author: RANDOLPH, J.

text:
    MILLER v. FALLWELL et al.
    No. 3655.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1931.
    W. H. Russell, of Hereford, for appellant.
    Dameron & Dameron, of Hereford, for ap-pellees.
   RANDOLPH, J.

This suit was filed by J. B. Miller as plaintiff in the district court of Deaf Smith county, Tex., against W. E. Fallwell and Claude Benton, to recover a sum of money alleged to have been paid out by the plaintiff in behalf of defendants. Verdict and judgment against the plaintiff, from which this appeal has been taken.

• A brief statement of the pleadings is here made: The plaintiff alleges that he was elected sheriff and tax collector of Deaf Smith county and thereafter, on January 1, 1929, qualified as such; that the defendant Benton was the sheriff and tax collector of said county immediately preceding the plaintiff’s incumbency of that office. Further the plaintiff alleges that as such tax collector for the year 1928, the defendant Claude Benton had issued to the defendant Fallwell certain li:' censes and number plates for motor vehicles and had failed to collect approximately $200 due by said Fallwell for same, and Fallwell was still owing same when plaintiff went into office on January 1, 1929; that said defendants entered into a conspiracy by virtue of which Benton agreed to issue to Fallwell, in the name of the new tax collector, the plaintiff, licenses and number plates for motor vehicles and trailers and not collect for same if said Fallwell would pay to said Benton the $200 owing Benton by Fallwell for the 1928 licenses and tags; that such conspiracy was carried out and such licenses and tags issued defendant Fallwell, listing the numbers aggregating in amount $790.36, no part of which was ever paid by Benton or Fallwell to plaintiff. That thereafter, prior to the time of plaintiff’s duty to report to the state of Texas all. such sums representing the payments made on said licenses and plates, the defendant Benton promised plaintiff to pay for same.

The plaintiff testified that on the 1st day of January, 1929, the day that he qualified, while the defendant Benton was in the office having his deputy make out his final reports as sheriff and tax collector, defendant Fallwell came into the office, and after he and Benton had talked, they then went into the vault and had a further talk. The defendant Benton admitted that the defendant Fallwell there paid him $240 due and owing to him for license plates, for which he had been carrying Fallwell for the year 1928. Both defendants expressly denied that they ever had any prior agreement with reference to the events transpiring in the office that day. The explanation of Benton about their going into the vault was that it was for the purpose of getting the account Fallwell owed him. The evidence was conflicting as to the transactions occurring in the office that day, the plaintiff testifying as to the facts which induced him to permit Fallwell to carry off the licenses and tags and to make his report to the state, remitting the amounts of such license fees, and asserting that before he was so induced, it was by reason of the defendant Benton promising to pay him such fees. This the defendant Benton denied. We do. not feel called on to recite all the details of such transactions, but hold that the jury and the trial court having passed on the weight to be given to the evidence, we cannot disturb or set aside the verdict and judgment.

The court submitted, the case upon two special issues, one of which was not answered; hence, it becomes unimportant.

Issue No. 1 submitted was in words as follows:

“Did the defendant Claude Benton, subsequent to the issuance of the licenses for the taxes and the delivery of the tags on the trucks belonging to W. E. Eallwell and prior 'to the date that plaintiff made his monthly report, promise to pay the plaintiff J. B. Miller the amount of the taxes owing by W. E. Eallwell for the licenses and tags that were issued and delivered to W. E. Eallwell?
“You will answer ‘Yes’ or ‘No.’
“If you have answered ‘no’ then you will not answer the following issue, but if you have answered ‘yes,’ then you will answer the following issue.”

The jury answered this issue No. 1: “No.”

•As to the plaintiff’s case, this verdict upon the evidence was conclusive. Mansfield v. Rigsby (Tex. Civ. App.) 273 S. W. 290, 291; Kahn v. Bauch Leather Co. (Tex. Civ. App.) 17 S.W.(2d) 187, 190, and authorities therein cited; Northern Texas Utilities Co. v. Eloyd (Tex. Civ. App.) 21 S.W.(2d) 6; Lewis v. Easley (Tex. Civ. App.) 34 S.W.(2d) 376, 378.

The plaintiff assigns as error the trial court’s charge that the burden of proof was upon the plaintiff to establish the affirmative of said special issue No. 1 by a preponderance of the evidence and cites Texas Employers’ Insurance Ass’n v. Adcock (Tex. Civ. App.) 27 S.W.(2d) 363, 365, and Texas Indemnity Insurance Co. v. Allison (Tex. Civ. App.) 31 S.W.(2d) 319.

This contention we cannot sustain. While the case was submitted to the jury upon special issues, it was just as incumbent upon the plaintiff to sustain his right to recover by a preponderance of the evidence as if the case was submitted upon a general charge. An affirmative answer being required to establish his cause of action as presented by the special issue submitted, we can see no reason why the same burden should not be placed on him as under a general charge.

The special issue No. 1 is not objectionable to the holding in the cases cited by the plaintiff to uphold his contention that the burden of proof was on the plaintiff to • answer that issue in the affirmative, and such issue was not erroneous for the reason that the issue pointed out certain specific facts upon which plaintiff based his cause of action.

The general rule is that the burden of proof to establish the affirmative of an issue in an action rests on the party alleging the facts constituting that issue and remains there until the end. Cotten v. Willingham (Tex. Civ. App.) 232 S. W. 572.

The burden is upon the plaintiff to establish the issues upon which he relies for a recovery, and is upon the defendant to establish the affirmative defenses relied upon by him to defeat the recovery. Prairie Oil & Gas Co. v. Wright (Tex. Civ. App.) 238 S. W. 974; Q. A. & P. Ry. Co. v. Novit (Tex. Civ. App.) 199 S. W. 496, 498; H. & T. C. Ry. Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995.

Binding no reversible error in the record, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: HAUL, C. J.

license: Public Domain

text:
    SMITH v. CHIPLEY et al.
    No. 3591.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 30, 1931.
    Rehearing Denied Oct. 28, 1931.
    See, also, 24 S.W.(2.d) 87.
    Lockhart, Garrard & Brown, of Lubbock, for" appellant.
    Bean & Klett, of Lubbock, and Black & Graves, of Austin, for appellees.
   HAUL, C. J.

On September 3, 1921, a written contract was entered into between Mrs. Minnie Slaughter Veal and her husband, as vendors, and H. D. Chipley, as vendee, involving a sale and an option to sell about 19,600 acres of land. The contract divides the land into the east half and the west half, and provides that the sellers are to have $15 per acre for the east half and $10 per acre for the west half. It was contemplated at the time the contract was entered into that the purchaser would subdivide and resell the east half in small tracts at prices fixed in the contract, and that, if tlié entire east half was sold on or before December 31, 1922, the purchaser, Chipley, would then have the right to acquire the entire west half at the contract price of $10 by paying not less than $2 per acre in cash and executing his notes for the remainder, payable according to the terms fixed in the contract.

Thereafter Chipley assigned his rights and interest under the contract with Mrs. Veal to Morton Smith and R. Taylor Woodson; Smith acquiring a three-fourths interest and Woodson the remaining one-fourth interest.

On December 30, 1922, a part of the east half being unsold, it was purchased by Smith and Chipley, and by that purchase they acquired the right under the contract to the entire west'half at $10.per acre, $2 of which must be paid in cash and the remainder in notes.

Thereafter, in February, 1923, Woodson died, and his wife, Lora A. Woodson, married Chipley. She then filed suit, joined by her husband, H. D. Chipley, in the district court of Lubbock county, against Morton J. Smith, W. S. Posey, O. L. Slaton, and the First National Bank of Lubbock, to recover as the sole heir of Woodson her interest in the profits realized from the sale of the east half of the Veal lands. From a judgment in her favor Smith appealed to this court, "and on November 3, 1926, this court reversed the judgment and remanded the cause, because she had sued alleging only a conversion of her interest in the proceeds realized from the sale of the east half, and did not sue for an accounting of the partnership affairs. See 287 S. W. 156, 157.

Upon writ of error to the Supreme Court, Powell, P. J., reversed the judgment of this court, principally upon the theory that the partnership existing between Smith and others was only a single venture, and did not involve complicated accounts, and further because it had terminated on completion of the transaction, holding that under such circumstances one partner could sue another at law for conversion of profits without first having dn equitable accounting. See 292 S. W. 209.

After Chipley had assigned all of his interest in the Veal contract of November 22,1922, to Smith and Woodson, and after Smith, on December 31, 1922, had purchased the then unsold part of the east half of said land with money which Slaton and Posey had indirectly provided, Smith, Woodson, Slaton, and Posey, as the owners, entered into the contract set out in 118 Tex. 415, 16 S.W.(2d) 269, 273, et seq., under the terms of which Smith, as trustee, was to hold title to the lands described therein for himself and the other signers of the contract, which provides that Woodson owns a one-sixth interest, Slaton and Posey two-sixths interest, and Smith a three-sixth interest.

The first suit filed by Mrs. Chipley was numbered 2013 upon the docket of the district court of Lubbock county, and, after the Supreme Court had affirmed the judgment which she recovered against Smith in that case, Smith settled it in full by paying to her the amount of the judgment, $11,788 and interest.

It appears that, in order to secure an af-firmance of the district court’s judgment in cause No. 2013 in the Supreme Court upon writ of error from this court, the appellee represented in her application that there was no controversy between the parties with reference to the west half of the Veal land, and expressly disclaimed any interest in said west half. Presumably the purpose of this representation and disclaimer was to avoid the effect of this Court’s holding that she could not maintain a suit to recover any interest due her from the sale of the east half because the Veal-Chipley contract was an entirety, and that her action was, in effect, a suit for a settlement and an accounting of partnership affairs. She stated in her application for writ of error and briefs that the matter with reference to the west half was settled, and no one was complaining of the settlement. By these representations she misled the Supreme Court and secured an affirmance of the district court’s judgment, because, as appears from the Supreme Court’s decision, they thought all controversy, with reference to the west half had been eliminated by agreement of the parties, in which event there was nothing to be settled but the east half, and under that condition an accounting and settlement of the partnership affairs was not necessary, because she could recover as for conversion her ‘ interest in the profits by a suit at law.

After she had secured her judgment, and it had been affirmed by the Supreme Court, such affirmance being based upon the mistaken impression made in her pleadings filed in the Supreme Court that she was claiming no interest whatever in the west half, she filed this suit No. 3065 in the district court of Lubbock county against the said Smith, Slaton, and Posey to recover her interest in the west half. Upon a trial, she recovered another judgment, from which an appeal was prosecuted to this court, 24 S.W.(2d) 87. This second judgment was reversed and remanded, but upon motion for a rehearing this court certified to the Supreme Court this question: “The disclaimer of interest in the west half as made in the application for the writ of error so filed in the Supreme Court, being totally inconsistent with the assertion of an interest in the west half which antedates the filing of said application, is the plaintiff, Mrs. Chipley, estopped thereby from asserting any interest in the west half?”

In an extended opinion, 118 Tex. 415, 16 S. W.(2d) 269, Judge Critz sets out the certificate, together with the application for writ of error filed in the first case by Mrs. Chip-ley, in which she disclaimed any interest in the west half, and which for the sake of brevity we will not reproduce here, and, after discussing the right of Mrs. Chipley to maintain this suit, answered the certified question in the affirmative. It would needlessly prolong this opinion to quote from the decision, but 'the holding is that, after she had disclaimed her interest in the west half in a previous application for writ of error to the Supreme Court, she was estopped from asserting in this case against the same parties any interest in the west half, and that to permit her to recover in this case would be tantamount to allowing her to recover by her own wrong and take an advantage of an error committed by the Supreme Court induced and invited by her, even though the judgment which was rendered, relying upon her statements, was erroneous.

Upon the return of the certificate with the answer thereto from the Supreme Court, the judgment of the district- court was reversed and the cause remanded. Motions to render judgment in favor of Smith were overruled in both the Supreme Court and in this court.

For a full statement and understanding of the case, reference is made to the opinions previously rendered by this court and the Commission of Appeals.

The original pleadings of the parties were •not amended before the last trial, but, after the case had been remanded, the appellee filed a second amended supplemental petition in which she alleges, in substance, that the inconsistent statements made in the application for writ of error to the Supreme Court were made by her attorneys without her knowledge or consent, and further alleges that Smith was estopped from pleading es-toppel as against her, for the reason that he asserted that she was not entitled to recover, and that the trial court erred in not sus-, taining his general demurrer because the plaintiff was similarly interested in the west half of the Yeal lands.

We think the opinion of Judge Critz definitely settles all of the issues presented by this appeal, except the contention that Smith is also estopped by his pleading in the former suit that Mrs. Chipley was interested in the west half. If she iá estopped by her representations to the Supreme Court in the first suit from maintaining this action, it becomes immaterial whether Smith occupies an inconsistent position in this case.

It is said in -21 C. J. 1228, 1229: “A claim made or position taken in a former action or judicial proceeding will in general estop the party to make an inconsistent claim or take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party.”

It is further said in section 233: “In order to work an estoppel the position assumed in the former trial must have been successfully maintained.”

The position taken By Smith that Mrs. Chipley did own an interest in the west half was not sustained. The Supreme Court accepted her statement in her application for writ of error that all controversy with reference to the west half had been settled and that she had no interest in it.

We therefore hold that she is estopped from maintaining this suit, since that is the effect of the answer made to the certified question, and is a rule announced in all other authorities which we have been able to find. Herman on Estoppel, § 1057; 10 R. C. L. 689, 690; 21 C. J. 1064-1066; Pyron v. Brownfield (Tex. Civ. App.) 269 S. W. 202; Brown v. O’Brien, 11 Tex. Civ. App. 459, 33 S. W. 267; Hill v. Preston, 119 Tex. 522, 34 S.W. (2d) 780; Flack v. Bremen, 45 Tex. Civ. App. 473, 101 S. W. 537, 540; Long v. Martin (Tex. Civ. App.) 260 S. W. 327.

The appellee insists that, because she offered to do equity in this ease, the judgment is erroneous. Her offer to do equity is as follows: “Plaintiff says that if the defendant Morton J. Smith can show to the Court that the plaintiff has already received more money on the judgment recovered in the former suit than she would have been entitled to receive if the Court had been fully apprised of a-11 of the true facts as they actually existed at that time, then and in such event the plaintiff offers to do equity and to have the Court enter such judgment in this proceeding and to have the Court deduct from the amount that she is entitled to receive under the contract of Dec. 30,1922, any excess that she has received on the judgment recovered in the former suit over and above what she was actually entitled to receive under full disclosure of the true facts as they then existed.”

This is not an offer to do equity. It is a conditional proposition which requires Smith to retry the issues already decided in the former suit, and this cannot be done. Under the rule in Texas, when a case had been once tried and the issues disposed of and settled, there is an end to the litigation. Montgomery y. Huff (Tex. Civ. App.) 11 S.W.(2d) 237. The record shows that she has been paid the full amount of her judgment, and has not tendered it either into court or offered to do equity by her pleadings. Her contention that the misrepresentations made by her attorneys were without her consent was considered by Judge Oritz in his opinion answering the certified question. If she desired to mate a tender of the amount received by her in satisfaction of the former judgment, it should have been, made in the Supreme Court, and Judge Critz says: “Mrs. Chipley has accepted and retained the benefits of the transaction and is charged, as a matter of law, with its results. This would be true even if an erroneous judgment was entered.”

This is á clear ease of estoppel by judgment.

Eor the reasons stated, the judgment is reversed and here rendered for the appellant.


author: PELPHREY, C. J.

text:
    DILLARD v. FIRST NAT. BANK OF SEMINOLE, TEX.
    No. 2582.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 15, 1931.
    W. P. Walker, of Crosbyton, for appellant.
    Carl Rountree, of Lamesa, for appellee.
   PELPHREY, C. J.

This is an appeal from an order overruling a plea of privilege filed by appellant in the county court of Gaines county, Tex.

The facts, as testified to by the only witness introduced on the hearing, are: That appellant, a merchant at Hobbs at the time of the transaction in question, brought six checks totaling $410.92 to appellee bank in M!ay, 1930; that he had made out a deposit slip showing the six checks amounting to $410.92; that Mr. Curry, for the bank, made out another deposit slip showing the six checks, less a cash payment to appellant thereon of $210.92, and less $2 for exchange on the checks; that this deposit slip showed a credit to appellant’s account of $198; that through inadvertence the deposit slip for $410.92 brought in by appellant was credited to his account on the books of the bank; and that later the full amount was drawn out by appellant on checks given by him.

Appellee attempts to maintain the venue of its suit in Gaines'county by virtue of sections 5 and 7 of article 1995-, Revised Statutes, and contends that the drawing of checks by appellant on appellee was a fraudulent representation that he had the money there when he did not, and constituted actionable fraud in Gaines county, and that the drawing of the checks constituted a contract performable in Gaines county. Neither of these contentions are, in our opinion, tenable. The evidence shows that appellee cashed appellant’s cheeks, not because of the drawing of the cheeks by him, but because his account had erroneously been credited with more than it should' have been; therefore, no actionable fraud is shown.

The giving of the cheeks might constitute a contract performable in Gaines county between appellant and other persons to whom given, but we fail to see how appellee can claim that a written order on it to pay money belonging to appellant, 'which it did not have in its possession, could constitute a contract between it and appellant.

The judgment will be reversed, and it is the order of this court that the venue of this case be changed to Crosby county, Tex., and the county clerk of Gaines county is hereby ■ directed to make up a transcript of all orders made in said cause, and certify officially to same under the seal of the county court of Gaines county, and transmit the same with the original papers in the cause and the mandate of this court to the county court of Crosby county, Tex.


author: PELPHREY, G. J.

text:
    McMATH CO. v. STATEN.
    No. 2567.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 1, 1931.
    Rehearing Denied Oct. 29, 1931.
    H. D. Stringer and R. A. D. Morton, both of El Paso, for plaintiff in error.
    Jos. M. Nealon and J. M. Goggin, both of El Paso, for defendant in error.
   PELPHREY, G. J.

This action -resulted from a collision between the automobile, of defendant in error and a motortruck belonging to plaintiff in error at the intersection of Montana and Austin streets in the city of El Paso, Tex., during the month of April, 1930.

Defendant in error alleged that, while she was driving her automobile in an easterly direction along Montana street, the agent of plaintiff in error, while acting within the scope of his employment, passed her in the motortruck of plaintiff in error, and at the intersection of Montana and Austin streets made a TJ turn in front of her without first ascertaining whether there was sufficient space for such movement' to be made with safety and without giving any visible or audible sign of his intention of making such turn; that she ran into the motortruck, causing personal injuries to herself and demolishing her automobile, to her damage in the sum of $8,450.

In addition to a general demurrer, special exceptions and a general denial, plaintiff in error specially pleaded contributory negligence, failure to keep a lookout, failure to have proper control of ber automobile, excessive rate of speed, failure to apply her brakes, failure to use the means at hand by turning her car and thereby avoiding the accident, that defendant in error was guilty of negligence in attempting to pass the motor-truck at a rate of speed in excess of 15 miles per hour, and that the real damage sustained by her resulted from her failure to use proper care after the collision in preventing her automobile from running into the retaining wall on the north side of Montana street, which was the proximate cause of her injuries.

The case was submitted to a jury, and in answer to special issues it found: (1) That plaintiff in- error’s driver attempted to make a U turn without first ascertaining whether there was sufficient space for such movement to be made in safety; (2) that his failure so to do was a proximate causé of the collision ; (3) that the driver of the motortruck failed to give a visible or audible signal of his intention to turn; (4) that such failure .was a proximate cause of the collision; (5) that defendant in error was not going at. a rate of speed in excess of 20 miles per hour; (6) that defendant in error could not have avoided the collision by applying her brakes or turning her car; (7) that the damage to her car was $500 and to her person, $2,000; (8) that defendant in error did not fail to use ordinary care in stopping or turning her car before striking the wall after the collision; (9) that defendant in error did not attempt to pass plaintiff in error’s truck at a greater speed than 15 miles per hour; (10) that the collision was avoidable; (11) that defendant in error did not fail to keep a proper lookout; (12) that defendant in error did not fail to have her car under control; and (13) that plaintiff in error’s truck was not being operated at a rate of speed in excess of 18 miles per hour.

Upon the above findings the court rendered judgment in favor of defendant in error for $2,500.

The case is now before this court on writ of error.

Opinion.

Plaintiff in error’s contentions, under the twenty-eight points in its brief, are: (1) That certain objections to the court’s charge should have been sustained; (2) that the court erred in overruling its special exceptions to defendant in error’s petition; (3) that the evidence is insufficient to support the jury’s findings on certain issues; (4) that the court should have instructed a verdict in favor of plaintiff in error as to all damages, except those immediately caused by the collision; (5) that the court erred in giving the supplemental instructions to the jury on the issue of unavoidable accident; (6) that the court erred in permitting the witness Schourup to testify as to statements made at the time by the witness Sorrells; (7) that defendant in error’s counsel made an improper argument in discussing the issue of unavoidable accident; (8) that the jury panel should have been dismissed because of the improper examination of one of the veniremen by defendant in error’s counsel; (9) that the jury was guilty of misconduct; (10) that the court erred- in making, during the examination of one of the jurors upon the hearing of the motion for a new trial, the statement that it was an outrage that juries could be recalled and examined .about 'the manner in which they reached their verdict; (11) that the court erroneously found that there had been no misconduct on the jury’s part; (12) and that the $2,000 awarded defendant in error for personal injuries was excessive.

Among others, the court submitted the following issues:

“Question No. 1: Do you find from, a preponderance of the evidence that the driver of the truck herein involved attempted to make what is known as a “U” turn without first ascertaining whether there was sufficient space for such movement to be made in safety to vehicles whose movement or operation it reasonably appeared would be affected by such movement of said trucks?
“Question No. 2: Do you find from a preponderance of the evidence that the fact that he did so, If he did, was a proximate cause of the occurrences complained of by the plaintiff?
“Question No. 3: Do you find from a preponderance of the evidence that the driver of the truck complained of made a U-turn and failed to give to other automobile drivers who might reasonably be affected by such turning a plainly visible or audible signal of his intention to so turn?
“Question No. 4: Was the fact that he, failed to do so, if he did, a proximate cause of the occurrences complained of by plaintiff?”

The submission of the above issues was objected to as follows; “Because, under the turning statute attempted to be submitted, Questions 1 to 4, inclusive, there is a total failure of the court to submit one of the necessary elements under the article of the law, in that the law means the driver of the turning vehicle is not required to give signals upon making a turn unless it is reasonably apparent to him, at the time he starts to make the turn, that the movement of the other vehicles may be reasonably affected thereby, and the court fails to submit this element, or, if it is submitted at all in Issue 3, as it has been changed by the court, it is erroneously submitted and assumes facts against tbe defendant’s driver and imposes a greater burden than the law authorizes.”

The article referred to by plaintiff in error reads: “The person in charge of any vehicle upon any public highway before turning, stopping or changing the course of such vehicle shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions so to turn, stop or change said course.” Pen. Code 1925, art. 801, subd. K.

Our construction of the above statute is that it requires any person in. charge of a vehicle upon a public highway to give a plainly audible or visible sign of his intention to turn, stop, or change the course of such vehicle before doing so when the movement or. operation of other vehicles may reasonably be affected thereby, but that he may make such turn, stop, or change the course of such vehicle without giving such signal if he first ascertains that there is sufficient space for such movement to be made in safety and that the movement or operation of other vehicles will not reasonably be affected by such turning, stopping, or changing of course.

It will be noted that this statute does not prohibit the making of a turn or the stopping or changing of the course of a vehicle when there is not sufficient space for the movement to be made in safety or even when the movement or operation of other vehicles will reasonably be affected thereby, but merely prescribes that a signal must be given when such a condition exists.

The statute is one of the laws of the road provided by the Legislature to prevent collisions between vehicles on the highways- of the state,' and we think was intended primarily to protect the other users of the highway rather than the person in charge of the turning, stopping, and course-changing vehicle.

We are of the opinion that under this article the operator who is contemplating turning, stopping, or changing the course of his vehicle and gives a plainly audible or visible signal of such intention would not be guilty of any infraction of the article merely because he did not ascertain before making the movement whether or not the movement or operation of other vehicles would reasonably be affected thereby. In other words, we think the law imposes on him a duty to signal his intention to turn, stop, or change his course, but allows him to omit giving the signal, if he first ascertains that the movement or operation of other vehicles will not reasonably be affected.

If we are correct in this construction, then the failure to ascertain whether the operation of other vehicles would reasonably be affected could not be the proximate cause of the colli - sion, and question No. 1 was erroneously submitted.

We have concluded that before a person would be guilty of negligence under this article it would be necessary to show that a condition existed at the time he attempted to turn, stop, .or change the course of his vehicle which called for a signal on his part; that is, that the movement or operation of other vehicles on the highway would reasonably be affected thereby, and that he, under such conditions, turned, stopped, or changed the course of his vehicle without signalling his intention to do so.

Question No. 3 appears to assume that there were automobile drivers who might reasonably be affected by such turning, or at least does not require the jury to find that there were other vehicles whose movement or operation might reasonably be affected by such turning and therefore does not present the question to the jury properly.

Plaintiff in error’s third assignment must be sustained. Plaintiff in error interposed the following objection to the submission of question No. 5: “Question 5 is objected to because there is no evidence to- sustain a negative answer thereto, it being an undisputed fact that Mrs. Staten testified that she was going over twenty ¾¾⅞⅞⅛§⅜ hour and,- in fact, testified that she was traveling twenty-two miles per hour at the time. Said Question-5 should be omitted and in lieu thereof the court should tell the jury that it was established by the evidence of the plaintiff herself that she was traveling, in excess of twenty miles per hour, •and should follow that instruction with Question 6, which should be in form as follows: Was the fact that plaintiff was traveling in excess of twenty miles per hour a proximate cause or contributing cause of the occurrences complained of?”

The questions objected to were:

“Question No. 5: Do you find from a preponderance of tlie evidence that the plaintiff herself, at or just before the time of the occurrences complained of, was going at a rate of speed in excess of twenty miles an hour?
“If you answer ‘yes’ to the preceding question, then answer:
“Question No. 6: Did the fact that she did so, if she did, proximately cause or proximately contribute to cause the occurrences complained of?”

Plaintiff in error in its brief contends that Mrs. Staten’s testimony, wherein she said, “I would say I was going between 20 and 22 miles an hour,” and Mrs. Bush’s testimony that “I will say she may have been going a little over; I don’t remember whether I testified at the other trial that she was going 20 miles or over; no, I won’t say that I didn’t say that,” was the only evidence in the record relative to the speed at which Mrs. Staten’s car was traveling, and that Mrs. Staten’s statement as to her rate oi speed was an admission and was conclusive as against her, leaving no issue to submit to the jury on the question as to whether she was going in excess of 2d miles per hour or not.

Defendant in error, on the other hand, contends that the way in which her statement as to her speed was framed in connection with her statement that “I was watching the road all the time, straight ahead,” shows that she was merely giving her opinion or an estimate of her rate of speed, and therefore she would not he bound thereby, but such opinion should be considered by the jury along with the other facts in arriving at their verdict.

We agree with defendant in error that the testimony of Mrs. Staten as to the speed her car was traveling just before and at the time of the accident was a mere expression of her opinion.

It cannot be successfully disputed that it is impossible for a person riding in an automobile to gauge the exact speed of the automobile without the aid of some mechanical device, such as a speedometer, to indicate the speed. There is no evidence in the record showing that Mrs. Staten had looked at the speedometer, and her own statement was to the effect that she was keeping a lookout and looking straight ahead; therefore the statement that she would say that she was going between 20 and 22 miles an hour was based upon her estimate of the speed of the car.

While it is the general rule that a party plaintiff testifying in his own behalf as to the existence of a fact is absolutely concluded thereby, unless he makes a correction thereof giving some excuse of mistake, oversight, misunderstanding, or lack of definite recollection, this rule does not cover testimony of a party plaintiff which is but an expression of opinion of the witness, and can be applied only where the witness has testified to a fact. Rowe v. United Rys. Co. of St. Louis, 211 Mo. App. 526, 247 S. W. 443; Southwestern Portland Cement Co. v. Kezer (Tex. Civ. App.) 174 S. W. 661, writ refused; Quanah, A. & P. R. Co. v. Bone (Tex. Civ. App.) 208 S. W. 709, writ refused.

In Southern Surety Co. v. Inabnit (Tex. Civ. App.) 1 S.W.(2d) 412, cited by plaintiff in error, the Eastland court decided on the original hearing that the evidence was sufficient to show that the appellee was being paid-$150 per month for his services as pumper at the time of the accident and that the evidence aside from his testimony was sufficient to overcome his opinion that he was being paid as receiver.

On rehearing the court changed its holding and based such' action on the fact that it had been in error- in construing his testimony as a matter of opinion merely.

We think the effect of that holding was that defendant in error was not concluded by the mere expression of an opinion, but would be so concluded by the statement of a fact.

Plaintiff in error’s assignment raising this question is therefore overruled.

Without setting out the evidence in detail, we think there was evidence in the record raising the issue of the rate of speed of Mrs. Staten’s car.

We find no error in the court’s permitting the jury to allow defendant in error damages in an amount necessary to repair her car. She pleaded that she had been damaged to the extent of $800 by having her car wrecked. There was evidence which would have sup-piorted a judgment for more than the amount allowed by the jury, if they had been allowed to measure the damage by the difference in the value of the car before and after the accident, consequently no damage resulted to plaintiff in error.

The court properly overruled plaintiff in error’s special exception to the petition of defendant in error.

Plaintiff in error has several assignments questioning the sufficiency of the evidence to support the jury’s finding on the different issues. In view of the fact that the case is to be tried anew, we shall not here discuss them.

Plaintiff in error moved the court to instruct the jury to return a verdict in its favor, except as to any damage that may have been caused by collision of the truck and car, on the theory that it was not responsible for any damage caused by her car running against the wall after the collision.

Mrs. Staten testified that after the collision the motor of her car was going awfully fast, and the steering wheel was knocked loose.

If that be true, and that condition was caused by the collision, then the subsequent injury to her and to her car could be traced back to the collision, and, if plaintiff in error was guilty of negligence which was the proximate cause of the collision, then it cannot be heard to say that it would not be responsible for that damage. Under such a state of facts the court properly overruled the motion.

Our statute (Pen. Code 1925, art. 794) provides that “all operators of motor vehicles in passing each other on the public highways shall slow down their speed to fifteen miles per hour.”

At the request of plaintiff in error, the court submitted the following issue: “Do you find from a preponderance of the evidence that plaintiff attempted to pass the defendant’s truck at the time and place involved herein at a rate of speed greater than fifteen miles per hour?”

The court modified the issue by inserting a definition of the word “pass” as follows: “By ‘pass’ is meant going in opposite directions.” Plaintiff in error objected to this modification, and now contends that the word did not call for a definition, and that, if it did, the definition was erroneous.

We find no fault with the court’s definition. This statute, along with other articles, was passed to prevent collisions between motor vehicles on the public highway. The only place at which cars could pass each other on the highway when they were not going in opposite directions would be at intersections.

The Legislature in another article (Pen. Code 1925, art. 801, subd. E) has provided that a vehicle approaching an intersection on the public highway shall yield the right of way to a vehicle approaching such intersection from the right of such first-named vehicle, thereby insuring or attempting to insure the safety of vehicles from collision at intersections where the cars are going in other than opposite directions.

These articles which have been designated as the “Law of the Road” were intended to cover all the conditions which might arise in the. operation of motor vehicles on the highway, and, it having attempted to regulate the operation of motor vehicles at intersections by another enactment, we think leaves the statute in question applying only to the passing of cars going in opposite directions. If we be correct in this, then the jury should have been informed as to that fact, and the definition given was correct.

The issue of unavoidable accident, when properly submitted, contains a double negative, and would quite naturally be confusing to the ordinary jury. It appears here that the jury became confused and appealed to the court for assistance. We judge from the record that they had decided that the collision was avoidable, but were uncertain as to what effect a “Yes” or “No” answer would have.

The court thereupon withdrew his instruction to answer the issue “Yes” or “No,” and instructed the jury that it might answer the same by saying that the accident was either avoidable or unavoidable or in any other way that it might see fit. The manner in which the court instructed the jury that it might answer the issue was not entirely responsive to the issue, and the instruction that they might answer it in any other way that it might see fit was, we think, too broad. >

On account of the confusing manner in which the issue must be submitted and the confusion in juror’s minds as to how their answer should be framed, we suggest that the jury might be instructed that they might answer the issue by saying the collision or injury was not the result of an unavoidable accident or .that the collision or injury was the result of an unavoidable accident. If answered in this manner,' the jurors should have no doubt as to the meaning of their answer.

The remaining questions relating to the court’s refusal to dismiss the jury panel, argument of • counsel for defendant in error, misconduct of the jury, will probably not arise on another trial, and should not be discussed.

Because of the error in the submission of questions 1 to 4, inclusive, the judgment is reversed, and the cause remanded.


author: SMITH, J.

text:
    CAMERON COUNTY v. FOX et al.
    No. 8635.
    Court of Civil Appeals of Texas. San Antonio.
    July 25, 1931.
    Rehearing Denied Oct. 7, 1931.
    Second Motion for Rehearing Denied Nov. 4, 1931.

      Faulk & Abney, of Brownsville, for plaintiff.
    Seabury, George & Taylor and West & Hightower, all of Brownsville, for defendants.
   SMITH, J.

This action was brought by Cameron county against James J. Fox, tax collector of said county, and the surety on his official bond, to recover of him certain fees of office which he admittedly collected and is alleged to have unlawfully retained. Fox and his surety reconvened and sought to recover certain amounts Fox had paid over to the county, but which he claimed he was entitled to retain under the law.

In a trial without a jury the court found against the county as to its suit against Fox, and that the latter’s claims against the county were sustained by the evidence, but were barred by limitation. Judgment was accordingly rendered that neither party recover, except as to costs, which were taxed against the county. All parties have appealed. The county will be designated as appellant, Fox as appellee, and his codefendant as the “surety.”

The principal issues to be determined are summarized in appellant’s brief as follows:

“First: To determine what fees collected were exempt from the fee 'bill and tbe amount thereof.
“Second: To determine whether or not the defendant under the facts and the pleadings was entitled to any credit for the salaries of his deputies and assistants paid during the years 1920 to 1926.
“Third: To determine whether or not the Defendant was entitled to a credit of $5,585.-00 for ‘overtime compensation’ paid to his deputies, over and above the regular rate of salary authorized by law.
“Fourth: To determine whether or not the Defendant under the facts and pleadings was entitled to any credit for any expenses of office.
“Fifth: To determine whether or not certain specific items charged as ‘Expenses’ were .lawful charges.
“Sixth: To determine when Cameron County came under the Fee Bill.”

I. Prior to 1897 county officials, including tax collectors, received and appropriated to their own use, all fees derived from the' performance of their official duties. In that year, for the first time, the Legislature passed what is known as the -Maximum Fee Bill,” fixing the maximum salaries of such officers in the larger counties of the state, and requiring them to pay in to the county treasury all fees in excess of those amounts, after deducting certain commissions. Chapter 4, tit. 58, R. S. 1911, art. 3881 et seq. It has been definitely determined that counties having populations in excess of 15,000 inhabitants to be determined by the federal census of 1900 and thereafter were subjected to the provisions of the Maximum Fee Bill, beginning with the year 1902. Ellis County v. Thompson, 95 Tex. 22, 64 S. W. 927, 66 S. W. 48; Moorman v. Terrell, 109 Tex. 173, 202 S. W. 727; Sparks v. Kaufman County (Tex. Civ. App.) 194 S. W. 605.

The federal census accorded Cameron County a population of 16,095 in 1900, wkere-by said county was brought under the operation of the Maximum Eee Bill in 1902.

The succeeding federal census, of 1910, accorded Cameron county a population of 27,158, which did not have the effect of changing the classification of its officials under the provisions of the act in question, in 1913, however, the Legislature increased the minimum of population of counties to be exempt from the operation of the Eee Bill from 15,000 to 25,000, to be determined by the “last” (1910) federal census. Chapter 121, Gen. Laws 1913, Reg. Sess., p. 246 repealed by Acts 36th Leg. (1919), c. 158, re-enacted by Acts 38th Leg. (1923), c. 181 (now article 3900, R. S. 1925). In the meantime, however, in 1911 (Acts 32nd Leg., c.-48) the Legislature created Willacy county out of the territory ■until then embraced within the county of Cameron, so that approximately orie-half of that territory was cut oft into the county of Willacy. A witness, who was perhaps as well qualified to so testify as any individual could be in such a matter, testified that in his opinion “about” 2,500 of the inhabitants of Cameron county resided in the territory thus cut oft into the new county, and from this testimony the trial judge found as a fact that it was “doubtful whether or not Cameron County as it thus existed áfter the creation of Willacy County had a population of 25000 people.” Upon this finding the trial court concluded as a matter of law that under the act of 1913, exempting counties of less than 25,000 population from the operation of the Maximum Eee Bill, Cameron county was brought within that exemption, and that its officials were not required to account for the fees collected'by them. We are of the opinion that the court erred in this conclusion.

The census of 1910 accorded the county a population of 27,158, thus clearly continuing it under the operation of the Eee Bill, as originally enacted and in force when the census of 1910 was taken and published. That population was 2,158 in excess of 25,-000 fixed in the act of 1913. We do not think the expressed opinion of a witness that “about” 2,500 inhabitants of the county were cut off into the new county more than a year after the census was taken, should be given the effect of defeating the legislative intent of fixing the population of 25,000, to be ascertained by the census. Even if this mere opinion of a well-qualified witness was accurate, and should be given full effect, his testimony shows that a year after the census showed the population of the county to be 27.15S, the creation of Willacy county out of the territory embracing Cameron county reduced the population by only 2,500. During the preceding decade the population of the county increased at the rate of 1,106 each year, and in the succeeding decade at the rate of 906 each year. At either rate the population of the county had increased sufficiently to sustain its position well above the minimum of 25,000. when Willacy county was created late in 1911, even though 2,500 of its inhabitants were excluded in 1911. No doubt the trial court properly inquired into the question of áctual population, but the evidence adduced 'thereunder, as well as the court’s finding thereon, were not sufficient to take the coun- • ty out of the 25,000 class. We hold that appellant and his predecessors were amenable to the provisions of sections 10, 11, and 16 of the act in question, until that act was repealed in toto in 1919 (Acts 36th Leg. c. 158). It was re-enacted in 1923 (Acts 3Sth Leg. c. 181). We therefore sustain appellant’s first proposition,. and hold that Cameron county came under the operation of the Fee Bill in 1902, and has continuously remained thereunder.

II. In 1S97 the Legislature passed an act (article 7691, Rev. St. 1911) in which it was provided that: “The collector of taxes, for preparing the delinquent, list and separating the property previously sold to the state from that reported to be sold as delinquent for the preceding year, and certifying the same to the commissioners’ court shall be entitled to a fee of one dollar for each correct assessment of the land to be sold, said fee to be taxed as costs against the delinquent. * * * Provided, that in no case shall the state or county be liable for such fees, but in each case 'they-shall be taxed as costs against the land to be sold under judgment for taxes and paid out of the proceeds of sale of same after the taxes, penalty and interest due thereon to the state are paid.”

It appears from the record that appellee Pox, after he went into office in 1918, collected certain taxes delinquent for the year 1918 and prior years, and retained the $1 fee accruing to the tax .collector under the terms of said provision. These fees so retained by him amounted to $8,718. The trial court held that the “officer who performed the services and/or the bulk of the services provided” for in said act “to earn the $1 delinquent cost items, is entitled to said fees,” and that ap-pellee Fox, “having acquired (by assignment) all the rights of his predecessor” in office during said period, was entitled to all of said fees, “as Cameron County has no claim- or right to them.” This holding was basedi upon the incorrect assumption that Cameron county was exempt from the operation of the Maximum Fee Bill until the year 1919.

It has been definitely decided that in counties operating under the Maximum Fee Bill, such as Cameron, the tax collector’s fee of $1 provided for in the above-quoted article 7691, R. S. 1911, was required to be accounted for, and therefore could not be retained by the collector. Bitter v. Bexar County (Tex. Com. App.) 11 S.W.(2d) 163; Turner v. Barnes (Tex. Civ. App.) 19 S.W.(2d) 325; Id. (Tex. Com. App.) 27 S.W.(2d) 532.

This provision remained in force until the year 1923, when it was amended and became article 7331, K. S. 1925, under which the collector is not required to account for, hut may retain, said fees, in addition to all other compensation accorded him by law.

It is provided in articles 3897 and 3S94, R. S. 1925 (which were in force when those matters arose) as follows:

“Art. 3897. Sworn Statement. — Each 'officer mentioned in Article 3883 [Maximum Fee Bill] shall, at the close of each fiscal year, make to the district court of the county in which he resides a sworn statement showing the amount of fees collected by him during the fiscal year, and the amount of fees charged and not collected, and by whom due. * ”
Art. 3894. Delinquent Fees. — All fees due and not collected as shown in the report required by Article 3897 shall be collected’by the officer to whose office the fees accrued; and, out of such part of delinquent fees as may he due the county, the officer making such collection shall be entitled to ten per cent of the amount collected by him. * * ”

It is contended by appellant, and we so held in the original opinion herein, that the fee of ⅞1 now under consideration became a “delinquent” fee of office, as defined in article 3894, when not actually collected during the year in which the “correct assessment” represented by it was certified by the collector, and that when finally collected such “delinquent” fee should have been paid into the county' treasury by the collector, less 10 per cent, commission, as provided in article 3894. We now conclude that.the statute under consideration does not warrant such classification of that fee. Undoubtedly such construction would be correct if the certification of each correct assessment by the tax collector constituted a complete service, with nothing remaining to he done to render the fee a separate and directly and immediately enforceable charge upon the property listed as delinquent. But that is not the ease here. Such fee has a distinct and peculiar status. It is determinable only by a judgment to be rendered in the future in a suit to be instituted in behalf of the state and county to collect the delinquent taxes. It accrues — matures—only at the end of that suit, and is “due” and collectible only in the contingency that a sale of the property after judgment brings the amount of the fee in excess of the taxes, penalties, and interest adjudged against the property. We do not believe that the Legislature intended that a,fee dependent upon so many contingencies shall be regarded as delinquent within the purview of article 3894 when not collected during the year in which the collector made up the certificate constituting the basis for the charge. It has not been so classified in any of the reported cases construing the acts involved. It does not belong to that class of costs incident to other .than delinquent tax suits, in which the costs incurred fully accrue and are fixed and determinable by the performance of the service, and the collection of which may be enforced at once without reference to the termination or result of the suit -in which it arises. We think it should be classified as a current fee of office, as of the time of its actual collection, since it is in no event due or collectible until it is collected. Being so classified, if the service by which it was earned was performed prior to the effective date of the act of 1923, it was a fee of office to be accounted for by the collector ; if for services performed after that date, it is not to be accounted for by the collector. Barnes v. Turner (Tex. Com. App.) supra.

III. ■ In an act approved April 3, 1015 (Acts 34th Leg. c. 147), known as “House Bill 40,” the Legislature made provision for more efficient and prompt collection of delinquent taxes. In this act the duties of the tax collector were set out in detail. For these services it was provided the tax collector should receive “5 cents for each and every line of yearly delinquencies entered” on the. delinquent and supplemental delinquent records therein provided for, “to be paid out of the general fund of the county upon the completion of said record or supplement,” and as compensation for the additional services therein exacted of him it was provided that “the tax collector shall also receive a commission of 5 per cent, on the amount of all delinquent taxes collected in addition to the commissions now allowed him by law.” Article 76S8a, Vernon’s Ann. Civ. St. Supp. 1918. By reason of this language of the act this item of 5 per cent, commission was not to be accounted for by. the collector under the provisions of the Maximum Fee Bill, but was to he retained in full by him. Curtin r. Harris County, 111 Tex. 568, 242 S. W. 444.

The Thirty-Sixth Legislature undertook to require the tax collector to account for this fee under the Maximum Fee Bill. Acts 36th Leg., 2 Called Sess. 1919, c. 64, § 2. But the attempt was abortive and ineffectual. Bitter v. Bexar County (Tex. Com. App.) 11 S.W.(2d) 163. The provision therefore remained in effect until 1923, when the Thirty-Eighth Legislature passed an act providing that said fee should be accounted for under the Maximum Fee Bill. Acts 1923, 3 Called Sess., c. 21, p. 182, § 2 (article 7331, Rev. St. 1925).

It is conceded by appellant that the fee of 5 per cent, commission on delinquent taxes accruing under the act of 1915, and collected prior to the effective date of the act of 1923 (article 7331), was not required to be accounted for but could be retained by the collector. But it is contended by appellant that all fees for services only partly performed under the act of 1915, and which had not fully accrued and were not collected until after the act of 1923, became effective, should have been accounted for under the terms of the latter act. On the other hand, appellee contends, and the trial court gave effect to that contention, that that fee was for services the “bulk” of which were rendered' prior to the effective date of the act of 1923, and that therefore they accrued and became payable under the act of 1915, although the delinquent taxes out of which the fee was to be realized, and therefore the fee itself, were not actually collected until after the act of 1915 was superseded by the act of 1923, under which the fees for like services were required to be accounted for by the collector. It is true that a part of those services were rendered prior to the 1923 enactment, but those remaining were performed by the servant, and the fees were actually collected, after that time.

The services exacted of the collector under the act of 1915 with reference to the collection of delinquent taxes were divided into two classes, as were the collector’s fees for those services. In the first class the collector was required to prepare original and supplemental delinquent tax rolls, for which service he was allowed a specific fee of 5 cents a line for each line of said rolls, to be paid by the county out of its general fund. In the second class the services required of the collector consisted of the preparation and furnishing of notices and duplicate notices, and of statements, from information disclosed in the rolls previously prepared by the collector. These additional services were required to be repeated from year to year until the taxes were collected, and the final act thereof was the issuance of redemption certificates to the taxpayer. The compensation allowed the tax collector for all these additional services was a commission of 5 per cent, of the delinquent taxés collected, to be deducted from the taxes when paid.

It is obvious that the 5 per cent, commission allowed the collector was intended to compensate him for these additional and continuing services, rather than for making up the rolls, for which specific service he had been previously compensated.

The fee of 5 cents a line was a matter between the collector actually doing that work and the county. When the collector performed the service, his right to the fee instantly accrued and became a vested right, which he could enforce against the county, and with which succeeding collectors could not be concerned.

But the fee of 5 per cent, commission, upon delinquent taxes to be collected, takes a very different status, for it is in payment of a series of acts, running sometimes over a period of several years, and since the act makes no provision for, and obviously does not contemplate, the segregation and separate appraisal of the value of those several acts, the fee therefor may not be regarded as earned until the whole service is performed, and until it is earned it cannot accrue. The logical conclusion therefore must be that the fee does not accrue until the taxes are paid by the taxpayer, and the redemption certificate is issued by the collector in office at the time, who may retain, or shall account for, the fee, as the applicable law then in force provides. It seems obvious that any other construction of the act of 1915 would be wholly incompatible with the orderly administration of the' law. This construction does not appear to conflict with any authority coming to our notice, but is supported by the decision of the Commission of Appeals in Freeman v. Terrell, 115 Tex. 530, 284 S. W. 946. Accordingly, we sustain appellant’s fourth proposition, in which this question is presented.

IV. Appellant contends that appellee did not comply with the law as a condition to the proper appointment of his deputies, and was not entitled to credit for the payment of their salaries. We overrule the contention, expressed in appellant’s fifth proposition. The evidence and the trial court’s findings of facts show, in our opinion, a compliance with the spirit of the law upon the subject, and the record does not warrant the harsh remedy sought to be enforced against appellee in this matter. Steusoff v. Liberty County (Tex. Civ. App.) 34 S.W.(2d) 643 (writ of error refused).

V. A more serious question is raised 'in appellant’s sixth proposition, however. It appears from the record that during the seven years in controversy appellee not only paid his deputies the maximum salaries lawfully fixed and due them, but also paid them, as “overtime” and in addition to their salaries, the sum of $5,585. This sum was charged as expenses of the office of appellee as tax collector, and retained by him out of the fees of office collected by him. 'The county sought in the suit to recover this sum of appellee, which was denied by the trial court. Upon this issue the trial oourt found as.a fact that: “The $5585.00 paid to his deputies as hereinbefore found, for overtime, was judiciously and beneficially spent by the Defendant Fox in behalf of and for Cameron County, after the question of paying the. deputies who drew overtime pay, as shown in the audit produced in evidence before me, had been investigated and thoroughly considered by the then County Auditor and County Commissioners’ Court of Cameron County, the then Criminal District Judge and the then various grand juries, who reviewed the matter, and the conclusion reached by all of said bodies and persons was that it was to the best interest of Cameron County to pay said deputies for overtime services, and I find that as a result of said employment, Cameron County got value received, and that the Defendant Fox and the Commissioners’ Court acted in the premises for the best interest of Cameron County.”

Upon this finding the court concluded as a matter of law that appellee “had the legal right to pay his deputies and assistants .said sum * ⅜ * for overtime work done and performed by them.”

The statute fixes the “maximum compensation,” which may he paid to deputies and assistants in tax collectors’ offices, and expressly provides that “said compensation shall not exceed the maximum amounts” so fixed. Article S902. We conclude that such limitation is mandatory and may not be disregarded in any event by county officials. Any other rule would have the effect of absolutely setting aside a plain and unequivocal statutory command, for, if a county official, under given circumstances, may apply public funds to the payment of any amount of excess compensation to his deputies and assistants, he may apply such funds in larger amounts according to varying circumstances, and in that way usurp the legislative authority and thwart the legislative will, 'as his own judgment and conscience dictates. We hold that appellee, acting alone or with the knowledge and approval of the commissioners’ court or other authority, had no power to divert public funds to the payment of compensation to his deputies and assistants in excess of the maximum compensation prescribed by the Legislature. Steusoff v. Liberty County, supra.

It is apparently true that these excess payments were for services fully earned by ap-pellee’s appointees, and that as a practical matter the cost thereof to the county was less, and the work more efficiently done, than if additional help had been employed to perform the additional services rendered by the regular staff outside the course and time of their regular duties. But this fact cannot serve to clothe county officials with a power so expressly denied them by the statute. We sustain appellant’s sixth proposition.

VI. It appears from the record that appellee in the course of the years 1923 to 1926, both inclusive, incurred certain expenses in the conduct of his office, and paid them out of the fees of his office, which appellant insists were not authorized by law, and for which recovery was sought by appellant against appellee. These expenses included charges for meals furnished employees of the office, “advertising,” the nature of which is not disclosed by the evidence, typewriters, premiums paid upon the official bonds of deputy and assistants, numbering machine, oil stove and oil for fuel therein, fountain pens. These expenses amounted to several hundred dollars, and were allowed to appellee as having been lawfully incurred by him in the conduct of his office. Appellant strenuously urges that the expenditures were without any authority of law, and that appellee should be required to reimburse the county for the amount of its funds paid out therefor by ap pollee. During the period involved the statutory provision applicable here, embraced in article 3899, R. S. 1925, is that: “At the close of each month of his tenure of, such office every officer whose fees are affected by the provisions of this law shall make as a part of the report now required by law, an itemized and sworn statement of all the actual and necessary expenses incurred by him in the conduct of his office, such as stationery, stamps, telephone, traveling expenses and other necessary expense.”

The trial court found as a fact that the amounts expended by appellee for this purpose were “reasonably necessary and legitimate expenses of office,” and concluded therefrom “as a matter of law that the Defendant Fox substantially complied with the law concerning the making of his monthly and annual reports to entitle him to credit for expenses of office but if I am incorrect in this conclusion, I further conclude that the pertinent statutes are merely directory and not mandatory.”

The expenses which a county official is authorized to incur, with the approval of tha commissioners’ court, are limited to “such as stationery, stamps, telephone, traveling expenses and other necessary expenses,” and it has been held, with the approval of the Supreme Court, that the clause, “other necessary expenses,” as used in said provision, must be restricted to mean other expenses similar to those expressly specified in that provision. Casey v. State (Tex. Civ. App. writ of error denied) 289 S. W. 428. Under this construction — under any rational construction of the statute — -it seems obvious that appellee had no authority,'and the commissioners’ court eoulcj give him none, to incur exioenses, and appropriate public funds, for the premiums upon the official bonds or himself or his subordinates, or for their meals, or for unexplained items of “advertising” and “tax notices,” and we conclude that the trial court erred in denying to appellant recovery • for the amounts appropriated by appellee out of the public funds for these items of expense. With reference to the other items of expense mentioned, we are not disposed to disturb the trial court’s judgment thereon. Those items were such as the commissioners’ court could have contracted for and purchased, either directly or through its agents, and since it is apparent that appel-lee incurred and paid these items with the knowledge and acquiescence of that body, we conclude that appellee cannot now be required to reimburse the county for those expenditures. Appellant cites the cases of Casey v. State, supra, Sparks v. Kaufman County, supra, and Disinfecting Co. v. Freestone County (Tex. Civ. App.) 193 S. W. 440. While holding against the exercise of such authority by county officials, those cases stress the fact that the officials acted without authority of the commissioners’ court, and intimate that the latter’s ratification of the acts complained of would have constituted a defense to the county’s action to recover of the official who incurred the expense.

VII. We come now to a consideration of appellee’s cross-assignments of error, of which there are three. It is contended in ap-pellee’s first cross-assignment that the trial court erred in not holding that appellant’s cause of action against appellee for the year 1920 was barred by the two and four year statute of limitation.

In the original opinion this assignment was sustained, but on reconsideration we conclude that we erred in so ruling. In the first place, the question was one of fact, which the trial judge resolved against appellee, and we cannot say from the record presented that he abused his discretion in his finding upon this issue, which included the question of the voluntary appearances of the parties defendant in December, 1924, without requiring the issuance and service of process.

It appears, besides, that this controversy-is within the purview of the chapter 95, Acts 1st Called Sess. 41st Deg. (1929) p. 234, in which it is provided that neither the county nor the tax collector may plead limitation in actions to recover fees of office unlawfully retained by either against the other. We conclude that appellee’s first cross-assignment of error should be overruled.

VIII. We sustain appellee’s second cross-assignment of error. It was agreed by the parties that appellee performed all the work required of him under the provisions of the Act of 1915 (Acts 34th Leg. c. 147), known as House Bill No. 40, in compiling the delinquent tax records for the years 1885 to 1922, inclusive, for which, under the terms of said act, he'was entitled to a specific fee of 5 cents a line for each line thereof. It was agreed that these services, in so far as they •affect the question here involved, were performed by appellee prior to August 14, 1923. Prior to that date appellee was allowed to retain, and was not required to account for, •said fees, which were to be paid to appellee ■out of the general fund of the county. They were in fact so paid by the county by warrant issued on January 14,1924, but the coun■ty obtained judgment in this suit to recover -them back from appellee. Appellee’s statement under this assignment is very meager, -and does not clearly disclose the theory upon which judgment was rendered in favor of the county for this item. It is inferable, how■ever, that the judgment proceeded upon the .-assumption that because these fees were not approved and paid until after August 14,1923, appellee was required to account therefor to the county, under the provision of the act of 1923, effective on said date. As we have already indicated, the liability of the county to appellee for this item accrued and became absolute upon the performance of the service by appellee, and could not be affected by a subsequent Act of the Legislature. The fact that the item was not audited, or approved or paid by the county until after a later act became effective, could not affect the existing fixed liability of the county therefor.

IX. Appellee’s third cross-assignment of error raises a more difficult question. It appears from appellee’s statement under said assignment, that during the years 1920 to 1926, inclusive, appellee, under a mistaken view of the law, accounted for and paid into the county treasury amounts aggregating $9,882.99 covering fees he was not required under the existing laws to account for and pay over. The trial court refused to allow appellee credit for this sum in offset of funds found to have been unlawfully withheld by him. The court so decreed upon the theory that 'appellee did not file his cross-action for such credit until it was barred by limitation. It further appears, however, that appellee’s- surety, impleaded along with him as a codefendant, timely filed its answer and cross-action, in which it set up the foregoing facts and sought to obtain such credit, in behalf of appellee, its principal, as well as of itself. It is urged by appellee that this pleading of its codefendant, expressly asserting appellee’s rights to the credit, sufficed to avoid the bar of limitation against appellee, although the latter did not file his own answer and cross-action (in which he adopted his surety’s answer) until the period of limitation had elapsed. We are of the opinion that this contention should be sustained. The credit inured to the benefit of both principal and surety alike, and either could effectively plead it in behalf of both, and. on appeal may urge the error of its denial in the trial court. Texas & P. R. Co. v. Levine (Tex. Civ. App.) 29 S. W. 514; Id., 87 Tex. 437, 29 S. W. 466; Garrett v. Dodson (Tex. Civ. App.) 199 S. W. 675.

We conclude, further, that appellant was cut off from itá plea of limitation by the act of the Forty-First -Legislature, hereinabove referred to, and sustain the cross-assignment upon that ground, also.

Obviously, the conclusions we have expressed require reversal of the judgment appealed from. Appellant urges that judgment should be here rendered in event -of reversal. but such task is one for a special master, rather than an appellate court.

We are constrained to add, in justice to ap-pellee Fox, that in the -matter of determining if and when Cameron county came under the operation of the Maximum Fee Bill, appellee was fortified in his position by the construction placed upon the law by the various county and state officials to whom he was required by law to report and account. The construction placed by other county officials and the appropriate state officials upon section 17 of the Fee Bill was given some weight by the authorities upon which we have sustained appellant’s first proposition, concerning tim method by which the population of counties affected by section 17 was determinable. But that construction was given only persuasive, and not controlling, weight by those authorities in deciding the question, and obviously cannot be given controlling weight in passing upon that question here.- We are constrained to go further and say that hut. for the clear and positive holding, in the cited cases, that the method prescribed in section 10 for determining the population of counties affected by section 17 should control over the different method specifically and plainly prescribed for that purpose in the latter section, we would he disposed to hold in favor of appellee upon that question, in view of the plain provisions of section 17, and of the construction placed thereon by all county and state officers having to do with the administration of the law thereunder.

For the several reasons given herein, the judgment of the court below will be reversed, and the cause remanded for further proceedings in consonance 'with this opinion, which will be substituted for the original opinion, hereby withdrawn.

On Appellant’s Second Motion for Rehearing.

Appellant urges in a second motion for rehearing that this court erred in the conclusions set out in paragraph II of its opinion, concerning the fee of $1 collected by appellee under the provisions of article 7331, Rev. St. 192S (Acts 1923, 3d Called Sess., c. 21), for each correct assessment of land to be sold for delinquent taxes. Appellant construes the opinion as holding that all fees in that class collected after the effective date of the act of 1923, upon assessments certified prior to , that date, are not to be accounted for by the tax collector, hut may be retained by him. We do not think the opinion is subject to that construction; certainly we did not intend to so hold. We held, simply, as stated in the opinion, that “if the service by which it [that fee] was earned was performed prior to the effective date of the act of 1923, it was a fee of office to be accounted for by the collector ; if for services performed after that date, it is not to be accounted for by the collector. Barnes v. Turner (Tex. Com. App.) supra.” That conclusion was based, first, upon the plain language of article 7331, and, second, upon the language of the Commission of Appeals, in the cited case, in disposing of the very question here under consideration. In that case it was said, with reference to the claim of the collector (Barnes), that: “It is plain that the services performed by Barnes were performed, and intended to be performed, in compliance with old article 7691 of the 1911 codification. If he is entitled to any fees at all, it is under that article, and there is absolutely nothing in the 1923 act which can be construed as applicable to matters transpiring prior to its taking effect; in other words, the 1923 act cannot be construed as having a retroactive effect. Its very terms demonstrate that the Legislature intended it to apply only after it became effective, and it contains no words that would even lead to an inference that it was intended to apply to services performed before its passage.” In accordance with that statement of the rule we hold, as in the principal opinion, that ap-pellee was required to account for all fees in this class for services performed prior to the effective date of the act of 1923, no matter when collected, hut is entitled to retain all fees collected for such services performed after that date.

With this explanation of the holding discussed, appellant’s motion will be overruled.


author: WALTHALL, J.

text:
    ALDANA v. ALDANA et al.
    No. 2564.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 1, 1931.
    Rehearing Denied Oct. 22, 1931.

      Fryer & Cunningham, of El Paso, for appellant. -
    W. Joe Bryan, Knollenberg & Cameron, and Loomis & Kirkland, all of El Paso, for appel-lees.
   WALTHALL, J.

This ease presents an appeal from an order of the district court of El Paso county in the appointment of an administrator in the estate of Celso Sanchez Aldana, deceased.

Briefly stated, the material facts in the matter of the appointment of the administrator in said estate are as follows:

Maria Ysabel Sanchez Aldana filed an application in the county court of El Paso county for administration upon the estate of Celso, alleging his death, that he died intestate, that he left an estate, stating of what it consisted, its value', necessity for administration, and that said estate was located in El Paso. She alleged that she was the surviving widow of the deceased, and that as such surviving widow she was entitled to letters of administration upon said estate. Temporary administration was granted, and applicant was appointed temporary administratrix of said estate upon her giving bond. Subsequent to said appointment, Gabriel Sanchez Aldana, a brother of the deceased, on behalf of himself and Brothers, filed in the county court a contest to the said appointment of Maria as ad-ministratrix, denying that she was the wife of deceased, that she was not related to deceased, and was not an interested party in said estate. Contestant alleged his relation to deceased to be that of a brother, stated the names of the surviving heirs of deceased, and that they resided in Mexico, that he was not disqualified, and asked that he be appointed administrator of said estate.

Pending the temporary administration, Enrique Sanchez Aldana, as the son and only surviving heir of said estate, contested the appointment of Maria and Gabriel, and asked that letters of administration be granted to him, but later withdrew from the contest, and we will not further mention him.

On a final hearing in the county court, an order was entered denying the application of each of the two applicants for the appointment as administrator of said estate, and an order was entered appointing the First National Bank of M Paso as administrator of said estate upon giving bond. The bank made no application for said appointment, and gave no bond. Bach of the. said applicants severally excepted to the orders of the court refusing their appointment, and appointing the First National Bank as administrator of said estate, and gave notice of appeal to the Forty-First district court of El Paso county. Appeal was perfected by Maria. Gabriel, contestant, did not perfect his appeal by giving bond.

In the district court the case was tried without a jury, resulting in an order appointing Maria as administratrix of said estate. Gabriel appeals from that order.

Opinion.

As stated, appellant, Gabriel Sanchez Aldana, gave notice of appeal from the order of the county court appointing the First National Bank administrator of said estate, but did not perfect his appeal to the district court by giving bond. Appellee suggests that, appellant not having perfected an appeal to the district court, that court had no jurisdiction to hear appellant’s appeal and contest, and for that reason this court is without jurisdiction to hear his appeal and contest.

There is no merit in the contention. The trial in the district court was a trial de novo, and that court was governed by the same rule as to parties, pleadings, and amendments of pleadings as obtained in the original hearing In the county court, otherwise the trial would not be a new trial. Phelps v. Ashton, 30 Tex. 347; Elwell v. Universalist Convention, 76 Tex. 514, 13 S. W. 552; Harrell et al. v. Traweek, 49 Tex. Civ. App. 417, 108 S. W. 1021; Drew v. Jarvis, 110 Tex. 136, 216 S. W. 618.

Maria Ysabel Sanchez Aldana, in her application for appointment as administratrix •of the estate of Celso Sanchez Aldana, deceased, and as the ground for her appointment, alleged that she was the wife of the deceased at the time of his death.

Appellant, Gabriel, alleged that Maria was ■not the wife of Celso Sanchez Aldana; was not related to deceased; and is not an interested party in said estate.

The trial court heard the evidence and made findings of fact in the judgment. The only finding brought into controversy here is the following: The eorirt found: “That the said Maria Ysabel Sanchez Aldana, as the surviving wife of Celso Sanchez Aldana, is entitled to permanent letters of administration on the estate of Celso Sanchez Aldana, deceased; that Gabriel Sanchez Aldana is not entitled to letters of permanent administration on said estate.”

On the finding letters of administration were ordered issued to Mrs. Aldana. If Mrs. Maria Aldana is the surviving wife of the deceased, as found by the trial court, she is the first in orden of persons who are qualified to receive letters of administration on said estate, and her appointment would not be error. - >

Appellee alleged facts which, if sustained by the evidence, would be sufficient to show that she was the common-law wife of the deceased. "We have carefully reviewed the evidence, and have concluded that the evidence is sufficient to sustain the trial court’s finding that at the time of the death of the deceased, appellee was his common-law wife. Appellee testified: That she and the deceased became acquainted with each other in 1917. At that time she was living at the home of Mrs. Sidney Moore. That from 1917 to January, 1919, it was mutually agreed between appellee and deceased that appellee was to be his wife and he was to Be her husband. In 1919 deceased said to appellee: “It is time for us to join in matrimony, and from 1919 we were united together and we never did separate until he died; * * we made this agreement in 1917, but wé did not live together until 1919. The first week in January (1919) is when we united in matrimony. * * A week before that he told me that our marriage would be effective when he came to Mrs. Moore’s house after me, and then he told Mrs. Moore that he was taking me as his wife. I agreed to it.”

Mrs. Moore was asked: “When did she (appellee) cease her services for you?” Mrs. Moore was permitted to answer, over objection that her answer was a conclusion and was hearsay: “When she went to marry her husband.” The point of the inquiry was the date when appellee’s services ended and not the fact of appellee’s marriage. The answer, we think, if error, the trial being to the court, was not reversible error.

The witness W. R. Piper, a real estate dealer, knew deceased in 1923, handled a real-estate deal in which deceased had occasion to sign his name and to state whether he was married or single, and that to' the question: “Married?” deceased answered, “No.” The question and answer were not admitted. The question and answer were hearsay.

The court refused to permit the witness Piper to testify that in all of his relations with deceased during ten years that he knew deceased he never knew that he had a wife. We think the statement was not admissible, but, if it was, its probative force is so slight that it presents no reversible error; would hardly cause a different result on another trial.

The court refused to permit witness Piper to answer the question: “And you ascertained from your investigation and conversation with Celso Sanchez Aldana that he was a single man?” The witness would have answered that he made inquiry and ascertained from his investigation and conversations with the deceased that he was a single man.

The assignment presents no error. The question and answer involves the ultimate issue of fact, Was deceased a single man? Witness could state the facts disclosed to him , by his investigation, if such facts were admissible, from which he concluded that deceased was a single man, but not his conclusion; it invades the province of the court trying the case.

Appellant was asked: “Did Celso Sanchez Aldana ever tell you at any time out of the presence of Maria Ysabel Carillo (appel-lee) that she (appellee) was a servant and not his wife?” The court, on objection, excluded the answer. The answer would have been that deceased did state to witness, out of the presence of appellee, that appellee was a servant and.not his wifei

The point involves an exception to the general rule of hearsay evidence, which exception authorizes marriage to be proved by hearsay evidence. The discussions in the books and the opinions of the courts are not uniform on the question presented.

C. J. vol. 38, p. 1336, § 109, states the rule to be that “declarations in denial of a marriage by one of the parties are not admissible against the other, unless made in the presence of or acquiesced in by such other.”

The case of Schwingle v. Keifer et al. (Tex. Civ. App.) 135 S. W. 194, we think in point. A writ of error was granted in the case and .affirmed, same 105 Tex. 609, 153 S. W. 1132. The Supreme Court did not discuss the point presented here. In that cáse Jacob Schwingle made a declaration to a servant and other witnesses, "as here, that appellant, Veneranda Schwingle, was not his wife. Judge Ely, in discussing the admissibility of the evidence, said that, if the evidence had been objectionable, appellant lost the advantage bf her objection by permitting it to be answered without challenge, but does not state, and it was not necessary to state, what would have been the court’s holding had an objection been made. The court, however, referred to, with approval’, the case of Imboden v. St. Louis Union Trust Co., 111 Mo. App. 220, 86 S. W. 263, a Missouri case, and Topper v. Perry, 197 Mo. 531, 95 S. W. 204, 114 Am. St. Rep. 777, and Fryer v. Fryer, Rich. Eq. Cas. (S. C.) 107, in which (jases it is held that such evidence is permissible. To the same effect is De Beque v. Ligon et al. (Tex. Civ. App.) 286 S. W. 749, where it is said in a suit by a divorced husband, who claimed that common-law marriage with former wife was consummated after divorce, testimony as to income tax returns that she was a feme sole, made when effect on rights involved could not have been in mind, held admissible as against objection that it was a self-serving declaration.

The Commission of Appeals in 292 S. W. 157, 158, reversed the case, saying: “The evidence having conclusively established the consummation of such common-law marriage, the declaration of Maggie De Beque [the common-law wife], contained in the various legal documents executed by her, to the effect that-she was a single woman cannot have effect to impair the marriage relation shown by the evidence to have existed at the time.”

The fact of the common-law marriage is a provable issue in the case, and declarations and admissions of the husband and wife aré generally admissible to prove or disprove their marriage. Some of the authorities hold that such declarations are admissible as original evidence of facts from which the marriage may be inferred and as a part of the res gestse. R. C. L. vol. 18, p. 424, and notes 9 and 10. Such declarations, however, to be admissible as a part of the res gestse, must be made during the cohabitation of the parties, for, if not so made, they are not considered contemporaneous with the fact sought to be proved so as to render such declaration a part of the res gestse. The true test for the admission of the declaration of a deceased person is whether such declaration was made under circumstances justifying the conclusion that there was no probable motive to falsify the fact declared, such as the existence or nonexistence of a controversy at the time of such marriage relation. As said in Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742, statement of the deceased that there was no marriage may be construed to mean that there was no formal or ceremonial marriage, as it is unusual to use the word “marriage” as signifying the ceremony. Especially would this be true in this case where the facts show that during the relationship of the parties there was a separation of the parties, during which time a ceremonial marriage took place between appellant and another, which was thereafter abandoned, and appellee and deceased assumed their former relation, which continued until the death of deceased. We think the circumstances surrounding the de-clarant at the time should be shown in order that the court trying the case can determine its admissibility and its probative force. To permit the declaration of the deceased • not made in the presence of appellant that appellant was “not his wife” involves a conclusion of the deceased and the ultimate fact in the case, and under circumstances undisputed showing long years of cohabitation and acting together as husband and wife.

We have concluded that the exclusion of the statement does not present reversible error.

The court admitted, over objection, a duplicate of individual income tax return for net incomes from business, etc., for the year 1929, made by “C. Sanchez Aldana, 1001 East Missouri street, El Paso, El Paso County, Texas.” The tax return showed:

“1. Are you a citizen or resident of the United States? Resident.
“3. Is this a joint return* of husband and wife? Yes,
“5. Were you married and living with husband or wife on the last day of your taxable year? Yes.
“37. Personal property exemption. $3,500.-00.”

The assignment presents no reversible error.

At the close of the evidence, appellant moved to exclude the evidence of appellee to the effect that she and deceased agreed to live together as husband and wife, as being in violation of article 3716, Rev. Civ. Statutes.

Without discussing the eases, the question presented is ruled by the cases of Ingersol et al. v. McWillie et al., 9 Tex. Civ. App. 513, 30 S. W. 56, in which a writ of error was denied, and Walton et al. v. Walton et al. (Tex. Civ. App.) 191 S. W. 188. This proceeding is not an action by or against an executor, administrator, or guardian in which action judgment may be rendered for or. against appellee in any such capacity; nor is it an action by or against any heir or legal representative of the decedent arising out of any transaction with such decedent; it is simply a proceeding in the probate court, on application for the appointment of an administrator in the estate of a deceased person. Should letters of administration be granted, an order to that effect is entered, giving the name of the intestate, the name of the appointee, and fixing the bond. No other hind of order could properly be-entered.

After appellee had become the common-law wife of Aid ana, if she had become such, such marriage being valid in this state, a ceremonial marriage of appellee to Francisco Castellano did not have the legal effect to set aside, dissolve, or annul the common-law marriage with Aldana. Such common-law marriage, like a ceremonial marriage can be set aside or annulled only by a decree of divorce or by death of one of the parties of the marriage.

We have carefully reviewed the entire record and have concluded that reversible error is not made to 'appear.

The ease is affirmed.