author: PRICE, Chief Justice.

text:
    SECURITY STATE BANK OF SAN JUAN v. STATE.
    No. 4047.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 28, 1940.
    L. J. Polk, of Pharr, and W. H. Gos-sage, of San Juan, for appellant.
    H. L. Hall, of Edinburg, for appellee.
   PRICE, Chief Justice.

This action was instituted in the District Court of Hidalgo County, Texas, by the State of Texas, as plaintiff, suing in its own behalf, and also in behalf of Hidalgo County, Hidalgo County Road Districts Nos. 1, 3, 4 and 8, Hidalgo County Old Road District No. 1, Hidalgo County Drainage District No. 1, and any and all political subdivisions of said county in which the property described in the petition, or any part thereof, is situated and whose taxes were assessed and collected by the Assessor and Collector of Taxes of Hidalgo County, against Security State Bank of San Juan, a corporation. The suit was for taxes. Defendant duly filed its answer, and the trial was before the court, resulting in a judgment in favor of the plaintiff against the defendant for the taxes sued for, with foreclosure of liens as sought by plaintiff. The defendant duly perfected appeal from this judgment, and the case is here for review.

The parties will be here designated as they were in the trial court.

Plaintiff concedes that the statement of defendant of the nature and result of the suit is correct in so far as same goes, but makes in its brief a statement supplementary thereof. These statements are somewhat long and involved due to the nature and character of the issues involved. We shall literally adopt the respective statements of the plaintiff and defendant.

On the 13th day of September, 1937, the Commissioners’ Court of Hidalgo County, all members present, in regular meeting assembled, made and caused to be entered its order duly levying taxes for the year 1937 within and for Hidalgo County, and its taxable subdivisions, including Road Districts Nos. 1 to 8, both inclusive, and Old Road District No. 1 of Hidalgo County, and Hidalgo County Drainage District No. 1, and Common School Districts Nos. 1, 2, 9, 14, 17 and 19; on December 31, 1937, appellant paid unto the Tax Collector of Hi-dalgo County all the taxes for the year 1937, amounting to the sum of $481.31, due and owing upon and against the lands owned by it involved in this suit; a part of the taxes so levied by the Commissioners’ Court, as aforesaid, was for the servicing of refunding bonds that had been duly approved by decree of the United States District Court for the Southern District of Texas, made and entered prior to September 13, 1937; ora the 7th day of January, 1938, said Federal Court, in proceedings instituted by the-bondholders and others, commanded the Commissioners’ Court of Hidalgo County,, “at a regular term of said court to be convened on the 10th day of January, 1938,. to prepare and pass such proceedings as, are necessary, and to take such steps in connection therewith as are expedient, to, amend and correct the order entered by it on the 13th day 'of September, 1937, which fixed a rate of 35fi per each $100.00 assessed taxable property in said County, assessed for State purposes, and 2½(⅞ per each $100.00 of assessed taxable value in said County, assessed for County purposes,, making a combined levy of 37½⅝⅞ for the-Water Improvement Refunding Bonds, Series 1936, in such manner as to provide a rate of levy of 35^ on the $100.00 assessed taxable property in said County,, assessed for State purposes, and 34.02{⅞ on. each $100.00 of assessed taxable property in said County, assessed for County purposes, making a combined levy of 69.02¾⅜-on each $100.00 valuation of taxable property for said bonds, * * . * ”; on the-3d day of January, 1938, said Federal Court, in proceedings instituted by the bondholders and others, commanded the Commissioners’ Court of Hidalgo County to “cause a regular term of sáid court to> be convened and there pass a legal and! proper order setting aside the ordér that it passed on the 13th day of September, A. D. 1937,” fixing the levies for the eight respective road districts of Hidalgo County, aforesaid, and to pass another legal and. proper order fixing the rates of the tax. levies for the eight respective road districts, based upon the valuation in each respective road district, as already fixed for the year 1937 by said court, in the following amounts:

The Commissioners’ Court of Hidalgo County, acting under compulsion of the two orders of the Federal Court herein-above mentioned, did, at a meeting thereof held on January 10, 1938, set aside, cancel and rescind the levies that had theretofore by it at its meeting of September 13, 1937, been duly and regularly made and substituted therefor the levies made and commanded to be made by the Federal Court, 'which were largely in excess of the regular levies made by the Commissioners’ ■Court at its September, 1937, meeting and thereafter the additional tax was demanded to be paid of appellant and upon appellant’s refusal to pay same this suit was brought to enforce payment; the trial court rendered judgment for appellee for the additional tax sued for, from which judgment this appeal was duly perfected and the matter is now before this court for review.

Defendant’s supplementary statement is as follows:

This action, instituted by appellee, was an ordinary tax suit. Appellant in its first-amended original answer pleaded payment of the taxes sued for and that it held a receipt for the same regularly issued, and further that the taxes were levied and assessed without lawful authority, were uncollectible and no lien existed to secure payment thereof.

Appellee in its first supplemental petition alleged that Road Districts Nos. 1, 3, 4 and 8 .of Hidalgo County and Hidalgo County Drainage District No. -1 were duly and legally created; and the manner in which indebtedness was originally created by the issuance of various bonds of such road districts and by such drainage district; that to provide for the payment of said bonds provisions were made for a tax to be levied, assessed and collected upon all taxable property within each of said districts to provide a fund sufficient to pay the annual interest on said bonds and provide for a two per cent sinking fund and in the case of said drainage district bonds, with full .allowance for delinquencies and costs of ■collection; that each of said road districts .and .drainage district subsequently defaulted in interest payments on said bonds and various suits were instituted on the bonds .of each of said districts in the District Court of the United States for the Southern District of Texas, Brownsville Division; based on such suits refunding agreements were eventually entered into between Hidalgo County and the holders of the bonds of said road districts and drainage district which agreements were subsequently validated by decrees of the Federal Court in each of said cases. The refunding agreements provided that during the life of the refunding bonds, a tax should be levied, assessed and collected each year on all property within each of said districts at such rate from year to year sufficient to pay the current interest on such bonds and provide a two per cent sinking fund with full allowance to be made for anticipated tax delinquencies and costs of collection and in no year should such levy be less than an amount sufficient to pay current interest on the refunding bonds and provide a sinking fund at least equal to two per cent of the refunding bonds, together with a reasonable amount in addition thereto covering anticipated tax delinquencies and costs of collection, and the same provision was embodied in the final judgment in the Federal Court in such cases. Pursuant to such refunding agreements and judgments the Commissioners’ Court of Hidalgo County duly passed an order levying such a tax and providing that the same should be assessed and collected each year upon such property and further providing that in addition to all of the rights provided by said new refunding bonds the holders thereof shall be subrogated to all the rights of the holders of the original indebtedness so refunded except as otherwise specifically provided by such order and such refunding agreements. Said refunding bonds were .duly issued, approved, registered and exchanged for the original bonds, and it thereupon became the duty of the Commissioners’ Court to annually determine the rate per cent of tax to be levied for such purposes and levy a tax in such amount; that the original levy for 1937 was made on or about the 13th day of September, 1937, and prior to such time the holders of the refunding bonds requested the Commissioners’ Court to make a tax levy in excess of the rates fixed in the order passed by the Commissioners’ Court on September 13, 1937, taking the position that such levies would not be sufficient to provide the fund required by the refunding agreement and judgment of the Federal Court; subsequently contempt proceedings were instituted in the Federal Court against the Commissioners’ Court, County Judge, and County Auditor, of Hi-dalgo County, in which it was alleged that said officials had failed to comply with the contractual obligation to levy a sufficient tax as set forth in said agreements and had further failed to observe and obey the order of the Federal Court in the case which resulted in the refunding of the bonds of said four road districts and drainage district; that at the request of the Commissioners said contempt proceeding was continued until January 3, 1938, and at such time on trial the Court held the County Commissioners, County Judge, and County Auditor, in contempt, providing that they could purge themselves of such contempt by doing various things, among which was to raise the rate of tax levied for 1937 as set forth in the statement of the nature and result of the suit made by appellant, which was accordingly done by the Commissioners’ Court, and pursuant to such action and such order of the Federal Court the Assessor and Collector of Taxes of Hidalgo County extended such supplemental or additional levy on his rolls for such year.

The plaintiff further alleged that defendant was duly represented in all of the legal proceedings above mentioned by the County Judge, the County Auditor and the County Commissioners and is bound by the final judgments and decrees entered in each of said proceedings including the decrees in the contempt proceedings; that the Commissioners’ Court was under a contractual duty to levy a tax for the year 1937 as above set out and was under a judicial mandate of the Federal Court to fix such a rate per cent of tax for 1937 as would pay the interest • for such year on the bonds and a two per cent sinking fund, taking into consideration delinquencies and costs of collection and other contingencies expressed therein, and that all issues raised and determined in all of said proceedings are binding upon defendant, and the conduct and action of the Commissioners’ Court in increasing or supplementing said levies pursuant to said judgments and, decrees were and are binding and res ad judicata as to defendant. Plaintiff further pleaded that at the time defendant paid its taxes based on the rate originally fixed it knew or was charged with notice of the pendency of the contempt proceedings and with the provisions of the refunding agreements and decrees and that payment of such amount would not and could not operate as legal payment and discharge of its tax liability for 1937. Plaintiff further alleged that defendant was estopped to claim full payment of its 1937 taxes and discharge of the lien securing the same, and in so doing defendant claimed itself entitled to a remission or relinquishment of taxes legally due, contrary to the express provisions of the Constitution of the State of Texas.

Plaintiff prayed judgment for the amount of taxes claimed in its original petition with the allowance of proper credit because of the payment of a portion thereof by defendant on December' 31, 1937, for foreclosure of its tax lien, and for generál relief.

• Defendant filed its first supplemental answer consisting of a general demurrer and general denial.

The case was tried before the Court without a jury and final judgment rendered on February 21, 1940. The judgment was in favor of plaintiff for the taxes, penalty and interest provided by law as sued for by plaintiff with allowance being made for the- sum paid on December 31, 1937 by defendant and for foreclosure of the tax lien.

Appellant makes one assignment of error, which it also submits as a proposition: “The trial court erred in rendering judgment for the appellee for the reason that the decrees of the United States District Court for the Southern District of Texas commanding the Commissioners’ Court of Hidalgo County to make the new and additional levies, and the order of said Commissioners’ Court made on January 10, 1938, in compliance with the command of the Federal Court, rescinding and cancel-ling the 1937 tax levy that had been duly made by said court at its September, 1937, meeting and levying a new and additional tax for the year 1937, being each and all, at the time they were made, repugnant to and in direct violation of Section 16, Article 1, of the State Constitution, were illegal, void and unenforceable and no valid obligation on the part of any property owner to pay such additional taxes sought to be imposed was created.”

The facts in this case are practically undisputed. The pleadings, as summarized in the statement of the nature and result of this case, in so far as they state facts as distinguished from conclusions, represent the. facts involved.

It was stipulated in substance that, if the order of the Commissioners’ Court of January 10, 1938 increasing the rate of taxation for 1937 was valid and binding, plaintiff was entitled to judgment for such increased amount. Urged against the validity of the action taken is Section 16 of Article 1 of the Constitution, Vernon’s Ann. St., which is as follows: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

In short, it is contended that the order in question was a retroactive law within the meaning of the above-quoted section of the Constitution.

In the course of the opinion in the case of Keith v. Guedry, Tex.Civ.App., 114 S.W. 392, 396, it was said: “A ‘retroactive law1 is one made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence. It gives a right where none before existed, or takes away one which before existed.” Sutherland v. De Leon, 1 Tex. 2S0, 46 Am. Dec. 100; De Cordova v. Galveston, 4 Tex. 470; State v. Galveston, H. & S. A. R. Co., 100 Tex. 153, 97 S.W. 71.

Referring to the constitutional provision we have under consideration, it was further said: “However, this provision has been construed by the courts of this state, and of some other states having like constitutional inhibitions, only as a restriction upon the power of the Legislature, to pass such laws as impair the obligation of contracts, divest vested rights, such as exceed the general powers of the Legislature or invade the province of the other departments of government.”

In the light of the above definition formulated by that great jurist, Judge Neill, let us then consider the situation here presented. Beyond question the bonds are valid and legal obligations of the respective districts. By the law authorizing the creation of such obligations and by contract, it was the obligation of each district to cause to be levied, assessed and collected, a tax sufficient to service the bonds and provide a sinking fund for their final payment. The bonds in question here are refunding bonds; the orders of the Commissioners’ Court made at the time of their issuance may vary slightly as to the matters hereinafter discussed, but in reality are substantially the same. A portion of one of such orders as being in material particulars the same as to all is here quoted “While said refunding bonds or any of them are outstanding and unpaid, there shall be, and is hereby levied, and there, shall be assessed and collected, in due time,, form and manner, a tax upon all taxable property in said County of Hidalgo, Texas, for each year, at such rate from year tO' year as will be sufficient to pay the current interest on said refunding bonds from time to time as the same falls due, and provide the 'constitutional sinking fund. That during each of the years 1936 to: 1958, both inclusive, said tax shall not be less than an amount which will produce a sum sufficient to pay the current interest on said refunding bonds, ánd in addition thereto provide an annual sinking fund in an amount not less than Sixty One Thousand ‘ Seven Hundred Eighty Two and 60/100 ($61,782.60) Dollars (being one twenty-third (1/23) of the principal amount of the refunding bonds authorized thereby), and a reasonable additional amount sufficient to cover anticipated tax delinquencies, which additional amount shall be based upon the average tax collections during the three preceding years— and said tax shall each year be assessed and collected and applied to the payment of the interest on said refunding bonds-as the same falls due, and to provide the requisite sinking fund for same; provided that in each of the years 1936 to 1948, both inclusive, such levy shall not be less-in any event than thirty-five cents (350) on each one hundred dollars ($100) assessed valuation of all taxable property within Hidalgo County, Texas.”

Before the issuance of these refunding bonds there had been a suit in the Federal Court for default by the districts on the basic bonds. The refunding bonds were issued in settlement of this suit. The above contract for their issuance was approved by the decree of the Federal Court in which the various suits were pending. The United States District Court in each decree purported to retain jurisdiction,, as recited in the decree, “to make such further orders and to grant such further writs, processes and relief as may be necessary or appropriate from time to time to effectuate and enforce the terms of this decree.” The following quoted provision in one of the decrees is in a general sense typical of each:

“While said refunding bonds or any of them are outstanding and unpaid, there shall be, and is hereby levied and there shall be assessed and collected, in due time, form and manner, a tax upon all taxable property in said County of Hidalgo, Texas, for each year, at such rate from year to year as will be sufficient to pay the current interest on said refunding bonds from time to time as the same falls due, and provide the constitutional sinking fund. That during each of the years 1936 to 1958, both inclusive, said tax shall not be less than an amount which will produce a sum sufficient to pay the current interest on , said refunding bonds, and in addition thereto provide an annual sinking fund in an amount not less than Sixty One Thousand Seven Hundred Eighty Two and 60/100 ($61,782.60) Dollars (being one twenty-third (1/23) of the principal amount of the refunding bonds authorized hereby), and a reasonable additional amount sufficient to cover anticipated tax delinquencies which additional amount shall be based upon the average tax collections during the three preceding years and said tax shall each year be assessed and collected and applied to the payment of the interest on said refunding bonds as the same falls due, and to provide the requisite sinking fund for same; provided that in each of the years 1936 to 1948, both inclusive, such levy shall not be less in any ■event than thirty-five cents (35⅜⅞) on each •one hundred dollars’ ($100.00) assessed valuation of all taxable property within Hidalgo County, Texas.
“All interest and sinking fund moneys shall at all times be deposited in a depository bank qualified to accept deposits •of any county funds and any and all such •deposits shall be properly secured as provided by the laws of the State of Texas pertaining thereto.
“In addition to all other rights secured to them, the holders of said refunding bonds, or of any of said refunding bonds .are subrogated to all the rights, remedies •and privileges against Hidalgo County, Texas, had and possessed by the holders •of the original indebtedness above described.”

Prior to the order of September, 1937 of •the Commissioners’ Court fixing the rate ■of taxation the various bondholders re•quested a larger proportion of the taxes applicable to their bonds than was made by the order of that date. They filed a •petition in the said pending causes com-•jplaining of the order of September 13, 1937, alleging that same was in violation of •the previous order of the court, in that ■same was insufficient to care for servicing the bonds and providing for the sinking fund, and prayed for citation of the County Judge, the Commissioners and Couniy Auditor, for contempt. Such parties appeared and upon hearing were adjudged guilty of contempt. In the order it was provided that they might purge themselves of such contempt by passing an order in substantial conformity with the order of January 10, 1938, and which order is here in controversy.

Beyond any question, it was the duty of each district to assess and collect taxes sufficient to each year service the bonds and to maintain the sinking fund. It does not appear from the record that in 1937 there had been or was thereafter any default in the payment of the interest or maintenance of the sinking fund. That the levy of September 13, 1937 was insufficient for this purpose appears from the order of the United States Court in the contempt proceeding and from the record here.

If, as a matter of fact, the levy of September 13, 1937 was insufficient to service the bonds and maintain the sinking fund, there was a default. A failure to make any levy for the purposes named would be a breach of duty, and likewise an inadequate levy would be such. Such breach of duty was remediable. The only practicable measure was personal coercion of the Commissioners’ Court as a functionary of the district.

As has been said, no failure to pay interest or maintain this sinking fund has been shown, and doubtless there has been none. It may be, and we think is true, that the action taken on January 10, 1938 was the means of preventing a default. It is clear that the bondholders were entitled to a levy sufficient to meet the current obligations on the bonds. To make such levy was a continuing obligation of the districts under the contract under the general law, and was the decree of the court in the proceeding in which the districts were parties, and for the enforcement of which, by its very terms, the court retained jurisdiction.

Upon a hearing in the contempt proceedings in the Federal Court a finding was made that the levy of September 13, 1937 was intentionally inadequate. Good faith and legal obligation called for an adequate levy, assessment and collection.

Referring a moment to our adopted definition of a retroactive law, we think it may be said the order of January 10, 1938 was not an attempt to create new rights with their corresponding obligations, but was at least an attempted fulfillment of a legal and moral duty. If justice continues to be enforced these bonds must be paid according to their purport and tenor. Taxation is the only means by which they may be paid. Preventing a current default will be more just and equitable than making a greater levy to take up past defaults. If the burden be distributed as provided in the bonds its incidence will fall upon those justly entitled to bear same. Those desiring to live up to their obligations may safely do so and not pass them on for future owners of the property in the districts to bear.

If the order of January 10, 1938 provides only reasonably sufficient revenue to service the bonds and maintain the sinking fund, it is in exact accord with the legal duty of the districts. The record fails to show that this additional revenue was not necessary for this purpose. The Federal Court in the contempt proceedings, where the districts and the taxpayers therein were represented by their functionaries, found that the additional revenue was necessary. In this proceeding before the Federal Court no lack of jurisdiction was urged. In fact there was a submission thereto. Here the defendant does not urge that there was a lack of jurisdiction in the Federal Court to enforce its decree. The ultimate incidence of the original decree was upon those owning property subject to taxation in the districts.

If there was in fact a default in the amount of the levy made September 13, 1937, how was it legally to be remedied? Should they wait until the year had passed and see what the amount of the default amounted to and then take care of the same with current levies? In that event, persons and property might be encumbered with burdens that justly belonged to others. There is a personal liability, we take it, for these taxes.

If we say that the order of September 13, 1937 exhausted the power of the Commissioners’ Court in the premises, then if such order failed to discharge the legal obligation, the Commissioners’ Court was powerless to voluntarily remedy its own legal wrong.

In the case of Grimes County v. W. L. Slayton & Co., Tex.Civ.App., 262 S.W. 209, 214, it is said: “It is quite certain that the mere act of fixing a tax rate or per cent. to raise the annual interest and sinking fund required for bonds and refunding warrants is in its nature purely an administrative function, pertaining to the ordinary county business, and may be revised at a subsequent term of the court, unless individual rights are prejudicially affected and changed thereby. 11 Cyc. p. 402; 15 C.J. p. 470. To that effect is the holding in Basset v. City of El Paso, 88 Tex. 168, 30 S.W. 893.”

The statement taken from this opinion finds strong support in the reasoning of the-cases of Basset v. City of El Paso, 88 Tex. 168, 30 S.W. 893, and Mitchell County v.. City National Bank, 91 Tex. 361, 43 S.W. 880, which are cited in the opinion. A writ of error was refused by the Supreme Court.

The taxes in question are not county-taxes, as such. The County Commissioners, are by the law of the creation of the districts the functionaries of such districts. The County did not enjoy the proceeds of the bonds, but same were used for the-benefit of those owning property in the districts. Caprito v. Snelson, Tex.Civ.App., 91 S.W.2d 1106.

In our opinion, the contention of defendant that the order of January 10, 1938'. violates Section 16 of Article 1 of the Constitution finds its strongest support in the case of Coffee v. Castleberry, Tex.Civ.App., 258 S.W. 889, in the Supreme Court, Castleberry v. Coffee, Tex.Com.App., 272 S.W. 767. The Court’of Civil Appeals, in substance, held that a tax for a certain year attempted to be levied by a void ordinance could not be validated by ordinance-passed in the subsequent year. There is to-our minds this distinction between that case- and this: in that case it was a levy for general purposes and amounted to the creation of an obligation; in this case, the exact obligation exists, and a levy is demanded by law to meet it; in that case a discretion was involved as to the extent of the obligation; in this case there is. none.

We can see no particular applicability of the case of Broocks v. State, Tex.Civ.App., 41 S.W.2d 714. There it was stated, in. substance, Commissioners’ Court may levy-taxes only at regular term with all members present. Article 2354, R.S., is the basis, of the statement. As we understand it,. January 10, 1938 was a regular term of the Commissioners’ Court.

We have not discussed the decree of the Federal Court in the contempt proceedings as to being res adjudicata here. The decision of that question is not deemed necessary to the disposition of the case. There is justification in the evidence outside of the decree for the finding of default in the matter of the levy for servicing of these bonds. In our opinion the Commissioners’ Court had the power, and it was its duty, to make good that default. When the transactions are viewed as a whole this is all the order of January 10th accomplishes, and all it was intended to accomplish thereby. It is not meant that either a State or Federal District Court may levy or assess a tax. This jurisdiction is not conferred by either the Constitution of the United States or that of Texas. The Federal decrees do not in any event attempt to levy or assess a tax. In event they did, there is no question but that it would be absolutely void.

Judgment affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    UNITED EMPLOYERS CASUALTY CO. v. LEE.
    No. 3752.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 5, 1940.
    Rehearing Denied Dec. 31, 1940.

      Will R. Saunders and Selden Simpson, both of Dallas, for appellant.
    Sumner Williams, Jr., of Lufkin, for ap-pellee.
   WALKER, Chief Justice.

This is a workmen’s compensation case, filed in district court of Angelina county by appellee, Bud Lee, as an appeal from an adverse award of the Industrial Accident Board, on allegations that he was the employee, J. B. Oliver the employer, and appellant, United Employers Casualty Company, the compensation insurance carrier. For cause of action he alleged that on the 9th day of November, 1939, while trimming a log in the course of his employment with Oliver, “a pine knot flew up and struck him in the right eye causing him to lose sight in the right eye, lose the hearing in his right ear, and causing certain general injuries, dizziness, headaches, and vertigo; that such injuries caused the plaintiff to be totally and permanently incapacitated,” and additional facts constituting a cause of action for compensation under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq., agaibst appellant as Oliver’s compensation insurance carrier, and facts entitling him to a lump-sum settlement. Appellee prayed for the minimum compensation of $7 per week for 401 weeks as for total, permanent disability. Appellant’s principal defense was that at the time he was injured appellee was either himself an independent contractor or was the employee of W. P. Daniels, an independent contractor.

Answering special issues, the jury found the following facts: On the 9th day of November, 1939, as a direct and natural result of being struck by a pine knot, ap-pellee sustained an injury to his right eye, his right ear, and to his head, which caused him to suffer total, permanent disability beginning on the 9th day ’ of November, 1939. The injury sustained by him on that date “was a producing cause” of his ‘.‘total incapacity.” At the time he was struck by the pine knot, appellee was “an employee of J. B. Oliver” and was not “an. employee of W. P. Daniels,” and he was not an “independent contractor.” Appellee’s disability is not “confined solely to his right eye”; was not “solely the result of syphilis”; was not “solely the result of hardening of the arteries”; and was not '“caused solely by disease.” On the verdict, judgment was entered in appellee’s favor against appellant for the sum of $2,178.65, to be paid in a lump sum. In its judgment, the court found the following additional facts: “And the Court finding from the undisputed evidence that the defendant had prior to November 9, 1939, issued its policy of workmen’s compensation insurance to J. B. Oliver which was in full force and effect on said date and insured the plaintiff as an employee of said J. B. Oliver; that said employer, J. B. Oliver, had notice of such injuries so suffered by the plaintiff immediately after and on the same day he so suffered same; that defendant likewise had knowledge and notice of same within thirty days after such accident; that plaintiff filed his claim for such injuries and for workmen’s compensation because thereof with the Industrial Accident Board of the State of Texas in due time and in due’ and legal form and that all other and further proceedings were had to give this Court jurisdiction of all matters herein involved; and the Court having found all other facts necessary to entitle the plaintiff to the judgment here now rendered, the court finds and determines that the plaintiff is entitled to have and recover of and from the defendant workmen’s compensation insurance at the rate of Seven and No/100 Dollars ($7.00) per week for the full period of 401 weeks • from and after the 9th day of November, 1939; and that he is entitled to recover all same in a lump sum discounted as provided by law.”

Appellant has duly prosecuted its appeal to this court.

On the ground that the uncontroverted evidence showed that appellee was not an employee of J. B. Oliver, but was either an employee of W. P. Daniels, an independent contractor, or was himself ¿n independent contractor, appellant contends: (1) The court erred in overruling its motion for an instructed verdict; (2)- the jury’s finding that appellee when injured .was an employee of J. B. Oliver was without support in the evidence, and. was against the great weight and preponderance of the evidence; (3) the finding that appellee when injured was not an employee of W. P. Daniels was without support in the evidence and against the great weight and preponderance of the evidence; (4) the finding that appellee was not himself an independent contractor was without support in the evidence and against the overwhelming weight and preponderance of the evidence; (5) under the evidence, appellee was, as a matter of law, an employee of W. P. Daniels, or was himself an independent contractor. .These contentions are overruled; the evidence supports the jury’s finding that when injured appellee was an'employee of J. B. Oliver, whose compensation insurance was carried by appellant. As supporting this conclusion, we give the following summary of the evidence from the statement made by appellee.

Mr. Oliver was the owner of the timber which appellee was cutting; the work of cutting the timber was for Mr. Oliver; on the day appellee went to work he talked with Mr. Oliver. Before going to work, appellee had been told by Tom Lewis that “if you want to cut logs you can get a little job. * * * You can cut for Mr. Perry’s truck and Mr. Oliver’s truck. You go on and cut until the old man gets out” —“the old man” was Mr. Oliver. Later in the morning, Mr. Oliver said to ap-pellee: “Don’t cut any further than that line; I am going to blaze through here and don’t cut any further down the creek.” Mr. Oliver told him he would receive 75 cents a thousand; he would not pay any more; he would shut the mill down before he would pay any more. Appellee asked Mr. Oliver for a .raise later and Mr. Oliver replied: “No, I can get it cut for 75 cents and if you want to go back on the W.P.A. you can go”; he would not pay any more; if they were not satisfied with 75 cents to let it alone. Mr. Oliver sent him down by the creek to cut a 2 by 4 log “to saw some planks to put on a bridge.” Mr. Oliver’s truck driver gave appellee his money one time and Mr. Perry’s truck driver gave it to him once. When appellee was injured, Mr. Oliver told him to go to see Dr. Clements. On cross-examination, appellee testified that Mr. Perry said to him, “Bud, you go down on the branch until ‘the old man’ comes; I don’t know where he will put you.” The first time appellee saw Mr. Daniels was about 9 o’clock the first morning after he had done some work. The only instruction given him by Mr. Daniels ■was, “Don’t go over (the line blazed) like Mr. Oliver told you. Mr. Oliver paid us ■off.’’ The morning appellee went to work, Mr. Perry told him, “Mr. Oliver is the .general ram-rod, the general knocker, Mr. Oliver is the head knocker of the whole woods; he has the contract and everybody ■works for him.” On redirect examination, appellee testified: “Neither Mr. Lewis nor Mr. Daniels ever told me what to do or how to do it, nor did Mr. Lewis ever pay me anything; Mr. Oliver told me what size stumps to leave and what timber to cut, what size trees to cut.” Appellee was paid 75 cents. The mill that Mr. Oliver spoke of closing down was the Swickheimer, at Hoshall. “When I got hurt Mr. Oliver told me to go to. that mill to get some papers to fill out; that was the reason I filed my first claim against the mill — that was where Mr. Oliver stayed.”

W. P. Daniels testified: “Plaintiff was working for John Oliver. * * * Well, I don’t know whether he was working for me or working for Mr. Oliver. * * * That was the way it was — working for Mr. Oliver. * * * I suppose he was working for me; that is the way they have got to have it. * * * I never gave plaintiff any orders whatever; I never told him what size stumps to leave, what size trees to cut, where to cut. * * * Mr. Oliver gave me a check including the pay of all the laborers and told me to pay such laborers; that, if I didn’t, he (Mr. Oliver) would have to repay them. * * * They had about two hundred logs cut — Mr. Oliver did- — when we first went out there. Them boys were out there, and Mr. Oliver taken a cross-strip of the land and taken them over to the strip he stripped for them, and I went and taken a team to, load the logs and about the time I taken it up they were working; I do not know what he told them or nothing about it.”

There was a written contract between Mr. Thompson, Mr. Oliver and Mr. Daniels, which Mr. Daniels testified “was in effect before he got the insurance.” He testified further that both he and Mr. Oliver hired the men; he paid all the men; Mr. Oliver gave him the money to pay them; Mr. Oliver told him that if he paid any more than 75 cents he would fire him on the job; Mr. Oliver would not allow him to hire anybody to work for 25 cents a thousand; Mr. Oliver looked after the work himself; he walked around through the woods a good deal, and gave the men instructions as to cutting the timber; “My connection with it was keeping the trucks going — loading them up and trying to keep the men out there.” As to the written contract: “Mr. Oliver had them drawed up to protect himself so none of the men could sue him if they got hurt, he said, which showed that every man was to take care of himself; he didn’t want none of the hands to sue him and he wanted to clear himself;, they got the insurance to protect him; he said he had insurance covering all employees; he said he got the insurance and came out and told me; ‘Just tear that up (referring to the written contract) they are no good anyway.’ Mr. Oliver said to me; ‘You go and ask the boys if they are willing to pay part of the insurance’ and I did — that money was taken out of the wages of all the employees to pay for the insurance; eight per cent of every dollar they made was taken to pay the insurance; Mr. Oliver held out that much. * * * Mr. Oliver told the employees; ‘We just can’t pay more than 75 cents and if you want any more you can go and get on the W.P.A.’ ”

The evidence, as summarized, clearly raised the issue that appellee was an employee of Oliver. The written contract between Oliver and Daniels and Thompson was a mere pretense and, on the evidence, did not control the relation between Oliver and Daniels. Before ap-pellee was hurt, the contract was torn up. Mr. Daniels testified that his relation to the timber cutting was simply to keep the trucks going, and the evidence raised the issue that Mr. Oliver exercised all authority over the employees, fixed their wages and place ■ of work and directed them in their work; took insurance for their protection and deducted a part of their wages to pay for the insurance. The evidence not only raised the issue that appellee was an employee of Oliver, but it was sufficient to support that finding.

Before the Industrial Accident Board, appellee claimed compensation for a cut on his eye, loss of sight in the right eye, and loss of hearing in his right ear. On his appeal from the verdict of the Industrial Accident Board, in addition to these injuries, he alleged constant aches, dizziness and nervous shock, proximately resulting from his injuries. Appellant’s fifth proposition is that these additional allegations constituted “a fatal variation between plaintiff’s claim before the Industrial Accident Board and that made in the petition, and hence the court had no jurisdiction to hear the latter.” Appellee’s petition is not subject to appellant’s proposition, hut his cause of action as plead has support in the following proposition announced hy Judge Smedley in Booth v. Texas Employers’ Ins, Ass’n, 132 Tex. 237, 123 S.W.2d 322; 329: “* * * a general description of the injury is sufficient in the claim made before the board, and * * * ⅛ the suit filed to set aside the award of the board the claim may be enlarged to include all injuries proximately resulting from the accident.”- See also Great American Indemnity Co. v. Stultz, Tex.Civ.App., 56 S.W.2d 200-202; Traders & Gen. Ins. Co. v. Lincecum, Tex.Civ.App., 126 S.W.2d 692; Indemnity Ins. Co. of North America v. Harris, Tex.Civ.App., 53 S.W.2d 631; New Amsterdam Cas. Co. v. Harrington, Tex.Civ.App., 283 S.W. 261; Choate v. Hartford Accident & Ind. Co., Tex.Civ.App., 54 S.W.2d 901.

Appellant' assigns error against the admission of Daniels’ testimony: (1) as to what Oliver told him in regard to insurance taken out by Oliver and the extent of the coverage; (2) that the insurance was taken out for the purpose of covering Bud Lee, and the other employees; (3) that money was taken out of the wages of the employees, including Bud Lee, to pay for the insurance; (4) “that Mr. Oliver had the contract drawn up to protect himself so none of the men could sue him if they got hurt”; (5) the testimony of appellee as to the “conversation he had with Mr. Tom Lewis concerning the plaintiff’s alleged contract of hire to Mr. Oliver.” Appellant’s objections to all this testimony • were that it was hearsay, out of the presence of Mr. Oliver, and was not binding on him, and would not show any contract of employment between appellee and Mr. Oliver; that it did not know that money was being taken out of the employee’s wages; that the written .contract spoke for itself. These exceptions are overruled. . Neither Mf. Oliver nor Mr. Daniels was a party to this suit, and the exception that the evidence was hearsay as to them is immaterial. The evidence excepted' to .was received by the court on the - issue of appellee’s relation to Oliver — whether he was an employee of. Oliver or of Daniels. Certainly, any-'fact known by Mr, Daniels bearing on this issue was admissible — his; relation to the job, the payment of ap-pellee’s wages, all things done by Mr; Oliver on the job, the written contract-made between him and Mr. Oliver, and the purpose of the contract, and the subsequent abandonment of the contract. Oliver was the man with whom appellee made his contract; that was appellee’s-theory of his case, and testimony to that effect was admissible. Having alleged a contract between him and Oliver, it was-permissible for him to testify as to the-terms of the contract.'

Issue No. '2: “Do you find from! a preponderance of the evidence that Bud Lee sustained an injury to his right eye as-a direct and natural result of being struck by such pine knot?” was not duplicitous,, as assigned by appellant. On the undisputed evidence, appellee was struck by a pine knot and his right eye was injured. We overrule the same assignment as urged against special issue No. 3: “Do you find from-a preponderance of the evidence that Bud Lee sustained an injury to his right ear as a clirect and natural result of being struck by such pine knot?” and issue No. 4: “Do you find.from a preponderance of the evidence that said Bud Lee sustained an injury to his head as a direct and natural result of being struck by said pine-knot?” and .issue No. 10: “Do you fin'd' from a preponderance of the evidence that Bud Lee has not sustained and will not sustain only a partial incapacity as' a result of injury, if any, suffered by him on November 9, 1939?”

Appellant assigns error (a) against the word “only.” That assignment is overruled. United Employers Cas. Co. v. Robt. L. Knight, Tex.Civ.App., 139 S.W.2d 613; United Employers Cas. Co. v. Obie Lee Daniels, Tex.Civ.App., 142 S.W.2d 607. (b) That the issue is “duplicitous in that it inquires, first, whether plaintiff has not sustained only partial incapacity, which refers to the past, and second, whether he will not -sustain only partial incapacity, which refers to the future.” That exception is overruled.

Special issue Ño. 11: “What period of time do you find from a preponderance of the evidence such total incapacity, if any, of Bud Lee did continue, or will continue from its beginning to its-end ?” was conditioned on a negative answer to special issue Ño. -8,. submitting, the,- issue of permanent -incapacity. .

Special issue No. 12: “Do you find from a preponderance of the evidence that the incapacity of Bud Lee, during the time found by you in answer to Special Issue No. 11, has not been and will not be only partial?” was conditioned on the jury’s answering special issue No. 11. The conditional submission of these issues was not error; the issues did not submit independent affirmative defenses, but only elements of the defensive issue on which they were predicated. Appellant’s exceptions are overruled.

The judgment of the lower court is affirmed.


author: O’QUINN, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. SKINNER.
    No. 3745.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 17, 1940.
    Rehearing Denied Dec. 31, 1940.

      B. L. Collins, of Lufkin, and Lightfoot, Robertson & Gano, of Fort Worth, for appellant.
    Vernis Fulmer, of Nacogdoches, and Thos. A. Wheat, of Liberty, for appellee.
   O’QUINN, Justice.

This suit was filed by appellee in the district court of Liberty County, Texas, against appellant to set aside an award of the Industrial Accident Board of the State of Texas, and to recover compensation. Appellant answered by general demurrer, general denial, and by certain special denials.

The case was tried to a jury upon special issues on their answers to which judgment was rendered in favor of appellee setting aside the award of the Board, and granting compensation as for total and permanent disability for 401 weeks at the rate of $18 per week, less a credit of $368.95 which had theretofore been paid to appel-lee by appellant. Motion for a new trial was overruled, and appellant brings this appeal.

Appellant’s first four propositions relate to the question whether appellee was the employee of Howard Brothers, or was an employee of one R. C. Buckner. It is insisted by appellant that Skinner was an employee of Buckner, and not an employee of Howard Brothers, as alleged, and that the court erred in refusing its motion for an instructed verdict.

Briefly, the record discloses that during the month of November, 1938, Howard Brothers had the contract to do certain bridge work in Liberty County, Texas, for the State Highway Department. There was some pile-driving work to be done in connection with this bridge work. The bridge work was being done under the supervision of E. R. Young, an engineer of the State Highway Department. Ap-pellee was operating the pile driver, and while doing so, on November 15, 1938, received an injury for which he claimed compensation — the subject of this suit. One John L. Burgess, an employee of Howard Brothers, was “Boss’’ of the job — foreman of the crew of men doing the work. Skinner testified that Burgess sent for him to come and work on the job for Howard Brothers, and that he went and was working for Howard Brothers operating the pile driver at the time he was injured. Howard Brothers did not own any machinery or equipment to drive piling, and rented the pile driver equipment then being used from R. C. Buckner. Skinner testified that he had worked for R. C. Buckner prior to that time, and also stated that Buckner sent for him to come and work operating the pile driver. John L. Burgess, Howard Brothers’ foreman, worked with the crew, kept their time, and directed the men what to do. Skinner worked only two days before he was injured. Howard Brothers paid appellee for the time he worked, and also paid him for 32 weeks compensation at the rate of $11.53 per week, amounting to $368.96, and then ceased payments. Skinner’s name was carried on the pay roll of Howard Brothers as an employee on the job.

The contract by which Howard Brothers rented the pile-driving equipment from R. C. Buckner, with which to drive the piling at the bridge Howard Brothers were erecting under their contract with the State Highway Department, was oral, and the assembling of the equipment and men to operate same proceeded under the oral rent contract, but when the State Highway Department learned this, it required the rent contract for the equipment to be reduced to writing, which was immediately — the next day, November 16, 1938 — done. This contract reads:

“Grading Concrete Bridges
“Howard Brothers
“General Contractors
“Madisonville, Texas.
“November 16, 1939
“The State of Texas, 1 County of Liberty J
“This contract entered into by and between R. C. Buckner, General contractor, Jacksonville, Texas, and Howard Brothers, General Contractors, Madisonville, Texas.
“For the consideration and terms herein set, R. C. Buckner, General Contractor rents and leases (1) one pile driver. One (1) pile driver hammer, hammer weight 4095 lb. One 36-V-8 Ford truck, truck license No. 160282, truck equipped with power winch, all leased to Howard Brothers, General Contractors.
“Pile driver and equipment to be kept in repair by R. C. Buckner, General contractor at his own expense.
“It is agreed that Howard Brothers are to furnish operators for pile driver at their own expense.
“The rental basis to be paid R. C. Buckner shall be $4.00 Four dollars per hour for operating time, driving piling on project 28-4-8 - 28-5-5, Highway 90, Liberty County, Texas
“R. C. Buckner
“By John L. Burgess
“J. H. Howard
“Sworn to before me this 16th day of Nov. 1938.
“(Seal) E. M. Brisbie, Notary Public, Liberty Co.”

There is no contention that Ihe written contract differs from the oral contract, but appellant strenuously insists that the written contract does not have application in determining the question as to whose employee Skinner was on November the 15th, 1938, the day he was injured, for the reason that at the very time, November 15, 1938, Skinner was injured he was working under the oral contract and was the employee of R. C. Buckner. This contention is without force. The written contract was but the reducing to writing of the oral agreement. As a general rule, where the terms of an oral agreement are reduced to writing, all prior and contemporaneous negotiations, agreements and promises are merged in the written contract, and cannot be shown to vary, modify or contradict the terms of the writing; and this rule applies where an oral contract is reduced to writing after it has been partly performed. 10 Tex.Jur., Contracts, page 366, Sec. 208. As before stated, there is no contention that the terms of the written contract differ from those of the oral contract. In the written contract it is plainly stated that Howard Brothers “are to furnish operators for the pile driver at their own expense.” Skinner was operating the pile driver; he was carried on the pay roll of Howard Brothers as their employee; Howard Brothers’ employees were covered by compensation insurance carried by appellant; appellant recognized Skinner as insured by it and paid him 32 weeks compensation. Howard Brothers paid Skinner for the time he had worked, and Skinner testified that- he was working for Howard Brothers, and the jury found that he was an employee of Howard. Brothers. The record amply sustains this finding. The propositions are overruled.

It is further contended that, under the testimony of J. H. Howard, a member of Howard Brothers, Skinner was an employee of Buckner for the reason that Buckner was an independent contractor in the execution of the pile-driving work, and thus had the sole right of supervision and control over the methods and manner of doing the work and the men operating the pile driver, and that Howard Brothers had no control over same. It is urged that the work was being done by Buckner for a specified price and was not restricted to any particular hours of work, and that he, Buckner, had the right to select his own appliances and employees, and his own methods and means of performing the work. This contention is without force. The contract between Howard Brothers and Buckner, set out supra, specifically recites that Buckner, the owner of the pile driver equipment, rents the equipment to Howard Brothers for the consideration of $4 per hour operating time, and that Howard Brothers “are to furnish operators for the pile driver at their own expense.” Skinner testified that he was working for Howard Brothers as operator of the pile driver at the time he was injured; that he was paid by Howard Brothers for the time he had worked before he was injured; he was carried on the pay roll of Howard Brothers insured by appellant. Whose employee he was, was a question of fact, and the jury, in answer to a special issue, found he was an employee of Howard Brothers. This finding has abundant support in the evidence.

The fifth, sixth, seventh, eighth, and ninth propositions variously complain that the average weekly wage ($30) of Skinner, found by the jury, was without sufficient basis either in the pleadings, or the evidence, and so was erroneous for which the judgment should be reversed and here rendered for appellant, or in the alternative reversed and remanded for another trial. It appears that this contention is based mainly upon allegations in appellee’s original petition, and statements made by appellee in his application for compensation before the Industrial Accident Board, and the findings of said Board on the application. The case was not tried on appellee’s original petition, but on his first amended original petition, and his first supplemental petition. The original petition had passed completely out of the case. In appellee’s pleadings, upon which the case was tried, he alleged that his weekly wage was $40, and he testified that he expected to receive for his work $1 per hour, eight hours per day, and five days a week; that $1 per hour was the customary pay for operators of pile drivers in that vicinity. In this he was corroborated by the witness Young. He further alleged, in effect, that his average weekly wage could not be found under subdivision 1 of Section 1 of Article 8309, R.S.192S, but that same should be found under subsection 2 of Section 1 of Article 8309; and in the alternative, that if he was mistaken in this, then his average weekly wage should be found under subsection 3 of Section T of said Article 8309. The evidence supported the allegation that his average weekly wage could not be found under subsection 1, and also it did not support his allegation as to subsection 2. So the court properly submitted the question of his average weekly wage under subsection 3 of Section 1 of Article 8309, which the jury found to be $30. We think there is evidence to support this finding.

. The tenth proposition complains that the court erred in sustaining appellee’s objections and exceptions to that part of its motion for a new trial in which misconduct of the-jury was alleged as a ground for granting a new trial, and in refusing permission to appellant to introduce members of the jury for the purpose of adducing evidence relative to its said allegations of misconduct. There is no merit in the proposition. The ninety-third paragraph of the motion for a new trial sets up the matter complained of, but is too lengthy to be reproduced here. It did not name any of the jurors who were thought to have been guilty of the misconduct complained, nor to which other jurors the alleged hurtful statements were made, but complained in general terms, and this was on information and belief. We think the motion, in this particular, was too indefinite and uncertain. The bill of exception to the action of the court is no better. It does not name any juror as guilty of the alleged misconduct, nor does it state that any one of them would have testified to the matter alleged, but merely says “that it is believed by the defendant that their testimony would have been that certain members of the jury had related their personal experiences to other members, * * This was not an allegation of fact as to any misconduct, but was merely a supposition or belief that certain things had taken place in the jury room. It should have definitely alleged the facts, if any such there were. To accept such allegations and permit the calling in of the jurors and their being placed on the witness stand for the purpose, if may be, of fishing from them some hurtful matter relative to their deliberations in the jury room, would unduly consume the court’s time, and permit the harassing of the jurors without adequate cause.

The eleventh proposition is, in effect, that appellant had paid to appellee compensation for 32 weeks at the rate of $12 per week, and that this was the rate appellee was entitled to receive (if entitled to compensation), and that appellee accepted same which, in the absence of fraud or mistake, which was neither plead nor proved, wherefore the judgment for compensation at the rate of $18 was fundamentally erroneous, and reversible error. This contention is overruled. The payments were voluntarily made by appellant, and there is nothing in the record to indicate that the payments were made by reason of any agreement between the parties, or in settlement of the claim. If the Industrial Accident Board awarded appellee compensation at the rate of $12 per week, the record, evidenced by this suit, is plain that appel-lee refused to accept said award and filed this suit to set aside and annul same. The mere fact that appellant paid appellee 32 weekly payments of compensation in a less sum than he was entitled to receive under the Compensation Law, and that appellee accepted same, does not bar -him from establishing and being awarded his lawful wage rate. Traders & Gen. Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, writ dismissed.

The twelfth proposition asserts that the court erred in submitting special issue No.. 8 to the jury, which reads: “Do you find from a preponderance of the evidence that such total disability, if any, was temporary? Answer Yes or No.” The jury answered “No.”

The objection to the issue was that, as worded, it improperly placed the burden of proof on the defendant to establish the negative of such issue. The proposition is not sound. Appellant insists it was entitled to have the issue affirmatively submitted properly placing the burden of proof on appellee to establish the negative of such issue, and to secure such submission it prepared a special issue, as it contends, properly framed and tendered it to the court for submission, which the court refused. It reads: “Do you find from the evidence that such total disability, if any, suffered by the plaintiff was not only temporary? Answer Yes or No. You are further instructed in connection with the above issue, that unless you find from a preponderance of the evidence that such disability is not only temporary, then you will answer said issue 'No.’ ”

The issue as submitted by the court was a correct, sufficient and affirmative submission of the issue of temporary disability. Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 317, 5th par. We are not favorably impressed with the issue requested by appellant. The inclusion of the words “not only” added neither to the clarity nor sufficiency of the issue .as submitted by the court. To our minds they smack of a double submission of the question of permanent disability, and, too, they w'ere calculated to confuse the minds of the jury and thus invite a wrong answer.

What we have said disposes of appellant’s thirteenth proposition relative to the. submission of the issue of “partial” disability.

The judgment should be affirmed, and it is so ordered.

Affirmed.


text:
    AMERICAN MUT. LIABILITY INS. CO. v. MORGAN et al.
    No. 3729.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 31, 1940.

      Rex Clawson, of Houston, and Barnes & Barnes, of Beaumont, for appellant.
    Shivers & Keith, of Port Arthur, for appellees.
   O’QUINN, Justice.

May 4, 1939, appellees filed this suit in the district court of Jefferson County, Texas, in the nature of an appeal from an order of the Industrial Accident Board of the State of Texas. On that day, May 4, 1939, citation to appellant was duly issued to be served upon Hon. Walter C. Woodward, Chairman of the Board of Insurance Commissioners of the State of Texas, at Austin, Texas, and attorney-in-fact for appellant, American Mutual Liability Insurance Company, who had theretofore duly, voluntarily, and legally designated said Chairman of said Board of Commissioners its attorney-in-fact in the State of Texas for the service of process in accordance with Article 2031a, Vernon’s Ann. Civ. St. The citation so issued May 4, 1939, was accompanied by one certified copy of the plaintiffs’ original petition, and said citation with said certified copy was served on Walter C. Woodward, attorney-in-fact for appellant aforesaid, on May 8, 1939. Water C. Woodward, attorney-in-fact, aforesaid, did not deliver or cause to be delivered the said citation to the defendant, American Mutual Liability Insurance Company, until June 12, 1939, said citation being enclosed in a letter from said Woodward mailed to appellant on June 9, 1939, and which letter reached the home office of appellant in the City of Boston, Massachusetts, on June 12, 1939. On that date June 12, 1939, appellant at its home office wired its adjuster in Houston, Texas, to make proper appearance in said cause, and on said date, June 12, 1939, said adjuster forwarded the file of papers in said case to the law firm of Barnes & Barnes, appellant’s local attorneys in Beaumont, where said suit was pending, with request that said attorneys make proper appearance in the case. The record discloses that this request was received by Barnes & Barnes, attorneys, at 11 o’clock, A. M., June 14, 1939, and answer was filed by noon of that day. Thereafter (after June 14, 1939) counsel for appellant learned that on or about June 6, 1939, a judgment by default against appellant had been rendered and writ of inquiry ordered; immediately, on June IS, 1939, counsel for appellant consulted with counsel for appellees with reference to setting aside the default judgment; pursuant to an understanding then had, an informal conference was had in the district court at 9 :A.M. June 21, 1939, and the matter was orally placed before the court; at the close of the oral presentation, the court announced that it had nothing before him, and counsel for plaintiffs announced that counsel for defendant might proceed with the preparation of a written motion to set aside the order complained of and assured defendant’s counsel that no further action would be had upon the writ ’of inquiry until the motion could be prepared and presented. Motion was prepared by counsel for defendant and filed July 7, 1939.

The motion to' set aside the default judgment recited the above facts, and also set out several letters from Insurance Cofnmissioner Chairman, Hon. Walter C. Woodward to the appellant insurance company explaining the delay in his department in sending the citation served on him saying that only one copy of the certified petition accompanied the writ of citation, and that his clerk in charge, whose duty it was to mail the citation and accompanying copy of the petition to appellant’s Home Office merely filed the copy of the petition in the files of his office, and neglected to forward the citation, which oversight was not discovered until May 8, 1939, when same was promptly mailed to appellant. The letter also stated that it was customary for the citation to be accompanied by two copies of the citation, one for the defendant and one for the files of the office of the Chairman of the Insurance Board, and there being only one it was placed in the files of his office and the mailing of the citation was overlooked. Likewise oil June 9, 1939, Hon. Walter C. Woodward wrote counsel for appellees explaining the failure of his office to send the citation to appellant and said “It was possibly an oversight on your part that two copies (of the petition) should have been served on me and since this is the usual procedure, the one copy was placed in our files instead of being sent on to the company * * “Sincerely hoping you may he able to reopen the case and not take a default judgment on account of the service, I am,” etc. Other letters are in the record, but will not be quoted from.

The motion to set aside the judgment was ample in its allegations of fact, alleged that it had a good defense to appellees’ alleged cause of action, pleading same and fully set out the reason for not having' answered and showing its action to avoid the default judgment as stated above. It also assailed the service, when had, as not sufficient because, among other reasons, that same was not accompanied by a certified copy of appellees’ petition as required by law, and so would not support a default judgment.

On June 21, 1939, the court set the motion for hearing on August 4, 1939, at which time by agreement of all parties, with the consent of the court, the hearing Was postponed to September 5, 1939, when a hearing was had, and the court overruled the motion. This appeal is from that order. On motion of appellees, on November IS, 1939, the court rendered judgment for appellees against appellant for compensation for 360 weeks at $7 per week amounting to $2,520, which judgment partitioned the amount among the appel-lees, they being the wife and minor children of the deceased Willie Morgan. This appeal is from that order and judgment.

A number of assignments of error against the order of the court overruling the motion to set aside the default judgment, and against the granting of compensation in the final judgment of the court, are presented, but we shall discuss but one, that urging error in the overruling of the motion to set aside the default judgment. Article 2031a, Vernon’s Annotated Civil Statutes of Texas, requires every foreign corporation seeking to do business in this state to file with the Secretary of State a power of attorney designating some person who is a resident of this state as its service agent upon whom service of process may be served in all suits in which the corporation may be a party. In full compliance with this statute, appellant duly filed its power of attorney in the office of the Secretary of State designating Hon. Walter C. Woodward, Life Insurance Commissioner and Chairman of the Board of Insurance Commissioners, as its service agent. Knowledge of this appointment was known to counsel for appellees for they sent the citation and one copy of the citation to the Designate. By oversight, the clerk in the office of the Life Insurance Commissioner filed that one copy in the office files, and did not send the citation to appellant. The facts relative thereto are fully set out in this opinion above. When the Insurance Commissioner discovered the oversight he promptly communicated with appellant and counsel for appellees explaining the oversight. In the meantime judgment by default against appellant had been taken. When appellant was advised of the situation it promptly notified its Texas counsel and requested proper appearance in the case. This was done. Under these facts and circumstances, did the court err in refusing to set aside the default judgment and letting the case be tried on its merits? We think the oversight of Hon. Walter C. Woodward, Insurance Commissioner, in not forwarding the citation and copy of the petition to appellant should not be charged against appellant. It had complied with the statute, and could have no knowledge of the suit until it was advised by receiving the citation in accordance with the procedure provided by law. Law, equity and right require that defendants in civil suits be timely advised of any action against them so that they can make their defense. Every one is entitled to his day in court, and should not be deprived thereof, except in case of negligence on his part. A trial on the merits could have been had within a few days, if the motion to set aside the default judgment had been granted. There is no showing that appel-lees would have suffered any loss or detriment by the delay. We think the court erred in refusing to set aside the judgment by default. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124. Accordingly the judgment is reversed and the cause remanded for a trial on the merits.


text:
    ADAMS et al. v. McGILL, County Judge, et al.
    No. 4084.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 12, 1940.
    Rehearing Denied Jan. 2, 1941.
    Gerald C. Mann, Atty. Gen., Clarence E. Crowe, Claud O. Boothman, and Geo. W. Barcus (last on rehearing), Asst. Attys. Gen., and Joseph G. Bennis, of El Paso, for appellants.
    Frank B. Clayton and Ernest Guinn, Co. .Atty., both of El Paso, for appellees.
   PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of El Paso County, Texas, Forty-First District. Leon D. Adams, as a taxpaying citizen of El Paso County, sought an injunction against the Commissioners’ Court of El Paso County, including the County Judge, the County Auditor, County Clerk, County Treasurer, Tax Assessor and Collector of El Paso ■County, and J. E. Morgan &. Sons, a co-partnership, seeking to enjoin the issuance of certain time warrants. The State of Texas, through the Attorney General, intervened in the case and joined in the prayer for the injunction sought. The trial was to the court; the judgment denied the injunction sought. On motion of plaintiff and intervener the trial court filed findings of fact and conclusions of law. This appeal was duly perfected from such judgment by the 'State of Texas and the said Leon D. Adams, suing in his capacity as aforesaid.

The statement of the nature and result of the suit made in the brief of appellees is short and we think sufficient, and we literally adopt same.

El Paso County entered into a contract with J. E. Morgan & Sons for making certain improvements on the El Paso County Livestock and Agricultural Exhibition Building, after proper notice to bidders, the bid of Morgan being the lowest and best bid. The contract called for payment for the work by issuance of interest-bearing time warrants, payable over a period of three years, payment to be made as the work progressed, upon approval of the estimates by the architect and allowance by the Commissioners’ Court. All formal requisites for the issuance of time warrants were complied with, and $500 worth of work having been performed by Morgan under the contract, the Commissioners’ Court, after approval of the estimates by ‘Percy McGhee, architect, allowed the claim and ordered the issuance of a time warrant as provided by the contract, in the sum of $500. Appellant, a taxpaying citizen of El Paso County, instituted this action to - restrain the issuance of the time warrants and further work being done under the contract. There is only one question involved in the case, and that is the authority of the county to pay for the improvements by the issuance of time warrants payable over a period of years. The trial ■court held that the County possessed such power and denied the injunction.

This brief supplementary statement might be made:

If the power exists to issue these time warrants, the mode and manner of their issuance complies in all respects with the law governing same. The contemplated time warrants were six in number, five in the amount of $500 each, and the sixth in the s.um of $336; same were payable, $1,000 on September 15, 1941, $1,000 on September 15, 1942, and $836 on September 15, 1943.

Appellant Adams makes one assignment of error: “The County of El Paso being without authority in law to issue time warrants for the payment of the cost of construction of a public improvement of the character of the one here involved, the Honorable Trial Court should have granted in all things the relief prayed for by the plaintiff below.”

The State of Texas in its brief advances this proposition: “A county is not authorized under the laws of this State -to issue time warrants to construct and improve a livestock and agricultural exposition building.”

Appellees rely on Article 2372d, Vernon’s Annotated Civil Statutes, which reads, in part, as follows:

“Section 1. All counties in the State acting by .and through their 'respective Commissioners’ Courts may provide for annual exhibits of horticultural and agricultural products, livestock and mineral products, and such other products as are of interest to’ the community. In connection therewith, such counties may also establish and maintain museums, including the erection of the necessary buildings and other improvements, in their own counties or in any other county or city in the United States, where fairs or expositions are being held.
“Sec. 2. The Commissioners’ Courts of the respective counties or the Commissioners’ Courts of several counties may cooperate with each other and participate with local interests in providing for the erection of such buildings and other improvements as may be necessary to accomplish the purpose mentioned in Section 1, of this Act and for the assembling, erecting, and maintaining of such horticultural' and agricultural, livestock and mineral exhibits, and the expenses incident thereto.”

Appellees’ counter proposition is as follows : “When the Legislature has empowered a county to make public improvements without specifying the means of payment therefor, the county may contract for such improvements and issue interest-bearing time warrants payable over a period of years to evidence-the indebtedness created.”

The concrete question presented by this appeal is: Has El Paso County the power to contract and pay for the construction of the building in question with time warrants ?

Article 2372d, it is conceded, gives the County the power to construct the improvements in question. It is the means used in the exercise of this discretionary power that is called into question. That the County has the right to devote county revenues for this purpose follows' by necessary implication from the grant of the power to construct same. The County is not given the express power to pledge the future revenue of the county in the exercise óf this power. If such power there is, it must arise by implication - from the express delegation of the power to construct the improvement. In the cases of the erection of courthouses, jails, and the construction of public roads, it has been often held that the county has the implied power to issue time warrants to pay therefor. San Patricio County v. McClane, 58 Tex. 243; Davis v. Burney, 58 Tex. 364; Stratton v. Commissioners’ Court, Tex.Civ.App., 137 S.W. 1170; Lasater v. Lopez, 110 Tex, 179, 217 S.W. 373.

Section 2 of Article 11 of the Constitution, Vernon’s Ann.St., in substance, provides that by general law provision be made for the construction of jails, courthouses, roads and bridges. However, the power to issue time warrants or bonds in payment for such improvements had not specifically been conferred by the general laws passed by the Legislature under the mandate of the Constitution regulating the construction of the improvements mentioned in Section 2, Article 11, of the Constitution, when some of the above cited cases were decided. Others we're decided after the passage of the 'law authorizing bonds and hold the implied power survived the specific provision as to bonds.

In the cases cited above the power to pay for such improvements with time warrants seems to have been inferred from the power and duty to make same. On the other hand, it is well established that from the duty and power to make these improvements the power to issue negotiable bonds to pay for same out of the proceeds thereof is not to be implied. San Patricio County v. McClane, 44 Tex. 392; Robertson v. Breedlove, 61 Tex. 316.

In order to issue valid bonds to pay for such improvements the Legislature must specifically provide therefor. The mode outlined by the Legislature for the issue of bonds must be strictly followed. This proposition established by the case of Robertson v. Breedlove, supra, has been consistently recognized and followed.

In 1931 the Legislature passed what is denominated as the “Bond and Warrant Law.” See Article 2368a, Vernon’s Civil Statutes. The Bond and Warrant Law, while it recognizes time warrants and regulates and limits their issuance, does not purport to authorize their issuance; it does expressly authorize the funding of such warrants as are validly issued into negotiable bonds. The manner and mode of such refunding is carefully and minutely specified.

Appellant's urge that appellees are here attempting to pay for the improvements by ths issuance of bonds. It is not charged that same is directly done, but is to be accomplished by indirection, in that after •the. issuance of the time warrants, that under Article 2368a, the intent is to refund same by the issuance of negotiable bonds. The position is not that the Legislature could not authorize counties to issue bonds for the construction of the improvements in question here, but that it has not done so — not having authorized the issuance of bonds to pay the cost of construction, a county can not issue bonds therefor. If this were an attempt to directly issue bonds, we think, under Robertson v. Breed-love, supra, the position taken could not be successfully controverted.

Before refunding bonds could be validly issued, a definite obligation of the county must exist. The Bond and Warrant Law certainly contemplated that time warrants had been issued by some of the counties, and that others might be issued in the future.

There is this intrinsic difference between bonds and warrants: A bond is a negotiable instrument, while a warrant is non-negotiable. A warrant is subject at all times to the defenses it would be were it in the hands of the original payee — not so-with a negotiable bond.

In our opinion, in part at least, the purpose of the Bond and Warrant Law was to permit counties to refund warrant obligation by bonds, in order to take advantage of more favorable interest rates, if same could be obtained. If a definite legal obligation be established against a county, it could make very little difference whether same be evidenced by warrant or bond. Value has been received for the warrants before they are funded by bonds. In either event taxes must be imposed to service and pay same. The intrinsic difference between a warrant and a bond as to negotiability was the basis of the holding that while certain improvements may be paid for with deferred obligations, bonds may not be issued for this purpose unless there is specific authorization therefor in tha law. In cases of a warrant, the consideration therefor may be called into question at any time prior to its payment — not so as to a bond. A bond, once issued by the body having the power to do so, becomes a courier without baggage. In the hands of a bona fide holder, the county must pay though it has not received value therefor. It is not probable that warrants will be converted into bonds until such a time has passed as will demonstrate that they are valid definite obligations. That is, until the performance of the contract, the consideration for issuance, has been completed.

We overrule the contention that this transaction is in substance and effect the issuance of bonds to pay for the improvement in question.

This ruling does not meet the question posed by the- appeal: May the County •erect this building and contract to pay for .same with time warrants ?

This power is not specifically conferred in the law authorizing the county to make the improvement. In this event, if such power there be, it is an implied power— implied from the power given to construct the improvement. The power, while not given, is not specifically withheld. Power there was to construct the improvements from money raised by taxation. Power to issue time warrants in payment for the construction of roads, courthouses and jails has been implied from the duty and authority to construct same. San Patricio County v. McClane, supra; Davis v. Burney, supra; Stratton v. Commissioners’ Court, supra; Lasater v. Lopez, supra.

It is urged that the construction of courthouses, jails and roads is a mandatory duty. This is trqe, and therefrom arises the power to construct same, and from this power was implied the power to issue time ■warrants.

There is no difference as to content, that we are able to perceive, between the power arising from a duty imposed and a discretionary power conferred. The essence of the distinction between the two lies in the fact, in one case there is an express mandate to discharge a duty, that is, to exercise the power given; in the other, the exercise of the power is optional. A law conferring a discretionary power is as binding and vital as a law enjoining a duty; action taken under either in accordance therewith is equally justifiable. After the changes in the law relating to public improvements of the nature referred to in Section 2 of Article 11 of the Constitution, it was optional with the county whether bonds be issued therefor or -time warrants issued. Here was certainly recognized a discretion in the County as a means to be used in the discharge of the duty. One way was as lawful as the other.

Article 2372d gives the power to construct the improvement. We. think implied in that power is the authority to use the revenues of the county within lawful limits to construct the improvement. There is no charge here that the provisions of the Constitution for servicing the warrants and providing for their liquidation .were not complied with in all respects. No claim is made as to any irregularity in the compliance with Article 2368a.

The distinction between the power of a municipal corporation to issue time warrants and to issue bonds is admirably drawn in 19 R.C.L., Section 84, page 780, and with admirable clarity the reason for the distinction is set forth. In this same section the following proposition is laid down: “A distinction is drawn between borrowing money and obtaining • property or labor on credit, it being everywhere held that a municipal corporation has an implied power to use its credit for the accomplishment of any object for which it is authorized by law to expend money.”

In the case of Bridgers v. City of Lampasas, Tex.Civ.App., 249 S.W. 1083, 1084, writ of error refused, this distinction is drawn with great clarity.' The opinion is by that great jurist, Judge Key. In the opinion this proposition,. taken from appellant’s brief, was approved: “It is generally conceded and well established that municipal corporations are invested by implication with the power to contract on the general credit of the city with respect to such improvements as they are autfior-ized to make.” The section we have referred to above in Ruling Case, Law was quoted from with approval in the course of the opinion. The same section is cited in the case of Clark v. W. L. Pearson & Co., 121 Tex. 34, 39 S.W.2d 27, 31, as sustaining the following proposition: “The rule is well established that municipal corporations are invested at least with an implied or incidental power to contract on the general credit of the city with respect to such improvements as they are authorized by law to make.” Among the numerous cases cited by Judge Sharp in support of the proposition is the case of Lasater v. Lopez, 110 Tex. 179,189, 217 S.W. 373.

It is true that the foregoing two Texas cases we have cited and briefly discussed involve the power of cities. The case of Lasater v. Lopez, supra, cited by Judge Sharp, involves a county. But we see no valid reason why the reasoning does not apply to the action of a county acting within the orbit of its authority conferred by law.

This proposition we deem sustained by authority: A county, subject to the express restrictions imposed by the Constitution and general laws, has the power to issue time warrants in payment for improvements it is expressly authorized to construct, provided that the applicable regulations relating to the issuance of such warrants be observed.

As we have said, the question of whether these warrants may be funded under the Bond and Warrant Law is not before us. The legality of the action in contracting for the issuance of time warrants is not to be determined upon consideration as to whether they may or may not lawfully be funded under the Bond and Warrant Law.

We find no error in the record.

Judgment of the trial court is affirmed.'

HIGGINS, J., not sitting.


author: GERMAN, Commissioner.

text:
    HANCOCK v. MOORE.
    No. 7681.
    Supreme Court of Texas.
    Jan. 15, 1941.
    Moore & Moore and W. Folsom Moore, all of Paris, for plaintiff in error.
    Long & Wortham and E. L. Myers, all of Paris, for defendant in error.
   GERMAN, Commissioner.

This suit was filed in the District Court of Lamar County by Mrs. Fannie Hancock as plaintiff. She will be so designated here. It was against W. F. Moore, who will be referred to herein as defendant.

The suit was in the nature of trespass to try title, and involved a tract of 125½ acres of the Bennett T. Logan' Survey, with an additional . acreage alleged to be an accretion to said tract. The 125½ acres was formerly a part of a 327-acre tract out of the Logan Survey, which 327 acres was bounded on the south by the north line of the Craddock and Coles 500 acres, and bounded on the north by the Red River. The basic deed in the chain of title under which plaintiff claims contained the following description: A part of the Bennett T. Logan Headright Survey; beginning at a stake on the bank of Red River, it being the N. W. corner of the Hd. Right Survey; thence south with the W. B. Line of the same 28 poles to a stake; thence east 144 poles to a stake; thence north 34 poles to a stake; thence west 58 poles to a stake; thence north 23½ east 202 poles to a stake. on the bank of Red River; thence up said river with its meanderings to the place of beginning, containing 125 ½ acres of land, more or less.

Judgment was rendered in the trial court against plaintiff and this judgment was affirmed by the Court of Civil Appeals in a very comprehensive opinion. 137 S.W.2d 45. The trial court made elaborate findings of fact, most of which are set out in the opinion of the Court of Civil Appeals.

When writ of error was granted in this cause, the Court was under the impression that important questions of law concerning accretions and erosions were involved. Upon a very careful examination of the record we have reached the conclusion that a correct disposition of the case depends upon questions of fact, which have been determined by the trial court and approved by the Court of Civil Appeals. Due to the fact that the Court of Civil Appeals has elaborately discussed these questions and has set out in great detail the essential facts, it becomes wholly unnecessary for us to write a lengthy opinion.

It will be observed that the Court of Civil Appeals affirmed the judgment of the trial court upon two theories: First, that plaintiff had failed to properly and accurately identify the land sued for in her petition; and, second, upon the ground that ⅛6#125⅛ acres in. question had been lost by erosion, due to the many changes in the bed of Red River since 1880, the date upon which the 125 ½ acres was segregated from the Logan Survey.

In connection with the first proposition we call attention to the fact that plaintiff, in, order to identify the tract of land above described in detail, rested upon the assumption that the south line of same was the north line of the Craddock and Coles 500-acre tract. If this assumption were correct, then it would become an easy matter to locate the 125½ acres, and there would remain only the question of erosion. It will be noted, however, that in the description above set out the call was for beginning on the bank of Red River and thence south 28 poles to a stake. It is significant that no call was made for the corner or line of the Craddock and Coles tract. In connection with the location of the corners and lines of this 1251é-acre tract, the trial court made the following finding: “The beginning point of the description of the land conveyed by Nannie Hancock and G. W. Hancock to Jeff Hancock by deed dated February 5, 1880, is not capable of being definitely located on the ground by reason of the various changes of Red River since the date of said deed. And the exact location of the 125½ acres of land described in said deed cannot be definitely determined. But the south boundary line of the said 125⅛ acres of land conveyed by Nannie Hancock and G. W. Hancock to Jeff Hancock on February 10, 1880, is somewhere approximately one-fourth of a mile north of the north boundary line of the Craddock and Coles’ 500 acre tract.”

An examination of the statement of facts shows that this finding is strongly supported by the proof in the case. As plaintiff described the land sued for as beginning at the northwest corner of the Craddock and Coles 500 acres and running east with its north line, it will thus be seen that she wholly failed to prove title to the land as thus described. It being shown that the deed under which plaintiff claims had its south line approximately one-fourth of a mile north of the boundary of the Craddock and Coles 500-acre tract, if we still assume that the description contained in plaintiff’s petition would still include some portion of the 125½ acres as thus located, yet the quantity and location of such remainder is wholly uncertain, and the evidence does not indicate that it could ever be determined with certainty.

But if it were possible for plaintiff to make additional proof in this regard, we are of the opinion that the further findings of the trial court wholly preclude a recovery. Among these findings of the trial court are the following:

“8. From February 5, 1880 (the date of the deed from Nannie Hancock and husband, G. W. Hancock, to Jeff Hancock), to 1915, the waters of Red River at intervals washed and overflowed the south bank of said river until the land described in the deed to Jeff Hancock was taken and eroded by the gradual eating away of the south bank of Red River.
“9. In 1915, Red River, by its'gradual encroachment upon the land to its south, had eroded and taken away the land on its south bank to the extent that in said year the south bank of the river in said year was south of the north boundary line of the Craddock and Coles 500 acre tract on the northwest corner thereof.
“10. By the gradual change of Red River and the encroachments thereof upon the land described in the deed from Nannie Hancock and G. W. Hancock to Jeff Hancock (of date Feb. 5, 1880), all of the land described in that deed was washed away and taken by the erosive processes of Red River as it gradually changed its course to the south.
“11. Sometime in 1915 Red River began receding to the north, and since that- time has gradually receded to the northward to where it now runs a distance of a mile or more north from its place of furthest advance south in the year 1915.
“The movement of the river northward was accompanied by accretions and deposits of the river to the land bordering on its south bank, during the time from the • year 1915 to date.
“The land lying between the south bank of Red River as it ran during its furthest advance southward in the year 1915, and the south bank of Red River where it now runs, is land formed by deposits and accretions by the river as it receded gradually to its present location On the ground.”

In the case of Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428, the Supreme Court of the United States adopted the law announced in the former case of Nebraska v. Iowa, 143 U. S. 359, 12 S.Ct. 396, 36 L.Ed. 186, as applicable to the Red River. In that case it was held that notwithstanding the rapidity and suddenness of changes in the channel of the Red River, so long as the soil is eroded and passes away, so as to become the locus of the river’s bed, the ordinary rules with reference to erosions and accretions applies. Tested by this rule of law the trial court was amply justified in its conclusion that the washing away of the 125½ acres, as originally located, by reason of the encroachment of the south bank of the Red River, constituted an erosion, so that title to said tract was entirely lost, and was further justified in the conclusion that when the river receded to the north, in the manner as found, the land which again appeared in this location was an accretion to other lands.

We are clearly of the opinion that the question of erosion and accretion, under the circumstances^ was one of fact, and that the findings of the trial court in this respect are amply supported by the evidence.

For the reason stated, the judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


author: ALEXANDER, Chief Justice.

text:
    Ex parte KIMBROUGH.
    No. 7818.
    Supreme Court of Texas.
    Jan. 15, 1941.
    M. É. Lawrence, of Eastland, for relator.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus and Fred Chandler, Assts. to Atty. Gen., for Liquor Control Board.
   ALEXANDER, Chief Justice.

This is an original habeas corpus proceeding, filed in this Court by G. O. Kim-brough.

The State, through its proper officers, brought suit against relator in the District Court of Eastland County, under the provisions of the Texas Liquor Control Act, to have relator’s residence declared a nuisance under the provisions of Vernon’s Annotated Penal Code, Article 666 — 29, and to enjoin him from selling intoxicating liquor on the premises. Upon a trial on the merits a permanent injunction was granted, but the residence was not padlocked as authorized by the statute. The relator prosecuted an appeal to the Court of Civil Appeals, and executed a supersedeas bond in the amount fixed by the trial court. Pending the appeal, relator made sales of intoxicating liquor from his residence, contrary to the provisions of the injunction. An attempt to have him punished for contempt by the Court of Civil Appeals failed. See Kimbrough v. State, 139 S.W.2d 165. After the judgment in the injunction case had been affirmed by the Court of Civil Appeals, 144 S.W.2d 401, and mandate returned to the trial court, said trial court upon motion of the State adjudged relator to be in contempt of that court for having made sales of intoxicating liquor from his residence while the injunction case was pending on appeal in the Court of Civil Appeals. Hence relator sued out this writ of habeas corpus.

It is a very well established rule that, under the provisions of Revised Statutes, Article 2270, unless otherwise provided by statute, all final judgments may be superseded, pending appeal, by the filing of a proper supersedeas bond. Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326, 330; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103; Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113.

It is also well settled by the same authorities that when the judgment is thus superseded its provisions are suspended, and cannot be enforced pending the appeal. See also Article 2275. Consequently, where the provisions of a permanent injunction are suspended on appeal, by the filing of the proper supersedeas bond, persons affected thereby are not required to observe its orders, and cannot be punished in contempt for disobedience thereof. See, in this connection, Haley v. Walker, Tex.Civ.App., 141 S.W. 166; Ross v. State ex rel. Shook, Tex.Civ.App., 97 S.W.2d 505.

The Attorney General contends that since this suit was brought under the provisions of the Liquor Control Act, to prevent a violation of the criminal law, same constitutes an exception to the rule as above announced. It should be noted, however, that the very section of the Act under which the injunction suit in question was brought, — Penal Code, Article 666, Section 29, — -expressly provides that such proceedings shall be guided by the rules of other injunction proceedings, with certain exceptions not here pertinent. This we think makes it clear that it was the intention of the Legislature that the right to appeal and to supersede the judgment pending appeal applicable in other injunction cases should prevail in suits of this kind. If the Legislature had not so intended it could have provided otherwise, as it did in Section 14 of the same Article, with reference to the right to suspend a judgment forfeiting a -liquor dealer’s permit pending appeal; or as is provided in Article 4662, with reference to interlocutory injunctions.

The Attorney General further contends that, even though the injunction may be suspended pending appeal, yet, if the judgment granting such injunction is finally affirmed on appeal, the person so enjoined may then be punished in contempt for acts contrary to the injunction, committed by him pending the appeal and after the judgment had been superseded. This contention we think is unsound. When the judgment is suspended by appeal there is no injunction then in force for the defendant to violate. He cannot offend the trial court by acting contrary to the provisions of the injunction, because its provisions are not then in force. The fact that it would be difficult, if not impossible, for the State to recover on the supersedeas bond, because of the lack of a suitable measure of damages, furnishes no adequate reason for resorting to such contempt proceedings against the defendant in the injunction case for violations that take place pending the appeal. Antner et al. v. State, Tex.Civ.App., 114 S.W.2d 640, syl. 8. The State, and .not the defendant, prescribes the conditions under which the injunction may be suspended. If the State’s remedy in such cases is inadequate, the Legislature can provide otherwise. Moreover, the State has its right to prosecute by regular criminal actions for the violations in question.

Moreover, even if the judgment had not been superseded, the contempt, if any, committed after the appeal had been perfected would have been punishable only by the Court of Civil Appeals. Ex parte Travis et al., 123 Tex. 480, 73 S.W.2d 487.

In our opinion, the relator was not in contempt of the court for acting contrary to the provisions of the injunction, pending the appeal on supersedeas bond.

The relator is ordered discharged.