author: LESLIE, Chief Justice.

text:
    PATTERSON v. DUNIGAN TOOL & SUPPLY CO.
    No. 2041.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 27, 1940.

      Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellant.
    Harrell & Bowers, of Breckenridge, for appellee.
   LESLIE, Chief Justice.

Dunigan Tool & Supply Co., a private corporation with its office and place of business in Breckenridge, Stephens County, Texas, sued J. D. Patterson, whose residence is in Tyler, Smith County, alleging that the company, at the special instance and request of Patterson, sold and delivered to him in the regular course of business merchandise of the reasonable value of $751.76. Patterson filed his plea of privilege, in statutory form, to be sued in Smith County.

The plaintiff filed its controverting affidavit and alleged that at the time Patterson purchased the merchandise he expressly contracted in writing to pay for it at the office of the company in Breckenridge, Stephens County, and by reason thereof venue of the suit was fixed in that county under subdivision 5, Art. 1995, R.S. 1925, Vernon’s Ann.Civ.St. art. 1995, subd. 5.

The alleged contract in writing relied upon by the plaintiff to sustain the venue in Stephens County was the original sales tickets (for the merchandise) spoken of in the pleadings sometimes as “invoices” and sometimes as “sales sheets.’’ These tickets carried the notation “charged to J. D. Patterson” and each of them was signed “Received by: W. L. Hughes.” The tickets thus authenticated contained, among other things, the stipulation “All bills payable at home office in Breckenridge, Texas.” There were several other provisions in the tickets but the above are the only ones material to the questions before us.

The main contention arises from the fact that said “sales tickets” were not signed by Patterson but by Hughes in the manner indicated. Hence a question of agency arises, namely: Was Hughes acting for himself, or was he the duly authorized agent and acting for said Patterson? If he was the agent of Patterson, the burden was upon the plaintiff to plead and prove either the actual authority of Hughes to act for the defendant in said transaction and make such contract for him, or plead and prove such facts as would estop the principal (Patterson) to deny the existence of such authority. Tarver Steel & Co., v. Pendleton Gin Co., Tex.Civ.App., 25 S.W.2d 156. The appellant’s chief attack is leveled at the deficiency in plaintiff’s pleading to warrant the admission of testimony to establish either of the above material facts of agency. The plaintiff in its brief admits that the pleadings in this case are not sufficient to allege a contract by Patterson performable in Stephens County. This admission is predicated upon the fact that although the sales ticket constitutes a written contract performable in Stephens County, nevertheless the contract was not signed by Patterson, but by said Hughes. In this connection, it will be noticed that the court admitted much testimony over the objection of appellant to the effect that Hughes as agent made such contract in his own name for Patterson. In this state of the record, and upon the theory suggested by the record that such testimony can even be materially strengthened upon another trial, the plaintiff in connection with the above admission presents a counter proposition in which it contends that since it clearly appears from the evidence that the venue of the suit is properly laid in Stephens County a change of venue should not be ordered on account of defects in the pleadings or proof, bffi that the cause should be remanded to the trial court to afford the plaintiff an opportunity to cure such defects in the pleadings or proof. About this point revolves the contentions of the respective litigants.

It has been held by many Courts of Civil Appeals, and we think settled by the Supreme Court, that where it appears that the venue is properly laid in the county of suit, change of venue will not be ordered under such circumstances as those before us, but the cause will be remanded to the trial court that mere defects in pleading or proof may be cured. Lanford v. Smith, Chief Justice, 128 Tex. 373, 99 S.W.2d 593; Ætna Life Ins. Co. v. Gallagher, 127 Tex. 553, 94 S.W.2d 410; Brown v. Cox, Tex.Civ.App., 53 S.W.2d 848; Bramblett v. Roby State Bank, Tex.Civ.App., 67 S.W.2d 450; Pullen v. Carpenter, Tex.Civ.App., 83 S.W.2d 384; Hughes v. Gunter, Tex.Civ.App., 136 S.W.2d 253; Jones Fine Bread Co. v. Smith, Tex.Civ.App., 136 S.W.2d 234; Sparks v. West, Tex.Civ.App., 41 S.W.2d 301; City of Dilley v. Black, Tex.Civ.App., 95 S.W.2d 732; Caprito v. Weaver, Tex.Civ.App., 63 S.W.2d 1043.

From the case of Brown v. Cox, supra [53 S.W.2d 850], we take the following:

“We think the controverting plea failed to allege sufficient facts to show a binding contract between the parties performable in McCulloch county. While it was not necessary to prove, on the trial of venue question, such breach of contract as would entitle appellee to recover damages, it was necessary to sufficiently allege a binding contract performable in that county in order to overcome appellant’s plea of privilege [citing cases].

“But this error does not require that upon reversal the case be transferred to Travis county. Where the ends of justice will be best served by a remand, that is the proper course, even though amendment of the pleadings upon another trial may be necessary.”

On the question of lack of or sufficiency of evidence in such cases, but with material bearing upon deficiency in pleading, and the proper judgment to be entered by this court, we quote from the opinion of our Supreme Court in Lanford v. Smith, supra [128 Tex. 373, 99 S.W.2d 594], “It is the general rule in civil cases that, when the Court of Civil Appeals reverses the judgments of the trial court for lack of evidence in support thereof, it will not render judgifient unless it appears that the case in that respect has been fully developed. In such cases, when it does not appear that the facts have been fully developed, the judgment of the appellate court should be one of remand and not one of rendition. This rule is too well established to require the citation of authorities. It is now also the settled law of this state that appeals regarding interlocutory orders sustaining or overruling pleas of privilege are governed by the same rules that govern appeals in civil cases generally. If the Court of Civil Appeals determines that the judgment of the trial court is unsupported by the evidence, or that the evidence in support thereof is insufficient, its judgment should be one of remand and not one of rendition, unless it appears that the facts were' fully developed at the trial appealed from.”

In the defendant’s brief he states “If the plaintiff had alleged that the contracts were made for the benefit of Patterson, but made in the name of Hughes, and the evidence was competent to support it, the contracts would be binding on Patterson. Cases so holding are Diacomis v. Wright, Tex.Com.App., 34 S.W.2d 806; Garcia v. Yzaguirre, Tex.Com.App., 213 S.W. 236; Texas Land & Cattle Co. v. Carroll & Iler, 63 Tex. 48; Traynham v. Jackson, 15 Tex. 170, 65 Am.Dec. 152. We admit that if the invoices had been signed by Patterson, reciting as they do that they are payable in Breckenridge, Texas, or even by his duly authorized agent, the invoices would constitute ‘contracts in writing’ within the meaning of the venue statute. Cases so holding are Berry v. Pierce Pet. Corp., 120 Tex. 452, 39 S.W.2d 824; Citics Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115; Brison v. Continental Oil Co., Tex.Civ.App., 48 S.W.2d 442 * * * >>

Evidently this statement or admission by the defendant is a sound proposition supported by authorities cited.

In the present state of the record undoubtedly the ends of justice will be better subserved by a remand of the cause. The record suggests that the evidence has not been fully developed upon the element of agency and authority. Doubtless the pleadings will be recast and made sufficient for a full and fair development of the true venue facts.

In Key v. Mineral Wells Inv. Co., 96 S.W.2d 804, this court reversed and rendered the judgment. In that case the record presented a state of facts very similar to those here involved and of substantially the same legal effect. The question of the proper disposition to make of such a case has again been considered and the court is now of the opinion that the authorities above cited, especially those by the Supreme Court, are controlling and require the disposition herein made of this appeal.

The judgment of the trial court is reversed and the cause remanded.


source: Caselaw Access Project

author: JACKSON, Chief Justice.

license: Public Domain

text:
    GENERAL EXCHANGE INS. CORPORATION v. YOUNG.
    No. 5204.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1940.
    Clayton & Bralley, of Amarillo, for appellant.
    C. R. Carpenter and Ronald Smallwood, both of Lubbock, for appellee.
   JACKSON, Chief Justice.

This suit was instituted in the County Court of Lubbock County by the appellee, Paul Young, against the appellant, General Exchange Insurance Corporation, to recover the sum of $325 on a fire insurance policy together with 12% penalty and an attorney fee in the sum of $150.

The appellee pleaded that on December 26, 1938, the appellant issued to him a fire insurance policy for one year in the sum of $325 on one used 1935 Chevrolet automobile payable to himself, the Butler Fuller Pontiac Company and the General Motors Acceptance Corporation as the interest of each was made to appear if the car was damaged or destroyed by fire. He alleged in no event should the total insurance paid exceed the actual cash value of the automobile which he says was burned on May 21, 1939, and was of the value at that time of $325.

The appellee asserts that since the destruction of the car the appellant has paid the Butler Fuller Pontiac Company and the General Motors Acceptance Corporation or their assigns all the right, claim or interest had by them or either of them in said car; that neither of them is a necessary party to this suit for that reason and prays judgment for the sum of $325, the face of the policy, with 12% penalty and attorney’s fees.

The appellant, General Exchange Insurance Corporation, answered by general demurrer, numerous special exceptions, general denial and pleaded specially that the loss if it occurred was not due to any fact or condition under which liability was enforceable under the terms of the policy and such loss was not within the intent, purpose or. intention of the insurance provisions of the policy.

In response to special issues submitted the jury found that the Chevrolet car involved in this controversy was accidently damaged by fire about May 22, 1939; that the loss was total and that the actual cash value of the automobile at the time of the loss was $250. On these findings the court rendered judgment for the ap-pellee against the appellant for $122.39, the difference between the value o,f the car, $250 as found by the jury, and the sum of $127.61, which the court found had been paid to the General Motors Acceptance Corporation by the appellant.

The appellant challenges as error the action of the court in overruling its exceptions presenting the question of a non-joinder of parties.

The appellee pleaded that the policy was payable to him and to the Butler Fuller Pontiac Company of Lubbock and to the General Motors Acceptance Corporation as the interest of each should be made to appear. The policy stipulates that it is issued to Paul Young, Butler Fuller Pontiac Company and the General Motors Acceptance Corporation, payable to each of the insured according to the interest held by each. The appellee pleaded that the Butler Fuller Pontiac Company and the General Motors Acceptance Corporation were not necessary parties because their rights had been satisfied but certainly without conclusive proof thereof the court had no authority to adjudicate the interest, or the lack of interest, of the'se parties in the contract of insurance, and the car unless they had been before the court. Adams v. Bankers’ Life Co. et al., Tex.Com.App., 36 S.W.2d 182; General Exchange Ins. Corporation v. Collins, Tex.Civ.App., 110 S.W.2d 127; Haley v. Pearson, Tex.Civ.App., 14 S.W.2d 313.

The appellant presents as error the action of the court in rendering judgment against it because there is no testimony contained in the record from which a jury could determine the value of the car at the time it was burned or the value of the salvage therefrom disposed of as junk. The appellee has furnished us no brief and the rules authorize the court to accept the statement of the facts contained in appellant’s brief, but in addition thereto we have searched the record but have been unable • to find any testimony on the market value of the car at the time it was burned or its junk value after it was burned. Neither does the testimony show no market value or actual cash value at the place and at the time of the fire.

The appellant complains of the action of the court in failing to define cash market value and in overruling its exception objecting to the charge of the court for such failure. This was error. Tidal Western Oil Corporation v. Blair, Tex.Civ.App., 39 S.W.2d 1103; Dickens County v. Dobbins et al., Tex.Civ.App., 95 S.W.2d 153; Bowie Sewerage Co. v. Chandler, Tex.Civ.App., 116 S.W.2d 839.

The appellant urges as error the action of the court in admitting in evidence the policy over its exception and objection to the effect that the appellee had alleged an unqualified demand based solely on fire insurance and did not either by pleading or proof negative any of the limitations or exceptions in the policy by which liability for loss under many agencies was excluded. International Travelers Ass’n et al. v. Marshall, 131 Tex. 258, 114 S.W.2d 851, by the Supreme Court apparently settles this question in favor of appellant.

The contention that the appellee was not entitled to recover penalty or attorney’s fee is sustained.' Continental Mutual Fire Ins. Co. v. Walles, Tex.Civ.App., 20 S.W.2d 405.

There are several assignments in the record assailing the action of the court because certain comments he made in the presence and hearing of the jury during the trial were prejudicial and indicated the opinion of the court as .to the probative force of the testimony.

A discussion of these assignments we deem unnecessary, as we feel sure the court in the future will refrain from siich comments in the presence and hearing of a jury selected to consider and determine the fact issues between litigants. It is elementary that the jury are the exclusive judges of the credibility of the witnesses and the credit to be given to their testimony and any comment thereon by the trial court is a transgression of this fundamental right guaranteed to every litigant.

The judgment is reversed and the cause remanded.


author: ALEXANDER, Justice.

text:
    COX v. COX.
    No. 2241.
    Court of Civil Appeals of Texas. Waco.
    Oct. 3, 1940.
    Rehearing Denied Oct. 24, 1940.
    Solon Goode, of Dallas, for appellant.
    H. B. Thomas, Jr., of Dallas, and Lynn B. Griffith, of Waxahachie, for appellee.
   ALEXANDER, Justice.

This suit was brought by Mrs. Effie Cox against A. E. Cox for damages for alleged fraud in the sale of certain bank stock. The plaintiff was a widow and a niece by marriage of the defendant. She contended, in effect, that after the death of her husband she entrusted the management of all of her business to the defendant and that a fiduciary relation existed between them; that about the year 1934 the defendant sold to her the bank stock in question but kept the same in his possession for her use and benefit; that later, in March, 1936, when she needed money, she sold the stock back to him; that she relied on him to pay its value but that he, in fact, paid her much less than its true value. The defendant denied the fiduciary relation relied on by plaintiff and alleged that at the time he sold her the stock, it was with the mutual understanding that if she should later desire to dispose of the same, she would let him have it and he would repay to her the purchase price thereof, regardless of the actual value of the stock. He alleged that in keeping with this agreement he repaid to her the' full purchase price of said stock in return therefor. The jury, in answer to certain special issues, found that the defendant did not manage plaintiff’s business for her; that plaintiff did not rely on the defendant’s judgment when she resold to him the bank stock in question; that at the time defendant originally sold plaintiff the bank stock it was with the understanding between them that “whenever she wanted the money paid by her for said stock, that upon demand from her, he would pay her all of the money she had originally paid for said stock;” that at the time the plaintiff resold the stock to the defendant neither of them knew the value thereof, and that the plaintiff did not exercise reasonable diligence to ascertain the value thereof. The jury further found that by the exercise of reasonable diligence the plaintiff could have ascertained the value of said stock, after the sale thereof and more than two years prior to the filing of this suit. Judgment was for defendant and the plaintiff has appealed.

We think the evidence was sufficient to sustain the verdict of the jury. The plaintiff and the defendant originally resided at Ferris, Texas, and for a time defendant seems to have advised with her in the management of her business. The defendant was corroborated in his testimony to the effect that at the time he sold plaintiff the bank stock in question it was with the understanding that if she should later desire to dispose of the same he would take it and pay her therefor the amount for which he had previously sold it to her. The record discloses that after defendant sold plaintiff the stock she moved to Dallas and engaged in the real estate business. About two years later, she contracted for the purchase of a house and needed the funds invested in the bank stock in order to pay for the same. She went back to Ferris with a friend and told the defendant that she wanted to sell the bank stock and that thereupon he gave her a check for the original purchase price thereof, plus the dividends that had been collected on the stock. According to defendant’s testimony, he repurchased the stock in keeping with his prior agreement. There are further circumstances in the evidence tending to show that before she left Dallas for Ferris on the occasion in question and before she had discussed the matter with the defendant, plaintiff knew the amount of money that she was to receive for the stock and had already arranged for the payment thereof to the party from whom she was purchasing the house. These circumstances tend to show that she recognized the existence of the agreement here relied on by the defendant, and that she resold the stock to the defendant in keeping therewith. There is no evidence whatever that the defendant knew anything about the value of the stock at the time he repurchased the same, nor was there any evidence that he made any representations to the plaintiff as to the value thereof.

The appellant contends that the original contract, if any, by which the defendant was to take the stock back at the original purchase price, in the event the plaintiff should decide to dispose of the same, lacked mutuality and was therefore unenforceable because she was not definitely bound to resell the stock to him at any time. There are authorities which tend to hold that such a contract is valid. Hatt v. Walker, Tex.Civ.App., 33 S.W.2d 489; Fenner, Beane & Ungerleider v. Donosky, Tex.Civ.App., 62 S.W.2d 269; Thomas v. Western Indemnity Co., 112 Tex. 132, 246 S.W. 345. See, also, Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 23 P.2d 465, 88 A.L.R. 842. At any rate, the validity of such an agreement could hardly be attacked after its performance by both parties. 10 Tex.Jur. 171.

Moreover, the correctness of the judgment here appealed from is not dependent on the validity of the agreement above referred to. If, as found by the jury and sustained by the evidence, there was no trust relation existing between the parties and no false representations on the part of the defendant and no reliance on such a representation by the plaintiff, then there was no fraud for which recovery could be had. 20 Tex.Jur. 11, 17. Furthermore, if, as found by the jury, the plaintiff could, by the exercise of reasonable diligence, have discovered the fraud, if any, more than two years prior to the filing of this suit, then her cause of action, if any, was barred by limitation. R.S. art. 5526, subdiv. 4; 28 Tex.Jur. 124.

The judgment of the trial court is affirmed.


author: STOKES, Justice.

text:
    HARWELL v. MORRIS.
    No. 5303.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 30, 1940.
    Rehearing Denied Oct. 4, 1940

      A. A. Lumpkin, of Amarillo, for appellant.
    Gibson & Sutton, of Amarillo, for appel-lee.
   STOKES, Justice.

This is an election contest instituted in the trial court by appellee, C. L. Morris, against appellant, who was declared by the Executive Committee of Oldham County to have been nominated as the Democratic candidate for County Commissioner of Precinct No. 3 of that county. The primary election was held on July 27, 1940, and appellant and appellee were rival candidates for the nomination. The talley sheets returned by the officials of the election revealed that appellee had received 180 votes and appellant 182 votes in the election, which returns were verified by the Democratic Executive Committee of that county on August 3, 1940. The list of nominees was duly published' by the county clerk and on August 12th appellee filed his notice and petition of contest, which was set for a hearing September 3, 1940, at which time appellant filed his answer and the case proceeded to trial on that day in the district court. The case was submitted to the court without the intervention of a jury and at the conclusion of the hearing the trial court concluded that appellant had received only 173 legal votes and that appel-lee, who was the contestant, received 174 legal votes, and judgment was rendered accordingly from which appellant has prosecuted an appeal.

We are met at the outset by a motion to dismiss the appeal upon the ground that the trial judge was disqualified to try the case. Attached to the motion are affidavits which reveal that the wife of ap-pellee, Morris, the contestant, is a sister of the wife of an uncle of the trial judge’s wife. By following a process of mental gyration, it will be seen that Mrs. Morris was in no sense a blood relative of Mrs. Withqrspoon, the wife of the trial judge. It is held by the courts that affinity is the relationship which arises by reason of marriage between one of the married pair and the blood relations of the other, and under the rules of law that are well established by the decisions of our ' courts the contention of appellant here presented is not well taken. The motion will be overruled. Seabrook v. First Nat. Bank, Tex.Civ.App., 171 S.W. 247; Williams v. Foster, Tex.Civ.App., 233 S.W. 120.

Appellee has filed a number of cross-assignments of error in which he contends that certain votes cast in favor of appellant and accepted and counted in appellant’s favor by the court were illegal, and that other votes cast for appellee and rejected by the court were legal votes and should have been counted in his favor. Appellant objects to our consideration of these cross-assignments of error upon the ground that appellee did not perfect an appeal from the judgment. The cross-assignments all bear upon matters presented in the appeal by the appellant and affect his interest in the case. Appellee is, therefore, entitled to have them considered by us and the objection of appellant to their consideration will be overruled. Booth v. Uvalde Rock Asphalt Co., Tex.Civ.App., 296 S.W. 345; Hunt v. Garrett, Tex.Civ.App., 275 S.W. 96; Gilmer’s Estate v. Veatch, 102 Tex. 384, 117 S.W. 430; Limpia Royalties v. Cowden, Tex.Civ.App., 94 S.W.2d 481.

Dr. Clark voted for appellant in the election and the trial court held he was not qualified to vote. The record shows that in June, 1940, Dr. Clark was convicted in the Federal Court in a criminal case in which he was charged with violation of the Harrison Narcotic Act, 26 U.S.C.A. Int. Rev.Code §§ 2550-2557. He entered a plea of guilty and his punishment was assessed at six months in jail, which was suspended for two years. The Federal Statute, 18 U. S.C.A. § 541, provides that an offense, the penalty for which does not exceed six months in jail or a fine of $500, or both, shall be considered a petty offense and may be prosecuted upon information and complaint. The trial court held that Dr. Clark was not entitled to vote in the election because, under, 26 U.S.C.A. § 1047, of the Federal Statute, he could have been confined i;n the penitentiary by the Federal Court. Appellant contends this was error because the punishment actually assessed against Dr. Clark was only six months in jail. We do not construe 18 U.S.C.A. § 541 to mean that the punishment actually assessed by the court upon a trial shall control the class of the offense. It provides that all offenses, the penalty for which does not exceed confinement for six months, may be prosecuted under complaint and information. If appellant’s interpretation were correct, then it would be impossible for the grand jury to know, when they were considering the question of whether an indictment should be returned, whether it was necessary to return an indictment or not. We think the law makers, therefore, must have had reference to the potential penalties under the law and not the actual punishment that might be assessed by the court upon a trial. This assignment of error will be overruled.

The record shows that M. L. Carter voted for appellant upon an exemption certificate, duly issued to him, under which he was excused from paying a poll tax on account of being permanently disabled. The court held that, under the facts, Carter was not disabled and was, therefore, liable to the payment of a poll tax under the law. His vote was, therefore, rejected by the court and appellant contends this was error. The evidence is conflicting upon the question of Carter’s disability. It was shown that only a short time prior to the election he had operated a tractor, although under some difficulty, and that he was accustomed to riding a bicycle, although, after doing so, he would suffer pain. It was shown, also, that he was confined to his home and bed most of the time and that his health was far from being robust. The trial court found he was not disabled in the manner contemplated by the law. The office and purpose of the exemption certificate were to relieve the voter from the necessity of paying a poll tax. While the evidence does not show that Carter failed to pay his poll tax, it is shown that he voted upon his exemption certificate. Under the state of the evidence, the trial court would have been authorized to find either way upon • the question of Carter’s disability, and there being evidence to support his conclusion and judgment that Carter was not, as a matter of fact, disabled in the manner contemplated by law, and, therefore, his vote should not be counted, will not be disturbed.

The next contention made by appellant pertains to the vote of Mary Bell Godwin, the wife of Raymond God-win. She cast ballot No. 161 in favor of the appellee, and the trial court held she was a legally qualified voter in Oldham County. This holding is challenged by appellant and we think the court erred in refusing to sustain the challenge. The testimony shows that Mrs. Godwin and her husband were married in Oldham County and lived there until June, 1938, when they removed to Castro County where the husband had procured employment. They moved most of their household furniture to Castro County and resided there for about a year. About the 1st of June, 1939, the employment came to an end and God-win and his wife returned to Oldham Co.unty and lived there with the wife’s father until July, 1939, when the husband obtained employment at Fritch, in Hutchinson CounT ty, where they have since resided. Their household furniture was left in storage at Vega, in Oldham County. It is undisputed that Mrs. Godwin, at the time of the election, resided at Fritch with her husband, and there is nothing in the testimony which indicates they did not intend to remain there indefinitely. Art. 2958, R.C.S., provides that the residence of a married man is where his wife resides. The husband has the legal right, however, to establish the residence of the family and, under the circumstances disclosed by the evidence, Mrs. Godwin lost her right to vote in Old-ham County when her husband established their residence in Hutchinson County. In our opinion, the court erred in holding otherwise and this assignment of error will be sustained. Stratton v. Hall, Tex.Civ.App., 90 S.W.2d 865.

The next contention presented by appellant pertains to the vote of Fant Hitson who cast ballot No. 82 for the ap-pellee. His right to vote was challenged by appellant and the challenge being overruled by the court, he assigns such action as error. Hitson testified that he had been convicted in the State of New Mexico of the offense of cattle theft, served a portion of an assessed term in the New Mexico penitentiary and was paroled. He testified that he employed a lawyer in New Mexico to obtain a pardon for him and that he paid the lawyer a fee for his services, but that he had never seen the lawyer since, had not received any pardon or document evidencing the issuance of one, and did not know whether he had been pardoned or not. Appellant, Roddy Harwell, testified that he went to Santa Fe, New Mexico, and, assisted by the Secretary of State and a clerk in his office, he examined the pardon records in the office of the Secretary of State and that such records did not reveal a pardon granted to Hitson. Some question is raised as to the admissibility of this testimony, but we think it was admissible and should have been considered by the court. In connection with the testimony of Hitson to the effect that he had never received any evidence of a pardon having been granted to him, it was sufficient to overcome the presumption of his qualification to vote that was created by the action of the election judges in permitting him to do so. Sanders v. St. Louis & S. W. Ry. Co., Tex.Civ.App., 135 S.W. 718; Johnson v. Skipworth, 59 Tex. 473; Stamper v. Commonwealth, 100 S.W. 286, 30 Ky.Law Rep. 992. The evidence we have detailed was the only evidence before the court concerning Hitson’s qualifications. His testimony to the effect that he had employed a lawyer to procure a pardon for him and had paid the lawyer a fee for his services in doing so was no evidence that a pardon had been granted and there was, therefore, no evidence to support the holding of the court that Hitson was a qualified voter. This assignment of error will be sustained.

The next contention of appellant is presented under his sixth and seventh assignments of error and have reference to the qualifications as voters in Old-ham County of Paul Long and his wife who voted for appellant. The trial court held that Long and his wife were not qualified to vote and deducted their votes from the total vote received by appellant. The testimony shows that Paul Long lived at Vega, in Oldham County, for some fifteen years, and married there. He was employed at a filling station at Vega until September 7, 1939, when he, with his family, moved to Amarillo, in Potter County, where he obtained employment and entered a night business school. He was employed at Amarillo and attending school there three nights each week at the time of the election. He and his wife went from Amarillo to Vega on the day of the election and voted for appellant. Long testified that it was his intention to return to Oldham County after finishing school and probably go in business for himself. He also testified that if he returned, he would live with his people in Oldham County in another precinct. Without detailing the testimony, the record reveals evidence upon which the trial court would have been warranted in holding that the Longs were qualified voters in Oldham County or that they were not. We think the preponderance of the evidence was in favor of the court’s judgment to the effect that they were not residents of the county and, therefore, their votes in the election should be rejected. At least the record reveals testimony which supports the judgment and we are not authorized to disturb it. These assignments will, therefore, be overruled. Hogg v. Waddell, Tex.Civ.App., 42 S.W.2d 488; Clark v. Stubbs, Tex.Civ.App., 131 S.W.2d 663.

The next contention presented by appellant pertains to Mrs. Gene Halliburton. She cast her vote for appellant and the same being challenged by appellee, the trial court sustained the challenge and deducted her vote from the total vote received by appellant. In 1938, before her marriage, Mrs. Halliburton taught school at Vega, in Oldham County. At that time she was a resident of Randall County. Gene Halliburton, who was afterwards her husband, resided in Oldham County in 1938 and was employed by the Soil Conservation Service of the United States Government at Amarillo, in Potter County. He traveled back and forth from his home to Amarillo in going to and returning from his work until April, 1939, when he established living quarters at Amarillo. On August 3, 1939, he and Mrs. Halliburton were married, she still being a resident of Randall County. After their marriage Halliburton and his wife established living quarters at Amarillo and had continuously resided there until the day of the trial. Gene Halliburton testified that he had no fixed intention to return to Oldham County. Art. 2958, R.C.S., provides that the residence of a married man is where his wife resides. By no stretch of the imagination could it be said that Mrs. Halliburton resided in Oldham County July 27, 1940, the date upon which the election was held. She had never been a resident of that county, hut had resided at Canyon, in Randall County, before her marriage, and with her husband at Amarillo, in Potter County, afterwards. Her residence was, therefore, in Potter County at the time she voted and the trial court correctly held that her vote was illegal and should not be counted.

The next contention presented by appellant pertains to the vote of Joe Harris who voted for appellee. This voter was shown to be a single man and was formerly a resident of Comanche County where his parents resided. He obtained employment in Eastland County and testified that he lived in that county for some six months before January 20, 1940, when he procured employment with the United States Soil Conservation Service at Vega and removed to Oldham County. He testified that he claimed Vega as his place of residence and had no intention to return to Comanche County or to Eastland County. Sec. 9 of Art. 16 of our Constitution, Vernon’s Ann. St. provides that absence on business of the United States shall not forfeit a residence once obtained. It does not provide, however, that a voter or citizen of the State, although a single man, cannot change his place of residence. Harris cast his vote for the appellee and the trial court held it to be a legal vote. There is ample testimony in the record to support the finding and under these circumstances we are not authorized to disturb it. This assignment of error will be overruled.

Under the tenth assignment of error appellant contends the court erred in holding to be legal the vote of H. L. Looney, which was cast for appellee. The record shows Looney was a single man and that he had paid his poll tax in Oldham County where he had resided for a number of years. In 1936 he obtained employment in the service of the United States and had worked for the Government most, if not all, of the time since 1936. He was working for the Government at the helium plant near Amarillo, in Potter County, at the time the election was held, and maintained his living quarters in a hotel room at Amarillo. He had been employed at the helium plant for some two months before the election. The trial court held his vote was legal and the holding is challenged under this assignment of error. It was not shown that. Looney had abandoned his residence in Oldham County and Sec. 9 of Art. 16 of the State Constitution provides that absence on business of the United States shall not forfeit a residence once obtained. We think the testimony amply supported the court’s judgment to the effect that Looney was a resident of Oldham County and legally qualified to vote in the election. In our opinion this assignment is without merit and it will be overruled.

Under the eleventh and twelfth assignments of error the ruling of the court upon the legality of the vote of Frank Donegan and his wife is brought into question. The ballots were cast in favor of appellant and upon the trial they were rejected by the court upon the ground that Donegan and his wife were not legal residents of Oldham County when the election was held. The testimony was to the effect that before his marriage in 1939 Frank Donegan resided at the headquarters of the Landergin ranch in Oldham County. In 1937 the portion of the ranch where the headquarters were located was sold and the headquarters of the remaining portion were moved to another location on the ranch known as Ontario, in Oldham County. Donegan was manager of the ranch and there was not sufficient room at the latter headquarters for him to establish a place of residence. After his marriage in 1939 he and his wife lived a portion of the time at Amarillo, in Potter County, and a portion at Higgins, in Lipscomb County, where Mrs. Donegan resided before the marriage. Donegan. testified that he had never spent but one night in Oldham County since his marriage and that was because of a break-down of his automobile. There is not only no evidence that he resided in Oldham County at any time after his marriage, but the judgment of the court to the effect that he was not a resident of the county at the time of the election is amply supported by the testimony. We find no error in this ruling of the court and these assignments of error will be overruled.

Under proper cross-assignments of error appellee assails the action of the court in sustaining certain challenges of votes presented by appellant and in overruling others presented by appellee. Under his first and second cross-assignments of error, however, appellee challenges the right of appellant to contest votes cast for appellee by presenting them for the first time in his answer which was filed more than ten days after the election. Without entering into an extended discussion of the contention, it is our opinion that appellant had the right thus to contest the votes cast for appellee. If contestees, such as appellant in this case, are governed by the statute which requires a contestant of an election to file his contest within ten days after the returns have been made, they would in many cases be denied the right to' present legitimate defenses in cases of this nature. When the returns have been canvassed and a candidate declared to have been nominated, it would he fatuous indeed to require of him that he file a contest within the same length of time that his opponent is allowed to do so. Having been elected he usually is satisfied and has no disposition to contest the election. Under such circumstances his opponent could wait until the tenth day to contest the election and thus deprive the successful candidate of the right to present to the court legitimate bases for upholding the return made by the election officials. There is in our opinion no merit in this contention of appellee and it will be overruled.

Under the sixth cross-assignment of error appellee complains of the ruling of the court upon his challenge of the vote of Gene Halliburton. This voter cast his ballot in favor of appellant and it was challenged by appellee upon the ground that Halliburton was not a resident of Oldham County at the time the election was held. The court overruled the challenge and counted the vote for appellant. The principal facts concerning the status of Gene Halliburton are detailed above in our discussion of the challenge of the vote of Mrs. Gene Halliburton. The Hallibur-tons were married August 3, 1939, and immediately established living quarters at Amarillo in the nature of a furnished apartment where they lived at all times thereafter and where they were living on the date of the election. Gene Halliburton had lived at home with his parents in Old-ham County until April, 1939, when he moved to Amarillo, in Potter County. He was then, and for some time had been, employed by the Soil Conservation Service of the United States Government and was still so employed when the election was held in Oldham County. Halliburton testified that on the date of the election he had no intention of returning to Oldham County although he had paid his poll tax there for the year 1939. Unless it must be held otherwise because of the provisions of Sec. 9 of Art. 16 of the State Constitution, Halliburton and his wife had unquestionably established their residence at Amarillo and we cannot subscribe to the contention that under that article their place of residence must be said to be in Oldham County. The constitutional provision is merely to the effect that absence on business of the State or the United States shall not forfeit a residence once obtained. If it had been shown that Gene Halliburton still claimed Oldham County as his residence or that it was his intention to return there after his employment with the Soil Conservation Service had ceased, then neither his absence on the business of the United States nor the establishment by him and his wife of a residence at Amarillo in the manner in which they did would have forfeited their residence in Oldham County. They still would have had the right to maintain their residence there if they desired to do so. Not only was it not shown that Halliburton desired or intended to maintain his residence in Oldham County, but he testified that he had no intention of returning there. The evidence in reference to these voters is not contradicted and we think the court erred in overruling the contest of appellee in reference to Gene Halliburton’s vote. This cross-assignment of error will, therefore, be sustained.

Under the seventh cross-assignment of error appellee contends the court erred in overruling his challenge of the vote of Mrs. Robert Orton, who cast her ballot in favor of the appellant. The record shows that Mrs. Orton’s maiden name was Roberta Turner. She had lived for many years with her mother in Oldham County. Following her graduation from the high school at Vega she entered West Texas State Teachers College at Canyon, in Randall County, and graduated there in the spring of 1939. In the fall of that year she was employed as a teacher in the school at Groom, in Carson County. In May, 1940, she married Robert Orton who was, and for many years had be'en, a resident of Randall County and was employed as an assistant in the postoifice at Canyon. The testimony shows that Mrs. Orton had been reemployed in the school at Groom for the 194CM-1 term and that she will probably spend most of her week-ends there, but some of them will be spent with her mother in Oldham County and others with her hus-bánd at Canyon, in Randall County. When they were married the husband was possessed of a lot at Canyon, and since their marriage they have begun the erection of a dwelling upon the lot but it had not been completed when the election was held nor indeed at the date of the trial. Mrs. Orton testified that when she returns to her husband on week-ends they stay at his father’s home at Canyon and it is their intention to occupy the dwelling on her husband’s lot at Canyon when it is completed. There is no question that Mrs. Orton’s legal residence before her marriage was at Vega, in Oldham County. From this it will be seen that she was a married woman at the time she voted in the election and that her husband resided at Canyon, in Randall County. It has been the law of this State since an early day that the place of residence of a married woman is where her husband resides. Lacey v. Clements, 36 Tex. 661; Henderson v. Ford, 46 Tex. 627; Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90; Russell’s Heirs v. Randolph, 11 Tex. 460.

It has never been the law in Texas that the residence of the husband is drawn to that of the wife where they happen, for a time, to be at different places. Republic of Texas v. Skidmore, 2 Tex. 261; Flowers v. State, 109 Tex.Cr.R. 241, 3 S.W.2d 1111; Richmond v. Sangster, Tex.Civ.App., 217 S.W. 723. The rule was not changed by the provisions of Art. 2958, R.C.S., 1925, which provides that the residence of a married man is where his wife resides. That act was passed in 1905, long before suffrage was extended to women in Texas and had reference only to the residence of the husband, who, at that time, was the only member of the community who was entitled to vote, and it was designed only to provide a criterion by which the husband’s residence could be definitely established in case of doubt as to his — not the wife’s — -residence. It was never intended by the law makers to change the long established rule that the residence of the family is established by the will or conduct of the husband. If the law were otherwise, we would have the anomalous possibility of the wife’s legal residence being at one place and that of the husband, from whom she is not separated, being at an entirely different place, even in a different county. In our opinion the court below erred in holding that Mrs. Orton was a qualified voter in Oldham County and this cross-assignment of error will be sustained.

W. E. Swart voted for appellee in the election and, upon challenge of appellant, the court held his vote to be illegal upon the theory that he was not a legal resident of Oldham County. This action of the court is challenged by appellee under his thirteenth cross-assignment of error. The evidence shows that Swart lived at Vega and was employed by the Soil Conservation Service of the United States Government on August 25, 1938. He was transferred by the Service to Hereford, in Deaf Smith County, January 15, 1940, and later to Moore County where he was employed by the Soil Conservation Service at the time of the election. He testified that he had never abandoned his residence in Oldham County and, therefore, under the provisions of Art. 16, Sec. 9, of the State Constitution, he was a qualified voter in Oldham County. Under the constitutional provision he did not forfeit his residence in Oldham County by his absence on the business and in the service of the Soil Conservation Service and, in our opinion, the court erred in holding that his vote was not legal. This cross-assignment of error will, therefore, be sustained.

There are a number of other cross-assignments of error presented by appellee and we have carefully considered all of them. We find no merit in any of the remaining cross-assignments and they will be overruled.

The court below found that ap-pellee had received 174 legal votes at the election and appellant had received 173 legal votes. By adding to the total legal votes adjudged to have been cast for appellee, the vote of W. E. Swart makes a total of 175 and, deducting from that total the votes of Mrs. Godwin and Fant Hitson, leaves a total of 173 legal votes received by appellee at the election. By deducting from the 173 votes which the court below found to have been received by appellant, the votes of Gene Halliburton and Mrs. Robert Orton, there remains a total of legal votes received by him, 171. The obvious result is that appellee, C. L. Morris, was legally nominated on the Democratic ticket in the election as County Commissioner of Precinct No. 3 by a majority of 2 votes.

The judgment of the court below will be affirmed.


text:
    GRESSETT v. GRESSETT.
    No. 2235.
    Court of Civil Appeals of Texas. Waco.
    Oct. 10, 1940.
    Henry Jackson, of Groesbeck, for appellant.
    Lewis M. Seay, of Groesbeck, for appel-lee.
   ALEXANDER, Justice.

In this case the plaintiff in her petition for divorce alleged “that she is an actual bona fide resident of Limestone County, Texas, and has resided in the State of Texas for more than one year and in Limestone County for more than six months before the filing and exhibiting of this petition.” The petition did not allege, as' is required by Revised Statutes, art. 4631, Vernon’s Ann.Civ.St. art. 4631, that plaintiff was or had been an actual bona fide “inhabitant” of this state for a period of twelve months nor that she had resided in the county where the suit was filed for six months “next preceding” the filing of the petition. It has been held many times that in the absence of such allegations, a petition for divorce is subject to a general demurrer. 15 Tex.Jur., p. 539, par. 77; Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90; Lawler v. Lawler, Tex.Civ.App., 15 S.W.2d 684, 685, and cases there cited; Franzetti v. Franzetti, Tex.Civ.App., 45 S.W.2d 760; Coffman v. Coffman, Tex.Civ.App., 71 S.W.2d 331. The trial court therefore erred in failing to sustain the defendant’s general demurrer to plaintiff’s petition.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


author: SPEER, Justice.

text:
    SARTIN v. HUDSON et al.
    No. 14210.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 1, 1940.

      C. C. McDonald, of Wichita Falls, for appellant.
    John Davenport and J. R. Wilson, both of Wichita Falls, for appellees.
   SPEER, Justice.

This suit was instituted by B. D. Sartin, hereinafter referred to as relator, against C. C. Hudson, as chairman of the Democratic Executive Committee of Wichita County, Julian McFall, county clerk of that county, and Guy McNeely, to whom we shall refer as respondents, for certain injunctive relief and for a writ of mandamus.

Because of the conclusions we have reached in the disposition of this appeal, we sh&ll state fully the allegations of relator.

It is alleged that he was a candidate for the office of County Judge of Wichita County, at the July 24, 1940, primary, and was opposed by Guy McNeely, J. Ralph Schoolfield and Bruce Greenwood; that said primary was duly and legally held on said date, and that relator received 4,807 votes, McNeely 4,276, Greenwood 2,570 and Schoolfield 1,657 votes; that there was no decision reached by the Democratic Executive Committee of Wichita County requiring a majority vote for the nomination in said primary election of July 27, 1940, for county officers; that relator having received a plurality of the votes cast at said primary, he became the duly elected Democratic nominee for the office of County Judge of said county, and is entitled to be certified as such nominee by the chairman of the Democratic Executive Committee, and to have his name duly and regularly printed on the official ballot in the general election of November, 1940, by the county clerk of said county.

It is further alleged that respondent C. C. Hudson, without legal right or authority and without the sanction or approval of a majority of said Democratic Executive Committee, after canvass of the votes cast at the July primary, as above mentioned, had the names of relator and Guy Mc-Neely printed on a run-off ballot for August 24, 1940, “and that after such so called election, the votes again were canvassed by said chairman and by three members of the said Democratic Committee and the said Guy McNeely was declared the nominee at said primary and is being unlawfully certified as such legal nominee to the county clerk of such county, and the county clerk will so post and print his name as required by law upon the official ballot, unless this Honorable Court restrains such unlawful procedure on the part of these respondents.” It was alleged that all-said acts of Hudson, chairman of the said committee, were wholly void and without lawful authority; that the act of canvassing the returns of the second primary by the chairman and three members of the committee, which is composed of 46 members, was unlawful and void, for the reason there was no quorum present for the dispatch of business of any kind; that the chairman had no legal right to certify the name of Mc-Neely as the nominee for county judge, and that all acts of the chairman or the minority members of the committee in attempting to hold said second primary in the race for county judge, or in canvassing the results of said second primary in said race, were illegal and void; that there is no authority of law to hold such second primary for county officers without a decision made and entered by a majority vote of said Executive Committee before the first primary and before the canvass of the votes cast thereat and that a canvass of such votes must be by a majority of said committee. “That no such decision (to require a majority vote for nomination) was ever reached by such committee before said first primary or after such primary wherein a quorum of such committee was present.” That by reason of the facts alleged, relator is the duly elected nominee of the party for the office of county judge, and is entitled to have his name certified as such by the chairman of the Democratic Executive Committee, to the county clerk of said county. That he has made demand upon the chairman to so certify his name and his request has been refused; that relator has no complete or effectual remedy at law and will suffer irreparable damage unless the court shall grant its writ of mandamus directing said officials to so certify his name as such nominee and to post and print it on the official ballot. Prayer was for the relief last mentioned and for costs of suit.

McFall, the clerk, made no appearance. Respondents Hudson and McNeely filed pleas in abatement, because all members of the Democratic Executive Committee were not made parties; being overruled, they filed general demurrer and several special exceptions, which were likewise overruled, to which ruling exceptions were taken. Subject to these, they filed answers to the merits. We shall have occasion to mention these special pleas later.

A jury trial was had. Two special issues were submitted. The verdict was, in effect, that (1) at a meeting of the Democratic Executive Committee, held on June 17, 1940, not as many as 24 members were present; and (2) a majority of those present at that meeting reached the conclusion that nominations for county and precinct officers should be by a majority vote. Upon this verdict the court entered judgment denying relator the relief prayed for. Motion for new trial was overruled and appeal perfected.

It is not out of place to state just here that the pleas in abatement, based upon the contention that all members of the Executive Committee should have been made parties to the suit, were properly overruled. No relief is sought against any member of the committee except the chairman, who is by law an ex-officio member. The chairman alone certifies the name of the nominee and he is the only member of the committee against whom relief is sought. Article 312S, R.C.S., Vernon’s Ann.Civ.St. art. 3125.

Relator presents this appeal on assignments of error which raise questions substantially as contended for by him in the trial court. The substance of his assignments is: (1) The Democratic Executive Committee did not at any time prior to the first primary decide to require nominations of county officers to be by a majority vote, and therefore, under the statute Article 3106, nominations were to be made by a plurality vote; (2) at the meeting of the Executive Committee on June 17, 1940, less than a majority of the 46 members were present, and there being less than a quorum present, no business of the Committee could be lawfully transacted.

In the view we take of this case, it becomes unnecessary for us to discuss the points raised by relator’s assignments of error. We think the trial court should have sustained respondents’ general demurrer to the petition. The ruling of the court, when the general demurrer was presented, is complained of by respondents and brought forward alternatively, by cross assignments of error. Whether such cross assignments are necessary or not in such cases as this, they certainly have not been waived by repondents, even if they could do so; we seriously doubt if respondents could waive any necessary element of relator’s right to the writ.

The writ of mandamus is an extraordinary remedy. At all times since the days of statehood our Constitution and laws have recognized the necessity for the remedy it affords; our earliest Constitution and each subsequent revision, together with our statutory laws, have recognized it; the Constitution and laws of this State were patterned, in the main, from the laws of England.

In the early case of Arberry v. Beavers, 6 Tex. 457, 55 Am.Dec. 791, it was held that to entitle a party to have applied the remedy afforded by mandamus, he must show a clear legal right in himself and a corresponding obligation on the part of the officer against whom he seeks the writ. To the same effect is the holding of our Supreme Court in Bledsoe v. International Ry. Co., 40 Tex. 537, 564 et seq. The principles there announced have been uniformly followed by our courts. In the last' cited case a general demurrer to relator’s petition was involved, and even though the case was tried below on its merits, the Supreme Court determined relator’s rights by testing his petition as against the general demurrer urged in the trial court. That rule was followed in Watkins v. Huff, Tex.Civ.App., 63 S.W. 922, writ dismissed 94 Tex. 631, 64 S.W. 682.

In Houston Tap & B. Ry. Co. v. Randolph, Treasurer, 24 Tex. 317, 329, a demurrer was sustained to relator’s petition for writ of mandamus and the court, speaking through Judge Roberts, said: “It is well settled, that to entitle a party to the extraordinary remedy of mandamus, the petition must state facts, which show, if true, that the plaintiff has a clear right to the performance of the thing demanded, and that it is plainly the duty of the officer proceeded against, to perform such thing.”

On page 333 of 24 Tex., this rule is announced : “The circumstances under which the applicant claims the right, should he positively and distinctly stated, and objections which might be anticipated should be met and answered.”

On appeal from an order denying a writ of mandamus, in Johnson v. Elliott, Tex.Civ.App., 168 S.W. 968, at page 972, error refused, this was said:

“There is still another reason which we think justified the court below in dismissing the application for this writ of mandamus. Such writs are extraordinary remedies, and, when invoked for the purpose of compelling the performance of some official duty enjoined by law, it must clearly appear from the petition that the applicant is entitled to the service which he seeks to have performed. [Houston Tap & B.] Ry. Co. v. Randolph, 24 Tex. [317] 333; Watkins v. Huff [Tex.Civ.App.], 63 S.W. 922, and cases there cited. The petition, in order to be free from objection, should not only aver every fact essential to show the right to the service sought, but should also negative every other fact which the officer might urge as a legal excuse for not performing the service demanded. In granting a writ against a public official, seeking to compel the performance of a public duty about which the officer may have no personal concern, the court must be fully advised on the subject.

“The propriety of issuing the writ is therefore not to be determined by the defense which the official may interpose, but by the allegation and proof of facts which show affirmatively and clearly that under the particular circumstances he is legally bound to perform the service. The duties of the court would be none the less imperative if the officer failed to set up any defense whatever. It is not a matter which he can waive.”

The same strict rule of pleading as that above announced has been applied in injunction cases. In Walker et al. v. Hopping, Tex.Civ.App., 226 S.W. 146, 149, this was said: “A petition for injunction should ‘negative every reasonable inference arising from the facts so stated, from which it might be deduced that (the plaintiff) might not, under other supposable facts connected with the subject, thus be entitled to relief.’ Gillis v. Rosenheimer, 64 Tex. 243.”

Supporting the rule, see Ridgway v. City of Fort Worth, Tex.Civ.App., 243 S.W. 740, writ dismissed; Bevers et al. v. Winfrey et al., Tex.Civ.App., 260 S.W. 627; McIntosh, Judge, v. Watts, Tex.Civ.App., 5 S.W.2d 1003; Fry v. McDuffey, Tex.Civ.App., 46 S.W.2d 377; City of El Paso v. Carroll, Tex.Civ.App., 108 S.W.2d 251, writ refused; and Paschall et al. v. Renshaw et al., Tex.Civ.App., 142 S.W.2d 717.

Relator knew when he filed his petition all the facts testified to by him upon the trial. He knew that he was present at the meeting of the Committee on June 17.th prior to the first primary. He testified that ho reference was made at that meeting to whether or not a majority vote would be required to nominate. There is ample evidence to support the jury finding that the Committee members present did so decide. Although there were less than a majority of the 46 members present, they did, as required by Article 3117, determine by lot the order in which names of various candidates would appear on the ballot, and as provided by Article 3108, Vernon’s Ann. Civ.St. Art. 3108, made assessments against all county and precinct candidates to defray the expenses of the two primaries required by law for state and district offices. Relator obviously acquiesced in these matters, otherwise his name would not have appeared on the ballot at the first primary. Art. 3116, R.C.S., Vernon’s Ann.Civ.St. art. 3116. He also knew that after the returns of the first primary were canvassed, there' was no declaration of a nomination for county judge made, and that his name had not been certified to the county clerk as such nominee. His petition discloses that the chairman and Committee had relator’s and McNeely’s names printed “on the run-off ballot for August 24th, 1940.” He also knew at the time he filed his petition that he entered into and made a vigorous campaign to secure votes, with the hope of obtaining a majority of the votes cast in the .second primary; we say this because he so testified upon the trial. This further significant fact was revealed by relator’s testimony: His counsel having related certain recitations in respondents’ answer, asked this question: “When was the first time you ever learned that the County Democratic Executive Committee of 1940 had made any provision for the nomination of county and precinct officers in the Democratic primary by a -majority vote?” His answer was: “I judge three or four days after the second primary.” This question and answer indicate that the Executive Committee had in fact decided to require a majority vote to nominate county and precinct officers. The question and answer may have been referable to the fact that it was being contended at the time of the trial that the committee had in fact so decided. In passing upon the sufficiency of relator’s petition as against a general demurrer, testimony given at a hearing after the demurrer had been overruled would only be pertinent to reflect the knowledge of relator at the time of filing his petition, and our reference to it is only for that purpose. All of these facts tend to support the theory of estoppel as against relator to recover the relief sought by him. The petition contained no allegations negativing facts which would defeat or overcome the matters detailed. Under the authorities above cited, these things should have been anticipated and answered by the pleadings in the petition. He did hot attempt to avoid being bound by the acts of the committee at its June 17th meeting, wherein the order in which names of candidates should appear on the ticket and the amount to be paid as his proportionate part of the expenses to be incurred was made, but only attacks its orders and decisions in one instance, i.e. because it did not then or at any other time before the first primary, with a quorum present, decide to require a majority vote to nominate. If his contention is sound that.he was the real nominee of the party for the office of county judge, because he had received a plurality of the votes cast at the first primary, his remedy would have been to require the chairman to certify his name as such. He could not acquiesce in the acts of the committee and its chairman and speculate upon the results of a second primary, and after being defeated at the last election, repudiate the act of that primary and rely upon the result of the first. Relator stated in argument when this case was submitted, that he did not know, when he participated in the second primary, that the Committee had not decided to require á majority vote to nominate,, and he testified upon the trial to the same effect; again this was all subsequent to the time he acquired knowledge of what is stated in the petition.

To assume, for sake of argument, that the acts of a minority of the Executive Committee in- deciding at’ its June 17th meeting that nominations for county offices in Wichita County should be by a majority vote, yvas void, yet that body was a de jure one attempting to act for the committee as a whole; relator was evidently present at the meeting and must have known of its actions and that no quorum was present. His subsequent acts obviously indicated an acquiescence in the requirements of the group which attempted to act for the whole committee; he complied with the decisions of that minority body in permitting his name to be placed on the ticket of the first primary in the order prescribed, paid the amount required for defraying election expenses and subsequently permitted his name, with that of McNeely, to go on the ticket for a second primary election. A valuable property right was involved in all this procedure. This right inured to relator, McNeely and to the public at large in the county. There is nothing in the record to indicate that IVEcNeely was at fault in any particular. Pursuant to relator’s acts, McNeely was caused to engage in what we may assume was a strenuous effort to obtain votes in the second primary, similar in all respects to the efforts of relator. McNeely’s property rights were involved to the same extent as were those of relator. It cannot be supposed that McNeely would have engaged in the second contest if it had not been on account of relator’s acts in acquiescing in the decision of the minority group of the Executive Committee to require a majority vote to nominate. For these reasons McNeely was caused to work to his own hurt solely on account of the acts of relator, and presents one essential element of estoppel.

The valuable property right of relator in having awarded to him the nomination is subordinate to the rights ,of the public at large in the county. The electorate has even a greater right involved in the selection of county officials than any one who seeks the office. There can be no ground for balancing injuries sustained on the one hand by an individual and upon the other by the public. In presenting this thought, we do not have in mind a comparison of the fitness of either of the candidates for the office of county judge, but simply the idea of a comparison of the property rights of each of the candidates to that of the electorate to determine who shall fill its offices of trust, like that of county judge. See’ Ford v. State, Tex.Civ.App., 209 S.W. 490, and Mayhew v. Power, Judge, Tex.Civ.App., 104 S.W.2d 642.

We entertain no doubt that relator could waive the right to have the Executive Committee’s decision to require that nominations be by a majority vote, and that by his acts could estop himself to contend that it had not done so. In Ruling Case Law, Vol. 27, page 906, this is said: “The doctrine of waiver, from its nature, is applicable generally speaking, to all rights or privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided such rights or privileges rest in the individual, and are intended for his sole benefit. A right or privilege given by statute may be waived ,or surrendered, in whole or in part, by the party to whom or for whose benefit it is given * *

One of the special answers of respondents, filed, of course, before trial was had, contained this allegation: “The said Sartin (relator) is in all things estopped to question any irregularities, if any, for the reason of the manner in which he has participated in the elections, and by reason of the fact that he knew the existence of the rule adopted by the Democratic Executive Committee, and by reason of the fact that he knew that the Democratic Executive Committee of Wichita County, Texas, in 1940, had decided and planned for the holding of such number of elections as were necessary to elect the county and precinct officers by a majority vote, and having participated therein in the manner as herein alleged, is now estopped from asserting any invalidity or irregularity of the manner in which the elections were conducted.”

Even if it could be said that relator could not anticipate that his conduct would estop him from now claiming that he was nominated in the first primary, an assumption to which we do not accede, when the above answer was filed, it became encumbent upon him to plead facts which would relieve him of the results of his acts in the premises. It is evident that if relator’s conduct would estop him from obtaining the relief sought by the writ, he was aware of all those facts and circumstances entering into the defense of estoppel when he instituted the suit, and was again reminded thereof when respondents filed their answer. Relator did not attempt to negative any of the elements of estoppel, either in his petition, by amendment, or by supplemental pleading. If he did not have actual knowledge of all the facts necessary to work an estoppel against him, it was necessary for him to plead a state of facts which would relieve him of the effects of his acts because of a lack of constructive knowledge.

Article 3106, R.C.S., reads: “The county executive committee shall decide whether the nomination of county officers shall be by majority or plurality vote, and, if by a majority vote, the committee shall call as many elections as may be necessary to make such nomination, and in case the committee fails to so decide, then the nomination of all such officers shall be by a plurality of the votes cast at such election.”

It will be observed that the statute does not provide just when the committee shall make its decision on the subject, but it stands to reason that it must_ be at a time prior to the date on which the results of the first primary are canvassed and declared. It has been held that the provisions of the above quoted article of the statute are mandatory. Cliett v. Williams, Tex.Civ.App., 97 S.W.2d 272; Anderson v. Aldrich, Tex.Civ.App., 120 S.W.2d 605. But in neither of those cases was the sufficiency of the pleadings for the writ of mandamus discussed, nor does either announce a contrary doctrine to that which we believe to be controlling in the instant case.

This appeal was filed in this court on September 17th, a motion to advance filed on the next day. We were taking submissions of cases at Texarkana, under orders of the Supreme Court, on both those dates, and returned on the night of September 20, 1940. On September 21st, we granted the motion to advance and set the 25th as the earliest possible date for submission. Because of the importance of the question involved and the shortness of time before the general election ticket must be printed, we have considered the appeal in advance of all other cases previously submitted. We are announcing our opinion at a special called opinion day prior to the date on which opinions of the court are regularly announced.

We have reached the deliberate conclusion that the petition of relator did not state a cause of action entitling him to the issuance of the writs of mandamus and injunction as prayed for. That the general demurrer should have been sustained and, if requested, a leave to amend, granted. The trial court denied the relief sought, not because of the insufficiency of the pleadings, but upon the jury verdict. For reasons indicated, we cannot approve the action of the trial court in denying the writ upon the grounds stated, but must reverse and remand the cause for further proceedings in conformity with the views herein expressed. Reversed and remanded.


author: YOUNG, Justice. BOND, Chief Justice

text:
    DALLAS RY. & TERMINAL CO. v. LATHAM.
    No. 12896.
    Court of Civil Appeals of Texas. Dallas.
    Aug. 3, 1940.
    Dissenting Opinion Oct. 23, 1940.
    Rehearing Denied Oct. 26, 1940.
    Burford, Ryburn, Hincks & Charlton and Logan Ford," all of Dallas, for appellant.
    Shelby S. Cox, of Dallas, for appellee.
   YOUNG, Justice.

Appellee’s suit for personal injuries resulted in a jury verdict and judgment for $1,000. In our review of the record, the parties will be referred to as in the trial court, or by name. On the morning of May 26, 1938, plaintiff, Iva Latham, was a passenger on a local bus of defendant, which was proceeding south on Tyler Street in the Oak Cliff section of Dallas. She alleged that, at the intersection of Melba Street, the operator of the bus caused it to slow down suddenly and without warning, and to violently swerve aside from its. course of travel, such movement being unusual and negligent; that, as a result, plaintiff was thrown from her seat to the floor and into the entrance well of the bus, sustaining certain injuries. To the merits of' plaintiff’s claims, the defendant denied that-its bus operator was at fault in any respect, but that such injuries were caused by-plaintiff’s own failure to exercise ordinary care. The court’s charge, among other-instructions, properly defined “proximate cause”, “new and independent cause”, “sole-proximate cause” and “unavoidable accident”. The jury, from issues, determined-: the following facts: (1) That the oper-. ator of defendant’s bus, at the time and on. the occasion in question, suddenly and violently caused said bus to swerve from its. course, which was negligence and a proximate cause of plaintiff’s injuries; (2) that said injuries were not the result of an unavoidable accident; (3) that the operator of an automobile, which was driven off of' Melba Street onto the Tyler Street intersection at the time, failed to drive to the rear of defendant’s said bus, but this was. not the sole proximate cause of plaintiff’s, injuries; (4) that the operator of the car,, which subsequently collided with defendant’s bus, did not fail to slow down as she approached the intersection of Tyler and. Melba Streets on the occasion in question;. (5) that the driver of the automobile, which subsequently collided with defendant’s bus,, did not approach the intersection at a. speed 'in excess of twenty miles per hour; (6) that the driver of said automobile did not fail to keep a proper lookout at the time. The sole proximate cause issues which followed each of the issues outlined in subdivisions 4, 5 and 6 above, were not answered by reason of the jury responses to preceding; questions.

It is obvious from a study of appellant’s brief and the testimony, that the Street Railway’s main ground of non-liability is this: That there was no violent and unusual swerve of the bus, resulting in plaintiff’s fall, but that her injuries were solely due to the impact of an automobile driven by a third party (Mrs. Barton), off of Melba Street into the left side of said bus, as it proceeded south on Tyler through the intersection. It should be noted that Melba Street runs east and west, crossing Tyler at a right angle. Mrs. Barton’s car, at the time, approached and entered the intersection from the east, she intending to turn right on Tyler and away from the course of the southbound bus. The collision resulted, the right front of the Barton car being damaged and its bumper caught under the metal apron near the middle of the passenger bus. There was testimony that both vehicles were moving slowly at the time of the impact; also, that Mrs. Barton neared the scene at 45 miles per hour, but we are bound by the jury answer as to her speed. We may assume, as did the trial court, that the automobile moved forward into contact with the bus; also that, just prior thereto, the bus did bear to the right, as stated by the bus driver and several disinterested witnesses, to avoid a casualty. All testimony, except from plaintiff, described such swerve as slight and only incidental to the collision that immediately followed.

Appellant’s many assignments of error and propositions in support, on analysis, present the following contentions: (1) Of no probative evidence in support of the negligence as charged; (2) that plaintiff’s injuries were conclusively shown to have been caused by the act of a third person and not by the swerve of the bus; hence, there was a fatal variance between pleading and proof; (3) where the only alleged negligent act of defendant (swerving the bus) is shown to have run its course without causing any injury to plaintiff, an instructed verdict for defendant should have followed; (4) the element of causation essential to a recovery was absent, where the only act relied on by plaintiff, as the proximate cause of her injuries (the sudden and violent swerve of the bus from its course) did not, in fact, cause her to fall— the injuries being caused irrespective of any swerve, and conclusively by the impact of the Barton car; or, in event it be not conclusive that plaintiff’s injuries were caused by an agency over which defendant had no control, and for which it was not responsible, yet, in all events, the evidence was such that the court and jury were put to conjecture and supposition in order to establish causation; or, it being just as inferable that the injuries were caused by an outside agency, as by defendant’s operator, plaintiff has failed in necessary proof of proximate cause; (5) error in placing the burden of proof on unavoidable accident; (6) error in the refusal by the court of various defensive issues on new and independent cause.

We conclude the issues in the court’s charge, concerning the movement of the bus and the cause of plaintiff’s fall, were sufficiently raised by the testimony. As to the occurrence resulting in her alleged mishap, she testified on direct examination, in part:

“Well, we were going along, and I was looking out of the window, the right window; I was on the right side of the bus; and all at once, the bus swerved to the right and hit the curb, and that was the last I knew. * * *

“Q. Then what is the first thing you knew, after this occurrence, whatever it was out there? A. Well, I heard the motorman say, when I came to myself I heard the motorman say, ‘Get the number of that car’, and I didn’t know what he meant; I just came to myself and was lying down in the front of the bus. * * *

“Q. Just describe what kind of a swerving, I believe you called it, this was in the bus; was it slow or gradual, or sudden? A. No, sir,

“Q. Or otherwise; just describe it, if you can? A. It was quickly; just swerved to the right quickly, and I was semi-conscious, I think, for a minute after he swerved and threw me out of the seat, until I woke up. * * *

“Q. Tell the jury whether or not the swerving of the bus and its stopping was usual or unusual? A. It was very unusual.

“Q. Did you or not have any advance knowledge of the fact that it was going to swerve or was going to stop ? A. No, sir; I didn’t.”

The following excerpts are from plaintiff’s cross-examination:

“Q. Do you know what caused the driver of the bus to swerve to the right? A. No, sir.

“Q. Do you know whether or not there was any other party ran into the bus or not? A. I didn’t see anything.

“Q. You don’t know what happened then? A. No, sir; I don’t.

“Q. If I understand you right then, as far as your knowledge is concerned, you were riding in the bus and sitting on the right-hand side and all of a sudden, the next thing you know, you found yourself in the bottom of the car, is that right? A. Yes, sir.

“Q. And how you got there or what caused you to get there, you don’t know? A. No.

“Q. Is that right? A. That’s right. * *

“Q. Which way did the bus swerve when you first observed it? A. To the right.

“Q. To the right, and can you tell the jury how much it swerved to the'right? Do you know? A. Well, I don’t know just exactly how far it would be from out in the middle of the street to the curb — that is how far it is.

“Q. After the bus swerved to the right, did the bus then come back to the left and head on down toward Jefferson Street? A. Yes, sir.”

On the other hand, defendant’s operator, in charge of the bus, and five other passengers thereon, swore, in effect, that its ' turn to the right was a feature of the threatened collision, and that plaintiff was caused to fall by the impact of Mrs. Barton’s car and not perforce of any prior movement of the bus. Some defensive testimony eyen described the jar of the collision as slight. We think there was in the record, as a whole, evidence of probative force from which the jury could have answered the question of causation either way; and although the testimony may reasonably appear to preponderate in favor of the defense, aided to an extent by plaintiff’s negative assertions, yet it was within the jury’s peculiar province to determine otherwise. 17 T.J., Evidence — -Civil Cases. Secs. 404-408, pp. 891-907.

We perceive no error in the form of issue No. 4, as given by the court; complaint being made that the burden was there placed on it to establish affirmatively the existence of unavoidable accident. Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956, 957 (Supreme Court adopted) is sufficient authority for our ruling; also see North East Texas Motor Lines v. Hodges, Tex.Civ.App., 141 S.W.2d 386, where an almost identical proposition is-discussed and overruled.

Appellant’s further propositions complain of the trial court’s refusal to submit various issues involving Mrs. Barton’s car, and as to whether the facts inquired about, if found by the jury, were not the new and independent cause of plaintiff’s injuries. Issues 7 and 9 are typical, and read: (7) “Do you find from a preponderance of the evidence that an automobile was driven off of Melba Street into and against the center of the bus and on the left-hand side of same at the time and on the occasion in question?” (9) “Do you find from a preponderance of the evidence that the propelling of an automobile off of Melba Street into and against the center of the bus and on the left-hand side of same at the time and on- the occasion in question was not a new and independent cause of the injuries, if any, sustained by plaintiff?”

In disposing of these immediate propositions, we must bear in mind that the question of plaintiff’s own negligence was not raised; and that the record presents but two opposing theories : Either her injuries were due to the conduct of defendant’s bus driver, or to the intervention of Mrs. Barton’s car. Both of these elements were necessarily considered by the jury in the unavoidable accident issue; and likewise, was the second element involved in the given issues on sole proximate cause. Appellant now seeks to renew the same inquiry concerning the acts and omissions of the Barton car, in its refused issues on new and independent cause. We do not think it entitled to do so; the particular facts having already been submitted in another form. Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556; Magnolia Petroleum Co. v. Owen, Tex.Civ.App., 101 S.W.2d 354; Dallas Ry. & Terminal Co. v. Little, Tex.Civ.App., 109 S.W.2d 289; Willis v. Smith, Tex.Civ.App., 120 S.W.2d 899; Weatherhead v. Vavithis, Tex.Civ.App., 135 S.W.2d 1008. A similar point was before the Amarillo Court in Dallas Ry. & Terminal Co. v. Stewart, Tex.Civ.App., 128 S.W.2d 443, 445. It was there held: “Since the appellant relied upon the same event, the same circumstances and the same facts to establish its defense of new and independent cause as it did to establish its defense of sole proximate cause, it is our opinion that an affirmative submission of the latter defense would embrace every conceivable element of the former defense.”

We observe no error in the proceedings of the trial court, and its judgment herein will be affirmed.

Affirmed.

BOND, Chief Justice

(dissenting).

It is obvious from the record and recited testimony of the injured plaintiff, disclosed by the majority opinion, that the sudden swerving and stopping of the bus in question, resulting in plaintiff’s being thrown from her seat and injured, were due to an unknown cause. Plaintiff relied exclusively upon the application of the doctrine of res ipsa loquitur to show negligence — no actual or positive negligence being shown.

It will be conceded that plaintiff established a presumptive or prima facie case of negligence on the part of defendant’s bus operator, by virtue of the rule, res ipsa loquitur, casting upon defendant the burden of freeing itself from such imputation, if such may be established in a case of this kind. It is a general rule in this state that where a presumptive or prima facie case has been made against a defendant, it is incumbent upon defendant, to escape the effect of the doctrine, to introduce evidence to explain, rebut, or otherwise _ overcome the presumption or inference that the injury was due to its negligence. Sims et ux. v. Dallas Ry. & Terminal Co., Tex.Civ.App., 135 S.W.2d 142, 144, and cases there cited. There is some question whether the rule applies, where injury is the result of a sudden swerving or stopping of a bus on a crowded or congested street of a city. One entering an automobile may well understand that a certain amount of swerving and stopping is a necessary operation of such conveyance.

In the Sims case, recently decided by this court, the question was identical with the one presented here. In that case, after reciting the testimony of the injured plaintiff, that “the accident happened so suddenly she didn’t know anything about it until after falling on the floor of the bus * * * ”, that she “is not in a position to say what caused the bus to jerk and stop. All she knows is that she was suddenly thrown forward from her seat onto the floor of the bus, and has never been certain as to just what did happen to cause it”; and after further reciting the rebuttal testimony of the defendant’s bus operator, to the effect that “he did not stop or check the speed of the bus; that it was moving slowly when struck on the rear end by an automobile, which threw him forward against the steering wheelalso reciting the testimony of two men passengers that “an automobile was driven against the rear of the bus, throwing them against the backs of the seats in front”, Judge Looney, writing the opinion, tersely stated: “So, we think it obvious that, even if the rule res ipsa loquitur were applicable in the instant case, the burden of proof to establish negligence was not thereby shifted, and the inference or presumption of negligence, if one arose, having been rebutted by undisputed evidence, it was obligatory upon appellants to make out their case, and, having failed to produce any evidence whatever, tending to prove negligence, we do not think the court erred in directing the verdict, as was done.”

Analogous are the facts in the instant case: The injured plaintiff said: “Well, we were going along, and I was looking out of the window, the right window; I was on the right side of the bus; and all at once, the bus swerved to the right and hit the curb, and that was the last I knew. * * * when I came to myself I heard the motorman say, ‘Get the number of that car.’ ” To rebut imputation of negligence on the part of the operator in charge of the bus, if any was cast upon him by the testimony of the injured plaintiff, it must be held that the testimony of the operator and five other passengers rebutted such presumption; quoting from the majority opinion, they said she was “caused to fall by the impact of Mrs. Barton’s car and not perforce of any prior movement of the bus”. Thus, having failed to produce any evidence whatever of negligence, plaintiff failed to make out her case.

The only distinction between the Sims case, supra, and the instant case, aside from names, dates, amounts, etc., is that, in the Sims case, the sudden jerking and stopping of the street bus was caused by the impact of another automobile on the rear of the bus; while in the instant case, the bus was caused to swerve and stop by the impact of Mrs. Barton’s car on the side of the bus. Neither of the injured parties knew the cause of the movement of the bus, and, in both cases, the testimony is un-contradicted that the sudden and unusual movement of the busses was due to a collision with another car, and free of negligence on the part of the operator.

Obviously, the holding of the majority in the instant case is in conflict with the holding of this court in the Sims casé, and the authorities therein cited. There is no reason assigned in the majority opinion-to overturn our decision in the Sims case; and no fact is here shown to warrant a finding in conflict therewith. If, in the Sims case, the trial court correctly entered judgment for defendant, based on the failure of plaintiff to make out a case of negligence against the defendant, certainly error is glaring in the instant case. There is no negligence shown; therefore, plaintiff having failed to meet the burden resting upon her, the judgment of the court below should be reversed and judgment here rendered for defendant. So believing, I respectfully register a dissent.