ. App.) 216 S.W. 464.

The case of Lumbermen’s Reciprocal Ass’n v. Coody et al. (Tex. Civ. App.) 278 S. W. 856, cited by appellant,- presents quite a different state of facts from those here. There, appellee received a broken arm while employed as foreman, and continued to peri form the services and received his full wages as such during the time for which he claimed compensation. There was no evidence as to reduced earning capacity, while here appel-lee, if his statement and those of the physicians are to be believed, is suffering from tuberculosis, has- a weak heart, coughs up blood, has trouble with his kidneys, • suffers from sleeplessness, and has pains in his lungs and heart whenever he exerts himself.

Dr. French testified that appellee, when he went to him, told him that he was strong and healthy and weighed about one hundred and eighty-five pounds. Appellant contends that its objection to this statement was improperly overruled; it being a narrative statement and hearsay. This contention is sound, but in the case' at bar we fail to see how the admission of the statement in any manner prejudiced the rights of appellant.

The fact that he was in good health before the accident was shown by the character of work he was doing and by the undisputed evidence. That he weighed 185 pounds before the accident was also undisputed. Aside from that, however, there was an abundance of evidence showing extent of the injuries to appellee aside from the fact of his weight before the injury. If there was any error in the admission of the evidence, we think it was harmless.

The same is, in a measure, true as to his statement to Dr. Cooper that he had been gassed. Aside from the notation in the time book as testified .to by the witness Bradley, there1 is no evidence contradicting the testimony of appellee as to being gassed, and that notation merely refutes the claim of appellee that he was cutting down tanks on July llfh. It shows, however, that he was so engaged on the 15th.

The theory upon which appellant appears to have depended in the trial court was that appellee had not been totally and permanently incapacitated, and we fail to see how the introduction of the statement to Dr. Cooper could justify a reversal.

We find no reversible error in the admission of .the testimony of Drs. French and Cooper, because their opinions may have been in part based upon the above statements made to them by appellee.

The trial court permitted plaintiff to propound to Dr. Woodward a hypothetical question which appellant contends was not properly predicated on the facts.

We find it to be true that some of the facts assumed in the question were not established by the evidence, but, on the other hand, appellant’s objection was not sufficiently specific for purposes of review. Schaff v. Shepherd (Tex. Civ. App.) 196 S. W. 232 (writ refused). The objection made to the question was that “the same was not properly predicated on the facts and evidence in the case,” and" nowhere calls the attention of the court to the particulars in which the facts differ from the question.

Appellant propounds to Dr. Wood the following question: “Suppose a man, normally healthy and apparently in good shape, should be subjected to one inhalation of gas sufficiently concentrated to knock him out, to cause him to lose consciousness, to cause him to remain unconscious for a short while, but not so severe as to prevent him continuing on working as a roustabout, without any loss of time, in your opinion would or could such an inhalation of gas cause a permanent injury to that man’s lungs?” The question was objected to, and the objection sustained.

Appellant now contends that, the witness Bradley having testified that appellee performed his duties as a roustabout until August 2d, and that he knew nothing about ap-pellee claiming to have been gassed until after he was discharged, Hinde, who worked with appellee, not having heard of the gassing of appellee, and plaintiff’s own testimony that he stayed on the job the remainder of the day after he was injured, was a sufficient basis upon which to predicate the question.

We cannot agree. The question as propounded placed no limit on the question of loss of time or the length of time appellee continued working as a roustabout. If it had been framed assuming that appellee continued working as a roustabout, without any loss of time, until August 2d, it would certainly have been a proper question, but, as propounded, it assumed that appellee had continued working as a roustabout, without any loss of time, from the date of injury until the time of trial, and such a state of facts was not supported by the evidence. Appellee was not working as a roustabout at the time of trial, and, according to his testimony, which was undisputed, he had worked only 15 or 16 weeks between August 2, 1929, and June, 1930. The evidence was properly excluded.

We have carefully examined the record and considered the questions presented by appellant, and havé concluded that none of them justify a reversal of the judgment. The several assignments are overruled, and the judgment is affirmed.


author: HIGHTOWER, C. J.

text:
    WOMACK, County Treasurer, et al. v. CARSON et al.
    No, 2128.
    Court of Civil Appeals of Texas. Beaumont.
    April 18, 1931.
    Rehearing Denied May 6,1931.
    A. W. Morris, of Conroe, for appellants.
    W. N. Poster, of Conroe, Ed R. Campbell, of Houston, and A. A. Turner, of Conroe, for appellees.
   HIGHTOWER, C. J.

This appeal, which is from an order granting a temporary writ of injunction to the appellees, is based on the following facts: On January 24, 1931, the appellees, A. M. Carson, A. M. Madeley, and J. W. Coleman, as taxpaying citizens of Montgomery county, presented to Hon. S. A. McCall, judge of the Ninth judicial district of Texas, a petition praying for a temporary writ of injunction enjoining Mrs. Ollie Wo-mack, county treasurer of Montgomery county, from paying to O. Etheridge, Leslie Doughtie, U. E. Állen, P. W. Davis, and G. C. Mostyn the amount of certain warrants that had been ordered issued by the commissioners’ court of Montgomery county in their favor, which warrants, it was alleged in the petition, had been presented by the holders thereof to the county treasurer and had been registered by her as valid claims against Montgomery county. It was alleged that all the warrants, the payment of which was sought to be enjoined, were without validity and void, for the reason that they were unauthorized by law, but that nevertheless they would be honored and paid by the county treasurer, unless payment thereof was enjoined, etc. Upon presentation of the petition to him, Hon. S. A. McCall granted the temporary writ of injunction, as prayed for, without notice to the holders of the warrants involved and without a hearing other than the facts stated in the petition for the writ, and from that order this appeal was prosecuted.

The aggregate amount of the warrants issued to Etheridge was §3,218.80, and the aggregate amount of the warrants issued to the other defendants was $6,575. The petition and prayer for the writ shows upon its face that the warrants issued' to Etheridge were for the purpose of compensating him for publishing, under order of the commissioners’ court of Montgomery county, the delinquent tax list of that county (Etheridge being the owner and proprietor and publisher of the Conroe Courier, a newspaper published weekly in Montgomery county), showing all delinquent taxpayers in that county since the last publication of the delinquent list had been made. It was alleged in the petition as grounds for the writ of injunction as against Etheridge that the contract made with him as owner of the Conroe Courier by the commissioners’ court of Montgomery county was unauthorized and void, for the reason that competitive bids for the work had not been asked for by the commissioners’ court, and that, therefore, the contract awarding the work to him by the commissioners’ court was unauthorized and expressly forbidden by article 2868, R. C. S. 1925. Article 2368 provides that no commissioners’ court in this state shall make a contract calling for or requiring the expenditure or payment of $2,007) or more out of any county 'fund or funds of any county or subdivision of any county, without first submitting such proposed contract to competitive bids, with certain exceptions mentioned in. the article. The article also expressly provides that any contract made by the commissioners’ court without compliance therewith shall be null and void and unforceable in any court in-this state.

Now it is the contention of counsel for ap-pellees here that article 2368 governed the contract made by the commissioners’ court of Montgomery county with Etheridge as owner of the Conroe Courier for the publication of the delinquent -tax list of that county. And, if that contention is correct, we would be compelled to hold that the temporary writ of injunction enjoining the county treasurer from paying the warrants issued in favor of Etheridge was properly granted,but, as article 2368 has no application to that contract, then the temporary writ of injunction as against the payment of the Eth-eridge warrants was improperly granted, and should be dissolved.

It is the contention of appellant Etheridge that article 2368 has no application to the contract made by him with the commissioners’ court of Montgomery county for the publication of the delinquent tax list of that county, but that, on the contrary, his contract with the commissioners’ court of Montgomery county and the' work done by him as publisher of the Conroe Courier was and is governed by article 7323, R. C. S. 1925. We sustain this contention of appellant Etheridge, and hold that article 2368 has no application to the contract made with Etheridge by the commissioners’ court of Montgomery county for the work done by him in publishing the delinquent tax list of that county, but that the contract was governed and controlled wholly by article 7323. If, however, we be mistaken in this, still we conclude' that the temporary writ of injunction enjoining the payment of the Etheridge warrants was improperly granted, for the reason that the petition for the writ as against Etheridge shows upon its face that Etheridge complied fully with his part of the contract for the publication of the delinquent tax list of Montgomery county, and that the county received and accepted the full benefit of his work and labor in publishing the delinquent tax list, ■ and it was nowhere alleged in the petition that Etheridge was not entitled, as upon quantum meruit, to the full amount of the warrants that were 'issued in his- favor. This being so, Montgomery county cannot, in good conscience, be permitted.to dispute the claim of Ether-idge for work and labor admittedly performed by him under a contract with its commissioners’ court, though irregularly made.

The rule seems to be well settled in this state that, when a county has received the benefit óf a contract which it had power to make, but which was not legally entered into, it may be compelled to do justice and to pay the consideration, or at least to pay for what it has received under the contract. In such cases it is said the law will imply a contract. City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763; Boydston v. Rockwall County, 86 Tex. 234, 24 S. W. 272; Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291; Sluder v. City of San Antonio (Tex. Com. App.) 2 S.W.(2d) 841, 844; Payne et al. v. Bank (Tex. Com. App.) 291 S. W. 209. The rule was tersely stated in the Sluder Case, supra, as follows: “The rule thus firmly established by the courts of this state rests upon the obligation of a municipality to do justice when it has received money, property, or services of another. Under such circumstances, the plainest principles of justice require that it should not be permitted to receive and retain the benefits of a contract without paying the reasonable value thereof. This principle is, we think, supported by the great weight of authority.” See, also, the very recent case of West Audit Co. v. Yoakum County (Tex. Com. App.) 35 S.W.(2d) 404.

Therefore, since it is made clearly to appear from the petition for the writ of injunction in this case as against Etheridge that the contract made with Him for the publication of the delinquent tax list was one that the county was authorized, through its commissioners’ court, to make, and since the petition clearly shows that the contract was fully complied with by Etheridge, and that Montgomery county received and got the benefit of the work done by Etheridge called for by the contract, and since it does not appear from the. petition that the amount awarded Etheridge for the work was unreasonable or that he was not entitled to the amount of the warrants as upon quantum meruit, the writ of injunction ought not to have been granted as against Etheridge, and to that extent the order of the district judge must be reversed, and the writ of injunction dissolved.

The warrants held by the appellees Dough-tie, Allen, Davis, and Mostyn were issued to them as “back salary” payments as members of the commissioners’ court of Montgomery county, two of them having gone out of office and two of them remaining in office at the time the temporary writ of injunction in this case was sought. These warrants were issued by the county clerk of Montgomery county, acting under orders of the commissioners’ court of the county, and by the holders thereof were presented to the county treasurer of the county, and were duly registered by that officer. The orders of the commissioners’ court authorizing these ‘‘back salary” payments show upon their face that the commissioners’ court, in ordering these “back salary” payments, were acting, and claiming authority to act, under article 2350b, R. O. S. 1925.

It is the contention of counsel for ap-pellees that article 2350b is invalid and affords no authority to the commissioners’ court of Montgomery county to order the payment of these claimed back salaries, and that, therefore, these warrants were null and void, and their payment was properly temporarily enjoined in this cause. It is contended by counsel for appellees that this act was and is void because it is a local or special law passed in violation of section 56, article 3, of the Constitution of Texas, and because it attempts to regulate the affairs of counties.' Article 2350b provides as follows:

“Each county commissioner in counties having a population of not less than 17,000 according to the United States census of 1920, and which have an area of not less than 1060 square miles, nor more than 1200 square miles and which have assessed property valuations of not less than $10,000,000 and which do not contain a town or city of 7,500 population or more, may receive a salary of eighteen hundred ($1,800.00) dollars per an-num, payable in twelve equal monthly installments, as compensation for their services rendered, of whatever nature, either in connection with the roads of the county, or in connection with other county business. The amount of salary to be received by commissioners in counties classed as herein set out, shall be fixed by an order of the commissioners’ court passed at a regular term of such court, and entered upon its minutes; provided that nothing herein shall effect or-apply to the countj.es of Grimes, Houston, Leon, Madison, Montgomery, Polk, San Ja-cinto, Trinity and Walker in said State.”

A mere reading of this article discloses at once that a classification of the counties of this state is made based upon population, area, and assessed property valuation. The article then provides that the act shall not affect or apply to a certain group of nine counties, including the county of Montgomery (all these counties being within the fifth senatorial district).

It is the contention of learned counsel for appellants that Montgomery county, according to the act, falls within the classification prescribed by the act, but that the provision eliminating that county from its terms is invalid, and that therefore the body of the act is applicable to Montgomery county and the other counties named in the exception. To this counsel for appellees make the broad counter proposition that the entire act is void because the Legislature had no power to enact a local and special law, which they say this statute is, and that, when the Legislature created a class and decreed regulations for the counties embraced in that class, and then excluded by-name countjes embraced within the classification, the result was the enactment of a local or special law, and that therefore the Legislature, in attempting to exclude Montgomery county and the other counties from the operation of the act, rendered invalid the entire act, and not merely the portion of the act covered by the pro? viso. With this contention and counter proposition we agree. We cannot escape the conclusion that this act was what is usually called, in legal parlance, special or local legislation, and no other authority is needed to sustain this counter proposition than the case of Hall v. Bell County (Tex. Civ. App.) 138 S. W. 178. The opinion in that case was written by the lamented Judge Key of the Austin Court of Civil Appeals, with great care after much investigation, and his opinion was expressly approved by our Supreme Court, speaking through Chief Justice Phillips, in Bell County v. Hall, 105 Tex. 558, 153 S. W. 121.

It is true that the controversy in the Hall-Bell County Case arose over a different state of facts, but the reasoning underlying the conclusion reached in that ease is applicable and controlling in this case. Therefore we have concluded that the temporary writ. of injunction in this case was properly granted in so far as it enjoined the payment of the warrants, or any of them, held by the appellants other than the appellant Ethe-ridge. In other words, we hold that the “back salary” warrants issued in favor of appellants other than Etheridge by order of the commissioners’ court of Montgomery county, under authority of article 2350b, R. S. 1025, were issued without authority of any valid law, and that therefore the holders thereof are not entitled to collect them out of the funds of Montgomery county,- and we therefore affirm the order of Hon. S. A. McCall granting the temporary writ of injunction in so far as it enjoins the payment of these so-called back salary warrants, and upon final hearing of tjiat part of the case the trial court will be governed by these views.

There is no necessity, nor would any useful purpose be served, by discussion of any other point presented on this appeal, and we therefore decline to carry this opinion to greater length.

The order and judgment appealed from is in part reversed, as before stated, and the temporary writ of injunction in that connection dissolved and set aside, and in part the order is affirmed, as just indicated.


author: HALL, C. J.

text:
    COFFEE, County Judge, et al. v. BORGER STATE BANK.
    No. 3638.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1931.
    Rehearing Denied May 6, 1931.
    Madden, Adkins, Pipkin & Keffer, of Amarillo, for appellants.
    Works & Bassett, of Amarillo, for appellee.
   HALL, C. J.

Appellee bank filed this suit against the county judge and county commissioners of Hutchinson county, and by amended petition made the Panhandle Bank of Carson county a defendant.

The plaintiff bank alleged: That the commissioners’ court of Hutchinson county, having previously issued the notice required by R. S. art. 2544, over the name of the county judge, at the February term of the commissioners’ court received sealed bids from the plaintiff bank, the First State Bank of Stin-nett in Hutchinson county, and the Panhandle Bank of the town of Panhandle, in Carson county, with the view of selecting a depository fo-r the county funds, under title 47, chapter 2, Y. A. T. S. arts. 2544^-2558, inclusive. That on February 9, 1931, the court opened the sealed bids and caused them to be entered upon the minutes of the court. That the plaintiff’s bid was a proposition to pay 2% percent. upon the daily balance of such funds. That the First State Bank of Stinnett proposed to pay 2.½ per cent, on such balances, and that the Panhandle Bank proposed to pay 3, per cent. That on said day the court entered an ■ order reciting that each of the three hanks had filed sealed bids which had been ordered placed upon the minutes of the court. That on motion of Commissioner Kirk, seconded by Commissioner Lasater, the court voted to reject the bids filed by the plaintiff, the Borger State Bank, and by the First State Bank of Stinnett, and to accept the bid of the Panhandle Bank of Panhandle, Tex., it having offered 3 per cent, interest upon the daily balance and that being the highest best bid offered. The prayer of the original petition is for a temporary injunction restraining the commissioners’ court from approving the bond of the Panhandle Bank as such depository and from naming and designating said bank as a depository of the county funds during the term, and that “such' order, however, to in no wise interfere with the acting of said Panhandle Bank as such depository under its former designation as such county depository and the payment 'of interest as provided in its former designation as such county depository for a prior term and until its successor is regularly and legally named.”

Plaintiff further prays that the temporary injunction be made perpetual upon a final hearing; that a writ of mandamus issue requiring and commanding, the commissioners’ court to accept xfiaintiff’s bid and proposal and designate it as such county depository during said term,'etc.

On the 14th day of February, the district judge ordered the issuance of a temporary restraining order as prayed for in the petition upon the filing by petitioner of a bond in the sum of $5,000, and set the matter for hearing on February 18th. Thereafter the court entered its judgment reciting the prior issuance of a temporary restraining order, and proceeds as follows: “And the Court, after hearing the argument of counsel, took said matter under advisement and at a later date, on the 9th day of March, A. D. 1931, did an-nounc'e that the Court was of the opinion that the law was with the plaintiff and that the plaintiff is entitled to the injunction prayed for on the state of the pleadings and exhibits, there being no oral evidence adduced.” The issuance of the temporary writ is ordered, restraining the county judge and commissioners’ court from approving the bond tendered by the Panhandle Bank pending the further orders of the court and during the pendency of the case. “That said writ of injunction shall not in any wise interfere with the acting of said defendant Panhandle Bank as such county depository under its former designation until its successor is regularly and legally named.”

From this order the county judge and county commissioners have appealed, naming the Borger Bank obligee in the bond.

V. A. T. S. art. 2544, provides that the commissioners’ court of each county is authorized and required at the February term next following each general election to receive proposals from any banking corporation, association, or individual banker in such county that may desire to be selected as the depository of the funds of such county, and further provides for the issuance and publication of i otice that bids will be received. It is conceded that this article of the statute has been complied with.

Article 2546 provides that it shall be the duty of the commissioners’ court at 10 o’clock a. m., on the 1st day of each term at which bids are required to be received, to publicly open such bids and cause each bid to be entered upon the minutes of the court and to select as a depository of all funds of the county the banking corporation, association, or individual banker offering to pay the largest rate of interest per annum for such funds, and that the commissioners’' court may reject any and all bids.

It is provided by article 2550: “If for any reason there shall be submitted no proposals by any banking corporation, association or individual banker to act as county depository, or in case no bid for the entire amount of the county funds shall be made, or in case all pro-pobals made shall be declined, then in any such case .the commissioners court shall have the power, and it shall be their duty, to deposit the funds of the county with any one. or more banking corporation, association or individual banker, in the county or in adjoining counties in such amounts and for such periods as may be deemed advisable by the court, and at such rate of interest, not less than one and one-half per cent, per annum, as may be agreed upon by the court and the banker or banking concern receiving the deposit.”

Numerous propositions and counter propositions are urged here, which cannot be properly considered upon an appeal from an order of the .trial court made with reference to a temporary injunction. To dispose of these various contentions would, in effect, decide the material issues in the case.

As said in James v. E. Weinstein & Sons (Tex. Com. App.) 12 S.W.(2d) 959, 960:

“The law is well settled in this state that the purpose of the issuance of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under ,the cause of action asserted or defenses urged. Stolte v. Karren (Tex. Civ. App.) 191 S.W. 600; Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 [26 A. L. R. 1210]; City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816; Lane v. Jones (Tex. Civ. App.) 167 S.W. 177; Galveston & W. R. Ry. Co. v. City of Galveston (Tex. Civ. Ápp.) 137 S.W. 724; 22 Cyc. 740; Joyce, on Injunction, § 109.
“If the effect of the granting- of a temporary injunction does more than preserve the status of the property as it had theretofore existed, and accomplishes the whole object of the suit, it would be improper for the court to grant same, as the legitimate purpose of the temporary injunction is merely to preserve the. existing condition until a final hearing can he had on the merits. The court is without authority to divest a party of property rights without a trial and any attempt to do so is void.”

The record shows that, at the time the temporary injunction was ordered, the funds •of the county were being held by the Panhandle Bank under appointment duly made, and that its liability for the funds was created by law for sixty days thereafter, so it appears from the record that, according to the status quo at the time the writ was granted, the funds of the county were being held by a .duly appointed depository. The plaintiff does not question the solvency of the depository then holding the funds nor allege any reason why the Panhandle Bank should be dispossessed. On the contrary, in the prayer above quoted, it requests that the order should in no wise interfere with the acting of the Panhandle Bank as depository under its former designation. Since they do not question the right of the Panhandle Bank to hold the funds under its former designation at the time the -writ was granted, no reason appears for ordering a temporary injunction restraining the commissioners’ court from approving a bond to secure the county under an appointment for another term. Instead of preserving the status quo of the subject-matter of the suit, the effect of the injunction would be to unsettle it.

The commissioners’ court ' had the right to reject all bids, and the plaintiff’s bid was rejected, together with that of -the Stin-nett Bank. The fact that the commissioners’ court received all of the bids and opened and recorded them at the same time in no way affects the rights of the parties. And the further fact that the order rejecting the bids filed by the banks of Hutchinson county also accepts the l)id of the Panhandle Bank is of no consequence whatever.

Article 2550, in clear and explicit language, gives the commissioners’ court authority to reject all bids, whether the bidders reside in or out of the county, and further clearly provides that, if for any reason all proposals made shall be declined, then the court shall have the power to select a depository either in the home county or in an adjoining county. The appellee contends that under article 2558 the commissioners’ court was required, after" having declined the bids filed by the two county banks, to then advertise for bidders from adjoining counties. The matter of selecting depositories for county funds is a special proceeding, and the method of doing so is prescribed by statute, and article 2558, which provides, “If there be no bank. situated within the county that seeks to select a county depository, then the commissioners court shall advertise fot bids in the adjoining counties,” clearly has no application to the case before us, because two banks within the county did file bids and no evidence was introduced to show that the commissioners’ court, in rejecting the bids of the two county banks, had abused its discretion. The allegations of the defendants’ answer were sufficient to swear away the equities of the bill with reference to this phase of the case.

For the reasons stated, the order granting the temporary injunction is reversed, and the injunction is dissolved.


author: RANDOLPH, J.

text:
    S. H. KRESS & CO. v. STEWART et ux.
    No. 3584.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1931.
    Rehearing Denied April 29, 1931.

      Boyd Porter, Jr., of Port Worth, and Bun-nenberg & Nelson, of Wichita Palls, for appellant.
    Carrigan, King & Surles, of Wichita Palls, for appellees.
   RANDOLPH, J.

Stewart and wife sued appellant for injuries sustained by Mrs. Stewart as the result of a fall off of a step as she was leaving appellant’s restroom shortly after she had entered same.

The appellees in their petition alleged negligence on the part of appellant in the following particulars: (1) That the restroom and the door thereto were negligently and carelessly constructed so that there was an eight-inch drop immediately in front of the door; (2) that appellant negligently allowed and permitted the door to remain in this position with this eight-inch drop immediately in front of it, with full knowledge of the situation for something like twenty years or mofe; (3) that the appellant was guilty of negligence in failing to furnish sufficient light in the hallway leading to the restroom and particularly with reference to the vicinity of the step just outside the door thereof, to enable Mrs. Stewart to see the danger created thereby and to avoid the injury she suffered; (4) that appellant was negligent in failing to have a light in said restroom when the store was open and customers were visiting the store so that customers on entering the restroom could see and observe the step up upon entering; (5) that appellant was guilty of negligence, since it had constructed the restroom with a drop in front of the door and with the walls so constructed as to partially cut off the light, not warning Mrs. Stewart by sign or otherwise either at the time she entered or left the restroom, with reference to the presence of the drop at the door of said room.

The appellant by its answer pleaded that Mrs. Stewart was a trespasser, and, if not a trespasser, was a licensee upon appellant’s premises; that the step or change of level complained of was the usual, customary, and ordinary manner of construction of the approach to all restrooms and toilets above the first floor, so that the plumbing might be placed beneath such step without weakening the strength of the floor and ceiling on which it is situated; that the step extended some six inches beyond the facing of the door to the restroom, which swings inward, so that the person leaving such restroom must pause a distance of at least two and one-half feet or three feet from the step in order to pass out of the restroom, and in traversing such distance the step is fully exposed to the view of. such person leaving such restroom; that such step is well lighted and visible both from within the restroom and passageway leading to same; that in entering the restroom the injured appellee became aware of and cognizant of the step or should have become aware of and cognizant of the step; that the injuries sustained by Mrs. Stewart were brought about by her own carelessness and negligence in failing to observe the step and in forgetting to take the step into consideration upon leaving the room and in failing to pause a moment to observe the existence of the step and to accustom her vision to her surroundings before leaving the restroom; that any injuries she may have suffered were caused and brought about through her'carelessness and negligence in failing to be properly observant and careful and to keep a proper lookout both at the time she was entering the restroom and in leaving the same; that any injuries she may have sustained were in consequence of her own negligence in failing to observe the construction about and around the restroom and in failing to ascertain the existence of such step; that such acts of negligence were concurred in and contributed to Mrs. Stewart’s injuries and was contributory negligence; also pleads assumed risk and estoppel.

The court submitted all issues of negligence to the jury covering the charges set out in appellees’ petition and also submitted the issue of contributory negligence, and the jury answered each issue unfavorably to the appellant. No complaint is made as to the charge of the court, except that under the evidence the trial court should have instructed a verdict for the appellant upon the theory-that the evidence showed that Mrs. Stewart was guilty of contributory negligence and was thereby estopped from recovering for her injuries.

We find that there is evidence supporting the verdict of the jury in answer to the issues submitted.

Mrs. Stewart entered the appellant’s store, and, -on inquiry for the location of the restroom, was directed upstairs where it was situated. She and her daughter entered the restroom. The floor of the restroom was approximately eight inches above the hall floor through which hall they had proceeded to the restroom. The daughter assisted Mrs. Stewart in entering the restroom, and Mrs. Stewart testified that for that reason she never noticed the step up when she entered it. On going out of the restroom she fell and broke her foot. As is usual in cases where negligence is charged, the evidence was sharply conflicting. Mrs. Stewart and her witnesses testified as to the approach through a small hallway to the restroom; that it was insufficiently lighted; that it was so dark as to interfere with their seeing the step up; that the light at the head of the stairway was not burning; that the switch to the light inside the restroom was broken and was not burning; that this switch had been broken for some time.

It can serve no> useful purpose to quote the testimony further, as the jury determined the fact issues in favor of appellees, and we have no authority to disturb the findings based on the evidence. There being evidence to support the verdict, we cannot hold, as a matter of law, that Mrs. Stewart was guilty of contributory negligence and is thereby es-topped from a recovery. Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63; Paternostro v. Bradley (Tex. Civ. App.) 262 S. W. 896; Hillsboro v. Jackson, 18 Tex. Civ. App. 325, 44 S. W. 1010; Lancaster v. Browder (Tex. Civ. App.) 243 S.W. 625.

Where the jury has evidence before it, even though strongly contested, we cannot set aside the verdict or ignore it, and the trial court could not direct a verdict for the appellant. Westchester Fire Ins. Co. v. Biggs (Tex. Civ. App.) 216 S. W. 274; Hoot v. Walker County Lbr. Co. (Tex. Civ. App.) 219 S. W. 544; Grice v. Herrick Hdwe. Co. (Tex. Civ. App.) 219. S. W. 502; O’Fiel v. Janes (Tex. Civ. App.) 220 S. W. 371, writ denied.

This holding applies also to the trial court’s findings of facts. Wilson v. Dickson (Tex. Com. App.) 35 S.W.(2d) 701, 704.

We therefore affirm the judgment of the trial court.


author: BARCUS, J.

text:
    TEXAS MUT. LIFE INS. ASS’N v. WALLACE.
    No. 1049.
    Court of Civil Appeals of Texas. Waco.
    April 9, 1931.
    Richey & Sheehy, of Waco, for appellant. Tirey & Tirey, of Waco, for appellee.
   BARCUS, J.

Appellant is a mutual life insurance association writing life insurance on the mutual assessment as needed plan. On December 13, 1928, appellant issued R. F. Wallace a certificate of life insurance .payable to his wife, Lola Wallace, appellee herein. The policy provided that appellant would pay to said beneficiary $5 collected from each member in his class, not to exceed $2,500, plus all death assessments that had been paid by R. F. Wallace; it provides that R. F. Wallace was to pay $5.50 upon being notified of the death of any member in his class; and that if he failed to pay any assessment within ten days after being notified thereof, the policy automatically lapsed, but that same could be reinstated by his furnishing satisfactory evidences of good health within ninety days” thereafter and. the payment of all past due assessments. It provides that only the president and secretary could modify the contract or extend the time for payment of any assessment. On November 12, 1929, a death assessment was levied which Mr. Wallace failed to pay within the ten days period. On December 3, 1929, the president of appellant wrote Mr. Wallace and told him his policy had lapsed by reason of failure to pay the assessment, and stated: “If you are now in good health * * * and will sign this reinstatement blank and let us have your check for $5.50 * * * and if you are physically fit, we will then replace your name with our insured. * * * Your check for $5.50 will place your policy in force.” The application blank was attached to said letter, and it asked Mr. Wallace if he was in good health, which he answered, “Yes”; if he had been treated by a physician since the policy was issued, which he answered, “No”; if he had had any disease since the policy was issued, which he answered, “None.” Mr. Wallace filled out and returned said application, together with his check far $5.50, to appellant on December 5, 1929. He failed, however, to sign the reinstatement application and same was promptly returned to him by the president of appellant, with the request that he sign it and return same as early as possible. The reinstatement application was then signed by Mr. Wallace and returned to and received by appellant on December 12th. Appellant then cashed the check for $5.50 which Mr. Wallace had sent on December 5th. On January 6th Mr. Wallace died suddenly while at his place of business. He was, up to said time, in good physical condition, and no question was raised about his being in sound health at the time he signed the application for reinstatement in December and paid the $5.50 requested.

Appellant refused to pay the policy solely because it had lapsed by reason of the failure of Mr. Wallace to pay the death assessment call made on November 12th.

Appellee contends that appellant, through its president, specifically agreed to reinstate the policy upon the payment of the $5.50. She further contends that appellant, by its actions, waived the contract period of ten days for the payment of said assessment and is estopped from claiming the forfeiture by reason of same not having been paid within the ten day period.

The constitution and by-laws of appellant was made a part of the policy. There is nothing, however, contained therein which in any way prevented the president of the company from reinstating any member who had permitted his insurance certificate to be forfeited by failing to pay any assessment. Under the by-laws, as well as the terms of the certificate, any member could be reinstated by making application therefor and paying the past due assessments. In the letter written by the president of appellant on December 3d above quoted, he specifically told Mr. Wallace that if he would send the $5.50 and sign the reinstatement application, his policy would be in full force, provided he was in good health. The only proof of good health requested of Mr. Wallace was for him to answer the questions asked in the application for reinstatement. He did sign and return the application for reinstatement in which he stated that he was in good health and had been since the policy was issued and that he had not been treated by any physician. Appellant does not question the truthfulness of said statements. Unquestionably the president of appellant-had the right to waive the time of payment of the assessments and could accept same after they became due and could reinstate the policy upon such terms and conditions as he deemed wise and proper. While the by-laws provide that the board of directors may consider the application for reinstatement by any member upon his paying one assessment of $5.50, there is nothing either in the by-laws or the certificate which in any way prevents the president of the company from-reinstating any member who may have forfeited his certificate by failing to pay an assessment. It seems to be the well-settled law that the president of an insurance company can waive the forfeiture of an insurance policy for failure of the insured to pay the premium promptly. Equitable Life Assurance Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625. Under the contract sued on in this case, it is specifically provided that tRe president has the power to modify the insurance contract or extend the time of payment of any assessment. Clearly the letter written by the president of appellant to Mr. Wallace on December 3d was a waiver on the part of appellant for the failure of Mr. Wallace to pay the death assessment called for on November 12th. It is plain and unambiguous and states .positively that if Mr. Wallace is in good health and will pay $5.50 and sign the reinstatement application, appellant would replace his name with its insured and his policy would be in full force. Mr. Wallace having been, at said time, in good health and having signed the application and having paid the $5.50 called for and same having been accepted by appellant and retained by it until after the death of Mr. Wallace, his insurance certificate automatically became in full force and effect. After Mr. Wallace died, appellant tendered to appellee the $5.50 which Mr. Wallace paid in December, and same was refused by appellee.

The cause was tried to the court, and the testimony abundantly supports the judgment for appellee as rendered by the trial court.

The judgment of the trial court is affirmed.


author: LATTIMORE, J. HAWKINS, J.

text:
    RATCLIFF v. STATE.
    No. 14008.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Rehearing Denied May 6, 1931.
    >J. N. Snell and W. H. Hanson, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for swindling; punishment, two years in the penitentiary.

It is alleged in the indictment that appellant falsely pretended and represented to Boyce McDowe and Mrs. Clem McDowe that he (appellant) had talked to the district attorney of Smith county, Tex., with reference to a case pending in the district court of said county against Clem McDowe charging him with a felony, and that he could settle said case and secure dismissal of same for the sum of $150, of which $50 would have to be paid in cash; and thereby induced said parties to deliver to him $50 in money, and to part with title to same, etc., when in fact he had not talked to said district attorney about said case, and well knew that he could not settle said case or secure dismissal thereof; and further' that said parties relied on and believed said false pretenses and representations, and were thereby induced to part with their said money, and that they did deliver same to appellant. We think this charges the offense of swindling. That a part of the false representations in such case be a promise as to some future matter will not affect the case if jn connection therewith it appear that the accused made false representations as to some existing fact without which the party or parties would not have parted with the property. Boscow v. State, 33 Tex. Cr. R. 390, 26 S. W. 625; Blum v. State, 20 Tex. App. 578, 54 Am. Rep. 530; McEarland v. State, 45 Tex. Cr. R. 248, 75 S. W. 788; Underwood v. State, 49 Tex. Cr. R. 285, 91 S. W. 572; Lovell v. State, 48 Tex. Cr. R. 85, 86 S. W. 758, 13 Ann. Cas. 561. The description of the property obtained by the appellant from said parties as $50 in money was sufficient. We do not think it necessary to allege in the indictment the specific interest had by the injured parties in the party charged in the case pending in the district court of Smith county. The state does not have to plead its evidence. In our opinion, the indictment was sufficient.

That $30 of the money obtained by appellant belonged to Mrs. McDowe, was paid to appellant, and was money in which Boyce McDowe had no interest, also that a like situation existed, only reversed, as to the $20 paid appellant by Boyce McDowe, would in nowise affect the question of appellant’s guilt, and the special charge seeking an instructed verdict of acquittal in case the jury believed the above state of facts to exist was properly refused. Nothing is better settled in this state than that the taking of property from different owners at the same time and place constitutes but one offense. Wilson v. State, 45 Tex. 81, 23 Am. Rep. 602; Hudson v. State, 9 Tex. App. 151, 35 Am. Rep. 732; Hirshfield v. State, 11 Tex. App. 216; Adams v. State, 16 Tex. App. 171; Shubert v. State, 21 Tex. App. 551, 2 S. W. 883; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Davidson v. State, 40 Tex. Cr. R. 285, 49 S. W. 372, 50 S. W. 365. The Wilson Case, supra, is well reasoned and supported by citation of authorities. A quotation therein appears from an opinion of the Supreme Court of Missouri (Larton v. State, 7 Mo. 55, 37 Am. Dec. 179) as follows: “The stealing of several articles of property at the same time and place undoubtedly constitutes hut one offense against the laws; and the circumstance of several ownerships cannot increase or mitigate the nature of the offense.”

We are in accord with the proposition thus stated, and believe that, when one takes from different ownerships, at the same time and place, a number of articles — those taken from no one owner being of value sufficient, if alone charged, to make the offense a felony— the accused has no just ground of complaint if the indictment charge him with taking at the named time and place the certain described property of A, B, C, and D of the aggregate value of a sum more than $50 from the possession of A, B, C, and D, without the consent of said parties, or either of them, and with intent to appropriate same, etc.; or, if the pleader prefers, the indictment may charge the accused with taking at one time and place from A certain described property' of the value of $-, and charge that at the same time and place said party did take from the possession of B certain described property of the value, etc., and also that at the same time and place said accused did take from O certain described property, and it appear from the averments of the indictment that all the property thus taken was of the aggregate value of more than $50 — in either case a felony would be sufficiently charged.

In other words, in a case where at the same time and place under the authorities such taking would be one transaction, and hence one offense, the accused has no right to demand that the state class the taking as less than felonious simply because the value of the property taken from each of the several owners be less than that necessary to class the taking as a felony. Under all our authorities, where a party takes property from, one owner or many, at the same time and place, this constitutes but one offense, and, if the aggregate value of the property then taken be more than $50, what rhyme .or reason in not trying the taker for the whole offense thus committed? Why are we compelled to favor or please the accused by carving out of the transaction a misdemeanor, convicting or acquitting him of this, and then uphold pleas of former conviction or acquittal as to the taking of the property of other parties at such time and place? We think the state has the right to try the accused for what he did, and, if at the same time and place he took property belonging to different owners, the state has the right to indict him therefor, and to allege that he took the property of said different owners at such time and place, and to ask and secure his conviction for a felony, if the aggregate value of the property amounts to $50.

We have found no ease in point in this state, but People v. Johnson, 81 Mich. 573, 45 N. W. 1119, and Shouse v. Com., 5 Pa. 83, support our view as expressed. Mr. Bishop in section 888 of his work on Crim. Law, vol. 2 (9th Ed.) p. 673, says: “The thief ordinarily does not care, and often'he' does not know, whose are the things he is taking. And though the indictment is required to set out the ownership, the purpose is simply to identify the articles. So that the State, empowered by law to elect in what form it will accuse a wrongdoer, can put all of one theft into a single count, or a part thereof, as it chooses. Still, where many articles are stolen at one time, there is only one theft, whether the ownership is in one person or many. And after the thief has been in jeopardy for any part of the one larceny, the prosecution is exhausted, and he cannot be indicted for anything the State chose to omit.”

It must be conceded that the state is the party to the prosecution which has the right to elect whether it will carve or not, and certainly it may elect not to carve but to prosecute and punish for the crime actually committed ; and, though a given transaction may be divisible, yet the right to treat it as a whole or to carve same is one belonging only to the state and not to the accused.

We think it not error to decline to give either the charge just referred to or another asking that the jury be instructed to acquit, unless they found that the property taken was the joint property of Mrs. McDowe and Boyce McDowe.

Believing the evidence sufficient to support the verdict, and that no error appears in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant again urges in his motion for rehearing the points presented on original sub. mission, and which were considered in our original opinion. The questions-being of first impression in this state, they had our very careful attention, and the conclusions were not announced until after mature deliberation and a number of consultations regarding them. The points are clearly set out and discussed in our former opinion, and it would serve no good purpose to engage in a repetition, which would be the only result of a further discussion.

Believing we reached the correct disposition of the case originally, appellant’s motion for rehearing is overruled.


text:
    FINLEY v. STATE.
    No. 13388.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Rehearing Denied May 13, 1931.
    Carney & Carney, of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishment, two years in the penitentiary.

Noticing the contentions of appellant as same appear in the brief filed in his behalf, it is our opinion that bills of exception Nos. 1 and 2 complaining of a statement made by •witness Ourtright present no reversible error. It is set up that Mr. Ourtright volunteered the statement that appellant was “a notorious negro among the negroes.” Both •bills carry a similar qualification, affirming that' this statement of the witness was in line and accord with testimony being elicited by appellant on cross-examination of state witnesses concerning the character and reputation of the defendant. Aside from this qualification of the court, we do not attach the importance to the statement which is attributed to it by appellant’s counsel in his brief. The word “notorious” appears to have •the meaning of generally known and talked of by the public; universally believed to be true; evident. Words that are synonyms are remarkable; conspicuous; celebrated; noted, etc. While it is suggested that the word is usually used in an unfavorable sense, we are not inclined to think its use in this instance susceptible to any particular harm to the accused.

Appellant’s bill of exception No. 3 seems to present no error, and is not briefed. The complaint appearing in bills of exception Nos. 5 and 6 is of the failure and refusal of the court to define and submit to the jury in his charge malice aforethought. In the recent case of Paul King v. State, 36 S.W.(2d) 490, handed down on February 25, 1931, this court by majority opinion laid down the rule as applicable at this time that it is not necessary, in cases of assault to murder, to define or submit the law of malice aforethought in the charge unless it is used in the indictment. The matter is analyzed and discussed at length in said opinion, and we pretermit further discussion here.

Appellant excepted generally to the court’s charge on principals as being on the weight of the evidence. In his brief he advances the suggestion that, where the state relies upon evidence showing an acting together of the accused with two parties, the charge of the court on principals which singles out one of said parties is on the weight of the evidence. We are not in accord with this contention; The evidence shows, from the state’s standpoint, an acting together both in the beginning of the difficulty and throughout on the part of appellant with Willie Austin. It appears to be true that, while the actual affray was in progress, Willie Austin’s father came up and struck the injured party several blows with a stick. This, however, would not militate against the correctness of a charge submitting appellant’s guilt as a principal upon the theory that he acted together with Willie Austin only. It occurs to us that, if there be any defect in this charge, same would appear to be favorable to the appellant. We are unable to perceive how it could have injured him.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have re-examined the statement of facts having in mind appellant’s renewed contentions: First, that the evidence does not justify a conviction for assault with intent to murder; and, second, that we were' in error in holding not reversible the sheriff’s statement that appellant was “a notorious negro among the negroes.”

As to the first proposition, we would not feel justified in setting aside the jury’s verdict. Even if we entertained some doubt regarding the conclusion reached by them, we> would not be authorized to substitute that doubt for a positive finding of the jury which has support in the evidence.

Regarding the second proposition, appellant himself testified that he had “been in trouble lots before, but not in any serious trouble.” Another witness testified that appellant’s general reputation was that he “wants to fuss and scrap”; and another said' appellant’s reputation was not good regarding “fighting and fussing and paying fines.” Still another witness, after having testified that appellant’s reputation as a peaceable citizen was bad, answered upon cross-examination by appellant’s counsel that “all I ever heard was his scrapes among the negroes, he never gave the white people any trouble.” Appellant’s counsel elicited from another witness on cross-examination regarding appellant’s reputation that “he never did do anything serious, but always give trouble among the negroes.” In view of the evidence referred to, we cannot regard the objectionable statement of the sheriff as sufficiently serious to predicate a reversal upon.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    FITZGERALD v. STATE.
    No. 14123.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Rehearing Denied May 13, 1931.
    J. W. Culwell, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for five years.

A house belonging to G. W. Sosebee was entered by breaking. The owner had a lamp and rug in the house. According to the testimony of the state, this property was found in the possession of appellant. An accomplice witness by the name of Churchill testified that he and appellant burglarized the house and took the rug and lamp therefrom. It was appellant’s theory, given support in the testimony of his witnesses, that he bought the property claimed by the injured party. Appellant did not testify in his own behalf.

The witness Churchill had been convicted of a felony subsequent to the taking effect of ■ chapter 13, § 1, Acts of the Thirty-Ninth Legislature (1926) First Called Session (Vernon’s Ann. C. C. P. art. 708). ■ He had been incarcerated in the penitentiary, but ’ had subsequently escaped. At the time of the trial he had been recaptured and placed in jail awaiting his return to the penitentiary. The ¡transaction out of which the prosecution against appellant grew had not been committed on a prison farm owned by the state Or of which it was lessee; it had not been committed in any jail in the state, or on any railroad, train, or highway along which prisoners were being transported under guard. The witness Churchill had not been pardoned at the time he was called to testify against appellant. Appellant sought to disqualify the witness on the ground that he was incompetent under the terms of the act of the Legislature to which reference has been made. We quote the pertinent part of the act as follows:

“All persons who have been or may be convicted of a felony in the State, and who are confined in the penitentiary or any jail in this State shall be permitted to testify in person in any court for the State and the defendant as to any offense committed on a prison farm owned by the State or of which it is lessee, or in any jail in the State, or on any railroad, train or'highway along which prisoners are being transported under guard, and in all ■such cases compulsory process may issue for the attendance of all such witnesses when directed by the presiding judge, when, in his opinion, the ends of justice require their attendance.
“Providing further that the defendant may take the depositions of any such witnesses in the manner and form as in civil cases provided by law, and when so taken shall be admitted in evidence. Provided that the provisions of this Act shall apply only when the offense is committed on a prison farm owned by the State, or of which it is a lessee; or is committed in one of the prisons of the State; or, where it is committed on a railroad train; or a public highway along which prisoners are being transported under guard; or is committed in some jail.”

Prior to the taking effect of the Acts of 1925, page 145, c. 27, the statute provided that all persons convicted of a felony were incompetent to testify in criminal actions unless the conviction had been legally set aside, or unless the convict had been legally pardoned for' the crime of which he had been convicted. Article 788, Vernon’s Code of Criminal Procedure, Annotated, 1916. It was provided in the acts of 1925 that persons convicted of felony and confined in the penitentiary could not testify' in person in any court for the state or for the defendant. It was further provided that the defendant could take the deposition of such convict as in other criminal cases. Construing the act last referred to, this court held in Alexander v. State, 103 Tex. Cr. R. 620, 281 S. W. 852, and in Brunett v. State, 26 S.W.(2d) 208, that an unpardóned'Sohvict had the same right to testify as a pardoned one, provided he was not incarcerated in the penitentiary at the time of the trial. In Brunett’s Case, in referring to the Acts'of the Thirty-Ninth Legislature, First Called Session, chapter 13, this court said that ,the language of said act was not clear.

Article 708, C. C. P., as amended (Vernon’s Ann. C. C. P. art. 70S), provides that “all persons are competent -to testify in criminal cases except the following.” Two exceptions are set forth, namely, insane persons and children, when shown to be comprehended by the terms of the exceptions. Persons convicted of a felony are not expressly excepted. If it be said that the language of the Legislature, in giving expression to the conditions under which a convict confined in jail or in the penitentiary shall be permitted to testify in open court, is a negation or an exclusion of the competency of such convict as a witness in all other eases, then the act is of doubtful constitutionality. When the statute annexes the loss of civil rights, or certain disabilities to the conviction of a crime, and a conviction of that crime thereafter occurs, the disabilities become welded to the crime by force of the operation of law. In such event the forfeitures and disabilities arising can only be set aside or removed by the action of the Governor, in whom, under our Constitution, alone rests the pardoning power. Underwood v. State, 111 Tex. Cr. R. 124, 12 S. W.(2d) 206, 63 A. L. R. 978; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218. If the language of the statute in question means that persons convicted of felony are competent as witnesses generally unless they are confined in the penitentiary or in jail, and that in the latter event they are incompetent in all cases except thpse stipulated in the statute, then it would appear that the Legislature attempted to deprive the convict of certain civil rights and place upon him disabilities during the time he was incarcerated, and that after his liberation it was the intention of the Legislature that such rights' be automatically restored and the disabilities removed, without the exercise of the pardoning power by the Governor.

The act is susceptible of the construction that it was the intention of the Legislature that convicts are not incompetent. If the statute be given this construction, the doubt as to its constitutionality is removed. If given the construction contended for by appellant, it is of doubtful constitutionality. Where a statute admits of two constructions, one of which renders it unconstitutional and the other constitutional, the latter construction will be given it. Anderson v. State, 113 T.ex. Cr. R. 450, 21 S.W.(2d) 499. Giving application to the principles controlling, we are constrained to hold that persons convicted of felony subsequent to the enactment of chapter 13, Acts of the Thirty-Ninth Legislature, First Galled Session, are competent to testify in all criminal cases.

The judgment is affirmed.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

In his motion for rehearing, appellant insists that we erred in-holding that the witness Churchill was competent. The complaint directed at the admission of his testimony, as appears in bill of exception No. 5, is very indefinite. The bill states that it was admitted by the state that the witness Churchill had been in the penitentiary. No effort appears in the bill to show when he was convicted or whether he was unpardoned or otherwise. It is said in Texas Juris, § 256, p. 380: “A bill complaining that a witness is disqualified because he had been convicted of a felony, and that his rights of citizenship had not been restored, must set out facts showing that the objection was well taken.” Roach v. State, 102 Tex. Cr. R. 176, 277 S. W. 385, and Baxter v. State, 81 Tex. Cr. R. 234, 194 S. W. 1107, are cited in support of the text. We think this matter correctly disposed of in the original opinion.

The motion for rehearing will be overruled. '