author: JONES, C. J.

text:
    DALLAS RY. & TERMINAL CO. v. GARNER et ux.
    No. 10853.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 19, 1931.
    Rehearing Denied Oct. 24, 1931.

      Allen Charlton and Worsham, Rollins, Bur-ford, Ryburn & Hincks, all of Dallas, for appellant.
    J. Hart Willis and J. W. Madden, Jr., both of Dallas, for appellees.
   JONES, C. J.

Appellees, C. R. Garner and wife, Lois Gat-ner, instituted suit in a district court of Dallas county against appellant, Dallas Railway & Terminal Company, to recover damages for alleged personal injuries received by the wife in a collision between a street ear operated by appellant and a small Ford truck, at the corner of Hall and Throckmorton streets in the city'of Dallas on January 18, 1929. A judgment resulted in favor of. appellees for the sum of $2,439.50, of which sum $93.50 represented hospital and medical expenses. Appellant has duly perfected its appeal.

There are three general grounds urged by appéllant for a reversal of this judgment and a remanding of the case for another trial. These grounds are: (1) Misconduct df the jury, in that the verdict of the jury as to the amount of recovery for personal injuries was determined by lot, and is what is known as a “quotient” verdict; (2) errors of the court in the manner of the submission of issues of negligence, in that'the court in effect required the exercise of a high degree of care by the motorman on certain issues of negligence, without regard as to whether the act complained of as negligence could have been reasonably anticipated by the motorman; (3) alleged unwarranted and prejudicial arguments by' attorneys for appellees. These questions will be discussed in the order named.

It is not deemed necessary to make a statement of the evidence supporting the grounds of negligence relied upon by appellees, nor that supporting the grounds of defense relied upon by appellant, and submitted to the jury. The case was submitted to'the jury on special issues, and several issues of negligence, either one of which would warrant ‘the judgment, were found in favor of appellees. These findings are in the main on evidence that is sharply contradictory, but, as they are supported by substantial evidence, they are adopted as findings of this court.

The issue as to the misconduct of the jury was properly raised before the court on the hearing of the motion for a new trial, the evidence ol three jurors was heard by the court, and the motion for a new trial was overruled. In the absence of a specific finding of fact on the issue of the jury’s misconduct, this court must construe the order overruling the motion for a new trial as a finding of fact that there was no misconduct, and the question for review on this issue is, Does the record warrant such finding? Bradshaw v. Abrams (Tex. Com. App.) 24 S.W.(2d) 372; St. Louis B. & M. Ry. Co. v. Cole et al. (Tex. Com. App.) 14 S.W.(2d) 1024; Bradley v. Railway Co. (Tex. Com. App.) 1 S.W.(2d) 861.

.The undisputed evidence shows that the jury considered each of the special issues submitted in the order in which they were contained in the court’s charge, and passed on each issue before going to the next succeeding issue; that a unanimous agreement was reached on all of the issues preceding issue No. 44, submitting the amount of damages suffered by Mrs. Garner by reason of the personal injuries received on the occasion in question. A discussion of issue No. 44 disclosed that there was a wide range of opinion among the jurors on the sum of money which would fairly recompense.Mrs. Garner for the injuries suffered. TÍiese sums ranged from $900 as the minimum to $7,500 as the maximum amount, and no two jurors wore agreed on the amount to be allowed. The undisputed evidence further shows that, at the suggestion of the foreman, who stated that they were directed to do so by the court’s charge, ea ch individual juror wrote down the amount he believed should be returned as an answer to this issue, and that the foreman added these several amounts, divided them by twelve, receiving $2,346 as the quotient, and that this quotient was returned as the jury’s verdict in answer to special issue No. 44, and made a basis for the judgment rendered hy the court. The foreman was mistaken as to the court’s charge, in this respect, for it directed the jury not to arrive at the amount of the verdict in any such manner. The undisputed evidence of the jurors testifying shows that, after the foreman announced what the one-twelfth of the aggregate amount of the several sums handed in hy the jury was, a unanimous agreement was reached that this would be the amount to be returned in answer to this special issue.

It is a general rule in civil actions that, for jurors to agree beforehand to accept one-twelfth of the aggregate amount of their several estimates as their verdict, without further deliberating on the amount so reached, invalidates the verdict. Missouri, K. & T. Ry. Co. v. Bounds (Tex. Civ. App.) 136 S. W. 269; Whisenant v. Schawe (Tex. Civ. App.) 141 S. W. 146: Galveston, H. & S. A. Railway Co. v. Brassell (Tex. Civ. App.) 173 S. W. 522; Hovey v. Weaver (Tex. Civ. App.) 175 S. W. 1089; Texas Midland Railway Co. v. Atherton (Tex. Civ. App.) 123 S. W. 704.

It is equally well settled that, although jurors divide the aggregate of their several estimates by twelve and return the quotient as their verdict, it will not be held to be legally objectionable if, after the amount has been ascertained, each juror deliberately assents to and accepts this amount as a fair and just verdict in his opinion. Missouri K. & T. Ry. Co. v. Hawkins, 50 Tex. Civ. App. 128, 109 S. W. 221; Chicago, R. I. & G. Ry. Co. v. Trippett, 50 Tex. Civ. App. 279, 111 S. W. 761; Missouri, K. & T. Ry. Co. v. Light, 54 Tex. Civ. App. 481, 117 S. W. 1058; Northern Texas Traction Co. v. Evans (Tex. Civ. App.) 152 S. W. 707; International & G. N. Ry. Co. v. Jones (Tex. Civ. App.) 175 S. W. 488; Weatherford, M. W. & N. W. Railway Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822; Bryan & C. Interurban R. Co. v. Ellison (Tex. Civ. App.) 241 S. W. 542, 545. Also see long list of Texas eases cited in 52 A. L. R. 45.

Each of the rules above announced gives due recognition to the rights of the litigants for a fair and impartial jury trial, and to the conscientious discharge by each juror of the duty resting on him in such trial to agree to render only such verdict as he conscientiously believes is fair and just to the litigants under the evidence in the case. The first rule denies to a juror the power to disable, or hamper himself, in a conscientious discharge of his sworn duty, hy entering into a pre-agreeiñent as to what his verdict must be as to the amount of damages before he knows what this amount is. The second rule gives recognition to the well-known fact that, in the matter of ascertaining the amount of unliquidat-ed damages, especially in the character of case as the one at bar, it is hardly possible for twelve men at once to reach the same conclusion. The amount of damages to be ascertained must be approached by each juror in a spirit of compromise, giving due regard to the opinion of his fellows, in so far only as such opinion does not run counter to his conscientious belief as to the amount of damages to be awarded. In other words, an agreement before the amount of damages is ascertained might run counter to the conscientious belief of a juror in this respect, and he should not be allowed to foreclose himself to object because of a previous agreement not to do so. Under the second rule, however, he is unhampered by any agreement to accept or reject the amount represented by the quotient, and is not obligated to accept it as his verdict, unless, in good conscience, he believes it to be fair and just. Under the method condemned by the first rule above quoted, the verdict is fixed by the previous agreement before any juror knows the amount; while under the method allowed by the second rule the amount ascertained is only a basis for further consideration, and may be accepted or rejected without consideration of any pre-agreement.

In the instant case, the court must have found that, when the jurors agreed, at the suggestion of the foreman, that each write down the sum he believed to be a just amount, and that these several amounts be added and divided by twelve, the quotient obtained was to be the verdict only in the event that each juror could assent to it as the amount he was willing to accept as his verdict on the amount of damages. The undisputed evidence is that, when the quotient was received, the foreman asked the jurors if such amount was satisfactory, and each agreed that such should be the verdict on this special issue. We think this conclusion of the court is warranted by the evidence. Where the evidence on a disputed issue before the trial court is susceptible to either of two inferences, and the trial court bases a finding of fact on one of such inferences, such finding of fact is binding upon this court. We therefore hold that the trial court did not abuse his discretion in overruling the motion for a new trial on the issue of misconduct of the jury, and overrule all assignments of error in respect thereto.

The second question under review, as to whether the court erred in the manner in which special issues of negligence alleged by appellees was submitted to the jury, will require a statement of such issues submitted, except as to the issue of whether the motorman sounded the gong as his car approached the intersection of Hall street, this issue being found against appellees.

Issue No. 1: “Do you find and believe from a preponderance of the evidence that the defendant’s employee in charge of its car failed to exercise a high degree of care, as that term has been defined herein, for the safety of Mrs. Lois Garner in the' matter of slackening the speed of the car at or about the intersection on the occasion in question?” Answer : “Yes.”

Issue No. 5: “Do you find and believe from a preponderance of the evidence that the defendant’s employee in charge of its car failed to exercise a high degree of care, as that term has been defined herein, for the safety of Mrs. Lois Garner on the occasion in question in the matter qf having the car under control?” Answer: “Yes.”

Issue No. 5: ‘“Do you find and believe from a preponderance of the evidence that the defendant’s employee in charge of its car on the occasion in question failed to exercise a high degree of care, as that term has been defined herein, for the safety of Mrs. Lois Garner in the matter of applying the brakes to the street car?” Answer: “Yes.”

Issue No. 9: “Do you find and believe from a preponderance of the evidence that the defendant’s employee in charge of its car on the occasion in question failed to exercise a high degree of care, as that term has been defined herein, for the safety of Mrs. Lois Garner in the matter of keeping a lookout for the approach of vehicular trafile on Hall Street as he approached the intersection of Hall and Throckmorton Street?” Answer: “Yes.”

Issue No. 11: “Do you find and believe from a preponderance of the evidence that the defendant’s employee in charge of its car failed to exercise a high degree of care, as that term has been defined herein, for the safety of Mrs. Lois Garner in the matter of the rate of speed at which said car was being operated on the occasion in question?” ■ Answer: “Yes.”

Each of these acts of negligence was found' by the jury in response to other special issues to have been a proximate causqof the injuries received by Mrs. Garner.

Mrs. Garner was a passenger on appellant’s street car, and as to her safety appellant was required to exercise what is termed a “high degree of care.” This term was defined by the court in the main charge to be “such care as a very cautious and prudent person would exercise under the same or similar circumstances.” This is the generally accepted definition of such term. International & G. N. Ry. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Gulf C. & S. F. Ry. Go. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183; St. Louis Southwestern Ry. Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; Wichita Valley Ry. Co. v. Williams, 116 Tex. 253, 288 S. W. 425; Paris & G. N. Ry. Co. v. Atkins, 111 Tex. 306, 234 S. W. 66; Houston & T. C. Ry. Co. v. Keeling, 102 Tex. 521, 120 S. W. 847; International & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829.

As we understand appellant’s contention, it does not controvert the general proposition that a carrier of passengers is required to exercise a high degree of care for the safety of the passengers. We understand the objection to be that, under the facts of this ease, such general rule should have been modified by the charge so as not to require from appellant more than ordinary care to anticipate and guard against the negligence of the operator of the Eord truck, especially when such negligence consisted in the operation of the truck in violation of law. It is also insisted by appellant that the motorman was not required to anticipate and guard against the unlawful operation of the offending driver of the Ford truck.

The evidence raised the issue, and the jury found, that the driver of the truck exceeded the speed limit allowed by city ordinances, and found other acts of negligence committed by the driver of the Ford truck, but also found in response to special issues that the negligence of the driver of the Ford truck was not the sole proximate cause of the injuries; received by Mrs. Garner.

We cannot agree to appellant’s contention in this respect. The collision occurred' at an intersection of two streets. On one of these streets appellant was operating its car in a westerly direction; on the other and intersecting street the Ford truck, which collided with the street car, was being operated in a northerly direction, the respective courses being at right angles to each other. The motorman in charge of the street car was required to take.notice that the users of the intersecting street would operate vehicles across the path of the street car. Under such conditions the duty rested on the motorman to exercise that degree of care that a very cautious and prudent person would exercise under such circumstances .to avoid a collision, with any vehicle using the intersecting street. It is generally known that one of the dangers imminent at every street crossing in larger cities is from the reckless; and unlawful driving of automobiles. This danger is so common that we believe the trial court was warranted in applying the doctrine of a “high degree of care” and in submitting to the jury, in effect, the issue as to whether a very cautious and prudent' person operating a street car across an intersecting street would anticipate the probability of such a danger and guard against it. .We overrule appellant’s contention in this respect.

Appellant complains that one of the attorneys for appellees in his opening argument went outside of tlie record to indulge in inflammatory remarks, to appellant’s prejudice. Tlie specific argument referred to was an appeal to tlie jury that, if conditions at tlie scene of tlie collision were such as contended for by appellant, it would have shown same by pictures taken at the time, and stated that “You can juggle facts, but you couldn’t juggle pictures. They would show exactly where they came together. * * The plaintiff has no way of finding out where that street ear is. The plaintiff has no opportunity to find out what street car that is, nor take a picture of it/ They don’t bring any pictures down here with reference to it.” Attorneys are allowed much latitude in arguing issues of fact before the jury, and this applies to inferences drawn both from evidence offered or evidence not offered, if it reasonably appears it could have been offered. The evidence was sharply conflicting as to how the street car appeared immediately after the collision. Under such state of facts, we do .not believe the attorney so overstepped the bounds of legitimate argument as to call for a reversal of this case. .

• We do not believe that the objection to the argument of the attorney who closed the case for appellees, as shown by bill of exception No. 16, is well taken. The bill of exception shows that it was made in reference to statements made by counsel for appellant, and, when it is considered that the court properly charged the jury as to the burden of proof, it is not believed a jury could have been misled as to where the burden of proof rested on those issues submitting appellees’ case. There was no reversible error in the remarks of counsel. The same is true of bill of exception No. 18.

We do not think reversible error is shown by bill of exception No. 19. This bill of exception shows that the attorney for appellees rpaking the statement objected to was arguing the evidence of a witness for appellant taken by deposition. The deposition disclosed that the witness was a painter by trade, that at the time his deposition was taken he was at a hospital in the city of Dallas, suffering from a broken leg, and that he would be confined at the hospital for such length of time as would prevent his being able personally to attend the trial as a witness. The evidence given in the deposition of said witness, in all material points, corroborated the evidence of the motorman, and was in sharp conflict with the evidence given by appellees’ witnesses. It is inferable from the bill of exception that appellees’ attorney was earnestly contending that the facts in reference to the cause of the collision were as ' stated by the witnesses for appellees, and were not as stated by the witness in the deposition. In the course of argument the attorney used the language objected to, which Is: “This man (the witness) isn’t before the jury; you don’t look him in the eye. You don’t know whether he is a half-wit; you don’t know whether he is a yellow man or black man, or what he is; you don’t know whether he suffered from the hands of the claim agent.”

The. deposition did not state specifically either the nationality or the race of the witness. The argument does not specifically deny the witness was a white man, nor charge that he was a “yellow” man or “black” -man, but merely states the fact that the record did not disclose what the witness’ color was. It was in evidence that Mrs. Garner made a statement to appellant’s claim agent, while she was at the hospital and in a somewhat hysterical condition, which was afterwards committed to writing and a copy given to her, but that she refused to sign it because she 'Claimed it did not correctly represent what she had told the claim agent. The last sentence of the argument is doubtless based on this evidence of Mrs. Garner. To our minds, the jury could not have been influenced by this argument, even if improper. The facts’ in reference to the witness were before the jury, and they could draw their conclusion, and doubtless did so, both as to the complexion of the witness and as to his mentality.

We have carefully examined all other assignments of error, with the result that we are of opinion that the case should be affirmed, and it is so ordered.

Affirmed.

On Motion for Rehearing.

In its motion for rehearing, appellant contends that the evidence of the jurors Broyles, Gano, and Woodward, the latter being the foreman, shows conclusively that the jury was guilty of misconduct. These were the only jurors who testified. Broyles’ testimony ■clearly shows that there was no agreement before the quotient was determined to make it the verdict. The effect of the witness Gano’s testimony is very much the same on this question, but this juror apparently believed the quotient should constitute the verdict. Woodward testified that: “It was my understanding that the court had told us if we couldn’t get together otherwise, then to take a ballot, by lot. I told the gentlemen of the jury that a$ the court had instructed us to do that, that I thought we all ought to put down what we thought was right, add it up and divide by twelve; I told them I thought that was the only way we could get it. * Each juror put down an amount and I divided by twelve, and I put to a vote-the amount I got. We did not write down the vote. I just asked them orally, ‘Gentlemen, is this amount alright,’ and nobody objected.”

"“Again the witness testified: “Now, judge that agreement (statement) as it reads there, looks like wo liad agreed on a verdict. We hadn’t agreed on this amount — that we would accept it. We agreed that it looked like that was the only way we could get together and find out how much we could give. We couldn’t give them on the other — that is the only way we could find out — we could get at it. We voted on it after we had arrived at this amount and that is all.”

On redirect examination the witness further-testified: “I told you when I talked to you that we did not have an agreement in advance of writing down and adding up and dividing by twelve. This statement (referring to a statement the witness had signed) is not correct when it says that we made an agreement for each to write down the amount of money he thought was proper, divide that by twelve, and that that would be the verdict of the jury. That is not correct. We didn’t agree to stand by that decision. We-agreed that was one way we could try to arrive at a decision.”

This evidence we held in the original opinion to be sufficient to show that a reasonable inference could be drawn from the testimony, of the jurors, to the effect that there was no agreement before the quotient was ' determined that such quotient should be the verdict, and hence the finding of the trial court that there was no misconduct of the jury is sustained by the evidence. We adhere to that opinion, and overrule the motion for rehearing.

Overruled.


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    FEDERAL ROYALTY CO. v. STATE.
    No. 2558.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 24, 1931.
    Rehearing Denied Oct. 22, 1931.
    Ike S. Handy, of Houston, for appellant.
    Hart Johnson, of Ft. Stockton, and Brian Montague, of Del Rio, for the State.
   WALTHALL, J.

This suit was brought by the state of Texas, in the district court of Pecos county, against the Federal Royalty Company, a corporation, with its principal office in Harris county, Tex., to recover the taxes, interest, penalties, and costs alleged to be due for the year 3929, and to foreclose the tax lien on a royalty interest in oil and gas in two sections of patented public school lands situated in Pecos county; the said two sections of land being fully described in the petition. The lands are situated in the eastern portion of Pecos county in what is generally known as the Yates oil field.

The case was tried to the court without a jury, and appealed to this court upon an agreed statement of facts.

In view of the issues, presented here, we deem it unnecessary to state the pleadings of. the parties more than to say that the suit was brought by the county attorney of Pecos county, Hon. Hart Johnson, on behalf of the state, for the collection of the taxes, interest, penalties, and costs and the foreclosure of the tax lien on the lands described as the property of defendant for the year 1929, the lands being unrendered for taxes in Pecos county, and delinquent in the payment of taxes assessed against said property.

The defendant answered by general de-‘ murrer, special exceptions, and general denial; the contention made by the defendant being that no assessment for taxes was made and that the royalty interests owned by it were in fact personal property and not real property, and not subject to taxation in Pecos county.

Judgment was rendered against defendant; defendant duly excepted, gave notice, and has perfected this appeal.

Opinion.

Appellant submits that ‘tte assessment under which the taxes sued for were made was void because riot made by the Tax Assessor of Pecos County,”

Appellee submits that the assessment was a valid assessment.

On the issue as to the making the assessment on the property in controversy, the record, very briefly stated, shows: The parties agree in writing to the following: It was agreed that on January 1, 1929, the appellant was the owner of the interests described in the petition, under and by virtue of the following written instruments; that the interests are correctly described on the tax rolls of Pecos county for the year 1929, as unren-dered property, and that the same are correctly described on the delinquent tax roll of said county for said year; agreed that all notices prerequisite to filing suit for delinquent taxes were given; demand was made for payment of such taxes, and that defendant failed and refused to pay same or any thereof. Appellant being the owner of the interests in the property, we need not, under this proposition, state the character of the interests owned in determining the validity of the assessment more than to say that the. interest held is such as is held by what is commonly known as mineral deeds, and a lessee under the usual form of an oil and gas lease, hereinafter more particularly stated.

The record and agreement shows that on September 10, 1928, Pecos county, acting by and through the commissioner’s court of that county, by reason of the many years of experience in the matter of appraisals and valuations of such properties for tax assessments possessed by Thomas Y. Pickett & Co. of Dallas, Tex., employed that company to compile a list of the record owners of all producing oil and gas .properties wherever situated or located in Pecos county, Tex., and undeveloped leases and royalty interests adjacent thereto, as of January 1, 1929, and 1930; said compilation and record to show the particular interest, or interests therein owned, to secure for Pecos county all information possible and available for the use of Pecos county, sitting as a board of equalization in determining the proper valuations to be fixed upon such properties for assessment and taxation purposes; and generally to compile such information as shall be of aid and benefit to Pecos county in equalizing the values of such properties for taxation; to meet with the commissioners’ court of Pecos county, Tex., sitting as a board of equalization, and to furnish said board all the information secured by them during their investigations for the purpose of equalizing the assessments upon such properties; to make a survey of all pipe lines, refineries, tank farms, and tankage, and all other properties of value used in connection with said oil and gas development, including transportation facilities.

The assessment of the property made by the assessor, and, in doing so, the use made by him of the information in the form of an inventory made by Thomas Y. Pickett & Co., is shown by the evidence of the assessor, which we copy at length.

“My name is J. L. Moore and I live in Fort Stockton, Pecos County, Texas. I hold the official position of Tax Assessor of Pecos County, which position I have held continuously for the past eight years, and once before, all told twenty-three years. The six sheets of paper which are handed me clipped together are a part of filed documents and records of my office as Tax Assessor. They are copies of what purports to be an inventory. An original was made at the time a copy was made. These were made up by Thos. Y. Pickett & Co. who are employed to get up these inventories and they delivered to me the original to mail out to the owner and I mailed tlie original out. The original was not signed and returned by the owner. The original and copy are made and where the property is not rendered by the owner I gave to the owner that original copy for his signature. The original was mailed by me to The Federal Royalty Company and was not returned signed. In other words, the Federal Royalty Company did not render its inventory to me of- any property it might own in Pecos County for 1029 for the purpose of taxation. And this file or clip of papers which I have in my hand is the carbon copy of the original which was mailed to The Federal Royalty Company and after that time, I used this copy for presentation to the Board of Equalization of Pecos County and after its action this clip of papers was returned to me by the Board of Equalization and I have since retained it as a part of the files and documents of my office. I used this for the purpose of placing on the unrendered rolls the property subject to taxation in Pecos County for the year 1929 of the property of the Federal Royalty Company. The taxes on these sheets are estimated on these sheets according to each item and are copied from this on the roll; the roll is a copy of this, and this file of papers constitutes a copy of my office. From examination of these sheets it appears that some figures are in colored pencil and some in ordinary lead pencil. As I remember the colored figures are exactly as they appeared on the original^. The lead pencil figures did not occur on the originals. These figures were the ones that were decided on by the Board of Equalization and delivered to me.
“The book which you now tender me is the tax roll for the year 1929 for Pecos County, Texas. It is a permanent record in my office. When these copies are completed I deliver one to the County Clerk, one to the State Comptroller and I keep one in my office. ’ It is the duty of the Tax Assessor to prepare that roll and it was prepared under my supervision. Turn to Form ‘D’, page 42. Beginning with line 35 through 44 as it appears on page 42 of Form ‘D,’ roll of unrendered property in Pecos County, assessed for taxation by Tax Assessor, J. L. Moore for the year 1929; when the State Equalization Tax Board fixes the rate of state taxes I am then notified ’by it of the rate of the State Tax; there is a copy. sent to me by the Comptroller, a copy of the State Tax rate for 1929 was sent to me. I used this rate in determining the Státe Tax on the valuations of land shown in this assessment. The County Commissioners of Pecos County fix the County and Common School Tax rate. This land is in the Independent School District. This figure I have here is for the Sheffield Independent School District. I assess property for the Independent School District of Sheffield. The trustees of the Independent School District meet and make levy and the President or Secretary notify me what their rate is. I was advised in the year 1929 of the rate determined for the Sheffield District. The County Tax is fixed by the Commissioners and I was advised of the County Tax rate for 1929. In determining the amount of taxes I used the rate of which I was advised by the State Tax Board and those rates were computed on the values that appear in this assessment.
“I have only one regular deputy. I have men who do other work around the County. In 1929 I had the deputy who works here now, Mr. Valentine, and I had a deputy at Buena Vista, Mr. J. F. Heagy and one at Iraan, Mr. Mitchell. I had' no members of the firm of Thos. Y. Pickett & Company or no employee of Thos. Y. Pickett & Company in my employ as deputy tax assessor. The assessments of this property for taxes on which the Federal Royalty Company is being sued were not made 'by me nor were they made by any of my deputies, but were made by Thos. Y. Pickett & Company. Thos. Y. Pickett & Company obtained the evidence on which' those values were fixed. I do not know what process they used, whether they used the basis of daily production or whether they estimated the oil reserves in the ground, hut I think it was on the barrel. I know nothing about the valuations of oil property. I have no idea as to how much oil was under any of the tracts of land involved in this litigation in 1929. I made the statement that I did not make the assessments. I refer to the assessments that are shown on the six sheets of paper as inventory of property. These sheets were in fact prepared by Thos. Y. Pickett & Company as the names appear on this roll and the description of the property and valuations. There were two copies of each of these sheets, an original and a copy and some official or agent of the Thos. Y. Pickett & Company delivered these two sheets of paper to me as they were prepared. They delivered the original to me to mail out, they retained the copy and when the original was not signed they delivered the copy to me to put before the Board of Equalization. I knew that Thos. Y. Pickett & Company had been employed by Pecos County for making appraisal of mineral properties in this County and I knew the person who did this work to be a representative of Thos. Y. Pickett & Company.
“When he handed me this paper I accepted it from him as representing the name of the owner purporting to own the property, as' 'shown by that paper, and as representing the ownership whether in lease or minerals as were shown on. that particular sheet of paper and representative of the final value of that property. There is a column on this sheet which reads ‘Values.’ The same was on this sheet and the original which was mailed to the Federal Royalty Company. It was a part of my duty, as Tax Assessor of Pecos County to value properties for tlie purpose of taxation, I stated a few minutes ago that I was aware that Thos. Y. Pickett & Company had been employed by Pecos County to appraise and determine the values of mineral land. When the agent or representative of Thos. Y. Pickett & Company handed me the sheet of paper containing the inventory of property of the Federal Royalty Company I accepted what appeared on that paper at that time and forwarded to the Federal Royalty Company without making any changes. I received and accepted those sheets of paper in my official capacity as Tax Assessor and as such I put them in my files. Those others I mailed out to the owner. My purpose in mailing them out to the owner was that they might sign and return them as rendition of their property. The original was .not signed and returned to me. The copy which I retained, and which are the sheets of paper which are clipped together here, were put in among the files, papers and documents of my office as Tax Assessor of Pecos County, Texas, for the year 1929, for the Federal Royalty Company. When the Board of Equalization met I tendered these same six sheets of paper for their consideration.
. “After the Board of Equalization met the six sheets were delivered back to me and I took them back to my office and filed them as unrendered inventory of property and as the assessment for the year 1929 against the Federal Royalty Company. On the first sheet appears the valuation of $14,220.00. Immediately under which appears $13,125.00, which was the value placed by the Board of Equalization. On the second sheet the value is $23,-175.00 with a line drawn through it, and above it, $17,115.00. That was the figure fixed by the Board of Equalization. Sheet Number 3 has a total figure of $164,003.00. Sheet Number 4 has an original figure of $27,460.00 and beneath, $25,340.00, which is the value fixed by the Board of Equalization. Sheet Number 5 has the figure $59,835.00 with a line drawn through it and the figure $55,230.00. That is the value fixed by the Board of Equalization. Sheet Number 6 has the figure $90,465.00 with a line drawn through it, and the figure $83,-500.00 which is the value placed by the Board of Equalization.
. “I do'not recall having written to The Federal Royalty Company in response to a letter asking information about the original of those six sheets; a letter in which I stated that ‘those assessments were all made by Thos. Y. Pickett & Company and I know nothing about it.’ I probably did write it though. I refer anyone to Thos. Y. Pickett & Company as they are employed to get them and I refer to them. As a matter of fact I did not make these assessments, nor did I arrive at these valuations nor was it done by any of my deputy Tax Assessors. When the sheets were turned into my office I did not examine them for the purpose of determining whether the values were proper. I did not know whether they were proper or not. As a matter of fact, these values might be ten times more or less of the values as far as I know. I do not know anything about the values. Every value fixed on oil properties, insofar as any property in this suit is concerned was made by Thos. Y. Pickett & Company, and I knew nothing about it at the time they fixed that value, nor have I known since. I accepted the information, forwarded the original to the Taxpayer and filed the copy in my office. That copy without change on my part was delivered to the Commissioners’ Court. The Commissioners’ Court authorized him (Thos. Y. Pickett & Company) to make the changes. There were a lot of oil people here at that time and they agreed on a lower basis and they turned back to Thos. Y. Pickett & Company according to what they agreed on and they then assessed and made those other values and they were turned over to me. I have nothing whatever to do with the fixing of the values.
“When I received the set and filed it in my office I received and filed it as an assessment of the property. I had nothing to do with the manual preparation or the determining of the values of the property but after that figure was reached and the information put on the paper and delivered to me I did file it as the assessment against The Federal Royalty Company. The figures placed there are not my own.
“The only evidence I have of the value of any of this property is that statement made by Thos. Y. Pickett & Company. I made no inquiry and if persons had appeared before me to furnish evidence that the values were too high I would have referred such persons to Thos. Y. Pickett & Company.”

For brevity, without quoting, we refer to the trial court’s tenth finding of fact in the matter of the assessment and rendition for the property for taxes for the year 1929.

The six inventory sheets referred to in the above statement of Tax Assessor Moore were introduced in evidence.

Appellant introduced in evidence the six statements of taxes charged against it; same being the statements rendered to the appellant by the tax collector of Pecos county.

The testimony of Assessor Moore shows that the six sheets, carbon copies of the original inventory prepared by Thos. Y. Pickett & Co., were presented to the board of equalization by the assessor and used by the board in fixing the values of the property.

Appellee in its brief calls our attention to an error in the testimony in respect to sheet No. 3. By reference to Exhibit C (S. F. 47), it is apparent that the assessor was looking at the column which evidences the tax calculated as being $1,640.03, instead of a total of $164,003, and that the value of the property there assessed, as originally submitted, was $102,105, and changed by the board to $94,254.

As suggested by appellee, it is manifest that 'the record presented discloses the following: On January 1, 1929, appellant was the owner of the property described in the various assessment rolls; that it did not render such property for taxation in Pecos county for that year; that its existence and approximate value were ascertained through an agency created for that purpose by Pecos county; that such information on duplicate assessment lists was given to the tax assessor of Pecos county, who in turn mailed the original of such list to the owner domiciled in Harris county to enable it to sign such list and make rendition of that property for the purpose of taxation for the year 1929 in Pecos county; that, having failed to make such rendition, the tax assessor thereupon submitted a carbon copy of such list to the board of equalization of Pecos county as an assessment of unrendered property for that year against the Federal Royalty Company; that the same was considered by the board of equalization as an assessment of the value of the property, the value in each instance being reduced by the board, the lists furnished the board returned to the tax assessor by the board with directions to enter such property for the purposes of taxation for that year against the Federal Royalty Company on the unrendered roll of 1929 taxes.

The record shows the regular meeting of the board of equalization of Pecos county for 1929, and at such meeting the board had under consideration the fixing, determining, and equalizing the value of all taxable property in that county for that year, and among other matters the minutes of that meeting recite: “The following property was found to be unrendered by the Tax Assessor and the Board of Equalization after carefully considering the values recommended by the Assessor and finding the same to be fair and equitable and in proportion to the final values placed on like properties owned by others, whether rendered or unrendered, instructed the assessor to place the following described property on the unrendered roll at the values herein below set out.” (Then follow the property involved here with the values as above.)

The record shows the minutes of a session of the commissioners’ court held on October 27, 1929, at which the tax rolls of said county for that year were submitted, examined and approved.

The question presented under this proposition is: Was the assessment void because not made by the tax assessor ?

Appellant discusses and refers us to several articles of the statute and to a number of cases, all of which we have reviewed. They deal mostly with voluntary renditions made by the taxpayer. It is the law that all tax assessments, to be valid, must be made as provided by the statute. Here we are considering an assessment for taxes for which no rendition was made to the assessor by the owner and where the tax due, if any, has not been paid. In view of the holding of the courts in Roper v. Hall (Tex. Civ. App.) 280 S. W. 289, and the cases there cited, and the case of Maud v. Terrell, 109 Tex. 97, 200 S. W. 375, and the case of Von Rosenberg et al. v. Lovett (Tex. Civ. App.) 173 S. W. 508, 509, it would be useless to discuss the authority of the commissioners’ court of Pecos county to enter into the contract shown in the record with Thos. Y. Pickett & Co. Such services there contracted to be rendered called for information and experience not ordinarily possessed by the assessor, and neither the assessor nor the commissioners sitting as a board of equalization, in the performance of their duties in the discovery, assessment, and valuation of unrendered oil and gas properties, can perform their several duties effectively without such expert aid. Evidently the purpose of the contract was to aid the office in the performance of the respective duties. The aid contracted for ,is in the exercise of the powers and duties imposed by law upon ttie assessor of taxes and the commissioners sitting as a board in the matter of listing and assessment of property for taxation in the county where situate. Where, as in this state, no express authority is given to employ such expert aid, the power to do so is implied, and the expedience of doing so is within the discretion of the commissioners’ court. We do not understand appellant as denying the authority of the commissioners’ court to make the contract found in the record, but does insist that the use made by the assessor and the board of equalization, of the sheets as an inventory and valuation of the property furnished by Thos. Y. Pickett & Co., was not an assessment by the assessor or the board, and for that reason no legal assessment was made. It is true the assessor said that he had no personal knowledge as to the value of the oil property. He used the assessment lists and valuations furnished by Thos. Y. Pickett & Co. as his valuations, and furnished same to the board, and which the board used and acted upon in fixing the values. The assessor, in person, acting in his official capacity, accepted the sheets furnished him by Thos. Y. Pickett & Co., and in person, as assessor, used and made use of them as his assessment in fixing the assessed values of the property. The trial court found that “such Tax Assessor adopted said duplicates (of said inventories) and filed the same as his assessment and rendition of the property described therein for taxation for the year 1929,” and delivered same to the board. The board made use of the same duplicate inventories furnished by the assessor in fixing the assessed values of the property for that year.

The Board of equalization did fix the tax valuations of said property for the year 1929. They approved the lists and returned them to the assessor for making up the general rolls.

We think it might he said, and it is the most that could be said in view of the testimony, that, independent of the aid of Thos. Y. Pickett & Co., the assessor did not in person or by deputy discover the property in controversy not listed to him; that he did not in person or by deputy prepare the lists and write in the list columns the items therein written. However, the assessor and the board of equalization, with the expert aid of Thos. Y. Pickett & Co., did all that was required by the statute to a full and complete assessment of the property. Considering appellee’s independent proposition, it is apparent from the record that appellant is and was at all of the times mentioned the owner of the property in controversy, that the taxes sued for had not and have not been paid, and that the taxes sued for are not in excess of the limit allowed by law. City of Rising Star v. Dill (Tex. Civ. App.) 259 S. W. 652; same case affirmed (Tex. Com. App.) 269 S. W. 769; Zachry v. City of Uvalde (Tex. Civ. App.) 24 S.W.(2d) 517.

We have concluded that the assessor and the board of equalization could, as they did, properly make use of the expert information and assistance rendered in the assessment and fixing of the values on the property, and that by doing so the assessment was not made void as not. made by the assessor, as submitted by appellant.

The remaining contention of appellant is submitted under two propositions, and to the effect that the royalty interest provided for in the lease under which appellant claims title covering the sections of land involved in this suit does not constitute an interest in real estate, but is in fact personal property, and is not subject to rendition for taxes in Pecos county; that, regardless of the language of a lease executed by the owner of the surface of school lands wherein such owner acts individually and as agent for the state, the royalty which is to be paid under the terms of said lease is paid as liquidated damages and not as consideration for the grant.

Appellee’s counter proposition to the above is-, that the royalty interest provided for the leases covering the sections of land involved herein is “realty,” and subject to taxation as such in Pecos county.

The trial court’s second finding reads as follows: “I find that Sections 101, Block 194, T. O. Ry. Co. and Section 60, Block 1, I. & G. N. Ry. Co. were patented by the State of Texas, in the years 1894 and 1884 respectively, without mineral classification; I further find that Section 32 Block 194, G. C. & S. F. Ry. Co. was sold in 1908 by The State of Texas to T. F. Hickox, and that at the time of the sale of said Section 32 the same was Public School Land and was classified as Mineral and Dry Grazing, and that in said sale all minerals pertinent to said section were reserved to The State; said Section 32 has never been patented and I. G. Yates is now the owner of said Section as Assignee of T. F. Hickox; I. G. Yates also owns said Section 60 in Block 1, I. & G. N. Ry. Co. and the estate of Mrs. M. A. Smith, deceased, owns Section 101, Block 194, T. C. Ry. Co. All of the respective ownerships above set out being subject to the various leases and conveyances of mineral interests hereinafter set out.”

The royalty interest in the above-described tracts of land became the property of the Federal Royalty Company as follows: An assignment of an undivided one-sixteenth in said section 32, block 194, by mineral deed dated February 4, 1924, in favor of Lee Hager; a mineral deed dated February 4, 1924, executed by I. G. Yates and wife, conveyed to Lee Hager an undivided one-sixteenth interest in said section No. 60, block 1; . án assignment executed by Lee Hager on December 16, 1926, in favor of Federal Royalty Company conveying a certain fractional interest in said section No. 32 and said section No. 60; an assignment dated April 2, 1924, executed ■by Lee Hager in favor Federal Royalty Company conveying a certain fractional interest in said section 32 and said section No. 60, above described. An assignment executed by Mrs. M. A. Smith and husband of date October 20, 1926, conveying to E. C. Marrs, by mineral deed, an undivided one-half interest in section 101, above described, and a mineral deed of date December 8, 1926, executed by E. C. Marrs, conveying to the Federal Royalty Company an undivided one-half interest in said survey 101, block 194. In view of the agreement of the parties that appellant owns the interest, in the property in controversy as alleged in the petition, and that such interest is a royalty interest, a further statement of such interest is unnecessary to the points to be decided, the value of such interest not being-involved.

The court found that each of the leases covering the above-described tracts of land contained the following clause with reference to the royalty accruing under the terms of said lease: “To deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all ■oil produced and saved from the leased premises.”

The above finding of the trial court is not questioned by appellant.

A discussion or review of the many cases to which we are referred would be unnecessary. The suit is to recover taxes on the royalty interest as real estate, and the question presented is, Is the royalty interest real estate or personal property?

In Hager v. Stakes, 116 Tax. 453, 294 S. W. 835, 842, on a certified question involving taxation of a royalty interest in minerals, and other questions incidentally involved, the Supreme Court, speaking through Judge Greenwood, after reviewing many cases referred to and discussed in the briefs here, said:

“Our answers to all the certified questions might be rested on the following propositions: First. That minerals in place are realty, and as such are subject to ownership, severance, and sale, as settled by the decisions in Texas Co. v. Daugherty, 107 Tex. 234, 176 S. W. 717, L. R. A. 1917F, 989, and Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S. W. 290, 29 A. L. R. 566.
“Second. That a severance may be accomplished by means of a conveyance of the minerals or by moans of an exception or reservation in a conveyance, as clearly pointed out in the opinion of Chief Justice Cureton in Humphreys-Mexia Co. v. Gammon, 113 Tex. 256, 254 S. W. 296, 29 A. L. R. 607, and in the cases there cited.
“Third. That in every instance one who owns a tract of land or an undivided interest therein, including the minerals, can be divested of his interest, in minerals in place only by a deed containing words sufficient to operate as a conveyance of an interest in land, as distinctly held in W. T. Waggoner Estate v. Wichita County, 273 U. S. 113, 47 S. Ct. 273, 71 L. Ed. 566, and in States Oil Corporation v. Ward (Tex. Com. App.) 236 S. W. 446. However, no technical words, are necessary, but effect will be given to whatever language discloses the intent to divest the owner of his mineral estate, in whole or in part.
“Fourth. Each of the leases set out in the certificate left the lessor with an interest in minerals which was'real property.
“Fifth. Real estate is ordinarily taxed as a unit; yet, where there have been severances by conveyance, exception, or reservation, so that one portion of the realty belongs to one person and other portions to others, each owner should pay taxes under proper assessment against him of the portion owned by him.' The fact that a portion may consist, of minerals or of a fractional interest therein makes no difference, as outlined in State v. Downman (Tex. Civ. App.) 134 S. W. 787, and Downman v. Texas, 231 U. S. 356, 357, 34 S. Ct. 62, 58 L. Ed. 264.
“Sixth. The Texas Constitution and statutes leave no room for doubt, that all property of every kind is Subject to taxation, and, as long as such property consists of minerals in place or fractions of same, the taxes should be assessed and collected thereunder as on any other species of real estate.”

The court held that the interests of the lessees or their assigns in the minerals involved in the leases set out in the certificate •are taxable in the county where the lands are situated.

In the instant case, the royalty interest in the above-described tracts of land became the property of the Federal Royalty Company as follows: Giving here only the section and block numbers, the conveyances are substantially as follows:

Ira G. Yates and wife, for a cash consideration paid, grant, bargain, sell, convey, set over, and assign and deliver unto Dee Hager an undivided one-sixteenth interest in and to “all of the oil and gas in and under and that may be produced from,” the land described, being sections 32 in block 194, situated in Pecos county, with right of ingress and egress for mining purposes, etc., and removing same therefrom. The instrument recites that the land is now under an oil and gas lease,.and that the conveyance is made subject to said lease; and covers and includes one-half of all the oil royalty and gas rental to be paid under the terms of said lease. It is agreed that all money rentals to extend the lease are to bo paid to the grantor, and, in the event of forfeiture, all oil and gas underlying the land to be owned jointly by grantor and grantee in proportion stated. The grant is dated February 4, 1924.

The next conveyance is a mineral deed from Ira G. Yates and wife, which, for a cash consideration paid, grants, bargains, sells, conveys, sets over, and assigns and delivers unto Lee Hager an undivided one-sixteenth interest in and to all of the oil and gas “in and under and that may be produced from” the land described as situated in Pecos county, being section 60, the block number left blank in the conveyance, but apparently found by the court to be in block 1, with right of ingress and egress for mining purposes; the land is stated to be under an oil and gas lease,’ and the conveyance is made subject to the lease, and covers an undivided “½ of all the oil royalty and gas rentals to be paid under the terms of said lease”; the money rentals to extend the terms of the lease to be paid to the grantors, and, in the event of forfeiture, “all the oil and gas underlying the above described land shall be owned jointly by grantee and grantor,” in proportion as above.

A warranty deed from Lee Hager to tlie Federal Royalty Company, of date December 16, 1926, apparently a correction conveyance of an instrument of date April 2, 1924, whereby Lee Hager, in consideration of money paid, conveys to the Federal Royalty Company “a royalty interest in all of the oil and gas in and under and that might be produced from” the lands described and situated in Pecos county, being said sections 32 and 60, block 194. The instrument “conveys all of my right, title, claim and interest in and to the above described land and the minerals tlierein and thereunder, including 3¾6 0f the royalty on all the oil and gas heretofore produced or which may be hereafter produced from said above described lands.”

A royalty deed from Lee Hager to the Federal Royalty Company, of date April 2, 1924, reciting that by deeds of date February 4, 1924, Yates and wife conveyed to him, Lee Hager, “a ½ interest in the royalty of all the oil and gas in and under and that may be produced from,” the lands described and situated in Pecos county, and being said sections 32 and 60, in block 194. After some whereases, not necessary to state, Lee Hager, for a cash consideration paid, “grants, sells and conveys” to the Federal' Royalty Company “an undivided ½ interest in and to all of said above described 3¾6 royalty interest.”

An agreement, of date December 20, 1924, between Mrs. M. A. Smith and husband. Mrs. Smith in her own right and as guardian of estates, as stated, as lessor for a cash- consideration paid, “g'rants, conveys, demises, leases and lets” for the purpose of mining for oil and gas, etc., and taking care of the products, to E. C. Harrs, the land described and situated in Pecos county as section 101, block 194. The lease is for ten years and as long as oil or gas is produced therefrom. The lessee covenants to deliver to the credit of lessor in tanks or pipe lines the equal one-eighth part of all oil produced and saved; to pay a rental stated where no well is commenced ; the lessor warrants the title.

A mineral deed from E. C. Marrs to the Federal Royalty Company, the deed not dated but acknowledged December 8, 1926. The grantor, for a cash consideration paid, “grants, sells, conveys, -assigns and delivers” seven-eighths of an undivided one-half interest in and to “all the oil, gas and other minerals in and under, and that may be produced from,” the land described and situated “in Pecos County, being survey 101, Block 194,” the land conveyed to him by Mrs. M. A. Smith, with right of ingress and egress for purpose of mining, etc. The instrument recites that the land is under an oil and gas lease, and the sale is made subject to said lease, but covers and includes seven-eighths of one-half of ’all oil royalty and gas rental or royalty due and to be paid under the terms of the lease, no money paid to extend the term of the lease to be paid to grantee, and, in event of a forfeiture of the lease, an undivided one-half of the lease interest and all future rentals on land and minerals shall be owned by grantee.

The ownership of the property involved and a proper description of same in the petition and the assessment items having been admitted, the above references to the instruments conveying the interests have been stated for the sole purpose of stating the character of title under which appellant owns the property.

"We construe the above instruments in each instance to convey minerals in place in the lands. We think the case of Hager v. Stakes, supra, and the cases there cited, rule the instant case as to the realty character of the property owned by appellant.

We think we need express no opinion as to whether the case of Ehlinger v. Clark, 117 Tex. 547, 8 S.W. (2d) 666, is in conflict with the Hager v. Stakes Case, and feel that the opinion in the Hager v. Stakes Case states the law by which we are to be governed until the Supreme Court makes a contrary ruling.

We have concluded that no reversible error is made to appear, and the case should be affirmed. It is so ordered.

Affirmed.


text:
    EL PASO ELECTRIC CO. v. INDEMNITY INS. CO. OF NORTH AMERICA.
    No. 2568.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 8, 1931.
    Rehearing Denied Oct. 29, 1931.

      Hunter, Brown & Brooke, of El Paso, for appellant.
    R. A. D. Morton, of El Paso, for appellee.
   WALTHALL, J.

Bailey Perkins met his death about the 14th day of March, 1925, while engaged in constructing or installing certain electrical work and equipment on an electrical substation south of and adjoining the main power plant of the El Paso Electric Company, hereinafter referred to as Electric Company, in the city and county of El Paso. The work was being done under the supervision of and by Stone & Webster, Inc., a separate entity from the Electric Company, under a contract hereinafter referred to. A suit was brought by Perkins’ widow for herself and minor children against the Electric Company and final judgment obtained. El Paso Electric Co. v. Perkins (Tex. Civ. App.) 292 S. W. 935.

At that time Indemnity Insurance Company of North America, hereinafter referred to as Insurance Company, appellee herein, was an insurer for Stone & Webster, Inc., and it is the contention of Electric Company that appellee’s policy ⅝ of insurance upon which the suit was brought covered both Stone & Webster, Inc., and Electric Company, against the contingency resulting in the death of Bailey Perkins, and that Insurance Company was therefore liable to Electric Company upon its contract of insurance for any damages which it was required to pay out as a result of the Perkins death claim. Insurance Company denied liability and refused to defend the Perkins death claim suit; the suit was defended by the Electric Company, and, upon final judgment rendered, appellant paid same, with interest and costs, amounting in the aggregate to the sum of $32,249.56, for the recovery of which this suit is brought.

The insurance policy executed by Insurance Company and made the basis of appellant’s suit, in its parts necessary to a clear understanding of appellant’s cause of action, is as follows:

“Standard Workmen’s Compensation and Employers’ Liability Policy.
“Indemnity Insurance Company of North America
“Philadelphia
“A Stock Company
“(Hereinafter called the Company)
“Hereby agrees with the Employer named in the Declarations attached hereto and forming part hereof, as respects personal injury sustained by employees, including death at any time resulting therefrom,
“One. (a) To pay promptly to any person entitled thereto, under the Workmen’s Com-peniation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,
“(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen’s Compensation Law, and
“(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen’s Compensation Law.
“It is agreed that all of the provisions of each Workmen’s Compensation Law covered hereby shall and will remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this Policy, while this Policy shall remain in force. Nothing herein contained shall operate to so extend this Policy as to include within its terms any Workmen’s Compensation Law, scheme, or plan-not cited in an endorsement hereto attached.
“One. (b) To Indemnify this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. In the event of the bankruptcy or insolvency of this Employer the Company shall not be relieved from the payment of such indemnity hereunder as would have been payable, but for such bankruptcy or insolvency. If, because of such bankruptcy or insolvency, an execution against this Employer is returned unsatisfied in an action brought by the injured, or by another person claiming by, through or under the injured, then an action may be maintained by the injured; or by such person claiming by, through or under the injured, against the Company under the terms of this Policy for the amount of the judgment in said action not exceeding the amount of this Policy.
“Two. To serve this Employer (a) by the inspection of work places covered by the Policy when and as deemed desirable by the Company and thereupon to suggest to this Employer such changes or improvements as may operate to reduce the number or severity of injuries during work, and (b) upon notice of such injuries, by investigation thereof and by settlement of any resulting claims in accordance with law.
“Three. To defend, in the name and on behalf of this Employer, any suits or other proceedings which may at any time he instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudu-. lent.
“Pour. To pay all costs taxed against this Employer in any legal proceeding defended by the Company, all interest accruing after entry of judgment and all expenses incurred by the Company for investigation, negotiation or defense.
“Five. This agreement shall apply to such injuries sustained by any person or persons employed by this Employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this Policy is to he computed and adjusted, and, also to such injuries so sustained by the President, any Vice-President, Secretary or Treasurer of this Employer, if a corporation. The remuneration of any such designated officer shall not he subjected to a premium charge unless he is actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman.
“Six. This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or in relation to, such work places.
“G. No action shall lie against the Company to recover upon any claim or-for any loss under Paragraph One (b) foregoing unless brought after the amount of such claim , or loss shall have been fixed and rendered certain either by final judgment against this Employer after trial of the issue or by agreement between the parties with the written consent of the Company, nor in any event unless brought within two years thereafter.
“K. The Company shall be subrogated in case of any payment under this Policy, to the extent of such payment, to all rights of recovery therefor vested by law either in this Endeavor, or in any employee or his dependents claiming hereunder, against persons, corporations, associations or estates.”
Declarations.
“Item 1. Name of this Employer: Stone & Webster, Inc. (Division of Construction and Engineering) and/or the owner or operating concerns or individuals named in endorsement or endorsements to which may be attached to the policy. P. O. Address 147 Milk street, Boston, Massachusetts.”
“It is understood and agreed that the following company is hereby named as an additional assured under the policy to which this endorsement is attached: El Paso Electric Company but only with respect to work undertaken by Stone & Webster, Inc., for said additional assured upon the so-called ‘cost plus’ basis or plan.
“Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.”

Appellant then alleged that said policy contained certain riders and declarations as set out: (6) That attached to the said policy of insurance and made a part thereof, under the heading “Adjustment of Rate Endorsement,” was a classification of the operations covered by the policy, the twenty-third and twenty-fourth numbered paragraphs not copied above, of which were as follows:

“23. Electric light and power line construction work — including Drivers, Chauffeurs and their helpers. (No payroll division with No. 7539 ‘Electric Light and Power Companies’) Classification No. 7538, Premium rate for $100.00 of payroll $6.17.
“24. Electrical Apparatus — installation and repair, excluding the erection of poles, the stringing of wires, the installation of service transformers on poles or on the outside of buildings, or the making of service connections. Classification number 3723, premium rate for $100.00 of payroll $3.28.”

Appellant alleges:

That attached to said contract and policy of insurance and made a part thereof was a rider headed “Declarations,” providing as item 1 that the name of the employer was Stone & Webster, Inc. (division of construction and engineering) and/or the owner or operating concerns or individuals named in indorsement or indorsements which may be attached to the policy; then follows item 1 fixing the life of the policy; item 3 indicating the location of places such as factories, shops, yards, etc., where the policy shall apply.

That attached to said policy was what was known as an estimation schedule, clauses 23 and 24 as in paragraph No. 6, above. That said policy and contract covered all operations usual to the business of construction engineers, and that at the time of the death of Bailey Perkins the said contractor was engaged as a construction engineer, and that said Bailey Perkins was under its supervision and control apd engaged in the work which he was doing by virtue of his employment.

That by a rider or slip attached to said contract or policy of insurance, and made’ a part thereof, and effective within the life of the policy, it was understood and agreed that the Electric Company was named as an additional assured under the policy but only with respect to work undertaken by Stone & Webster, Inc., for said additional assured upon the so-called cost plus basis or plan.

That by a previous rider or indorsement, and made a part of the policy, there was provided the ■ following: “The undermentioned policy is hereby extended to cpver the obligation for compensation imposed by law on individuals, copartnerships or corporations for whom the assured named in Item One of the Declaration of said policy is doing work as a contractor or otherwise, as respects bodily injuries or death suffered by employees of the assured named in the Declaration so far as such bodily injuries or death may be suffered by reason of the trade, business or work described therein, and covered thereby.” Then follows a list of the concerns protected, El Paso Electric Company being specifically named, Electric Company, its successor, was protected thereby. The indorsement, continuing, provides: “But only with respect to the work undertaken by Stone & Webster, Inc., for said concerns.”

It is further alleged that attached to said policy and a part of it was what was known and called, “Policy Amendment Endorsement No. 2,” as follows: “It is hereby understood and agreed that employees of any of the firms and corporations for whom Stone & Webster, Inc., have work to perform shall be considered employees of the said Stone & Webster, Inc., within the coverage provided by the undermentioned policy during the period that said employees are under the supervision or control of the said Stone & Webster, Inc., the basis of the premium payment shall be the remuneration earned by said employees, and the said Stone & Webster, Inc. hereby agrees to furnish to the company through an accurate statement the amount of remuneration earned by such employees while so working.” Such endorsement, by its provisions, being effective with even date of the policy.

It is alleged that the accident resulting in the death of Bailey Perkins occurred in connection with, and with respect to, and by reason of, the work undertaken by Stone & Webster, Inc., for Electric Company; that at the time of the construction of said work Stone & Webster, Inc., was engaged in doing said work for Electric Company under a contract upon what was known as the “cost plus” basis, or percentage basis plan, and that qt said time Bailey Perkins was engaged in doing said work as an employee either of Stone & Webster, Inc., or of Electric Company, or of both of said parties, in respect to and in connection with work being done by Stone & Webster, Inc., for Electric Company, under said contract upon said plan as stated and under the supervision and control of said contractor ; that, after the execution and delivery of said policy, the contractor undertook to do the work mentioned for Electric Company upon said cost plus basis plan, Bailey Perkins being employed upon said work, and while so engaged met his death through the negligence of Electric Company and an employee engaged in other work independent of the work upon which Bailey Perkins was engaged, as alleged and claimed by the surviving wife and children of Bailey Perkins, on account of which they sued and recovered judgment as above stated; that it was intended by the contract and policy and the indorsements thereon, as stated, to cover and protect against the injury to Bailey Perkins which was within the contemplation of the parties, the contract, and policy of insurance, and its declarations did cover and protect, not alone the contractor, but Electric Company against liability or damages occasioned or suffered by Electric Company, by reason of, or on account of, the accident resulting in the death of Bailey Perkins, engaged as he was at the time in making repairs or alterations upon the premises, that was drawing a ground chain across the transmission wires upon which he was about to work, preparatory to making repairs thereon, or to change or put in certain electrical connections, and in installing or repairing certain lightning arresters, etc., upon the switch-tower of Electric Company, in pursuance of his duties and work undertaken by the contractor. The death of Bailey Perkins happened with respect to said work and by reason thereof and the business described and covered by the policy for Electric Company.

Appellant then states the suit brought by Mrs. Perkins and children based upon the facts here alleged, with the result as stated, notice to insurance company, etc., its failure to defend, the suit resulting in a final judgment against appellant, and its payment by appellant and said judgment and its payment 'made the basis of this suit.

Appellee, insurer, in its answer, included a plea in abatement, grounded on the fact that there was pending in the United States District Court at El Paso a suit wherein the Electric Company was plaintiff and said insurer was defendant, in which suit appellant here, plaintiff therein, was seeking to recover said sums of money on two other policies issued by said insurer, which plea the court ■overruled, and to which ruling defendant excepted. We have mentioned the above only because we find it stated in appellee’s brief. No affirmative ruling on the matter of said plea is requested, and we make none, and need not further refer to it.

Appellee, further answering, alleged that it issued the policy sued on on February 1, 1925, which was a workmen’s compensation policy and plead various provisions thereof, alleging that, by reason of the terms of said policy, same was intended to and did cover only liability for workmen’s compensation under the Texas law; that same contained an indorsement prescribed by the Insurance Commission of Texas, limiting its operation to and under the Texas Workmen’s Compensation Law (Rev. St. 1925, art. 8306 et seq.); that Perkins, who was killed on March 15, 1925, was not an employee of the Electric Company, but on said date, and for several years prior thereto, was an employee of Stone & Webster, Inc-., which was an independent contractor; that it was adjudged on the El Paso Electric Co. v. Perkins Case (Tex. Civ. App.) 292 S. W. 935, to be, and it was a fact, that Perkins was an employee of Stone & Webster, Inc., and not of the. Electric Company.

Appellee’s answer further set up that insurer recognized its liability to Perkins’ heirs under such polic-y, and under the Texas Law, and began the payment of compensation at the rate of $20 per week from the date of Perkins’ death, and continued to make payments to the heirs until they* filed said former suit against the Electric Company, whereupon the insurer discontinued payments after paying $720; that by reason of facts pleaded in a former suit insurer pleaded that the matters pleaded by appellant herein were res adjudicata.

Appellee further answered that as a part of the transaction had in the policy sued on it had issued two other policies known respectively as contingent liability policy and public liability policy, neither of which was sued on herein, each of which limits the insurer’s liability to $15,000, and that, considering all three policies, in no event could recovery be had in this suit, since this suit is based on the workmen’s compensation policy, and was not intended to and did not cover any other policy, and that policy sued on, with its indorsements and riders, had been submitted to and approved by the insurance department of Texas, with its indorsements and riders.

Appellee, by its trial amendment, pleaded that, if wrong in its contention that Perkins was an employee of Stone & Webster, Inc., in that event the Electric Company was negligent in the former suit in not pleading matters peculiarly within its knowledge and in not pleading the workmen’s compensation policy, and that such negligence was the proximate cause of its loss and damage, and that in the former suit no plea in abatement to the nonjoinder of appellee to said suit was made by either party, but that plaintiff in said suit did ask recovery for Perkins’ heirs, and for the use and benefit of appellee in this ■suit, and that the $720 recovery in the former suit was adjudged to be paid, and was paid, to appellee, whereby it ratified said judgment, and is now estopped to question same, and Electric Company is likewise estopped, and that all such by said judgment is res adjudi-cata.

The trial was by the court without a jury. The court filed findings of fact and conclusions of law, and entered judgment for appel-lee.'

Opinion.

Appellant, Electric Company, presents but one assignment of error, which is as follows: “The court erred in holding that the policy sued upon in this case imposed liability upon the defendant’s part, insofar as this plaintiff was concerned only under the Workmen’s Compensation Law and in not rendering judgment for the plaintiff.”

To the above appellee presents the following counter-proposition: “The court committed no error in holding that the policy sued on imposed no liability on this defendant in favor of plaintiff by reason of Perkins’ death, because said policy related only to and covered only the relation of employer and employee, and it was undisputed that Perkins was an employee of Stone & Webster, Ine., and was not an employee of the Electric Company.”

The trial court found:

“Bailey Perkins, an employee of Stone & Webster, Ine., was killed by the negligence of employers of El Paso Electric Company while he was working on a switch tower south of the Electric Company’s plant in the City of El Paso, Texas, on the 15th day of March, 1925; Stone & Webster, Ine., as an independent contractor, was engaged at the time in performance of a contract with the El Paso Electric Company in the installation of a certain Electrical equipment on the switch tower within the classification of the operations contained in the policy, such work being performed under what is known as ‘c-ost plus’ contract. The facts and circumstances surrounding the death of said Perkins as developed herein are as set forth with substantial correctness in case reported in 292 S. W. 935. The said Perkins was not an employee of the El Paso Electric Company.
“On the first day of February, 1925, previous to the death of Perkins, Stone & Webster, Inc., had taken out the policy sued upon by the plaintiff in this case, same being known as a Standard Workmen’s Compensation & Employers Liability Policy. Said polic-y was in force and effect at all times relevant herein, as were the other policies introduced herein.”

Then follows a finding in substance that upon the death of Perkins all notices required by the policy were given the insurer, and that the insurer refused to defend, and that Electric Company did defend the suit brought, which resulted in the final judgment stated, its payment by appellant, demand on appellee, and payment refused, etc.

The trial court concluded: The policy sued on covers only a statutory liability imposed by the Workmen’s Compensation Law (Rev. St. 1925, art. 8306 et seq.). The recovery on the death of Perkins was not predicated on a liability imposed by the Workmen’s Compensation Law.

Appellant’s contention is that the policy sued on was issued to and covered the Electric Company, and Stone & Webster, Inc., and that the court erred in the construction placed upon the policy, and therefore in the judgment rendered.

Appellant in its brief points out and stresses the following provisions of the policy (we have hereinabove copied the material features of the policy, but think to restate the provision of the policy as respects personal injury sustained by employees, including death resulting therefrom):

“One. (a) To pay promptly to any person entitled thereto under the Workmen’s Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due, (1) to such person because of the obligation for compensation for any such injury imposed upon or accepted by this employer under such of 'certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this policy, each of which statutes is herein referred to as the Workmen’s Compensation Law.”
“One. (b) To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.”
“Three. (To defend any suits, etc.)
“Four. (To pay all costs taxed, etc.)
“Five. (The agreement to apply to su.ch injuries sustained by any person employed by the employer, etc.)
“Six. (The agreement to apply to such injuries sustained by reason of the business operations described in said Declarations, etc.)
“Seven. (The agreement to apply to such injuries sustained by reason of accidents occurring, as limited in ‘Item 2 of the Declarations’.)
“G. No action shall lie against the Company to recover upon any claim or for any loss under Paragraph One (b) foregoing unless brought after the amount of such claim •or loss shall have been fixed and rendered certain either by final judgment against the employer after trial of the issue, or by agreement between the parties with the written consent of the Company, nor in any event unless brought within two years thereafter.”

Amendments were attached to the policy as set out in the statement of facts and as pleaded, as follows:

“Named additional interests endorsements. Texas Operations. Stone & Webster, Inc.”
Then follow: “It is understood and agreed that the following Company is hereby named as an additional Assured under the policy to which this endorsement is attached: ‘El Paso Electric Company,’ but only with respect to work undertaken by Stone & Webster, Inc., for said additional assured upon the'so-called ‘cost plus’ basis or plan.”

We have not copied here the other two policies, the contingent liability policy and the public liability policy, but, construing them together with the policy sued on, we have concluded that the workmen’s compensation policy, the policy sued on, relates to workmen’s compensation and nothing else, and that the issuance of the other policies, not having relation to workmen’s compensation, shows the intention of the parties that the policy sued on was not intended to cover the liability sued on. It is true that in the declaration or indorsement Electric Company is named as an additional assured in the limited sense stated, and for that reason the question presented is confused. It does seem, however, that the same parties would not at the same time have more than one policy covering the same liability. We concur in the insistence of appellee that the purpose of naming additional assured for whom Stone & Webster, Inc., might do work, including the Electric Company, was to provide protection to the Electric Company in the event of its being adjudged that the Electric Company, and not Stone & Webster, Inc., was the employer of the injured employee. Stone & Webster, Inc., was the employer of the injured employee. Stone & Webster, Inc., being an independent contractor, doing work for the Electric Company, it seems reasonable, and we think the proper interpretation of the matter is, that it was contemplated that the question might arise as to whether Slone & Webster, Inc., or the Electric Company was the employer of an injured employee. The policy here is limited to the coverage specified; that is, to pay compensation to an injured employee.

Appellant invokes the provision of sub-clause of declaration known as amended in-dorsement No. 2, providing, in substance, that: “employees of any of the firms or corporations for whom Stone & Webster, Inc. have work to perform shall be considered employees of Stone & Webster, Inc., within the coverage provided by the undermentioned policy during the period that said employees are within the supervision or control of said Stone & Webster, Inc.”

We do not understand appellant’s contention to be that Perkins was its employee and at the time of the accident loaned to Stone & Webster; its allegation is “that Perkins had been employed by Stone & Webster, several years before his death,” and other similar allegations.

We think it unnecessary to separately review each of the several phrases and clauses, parts of the policy, to determine appellee’s liability within the coverage of the policy as an entirety. As we view it, such phrases and clauses, stressed by appellant as showing liability of appellee, merely specify what employees, under the several kinds of work that may be done,' shall be covered for compensation purposes under the compensation policy.

We have not discussed, and think it unnecessary to discuss, whether appellant, by reason of the former suit, is now precluded from recovery herein by res adjudicata, or estoppel by judgment. We simply hold that, the policy sued on being a compensation policy, appellee is not liable in this suit under the policy found in the record.

The judgment is affirmed.


author: WALKER, J.

text:
    DUGAT v. HARGRAVES et al.
    No. 2113.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 8, 1931.
    P. C. Matthews and H. A. Maynard, both of Liberty, for appellant.
    A. W. Marshall, of Anahuac, for appellees.
   WALKER, J.

This was an action in county court by ap-pellee against appellant to recover the balance due under a labor contract. The trial was to a jury. The parties agreed that appellant was due appellee wages for 116 days at $2 per day. The jury found that appellant was due appellee wages for 777 days at $1 per day. No issue is made here against that ■ finding. The jury found, also, that appellant, had paid appellee $501. Appellant has briefed his ease upon two propositions: First, that the finding of $501 is without support in the evidence; and, second, the verdict was a “quotient verdict.”

On the first proposition appellant swore he had paid appellee $691.73, but the following testimony by the witness Johnnie Berglof detracts from the weight of appellant’s testimony: “I was present at Mr. Dugat’s when Vernon stopped working for him and I heard Mr. Dugat tell Vernon that he had kept no account of the days he worked or of the amount of money he had paid Vernon outside of the checks. That he had no record whatever of it. Mr. Dugat requested Vernon to let him copy his account book, stating that he wanted to have it because he had kept no account himself.- Vernon let him copy the account at that time.”

Appellee testified: “Mr. Dugat paid me small amounts from time to time and I kept an accurate account of same, making a total of $446.00.- I am positive that he paid me that much because I have that amount down in my time book. I will not be positive that he did pot pay me more than that because there might have been some small amounts that he paid me that I did not put in my book, but that amount reflects the amount of my record which I kept correct and entered each item when it was paid.”

Upon this testimony the amount paid by appellant to appellee was a jury question.

The verdict of the jury was not a quotient verdict. After the jury had deliberated awhile without reaching -a verdict, Otto Gers-bach suggested “that all amounts each juror thought was right should be added together and divided by six.” That was done, and the quotient thus reached was accepted by the jury as its verdict. But the testimony was further to the effect that after the calculation the jury further deliberated upon their verdict for two or three minutes, and then by a new vote accepted the quotient as the verdict. The testimony of the jurors affirmatively excludes a conclusion that any member of the jury, prior to the calculation, agreed to be bound by the result. But all the testimony was to the effect that they agreed to make the calculation merely as a working basis for a verdict. Thus Mr. Nettles, testifying about the quotient, said: “It was my understanding that if the amount was reasonable it would be my verdict. If it was not reasonable I would not have agreed to it.”

Sam Dabney testified: “We did not agree before the adding and the dividing that the result would bo our verdict. 1 did not consider I was bound by the figures until I further agreed to it. It was merely a working basis for us to discuss. We afterwards discussed among ourselves, and the foreman asked us if we were satisfied, and we then agreed upon the amount as our verdict. We did not agree before adding the figures that the result would be the verdict.”

Louis Myzell testified: “After the amount was determined the jury remained in the jury room about two or three minutes, after the foreman asked if we agreed to that amount we gathered up the papers and came into court with the verdict. * * * We agreed, after adding it up, that the amounts would be the verdict. We had riot agreed before we added the figures that that would be our verdict. I did not consider myself bound to render a verdict in accordance with the result of the figures; if it had been an unreasonable amount, I would not have agreed to it. The result of adding the figures and dividing was only to be a working basis for the agreement.”

Otto Cersbach, the juror who made the suggestion, testified: “After the adding and dividing the foreman asked the jurors if that was satisfactory; that they agreed to that verdict. I did not consider the result of adding and dividing as binding upon me before the adding of the figures and if “the result had been unreasonable I would not have agreed to it. The adding and dividing was merely a basis on which we would try to agree. There was no agreement made before the adding that the result would be the verdict. That was agreed on afterwards.”

John Hale testified: “The foreman, after the figuring, asked each man if that was satisfactory, and they said yes. The result was •not to be binding upon us, but was only taken as a working basis.”

Joe ICochigan testified: “We never agreed to it first that it would be our verdict, but if agreeable to all jurors we would agree on it afterwards. If the result had not been a reasonable amount I would not have agreed to it, we would not have given it as our verdict. I did not consider myself bound by the result of the adding and dividing unless it was reasonable and agreeable with the jurors.”

The rule seems to be, in testing the validity of such verdicts, that “where there was no agreement before hand to adopt the quotient as the verdict, and the quotient was to be used, and was used, merely as a working basis to arrive at the amount of the verdic-t, such conduct will not justify a reversal.” El Paso Electric Co. v. Collins (Tex. Civ. App.) 10 S.W.(2d) 397, 399; Kalteyer v. Mitchell, 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889; Weatherford, etc., Ry. Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822; Eastern Ry. Co. of Mexico v. Montgomery (Tex. Civ. App.) 139 S. W. 885; Missouri, IC. & T. Ry. Co. v. Hawkins, 50 Tex. Civ. App. 128, 109 S. W. 221; Gulf, C. & S. F. Ry. Co. v. Blue, 46 Tex. Civ. App. 239, 102 S. W. 128; Missouri, K. & T. R. Co. v. Light, 54 Tex. Civ. App. 481, 117 S. W. 1058; Chicago, R. I. & G. R. Co. v. Swann, 60 Tex. Civ. App. 427, 127 S. W. 1164; Handley v. Leigh, 8 Tex. 129; Leverett v. State, 3 Tex. App. 217.

That the jury returned the quotient as their verdict did not constitute misconduct. This was clearly held in Marshall Traction Co. v. Harrington (Tex. Civ. App.) 194 S. W. 1156, 1157 (writ of error refused), where the court said: “Objection is also made to the conduct of the jury in arriving at their verdict. The bill of exception upon which the appellant relies shows that the jurors agreed that each should state in writing the amount of damages he thought the plaintiff was entitled to recover, and .that the sum of these amounts should be divided by 12. This was done, and after the result was obtained the jurors -further discussed the result and finally agreed upon that amount. These facts do not bring the case within the rule where such verdicts are set aside as having been improperly arrived at.” See, also, Chicago, R. I. & G. R. Co. v. Trippett, 50 Tex. Civ. App. 279, 111 S. W. 761; El Paso Electric R. Co. v. Lee (Tex. Civ. App.) 223 S. W. 497.

The judgment of the lower court is in all things affirmed.


author: HICKMAN, C. J.

text:
    SHAW, Banking Com’r, v. CUNNINGHAM.
    No. 881.
    Court of Civil Appeals of Texas. Eastland.
    June 19, 1931.
    Rehearing Denied Oct. 2, 1931.
    James Y. Allred and Everett L. Looney, both of Austin, for plaintiff in error.
    M. E. Lawrence, of Eastland, for defendant in error.
   HICKMAN, C. J.

This suit was instituted by defendant in error against plaintiff in error for the purpose of setting aside and annulling a judgment rendered in the court below on the 2Sth day of May, 1925. The original judgment sought to be set aside was one in favor of Chas. O. Austin, commissioner of banking, against Geo. W. Cunningham and Robert Cunningham, as executors of the estate of L. P. Cunningham, deceased. The defendant, Mary L. Cunningham, is the surviving widow of L. P. Cunningham, deceased, and was by the petition of Chas. O. Austin made a party to the original suit. It is unnecessary to set out here the grounds of attack upon the original judgment. This suit resulted in a judgment in favor of defendant in error against plaintiff in error, setting aside, vacating, and annulling the judgment in the original suit. The issues of liability involved in the original suit were not disposed of herein, but were left suspended without adjudication.

It is well settled that an appeal will not lie from a judgment merely vacating and setting aside an original judgment without disposing of the issues involved in the original suit. Such a judgment is interlocutory and therefore not appealable. We had occasion to consider this question and collate the authorities thereon in the case of Clay Lumber Co. v. Patterson (Tex. Civ. App.) 28 S.W.(2d) 825, and on the authority of that case and the cases there cited it is our conclusion that no final judgment was rendered in the court below and that this appeal should accordingly be dismissed.

We think it not improper to state that, according to the record before us, necessary parties to the relief sought and obtained were omitted. This suggestion is made in view of the possibility of further proceedings in the case.

Our order is that the appeal be dismissed.

On Rehearing.

Neither party seems to desire a judgment of dismissal for want of a final judgment below. Plaintiff in error complains of the order entered in his motion for rehearing. Defendant in error has filed no motion for rehearing, but has evidenced her view that the judgment was final by procuring and preparing same. The practical difference between an order of dismissal and one of reversal with a remand for further proceedings is negligible in this proceeding. It is obvious on the face of the record that necessary parties were omitted! Plaintiff in error was the only defendant in the court below, but the judgment undertook to set aside in its entirety and hold for naught a former judgment against George W. Cunningham et al. It also canceled and removed, as a cloud upon the title to certain lands, deeds as follows: One from R. W. Edwards, sheriff, to Lula B. Stu-ard; another from Lula B. Stuard to George W. Cunningham; and still another from George W. Cunningham to the Guaranty State Bank of San Angelo. It is elementary that no effective decree could be rendered against these persons who were not parties to this suit, and that therefore the 'judgment, if in fact it were a final judgment, should be reversed for want of necessary parties.

The grounds for dismissing the appeal are not so certain as are those for reversing the judgment and remanding the cause. Upon another trial all questions' of the finality of the judgment will doubtless be removed. We have therefore concluded to set aside our former order dismissing the appeal and to enter in lieu thereof an order reversing the judgment of the trial court and remanding the cause for further proceedings.

The motion of plaintiff in error for rehearing is accordingly granted-in part.