author: JACKSON, Chief Justice.

text:
    WHITE et al. v. GLENN.
    No. 5126.
    Court of Civil Appeals of Texas. Amarillo.
    March 11, 1940.
    Rehearing Denied April 8, 1940.

      R. A. Baldwin, of Slaton, for appellants.
    Jno. B. Daniel, of Temple, for appellee.
   JACKSON, Chief Justice.

This suit was instituted in the District Court of Lynn County, Texas, by the ap-pellee, H. C. Glenn, the duly appointed and acting receiver for the Temple Trust Company, as an action in trespass to try title against Alvin 0. White in the capacity of community administrator of the community estate of himself and his deceased wife, Esther White, against him individually and his present wife, Lily White, the adult appellants herein, and against William Frank White, Howard Miller White and Aneta June White, the minor appellants, to recover title and possession to the south 220 acres of Section No. 1 in Block D-23, Lynn County, and described by metes and bounds as follows:

“Beginning at a 2 inch iron pipe set in center of east-west and north graded roadway, the S W corner of section 4, Block M, and the S E Corner of said Section 1, and in the North line of Wilson County School League No. 2, for the S E Corner of this tract;
“Thence North along center line of graded roadway 617.6 varas for the N E Corner of this tract, 2 inch pipe set 7.2 varas west of corner; the N E Corner of Section 1 is north 1182 varas in center of graded roadway extending west; the N W corner of said section 4 is 73 varas north of the N E corner of Section 1 and is marked with 4 inch well casing, graded roadway extends east therefrom;
“Thence West 2011 varas to center of north-south graded roadway, the west line of Section 1 for the N W-Corner of this tract, iron pipe set 7.2 varas east of corner;
“Thence South along center line of graded roadway 617.6 varas to iron shaft set in center of east-west graded roadway, the S W corner of said Section 1, and the S W corner of this tract;
“Thence East along center line of graded roadway 2011 varas to the place of beginning, containing 220 acres of land, more or less.”

R. A. Baldwin, the attorney for the adult appellants, was appointed by the court as guardian ad litem for the minor appellants. No answer was filed by Alvin O. White in his capacity as community administrator but the adult appellants answered by a plea of not guilty and presented a plea in trespass to try title to an undivided 200 acres in the section constituting the homestead.

They attacked the proceedings in two-former suits, Cause No. 958 and Cause No. 1047, and sought to have the judgments therein vacated and held for naught, contending that the records in said causes disclosed that the proceedings therein were-void on their face. They alleged that Section 1, Block D-23 was the community property of the first marriage; that the-minor appellants inherited an undivided one-half interest in said section and Alvin O. White owned the other undivided one-half interest therein; that at all times Mr. White had with his family occupied such section as his homestead.

The minor appellants by their guardian-ad litem alleged in substance the same matters urged by the adult appellants and in addition pleaded title to an additional 120-acres of the section; that Cause No. 958 was invalid as to them for want of service and on- account of the fraud on the part of appellee, since he neither had nor claimed any debt against the minor appellants nor any lien against their undivided interest in the property but with knowledge of their ownership sought and obtained a foreclosure of a purported abstract judgment lien on 120 acres of their land.

The minor appellants alleged that the proceedings in Cause No. 1047 were invalid-as appellee with knowledge of their title fraudulently had the entire section partitioned and 220 acres thereof set apart to him. They prayed for the cancellation of the judgment in Causes Nos. 958 and 1047 because void on the face of the records and that they recover title and possession to the land that had been appropriated by ap-pellee under his asserted lien.

The case was submitted to the court without a jury and judgment rendered that appellee, for the benefit of the Temple Trust Company, have and recover from all of the defendants the south 220 acres of said section, giving the metes and bounds thereof as contained in the petition, from which judgment this appeal is prosecuted.

The appellants by numerous assignments of error, which we shall consider together, assail the validity of the judgment in Cause No. 958, the sale and sheriff’s deed thereunder because the description of the land in such proceedings is so patently defective that such instruments are void and extrinsic evidence was not admissible to identify the land and no title passed thereby.

Alvin O. White and Esther Young were married April 21, 1919, and lived together as husband and wife until April 21, 1926, on which date Esther White died intestate. Three children were born to this union, William Frank White, Howard Miller White and Aneta June- White, and they are the minor appellants in this litigation. On June 29, 1920, Alvin O. White and his wife, Esther, acquired title to Survey No. 1 in Block D-23, State School Land, containing 640 acres, situated in Lynn County, Texas, on which they established and maintained their homestead with their children until the death of Esther White. Mr. White and Lily Chancelor were married on May 4, 1929, and have since lived together as husband and wife with the children of the first marriage and continue to occupy the homestead on said survey. On October 7, 1929, Mr. White and his second wife, Lily, executed and delivered to the Temple Trust Company, a corporation, their promissory note for $2,400. They defaulted in the payment thereof and on Jime 14, 1932, the Temple Trust Company obtained a judgment on this note in the District Court of Lubbock County in Cause No. 4974 against Mr. White, his second wife, Lily, and Jeff Graham, for the sum of $2,670.83, with interest thereon from date at the rate of 10% per annum and a decree foreclosing a lien given to secure the payment of said note on certain lots in Slaton, Texas. The property against which the lien was foreclosed was duly advertised, sold as under execution and purchased by the Temple Trust Company for $1,200 and after the cost was paid the judgment was credited with the balance of $1,144.94.

A pluries execution on March 1, 1932, was issued out of the District Court of Lubbock County in Cause No. 4974 directed to the proper officers of Lynn County commanding that they out of the goods and chattels of Alvin O. White make the sum of $1,529.29, with interest and cost, which constituted the unpaid balance of the judgment obtained in the District Court of Lubbock County. The sheriff of Lynn County levied this pluries execution on the following land situated in Lynn County, to-wit: “440 acres out of Section 1, Block D-23, and being all of said section except 200 acres out of the Northeast Corner thereof designated by the said Alvin O. White as homestead.” The property was advertised and on June T, 1932, was sold by the sheriff to Alvin O. White for the sum of $1.50, that being the highest and best bid therefor and the sheriff executed to him a deed for the land containing the exact description set out above from the sheriff's return on the pluries execution. On the same day Alvin O. White and his second wife, Lily, for a recited consideration of $10 and love and affection, made a deed to the minor appellants in which the property is described as: “440 acres of land out of Section No. One (1), Block D-23, Abstract No. 838, public school land, W. D. Nevels, Original Grantee”, in Lynn County, Texas.

The Temple Trust Company had another pluries execution issued to the sheriff of Lynn County, who levied upon, advertised and sold to Temple Trust Company the land levied upon by the same description heretofore given from his return on the first pluries execution.

Appellee herein on June 10, 1933, instituted a partition suit, Cause No. 958, in the District Court of Lynn County, Texas, against the adult appellants and the minor appellants in this suit- naming some other defendants who are unnecessary to a consideration of this appeal. The petition for partition alleged that Section 1, Block D-23, contained 640 acres; that the minor appellants were joint owners with appellee of 440 acres out of said Section 1, which was all of said section except 200 acres in the northeast corner which constituted the homestead of Alvin O. White, and that ap--pellee owned the other undivided interest in said 440 acres. On August 28th thereafter, the adult appellants filed their original answer and Alvin O. White answered as father and next friend for the minor appellants. The appellee, on October 14th, filed a first amended original petition in Cause No. 958 and after repeating, in effect, in a first count the allegations of his ■origin'al petition, pleaded in the alternative in a second count the judgment obtained in the District Court of Lubbock County, the sale of the property upon which a foreclosure was had therein, the unpaid deficiency of his judgment; that he had an abstract thereof made, filed, properly recorded and indexed in the office of the County Clerk of Lynn County'and thereby acquired a valid abstract judgment lien on the undivided one-half interest of Alvin O. White in 440 acres in said Section 1, the excess over the 200 acres claimed by Alvin O. White as a homestead and prayed that if not permitted to recover in his first count for partition that he be decreed a foreclosure of his abstract judgment lien on said undivided interest of Alvin O. White in said excess. He also sought the cancellation of the execution sale of June 7, 1932, to Alvin O. White and'the cancellation of the execution sale on August 2nd thereafter to the Temple Trust Company. Both the adult and minor appellants in this case filed a formal answer on August 28, 1933, in Cause No. 958. On September 29th thereafter, they filed a first amended original answer and on October 14th following they filed their second amended original answer in which they presented many demurrers, a general denial and by way of cross-action asserted the validity of the execution sale on June 7th to Alvin O. White, the validity of the deed from Alvin O. White to the minor appellants, the invalidity of the execution sale on August 2nd to the Temple Trust Company; pleaded that the minor appellants were forced to employ legal counsel and had secured Chas. Nordyke, attorney of Lubbock, to represent them and sought a recovery of a reasonable attorney fee for his services which they alleged to be the sum of $1,000. They alleged that the minor appellants were entitled to a judgment removing all cloud from their title by virtue of the execution sale on August 2nd to the Temple Trust Company and asked that their title be quieted.

Cause No. 958 was submitted to the court without the intervention of a jury and the court in his judgment recites that the ap-pellee and the adult appellants in this case and Alvin O. White as community administrator appeared and answered; that all parties, including the minors, had been duly cited; that the minors had no legal guardian; that Chas. Nordyke was a proper person to act as attorney and guardian ad litem for them, and he was appointed as such and adopted the' pleadings of the adult appellants for the minor appellants. The court decreed that the appellee recover from Alvin O. White, individually and as community administrator, and also against Lily White, the present wife, and the minor appellants, a foreclosure of his abstract judgment lien in favor of the Temple Trust Company upon the undivided one-half interest of Alvin O. White “In and to 440 acres out of Section 1, Block D-23, Lynn County, Texas, and being all- of said section except 200 acres claimed by Alvin O. White as his homestead;” that the land be sold as under execution in satisfaction of the deficiency judgment debt of $1,814.05, with the payment of cost, and if the land should sell for more than sufficient to pay off and satisfy such sums then to pay the excess to Alvin O. White. He denied the relief sought under the first count for partition but cancelled and held for naught the sale of the land to Alvin O. White by the sheriff under execution on June 7th and also annulled the execution sale by the sheriff on August 2, 1932, to the Temple Trust Company; authorized the payment of a $50 fee to Chas. Nordyke for his services as guardian ad litem and denied all further relief to all parties to the suit. He ordered the judgment entered on December 7, 1933 and recites that the special term at which the trial was had was still in session. The appellee and all the appellants excepted to this judgment and gave notice of appeal to the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas at Amarillo, but no appeal was ever perfected-from this judgment by any of the parties. The land was regularly sold under execution issued on this foreclosure judgment by the sheriff of Lynn County and conveyed by him to the Temple Trust Company for a recited consideration of $1,500, which was a part of the deficiency judgment obtained in the District Court of Lubbock County.

The appellee, on January 24, 1935, instituted suit, Cause No. 1047, against Alvin O. White in his capacity as community administrator, and individually, and against his present wife, Lily, and the minor appellants, for the partition between the Tem.ple Trust Company and the minor appellants of the 440 acres in which it is alleged that the company owned an undivided one-half interest and the minor appellants a one-half undivided interest and gives the description of the land contained in the sheriff’s deed to the Temple Trust Company under the foreclosure sale in Cause No. 958. Service was had on all the parties and on September 19, 1935, the adult appellants answered by general demurrer and general denial and on March 9, 1935, the minor appellants, acting by and through their duly and legally appointed guardian ad litem, answered by general demurrer and general denial.

Cause No. 1047 was submitted to the court without the intervention of a jury and he found that appellee, the adult appellants and the minor appellants owned jointly Section No, 1, Block D-23, in Lynn County; that the property was susceptible of partition; that appellee owned an undivided one-half interest in 440 acres of the section; that the minor appellants together owned an undivided one-half interest in said 440 acres and that Alvin O. White owned an undivided one-half interest in the 200-acre homestead and the minor, appellants together owned an undivided one-half interest in the 200-acre homestead, subject, however, to the homestead rights of the adult appellants. The court appointed commissioners of partition, a writ of partition was issued and on March 14, 1935, the commissioners of partition reported to the court that Alvin O. White had designated as his homestead the east 200 acres out of the north 440 acres of said survey of 640 acres; that said 200 acres were set apart to Alvin O. White and Lily White as their homestead, but the minor appellants owned an undivided interest therein subject to the homestead rights of the adult appellants, Alvin O. White and his second wife. They also reported that the 440 acres of the survey in excess of the homestead was divided into equal shares of 220 acres each, described as follows: “First Share: The West 220 acres of the North 420 acres of said Survey Number One (1) in Block D-23 (D-Twenty-three), Lynn County, Texas; and Second Share: The south 220 acres of said Survey Number One (1), Block D-23 (D-Twenty-three), Lynn County, Texas;” that said shares were of equal value and they had allotted share number one to the minor appellants and share number two to the appellee for the Temple Trust Company.

The report was submitted to the court' and judgment rendered reciting that the appellee appeared by his attorney; that the minor appellants appeared by the guardian ad litem but that the adult appellants had made no further appearance therein and the court having examined the report, heard the exceptions and objections and finds that the partition had been fairly made according to law and decreed the approval and confirmation of the report and adjudged that the title to the land allotted to the appellee by the commissioners be vested in the Temple Trust Company and that the title of the minor appellants to the land allotted to them by the commissioners be vested in them; that the east 200 acres of the north 420 acres of the survey was vested one-half in Alvin O. White and one-half in the minor appellants.

The land upon which appellee sought to foreclose his abstract judgment lien in Cause No. 958 in all of the instruments is described as follows: “The undivided one-half interest of Alvin O. White in and to 440 acres out of Section 1 in Block D-23, Lynn County, Texas, and being all of said section except 200 acres claimed by Alvin O. White as homestead.”

It is admitted that the section contains 640 acres. The return of the sheriff in the pluries execution- shows that Mr. White claimed his homestead in the northeast corner of the section. In none of the proceedings, the sale under pluries execution, the suit to foreclose in 958 and the suit for partition, in which Mr. White pointed out that his homestead was in the northeast part of the section, is the location of the homestead questioned. Appellants in their brief admit that “White was in visible occupation of his 200 acre homestead”, and, in our opinion, the descriptions of the land in the proceedings were not so insufficient, uncertain and indefinite as to render the judgment of foreclosure in 958 and the judgment of partition in 1047 void on their face.

In Wilson v. Smith, 50 Tex. 365, in a suit in trespass to try title, the validity of the judgment, execution sale and sheriff’s deed were attacked becaused it was contended the descriptions contained in said instruments were void. In those instruments the land was described as “one hundred and sixty acres of land, being a part of the homestead tract of said James Bank-ston, exclusive of two hundred acres exempt by law.” The Supreme Court in passing upon the sufficiency of this description, says:

“Certainly the deed cannot be pronounced void upon mere inspection; for it cannot be said that it appears from the face of the deed that the land conveyed cannot be identified by the aid of extrinsic evidence. (Camley v. Stanfield, 10 Tex. [546] 550 [60 Am.Dec. 219]; Kingston v. Pickins, 46 Tex. 99; Ragsdale v. Robinson, 48 Tex. 379.) * * *
“The homestead tract, embracing three hundred and fifty or three hundred and sixty acres, appears to have been fixed and known. The levy was on the excess of this tract, over two hundred acres, recognizing the exemption of two hundred acres, to be laid off according to Bankston’s choice, including his improvements. It was not a sale of so many acres out of a larger tract, with no means of fixing or locating the land sold, then or afterwards; but was a sale of that part of the tract remaining after the homestead was laid off.”

This authority has been followed by the Supreme Court in Smith v. Crosby, 86 Tex. 15, 23 S.W. 10, 11, 40 Am.St.Rep. 818, in which Chief Justice Stayton says:

“In Wilson v. Smith, 50 Texas, 365, the levy and conveyance [were] on and of ‘one hundred and sixty acres of land, being a part of the homestead tract of said James Bankston, exclusive of 200 acres exempt by law.’ The homestead tract embraced about 360 acres of land, but the exempt 200 acres had not been designated.
“The levy and conveyance were held not to be void. ‘It was not a sale of so many acres out of a larger tract, with no means of fixing or locating the land sold, then or afterwards, but was a sale of that part of the tract remaining after the homestead was laid off.’

“That extrinsic evidence may be introduced to clearly locate and identify land passing by a sheriff’s deed, containing an accurate, but general, description, ought not to be controverted, and is not an open question in this court. Wilson v. Smith, 50 Tex. [365], 370; Giddings v. Day, 84 Tex. [605], 608, 19 S.W. 682.”

See, also, Porch v. Rooney et al., Tex.Civ.App., 275 S.W. 494; Turner v. Crane et al., 19 Tex.Civ.App. 369, 47 S.W. 822; Lunn v. Scarborough, 6 Tex.Civ.App. 15, 24 S.W. 846; Caddell et al. v. Lufkin Land & Lumber Co. et al., Tex.Com.App. 255 S.W. 397; Downs v. Wagnon et al., Tex.Civ.App., 66 S.W.2d 777; Brown v. Renfro et al., 63 Tex. 600; Aycock v. Kimbrough et al., 61 Tex. 543; Braden et al. v. Gose et al., 57 Tex. 37.

The appellants attack the jurisdiction of the court in numerous assignments saying that the record discloses on its face in Cause No. 958 that appellee sought to foreclose a purported lien on 100 acres of the homestead property of Alvin O. White and his family. If we are correct in holding that the descriptions of the land in the proceedings attacked were not void, the contention of appellants that the court was without jurisdiction because it was an attempt to foreclose on the homestead is not tenable. “Right of surviving spouse to occupy home place as a homestead is not an ‘estate.’ ” Dakan v. Dakan et al., 125 Tex. 305, 83 S.W.2d 620.

The excess acreage of a rural homestead may be separated therefrom by the owner. If he does not avail himself of this right then it may be done by a creditor who desires to have the excess applied to the payment of his debt. In all the proceedings before us Alvin O. White on each occasion pointed out the location of the homestead of himself and family. Nunn on Homestead and Other Exemptions, page 141.

In Clement v. First Nat. Bank of Paris, Tex., 115 Tex. 342, 282 S.W. 558, 561, the Supreme Court says: “The question whether the excess in a homestead may be subjected to the payment of the debts "of a homestead claimant, be it the excess above 200 acres in a rural homestead or the excess above $5,000 at the time of dedication in an urban homestead, is not shrouded in doubt. That it may be so subjected is well settled, and a method for applying the excess is provided in the cases of Wood v. Wheeler, 7 Tex. 13; North v. Shearn, 15 Tex. [174], 175; Paschal v. Cushman, 26 Tex. 74; Hargadine v. Whitfield, 71 Tex. 482, 9 S.W. 475; Harrison et al. v. First Nat. Bank of Louisville (Tex.Civ.App.) 224 S.W. 269, and [Id.], (Tex.Com.App.) 238 S.W. 209. See Waples on Homestead and Exemption, pp. 224, 406, 730; Thompson on Homesteads and Exemptions, § 709; 29 Corpus Juris, 882.”

To the same effect is the holding in Whiteman et al. v. Burkey et al., 115 Tex. 400, 282 S.W. 788.

The appellee contends that the attack made by the appellants on the proceedings in Causes Nos. 958 and 1047 are collateral. The appellants insist vigorously that their cross-action is a direct attack on such proceedings. In our opinion, this question is immaterial to the adult appellants for the reason that they were parties to Cause No. 958, contested the foreclosure of the abstract lien, excepted to the judgment of the court and gave notice of appeal from said decree. They filed no motion for new trial and did not seek to have the judgment reviewed by the appellate courts either by appeal or a writ of error. The validity of the lien and the description of the property was adjudicated against them in said proceedings. They do not contend that they were misled, deceived or prevented from urging all their defenses by any act of appellee and under the record the foreclosure, since not void on the face of the proceedings, is res judicata. Lindsey v. Dougherty, Tex.Civ.App., 60 S.W.2d 300; Bennett v. Carter, Tex.Civ.App., 102 S.W.2d 450; Birge et al. v. Conwell, Tex.Civ.App., 105 S.W.2d 407. Whether or not the adult appellants had any valid defense to Cause No. 958 and it was not presented is not available to them in this proceeding. The law is apparently settled that an attorney authorized to represent a client becomes his agent and the principal is responsible for the acts of the agent if done within the scope of his authority. Irvine et al. v. Grady, 85 Tex. 120, 19 S.W. 1028. Equity will not set aside a judgment against a party on account of the negligence or mistake of his attorney in failing to present fully and fairly his defense or cause of action. Universal Credit Co. v. Cunningham, Tex.Civ.App., 109 S.W.2d 507; Great American Indemnity Co. v. Dabney, Tex.Civ.App., 128 S.W.2d 496.

The minor appellants contend that the foreclosure proceedings and judgment in Cause No. 958 was void because the record is conclusive that no service was ever had on them citing them to answer the foreclosure suit. The record reveals and all parties concede that Alvin O. White owned a one-half undivided interest in the section of land and the minor appellants owned the other undivided one-half interest in said section subject to the homestead rights of Alvin O. White and his second wife. No effort was made in 958 to foreclose the abstract lien on any interest of the minor appellants in said section. They were tenants. in common with Alvin O. White and therefore were not necessary parties to the foreclosure of the lien of appellee on the undivided interest of Alvin O. White, in the 440 acres, which was the acreage in the section in excess of the homestead. Frank B. Cotton v. Samuel Coit, 88 Tex. 414, 31 S.W. 1061.

A person holding a lien against a joint owner’s undivided interest in land is authorized to foreclose his lien on the debtor’s interest in the property. Shear Co. v. Lucas et al., Tex.Civ.App., 276 S.W. 935.

In Roy v. Abraham, 207 Ala. 400, 92 So. 792, 794, 25 A.L.R. 101, the Supreme Court of Alabama says: “Three of the respondents have no interest in the application of complainant by the bill to have the court enforce his judgment lien on the one-fourth interest of Abraham in the property. Their interest in the property is not involved in that lien. They and their property interests are strangers to it, and are not connected with the judgment lien of complainant. Hence they are unnecessary and improper parties to it.”

The minor appellants claim that they acquired title to the undivided interest of Alvin O. White in the 220 acres involved in this suit by the deed from him and Lily White dated June 7, 1932, and that appellee had constructive notice of their title as the deed was promptly recorded in the County Clerk’s office of Lynn County, Texas.

The land in this deed is described as “440 acres of land out of Section No. One (1), Block D-23, Abstract No. 838, Public School Land,' W. D. Nevels, Original Grantee,” situated in Lynn County, Texas.

This description presents, we think, what the law designates as a patent ambiguity, and extrinsic evidence in aid of such description is not admissible since the land as described is an undivided number of acres out of a larger tract and could not be located with certainty on the ground by extrinsic testimony inasmuch as it could be shifted to various positions on the section. Under this description the 440 acres could with equal certainty be placed in the northern, southern, eastern or western part of the larger tract or section of which it is a part. 14 Texas Jurisprudence 996.

In Harris et al. v. Shafer, 86 Tex. 314, 23 S.W. 979, 24 S.W. 263, the Supreme Court had before it for determination the sufficiency of the description contained in a deed in which the land was described as “being the upper part of the league and labor of land granted to the heirs of Mary Bird, situated on the waters of Pecan bayou in Travis,” and the court stated: “We hold that the description given in the order of ■confirmation and in the deed is wholly insufficient, and in fact is no description, furnishing no means by which the land intended to be conveyed can be located at any particular place in the survey.”

In Continental Supply Co. v. Missouri, K. & T. Ry. Co. et al., 269 S.W. 1040, the Commission of Appeals uses this language:

“In the absence of a general yet accurate designation of the land given in the deed, extrinsic evidence is not admissible to aid the description for the reason that to admit such character of evidence would be to make that character of evidence operative as a conveyance and nullify the plain provision of our statute of frauds which requires a contract for the sale of real estate to be in writing. Article 3965, tit. 62, Revised Civil Statutes. Wofford v. McKinna, 23 Tex. [36], 37, 76 Am.Dec. 53; Wooters v. Arledge, 54 Tex. [395], 397; Pfeiffer v. Lindsay, 66 Tex. [123], 124, 1 S.W. [264], 269; Tram Lumber Co. v. Hancock, 70 Tex. 312, 7 S.W. 724; Smith v. Crosby, 86 Tex. 15, 23 S.W. 10, 40 Am.St.Rep. 818; Harris v. Shafer, 86 Tex. 314, 23 S.W. 979, 24 S.W. 263; Edrington v. Hermann, 97 Tex. 193, 77 S.W. 408.
“In Tram Lumber Co. v. Hancock, 70 Tex. 312, 7 S.W. 724, the court said:
“ ‘A deed purporting to convey land which describes it only by quantity, and as being part of a larger tract, with nothing whereby to identify what specific portion of the larger tract is intended to be conveyed, is void for uncertainty of description in a tax title.’ ”

See, also, Smith v. Crosby, supra; W. T. Carter & Bro. et al. v. Ewers, 133 Tex. 616, 131 S.W.2d 86, 123 A.L.R. 908; Higgins et al. v. Bankers’ Mortgage Co., Tex.Com.App., 13 S.W.2d 683; Coker et ux. v. Roberts, 71 Tex. 597, 9 S.W. 665; Fortenberry et al. v. Cruse et al., Tex.Civ.App., 199 S.W. 523; Pomeroy et al. v. Pearce, Tex.Com.App., 291 S.W. 214; 14 Tex.Jur. 987.

The contention of the minor appellants to the effect that appellee was guilty of fraud in seeking and obtaining a foreclosure against their interest in the homestead and against the 440 acres, all of which they held either by inheritance or deed, is not tenable. In our opinion the record discloses that appellee neither sought nor obtained a foreclosure of its judgment lien against any interest of the minor appellants. However, this would not constitute a cause of actionable fraud.

In Smith v. Adams, 27 Tex. 28, 29, the court holds that anyone is liable to be harassed in his property and feelings by unfounded suits but this is not an injury for which he can maintain a suit. See, also, Panhandle Lumber Co. v. Fairey, Tex.Civ.App., 3 S.W.2d 941, and authorities cited.

The appellants complain of the action of the court in refusing to make and file additional findings of fact. The court did, at the request of the appellants, make findings of fact which are disclosed in the record and, in our opinion, are sufficient and find support in the testimony. In view of the complete statement of facts contained in the record, this complaint we think without merit.

The judgment is affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    BURSON v. CITY OF SILVERTON.
    No. 5196.
    Court of Civil Appeals of Texas. Amarillo.
    March 11, 1940.
    Rehearing Denied April 8, 1940.

      Dennis Zimmermann, of Tulia, for appellant.
    C. D. Wright, of Silverton, for appellee.
   FOLLEY, Justice.

This suit was filed by the appellee, City of Silverton, Briscoe County, Texas, against the appellant, Bland Burson, to recover delinquent taxes on Lots 10, 11 and 12 in Block 89 of the town of Silverton for the years 1931 to 1936, inclusive. The suit resulted in a judgment for the appellee in the sum of $105.57 with interest and for foreclosure of tax lien and order of sale. From such judgment comes this appeal.

The appellant asserts that the judgment should be reversed because the court failed to adjudge the value of the property involved as required by section 5 of article 7345b, Vernon’s Annotated Civil Statutes. Section 8 of the same article provides that property sold for taxes shall not be sold to the owner or the taxing unit for less than the amount of the adjudged value or the amount of the judgment, whichever is the lower. The evidence in this case shows conclusively that the present value of the property is several times greater than the amount of the judgment herein for the taxes. Therefore, the court would not have been authorized under the evidence to have adjudged the value of the property at an amount less than the judgment. Under such circumstances no injury has resulted or will result to the appellant by the court’s failure to appraise the property. Furthermore, there is no showing that the court was requested by the appellant to adjudge the value of the property. The trial court no doubt would have complied with such a request had it been made. No prejudice having been shown by the court’s omission in this respect the assignment is overruled.

The appellant asserts that the assessments made against his property were greater in proportion to value than those made against other properties in the city of Silverton, that such assessments were not equal and uniform as required by law, and that he was discriminated against in respect to valuation. We aré of the opinion that the testimony is sufficient to support the judgment of the court which, in effect, found that the taxes were equal and uniform and that the appellant was not discriminated against. The testimony not only fails to show any fraud in the valuations placed upon the property, but on the contrary shows that such valuations were fairly made and in keeping with the valuations placed upon other properties in the city. The testimony further shows that the City Council, acting as a Board of Equalization, exercised good faith in fixing the valuation about which the appellant complains.

In the judgment of the court was included taxes on the property for the year 1936 in the sum of $11.16 plus interest and penalties thereon. The appellant attacks this portion of the judgment because he asserts that the City Council in the year 1936 acted as a Board of Equalization in fixing the valuation upon his property. The evidence shows that the City Council so acted in 1936 and all previous years involved in this controversy. The appellant makes no complaint in this respect in regard to the taxes for 1935 and previous years apparently by reason of the 1935 enactment by the Legislature of article 1027c of Vernon’s Annotated Civil Statutes, which article validated all ad valorem tax levies in incorporated cities such as Silverton. No similar validating statute which would include the town of Silverton seems to have been passed since 1935. During the year 1936 article 1048, R.C.S. oí 1925, provided city councils of towns incorporated under the general laws should' “appoint three commissioners, each a qualified voter, a resident and property owner of the city or town for which he is appointed who shall be styled the board of equalization”. In 1937 this article was amended in such manner that city councils may “within their discretion act as a Board of Equalization”, Vernon’s Ann.Civ.St. art. 1048, leaving the matter optional with them to so act or to appoint three commissioners as under the previous statute. The enactment of such amendment in 1937 therefore came too late to cure whatever defects existed in the action of the City Council in 1936 sitting as a Board of Equalization under its own appointment.

The property involved was for some years rendered for taxation by the appellant himself and for some other years was rendered by his brother, Tony Burson, who seemed to represent the Burson family in controversies with the city over tax matters. The record shows that the Burson family owned a considerable amount of property in the city of Silverton. Tony Burson appeared before the Board of Equalization from time to time when the valuations were raised upon this property, fie rendered the property of the appellant for the year 1935 at his own valuation of $905.00 which valuation was allowed to remain unchanged by the Board. He also rendered the same property in 1936 at only $445, but the Board, after due notice, raised the valuation to $745. He testified that the valuations at which the property was rendered for the various years was what he thought its market value to be for such years or what it would have sold for. He did not indicate why he thought there was such a discrepancy in his estimate of the value of the property in 1935 and 1936, that is, why he placed a value of $905 on the property in 1935 and only $445 in 1936. Although taxes for 1937 were not in issue in this case the testimony shows that for such year the appellant himself rendered the property at $600 and that the Board allowed it to so remain. Therefore, it will be seen that the Board raised the property valuation for 1936 only $145 more than that at which the appellant rendered it in 1937 and that the valuation of $745 placed upon the property by the Board in 1936 was considerably less than the amount of $905 for which it was rendered in 1935. It is therefore evident that the Board placed a fair valuation upon the property and the appellant fails to show any material harm has resulted to him under such valuation. Moreover, the conduct of the City Council in performing the duties of a Board of Equalization was merely an assumption of an additional burden upon themselves in harmony with the duties of their respective offices as Councilmen and certainly not incompatible thereto. Under such circumstances, we think, such Council members constituted at least a de facto Board of Equalization whose authority to so act the appellant cannot at this late date successfully attack in this proceeding. City of Houston v. Stewart, 99 Tex. 67, 87 S.W. 663; Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798; First Baptist Church v. City of Fort Worth, Tex.Com.App., 26 S.W.2d 196; Jones et al. v. Alexander et al., 122 Tex. 328, 59 S.W.2d 1080; Zachary et al. v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417; State ex rel. Goodnight v. Goodwin et al., 69 Tex. 55, 5 S.W. 678; Cole et al. v. Forto et al., Tex.Civ.App., 155 S.W. 350; Nalle v. City of Austin, 23 Tex.Civ.App. 595, 56 S.W. 954, writ denied; Martin v. Grandview Independent School Dist., Tex.Civ.App., 266 S.W. 607, writ refused; Scollard v. City of Dallas, 16 Tex.Civ.App. 620, 42 S.W. 640, writ denied.

The judgment is affirmed.


author: SPEER, Justice.

text:
    STATE et al. v. NIX et al.
    No. 13899.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1940.
    Rehearing Denied April 12, 1940.
    Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., Asst. Atty. Gen., for appellant State.
    Steve M. King, U. S. Dist. Atty., and John D. Rienstra, both of Beaumont, J. L. Backstrom, of Dallas, and B. W. Berg, of Washington, D. C., Sp. Attys. for Bureau of Internal Revenue, for intervener United States.
    Wm. Madden Hill, of Dallas, for ap-pellee Howard Dailey.
   SPEER, Justice.

M. R. Ingram sued W. L. Nix, doing business in the trade name of Texas Refinery, and Heartfield Refinery Company, Inc., in a district court of Gregg County, Texas, for recovery on a note in the principal sum of $1,103.49, with interest at eight per cent per annum from its date, along with the usual and customary ten per cent attorney’s fees, seeking a foreclosure of a chattel mortgage lien on six 250-barrel run down tanks, and one 1000-barrel storage tank, alleged to be a part of the equipment used in connection with a refinery. The note and mortgage were alleged to have been executed by Heartfield Refining Company, Inc., to plaintiff on May 11, 1933, and that the chattel mortgage lien was forthwith filed for record.

Further allegations are to the effect that subsequent to the execution and delivery of the note and mortgage, Heartfield Refinery Company, Inc., for a valuable consideration, sold and delivered to defendant, W. L. Nix, the mortgaged property, and that N'ix assumed to pay plaintiff said indebtedness evidenced by the note.

Plaintiff’s pleadings further show that the indebtedness is past due and unpaid, that demand has been made therefor and that Nix is insolvent. Other allegations state facts which, if true, would authorize the appointment of a receiver for the business operated by Nix.

Prayer was for the debt and foreclosure of the chattel mortgage lien and for a receiver; that a sale of the property by the receiver be ordered and that the proceeds of such sale be applied to the liquidation of plaintiff’s debt and for general relief.

After notice, the court heard the application and entered an order appointing a receiver of the business operated by W. •L. Nix, in which order, among other things, it is recited: “ * * * And the plaintiff appearing by counsel and the defendant having appeared, and plaintiff having announced ready on his application; the court having read the verified oath of complaint and hearing the statement and admissions in open court, is of the opinion and finds that the same presents the proper case authorizing the appointment of a receiver, ex parte, and for granting the relief shown in this order.” J. G. Strong was appointed receiver, his bond set and his duties defined.

The federal government, the State of Texas, and R. P. Ash intervened as creditors of W. L. Nix. Ash’s claims consisted of two notes secured by chattel mortgages. The first note was for $1,750, dated April 27, 1933, with eight per cent interest per annum from date, and ten per cent attorney’s fees, secured by a chattel mortgage lien on what was known as the Heart-field Refining Company plant (excepting the part previously mortgaged to plaintiff). Ash’s second note was in the sum of $4,-651.86, dated September 19, 1933, with eight per cent interest per annum from date and attorney’s fees, secured by a chattel mortgage on one 1500-barrel capacity Pipe and Still, Water Cooling Tower, Laboratory Building and Equipment, Pipe and Equipment in Water Well, 2000-barrel capacity bubble tower, Bath house and equipment, Office furniture, typewriter and filing cabinets. It was alleged these notes were both due and unpaid. Prayer in that intervention was for debt and foreclosure of the lien on the property described.

The State of Texas intervened under its claim for $28,870.16, due the State by W. L. .Nix for taxes on motor fuel manufactured and sold, upon which the tax had not been paid under Article 7065a-l et seq., Vernon’s Civil Statutes, and for a foreclosure of its alleged first and preferred lien on all the property of W. L. Nix, including that described in plaintiff’s and Ash’s alleged chattel mortgages.

The United States, acting by and through W. A. Thomas, Collector of Internal Revenue for the Second District of Texas, intervened, made proof of and asked for judgment for its debt of $20,907.61 for taxes and penalties due on motor fuels manufactured and sold by Nix, for which no payment had been made. This in-tervener claimed and asked for a foreclosure of its first and preferred lien on all property of Nix, under and by virtue of Section 3466 of Revised Statutes of the United States, Section 191, Title 31 U.S. C.A.

Thereafter, on January 21, 1938, Howard Dailey was permitted by the court to intervene, as the sole plaintiff, under allegations that he had acquired all the rights in the subject matter theretofore held by the original plaintiff, M. R. Ingram, and intervener, R. P. Ash. An amended petition was at that time filed by intervener Dailey, alleging the indebtednesses and liens acquired by him, largely in the same language previously set out by Ingram and Ash. Further allegations were made that the receiver, theretofore appointed by the court, had, under orders of the court, sold the assets of W. L. Nix, doing business in the name of Texas Refinery, and had turned into the registry of the court (less costs and expenses incurred) the total sum of $7,466.92.

Prayer was for allowance of his indebtedness, that he be given judgment for the amount and that his claim and liens be decreed as prior and superior to all others of the parties, whether plaintiff, defendants or interveners, and that an order be entered directing payment from the funds in the registry of the court, for costs and general relief.

Interveners, United States and the State of Texas, renewed their pleas of intervention in much the same way as in their original pleadings, and further answered and denied that the substituted plaintiff, Dailey, was entitled to the relief sought. Each intervener insisting upon its respective rights and priorities theretofore pleaded.

Upon trial to the court, evidence was heard, about which there is little or no controversy under the issues involved here. Judgment was entered favorable to the intervening plaintiff, Dailey, as well also more favorable to the intervener, United States, than to the State of Texas.

The court found in his judgment that Dailey was the owner of the Ingram note originally sued on and of the two notes owned by Ash at the time of his intervention ; that these debts were secured by liens on those parts of the assets of Nix, described in the respective mortgages; that said liens were first and superior as against those asserted by interveners, United States and the State of Texas. There was a further finding that the asserted lien of the United States was prior and superior to that of the State of Texas.

The court further found that the property upon which Dailey held his first and superior lien constituted eighty per cent of all the assets of Nix coming into the hands of the receiver and sold by him; that out of the sum of $7,466.92 then in the registry of the court, so deposited by the receiver, certain parts thereof were the proceeds of operation and leasing of the refinery plant, and that $1,618.50 thereof represented the total sum for which the receiver sold said physical assets, and that said sale was the best that could be obtained by the receiver and had been approved by the court. That by reason of the fact that Dailey -had a first and superior lien against eighty per cent of said assets, he was entitled to receive from the proceeds of said sale $1,294.-80 therefrom, and that the United States having a second lien on said property, it should receive the remainder of said total fund; that said remainder being insufficient to satisfy the United States tax and lien, there was nothing left with which to pay the tax debt and lien of the State. There was a further finding that by agreement of all parties the receiver was entitled to be paid from said fund $75 for services rendered, before either plaintiff, Dailey, or the United States should be paid any sum. The decree ordered paid from the fund in the registry of the court, (1) all costs incurred in the suit not previously paid by the receiver, including $75 to the receiver ; (2) the claim of intervener Dailey in the sum of $1,294.80; and (3) the balance to the United States to be applied upon its judgment and claim for taxes. The decree further recites: “Inasmuch as the claim of the United States as allowed, is greater than the amount of money in the hands of the court, there will be nothing left to be applied on the claim of the State of Texas allowed herein.”

The intervener, State of Texas, excepted to the rulings of the court. The United States excepted to that part of the judgment giving intervener Dailey a preference lien to that of the federal government, and both the United States and the State of Texas gave notice of appeal to the Texarkana Court of Civil Appeals. The State of Texas alone perfected the appeal, and by an equalizing order by our Supreme Court, the case is before us for review.

Appellant (State of Texas) presents this appeal, upon what we deem two propositions, although subdivided several times. They are (1) the trial court erred in holding that intervener Dailey’s claim and lien were superior to that held by the State; and (2) the court erred in holding that the lien of intervener United States was superior to that of the State.

In appellant’s brief it is said: “Consequently, the sole question for determination is whether or not the evident purpose embodied in Section 7, Article 7065 (a), R. C.S. is to be stricken down as violative of Article 1, Section 16, Constitution of Texas, and Article 1, Section 10, Constitution of the United States.”

It is not claimed in this case that the taxes sued for by the State are ad valor-em, but are occupation or excise taxes. If they were ad valorem taxes, then another question would arise, not now before us. Article 8, Section 15, State Constitution, Vernon’s Ann.St., provides that the annual assessment made upon landed property shall be a] special lien thereon; and that all property, both real and personal, belonging to a delinquent taxpayer, shall be liable to seizure and sale for payment of taxes due.

There is nothing in the record before us in this case which indicates that any part of the property upon which the tax lien is claimed by the State was real estate; it is described as personalty. The constitutional provision mentioned does not provide for a lien thereon to secure the payment of delinquent taxes, but only, that such property shall be subject to levy and sale therefor. The prior and preference lien asserted here by the State must depend upon the authority of the Legislature to make it such. This was attempted by the Act relied upon here.

The Act is contained in Art. 7065a, and at Section 7, among other things, provides: “All taxes, fines, penalties and interest due by any distributor to the State shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, upon all the property of any distributor, devoted to or used in his business as a distributor, which property shall include refinery, blending plants, storage tanks, warehouses, office buildings and equipment,” etc.

It is earnestly argued by the State that such taxes, as those levied ad valorem, and as occupation or excise, are of equal dignity, since they each go to support and maintain the State in all its sovereign functions. It reasons, that surely the framers of our Constitution did not intend that the Legislature could authorize the levy of a tax, such as the one under consideration, and then leave the State helpless as to a means of enforcing collection; that is, leave it optional with the taxpayer whether or not he would pay, or even permit another with whom he has previously contracted, to prevent the collection of such a tax. It is contended that in view of the vast amount of taxes accruing to the State under the Motor Fuel Act, to strike down the prior and preferred lien clause under Section 7 thereof would materially affect the taxing powers and revenues of the State derived therefrom.

In view of the contentions made by the State, we certified to the Supreme Court the two points involved. In response to our certificate, that Court answered our questions, in effect, as follows: (1) That the provisions of Section 7, Article 7065a, V.T.C.S., giving to the State a preferred lien, first and prior to all other existing liens upon all the property of the distributor, used in the business, to secure the payment to the State for the tax, did not violate the provisions of Article 1, Section 16, of our State Constitution; (2) that the trial court erred in holding that the claim of the United States for taxes, penalties and interest should be paid out of the funds in the registry of the court, before the similar claims of the State of Texas were paid. See opinion by Supreme Court, State et al. v. Nix et al., 133 S.W.2d 963.

The record discloses that all facts necessary to a determination of the rights of the several parties were thoroughly developed at the trial, and no necessity exists for further findings. Upon authority of the expressions found in the last above cited case and that of State v. Wynne et al. Tex.Sup., 133- S.W.2d 951, referred to by the Supreme Court in the Nix case, supra, the judgment of the trial court is reversed and here rendered that plaintiff take nothing and that the funds in the registry of the court be applied first to the payment of all costs not previously paid by the receiver and $75 stipulated to be due him for additional services rendered; and second, that the State of Texas have judgment against all parties to the extent of the remaining amount in the court’s hands, to be applied to the payment of the tax shown to be due it. Obviously there will be nothing left in the fund for payment to any other party. But under the holding in the Wynne case, supra, the classification of the respective claims would be that of the State of Texas, first, that of valid lien holders, second, and the claim of the United States, third. Judgment of the trial court is therefore reversed and here rendered, as above indicated.


author: BAUGH, Justice.

text:
    TEXAS & P. RY. CO. et al. v. RAILROAD COMMISSION et al.
    No. 8898.
    Court of Civil Appeals of Texas. Austin.
    March 27, 1940.
    Rehearing Denied April 10, 1940.

      R. S. Shapard, C. C. Huff, and Adair Dyer, all of Dallas, Baker, Botts, Andrews & Wharton and Andrews, Kelley, Kurth & Campbell, all of Houston, Terry, Cavin & Mills, of Galveston, and Herbert L. Smith, of Austin, for appellants.
    Gerald C. Mann, Atty. Gen., Geo. W. Barcus, Asst. Atty. Gen., Albert S. Rollins, and Judge Ocie Speer, Asst. Attys. Gen. (Shaw & Kirkpatrick, of Houston, of counsel), for appellees.
   BAUGH, Justice.

This suit was filed by six railroad, companies operating in Texas, and one common carrier motor carrier of freight over the highways, against the Railroad Commission and Thomas G. Hunter to set aside a special commodity permit granted by the Commission to Hunter on March 8, 1937, under the provisions of Sec. 6(d) of the Motor Carrier Law as amended by the Acts of 1937, 45 Leg., p. 651, Ch. 321, Vernon’s Ann.Civ.St. art. 911b, § 6(d). Trial was to the court without a jury upon an agreed statement of facts, and the plaintiffs denied any relief; hence the appeal.

The permit in question, granted after due notice and hearing, provided:

“Thomas George Hunter of Texarkana, Texas.
(Name of Applicant) (Address)
having complied with all the requirements of Chapter 314,' Acts; Regular Session of the Forty-first Legislature, 1929, as amended at the Regular Called Session of the Forty-second Legislature, 1931, applicable to Special Contract Carriers and having declared an intention not to operate as a ‘Common Carrier’ or ‘Contract Carrier’ Motor Carrier is entitled to and is hereby granted a permit to operate as a Special Commodity Carrier within the State of Texas and within the territory as follows:
“It is especially understood and agreed that this permit authorizes the transportation of the following commodities only:
“Household goods from Texarkana, Texas, to all points in Texas and from all points in Texas to Texarkana, Texas.
“Livestock, Livestock Feed Stuffs, Timber when in its natural state, Farm Machinery and Grain from Texarkana, Texas to all points within a radius of 200 miles therefrom and vice versa. Oilfield equipment to and from all points within a 200 mile radius of Texarkana, Texas.
“The transportation of all commodities with the exception of Household goods is prohibited over the following restricted highways.
* ⅜ *»

Here follows nine State highways over which operations were prohibited.

“The transportation of household goods, livestock feedstuffs, farm machinery and grain is prohibited from one dealer to another dealer.
“The transportation of oilfield equipment is restricted to that transported to or from actual oil fields, and the carrier is prohibited from transporting same from one dealer or refinery to another dealer or refinery, or from a dealer to a refinery or from a refinery to a dealer.
“All equipment to be operated under authority of this permit is to be restricted exclusively to that owned by- the holder of such permit and shall not exceed one truck.

as more fully appears in this application filed herein. This permit to remain in effect from and after the date hereof, subject to the provisions of Chapter 314, Acts Regular Session of the Forty-first Legislature, 1929, as amended at the Regular Session of the Forty-second Legislature, 1931; the further orders of the Commission; and the rules and regulations of the Railroad Commission of Texas, heretofore prescribed or which may be hereafter prescribed under and pursuant to the authority conferred upon it by law.”

It is not controverted that in granting such permit the Commission heard evidence upon, and considered, only whether the condition of the highways and use thereof by the public would permit the additional burden imposed by Hunter’s operations. That is, they did not consider the public convenience and necessity for such service; nor whether other motor carriers already authorized were adequately serving the territory involved.

In the hearing before the examiner for the Railroad Commission, appellants objected to Hunter’s application on the ground that it did not comply with the requirements of the Motor Carrier Act (Acts Reg.Sess. 42nd Leg. Ch. 277, p. 480, Vernon’s Ann.Civ.St. art. 911b) applicable to common carriers and contract carriers. They also offered to show, and were denied the opportunity to do so, that public convenience and necessity did not require such additional service over the highways; and that existing authorized carriers were already adequately serving this territory.

While many questions are urged, the validity of said permit depends, in the last analysis, upon a proper construction of Sec. 6(d) of the Act under which the permit was granted. This section of the 1931 Act provides: “ (d) The Railroad Commission is hereby given authority to issue upon application to those persons who desire to engage in the business of transporting for hire over the highways of this State live stock, mohair, wool, milk, live stock feed stuffs, household goods* oil field equipment, timber when in its natural state, farm machinery and grain special permits upon such terms, conditions and restrictions as the Railroad Commission may deem proper, and to make rules and regulations governing such operations keeping in mind the protection of the highways and the safety of the traveling public; * * *

The only change in this section made by the Acts of 1937, was to add, “used office furniture and equipment,” to the list of commodities named in the 1931 Act. We confine our consideration therefore primarily to the 1931 Act.

The original Motor Carrier Act referred to in said permit (Ch. 314, Acts 41st Leg. 1929, p. 698) prescribed two classifications covering, and without any material exceptions, all transportation of freight for hire by motor carrier over the highways. Class “A” included all such carriage over the highways “over fixed routes, under regular schedules and having fixed termini and re-' ceiving compensation or hire for such service in accordance with published rates and tariffs.” Class “B” carriers as defined in that Act included all “motor carriers who transport or carry property for compensation or hire between two or more incorporated cities, towns or villages, but who have no fixed routes regular schedules or fixed termini or published rates.” Both classes therein made were declared by Sec. 2 of that Act to be “common carriers.” Whether the 1929 Act was invalid, in the light of the decisions of the U. S. Supreme-Court, set out and discussed in Stephenson v. Binford, 287 U.S., 251, 53 S.Ct. 181, 77 L.Ed. 288, 87 A.L.R. 721, as attempting by legislative fiat to make common carriers out of private carriers irrespective of the service rendered, we need not here determine. It is to be noted that the 1931 Act does not undertake to do so.

The 1931 Act was obviously intended to cover and regulate every character of motor carriage of freight for hire over the highways. It denominates one class of carrier as “common carriers,” though it nowhere undertakes to define that term; and the other class as “contract carriers,” which it defines as any such motor carrier other than a common carrier. The definition of the term “motor carrier” in Sub. (g), Sec. 1, of the Act is clearly comprehensive enough to include within that term any and every class or type of carrier for hire over the highways of the State.

The authority of a. common carrier under said Act to operate over the highways is evidenced by a certificate of public convenience and necessity. See Sec. 5. Sec. 9 of said Act prescribes the conditions on which such certificate may be issued and what the Commission shall take into consideration in granting it. Sec. 10 prescribes what the application for such a certificate shall contain. Among other things specifically set forth in the Act, the Commission must consider whether the “service rendered by existing transportation facilities or agencies is reasonably adequate”; and the application therefor must point out the “inadequacy of existing transportation facilities or service.”

Contract carriers, a distinct and separate class from common carriers, must obtain a “permit” to operate as such. Sec. 6 prescribes the requisites of an application therefor and Sub. (3) (c) of that Section forbids the granting of such permit if operation thereunder “will impair the efficient public service of any authorized common carrier or common carriers then adequately serving the same territory.” And where authorized contract carriers operate in competition with common carriers the Commission must prescribe minimum rates, fares and charges for such services which must not be lower than those prescribed for common carriers for substantially the same service. See Sec. 6-aa.

Sec. 4 of the Act also makes it the duty of the Commission in the regulation of authorized transportation for hire over the highways, among other things, “to fixr prescribe or approve the maximum or min-' imum or maximum and minimum rates,, fares and charges of each motor carried’ (italics ours) in accordance with the other provisions of the Act.

In brief, when the Act is considered in its entirety, it imposes upon the Commission the mandatory duty, where the physical structure of the highways and the safety and convenience of the public will permit such transportation of freight for hire over them, to so regulate, control, and limit such motor transportation to the-needs of the public; and to so regulate and control same as not to impair existing, operations thereon, whether by private carrier or by common carrier. It negatives any intention to permit the use of such highways for freight transportation for hire unless such use will serve a public purpose or need, and will not impair the-service already authorized and regulated-over such highways.

It is long since settled that the permission and regulation of such operations over the highways must not be discriminatory. While under certain circumstances, exemptions to justifiable classifications, or certain exceptions, to regulation of motor carriage of freight for hire may be granted; the grounds therefor must be reasonable and a substantial basis therefor exist. Sec. 6(d), above quoted, does not expressly exempt carriers of the commodities therein named from the other provisions of the Act. While a legislative intent to do so might be implied, it is by no means clear. Had the legislature so intended it could easily have so stated. On the other hand, the declared purposes of the act and the plain and comprehensive language of the other provisions of the Act, manifest an intention to include within its terms any and every class and kind of motor carrier for hire, whether common carrier or private carrier; and many of the provisions of the Act apply equally to both.

Development of motor transportation in the past two decades, and the increasing use of the highways for commercial purposes ‘by both common and private carriers, with consequent safety hazards and impairment of road beds, has necessitated stringent regulation thereof in the public interest. The primary objective and reasons therefor were to protect the safety and convenience of the public in the use thereof, and to preserve the highways themselves, constructed with the tax payers money. But these were not the only purposes sought in such regulation. The Act in question clearly discloses the additional purposes of preserving other established lines of transportation, and even though a public need be shown for additional operation, a further studied effort is shown to prevent, through regulation, unfair, discriminatory, or destructive competition between such authorized carriers as would ultimately impair their usefulness.

In the main, the Supreme Court of the United States has considered the regulated motor carriers under two classifications,— common carriers and private carriers. Under the latter, a great variety of classifications are to be found; and in the different states various types of motor carriers are exempted from the regulatory acts; or are regulated only to a limited extent. To relieve any particular class of motor carrier for hire from the regulations applicable to the general class to which it belongs, the classification must not be discriminatory, must be clear and specific, and must have a reasonable basis of differentiation from the general classification to sustain it. Otherwise it becomes invalid as contravening the due process and equal protection provisions of the Federal and State Constitutions.

We do not understand appellants to contend that Sec. 6(d) is unconstitutional. But rather that the Railroad Commission’s construction of it is erroneous; and that such construction of it by the Commission renders it discriminatory. We have concluded that the Commission has erroneously construed this Section of the Act. If Sec. 6(d) clearly means what the Commission construes it to mean, it is, we think, invalid as discriminatory. This provision does not expressly exempt such carriers of the special commodities named from the other provisions of the 1931 Act. Nor is it necessary for us to determine whether Hunter be classed as a common carrier or a contract carrier. He was regulated to a limited extent under the permit granted. But we find no more reason, in the language of this particular section, for exempting him from the burden of showing a necessity for the service he proposed to render, that existing facilities in this area were inadequate, and that the proposed operations would not impair existing services ; than for requiring him to comply with other sections of the Act, e. g., Sec. 13, requiring insurance for motor carriers for hire. The language of Sec. 6(d) makes no specific reference to any of these provisions. And if the language of this Section alone be looked to, no more reason appears for applying Sec. 13 of the Act to such applicants than for applying other applicable provisions. The mere recital that in passing upon an application for such special permit, “the protection of the highways and the safety of the traveling public” is to be kept in mind by the Railroad Commission, should not be construed to mean that this was the only applicable provision of the Act that the Commission was required to consider in passing upon such application.

When this 1931 Act was before, and was sustained by, the Supreme Court of the United States in Stephenson v. Binford, supra, the opinion in that case shows that this Sec. 6(d) was attacked as rendering the Act invalid because discriminatory; and that the Attorney General therein asserted that the other provisions of said Act applied equally to such special commodity carriers.

We are not to be understood as saying that the legislature could not make special classifications of commodities which could be excluded from the more onerous burdens of the Act in question. As above stated, its purpose to do so is not clear. If, as urged by appellees, such was the intent and result of Sec. 6(d), the effect would, we think, result in discrimination against other motor carriers. As to household goods, the permit authorized such service from Texarkana to all points in Texas, and from all points in Texas to Texarkana. This regardless of whether a shipper thereof already had available to him between such points adequate common carrier or contract carrier service; and regardless of the effect such service by Hunter might have upon the existing transportation agencies. As to this service only were rates prescribed by the Commission at the time the permit was granted. As to the other commodities named the area to be served extended 200 miles, with certain highways excepted, from Texarkana; and the agreed statement of facts showed that Hunter would haul, upon any terms he saw fit for anyone who would employ him, except as limited in said permit, any of said commodities over the highways, regardless of whether other regulated carriers could and would render the same service; and regardless of the effect the rates he saw fit to charge might have upon such regulated competing carriers over the highways in this area. This is particularly true of feedstuffs, which, it was agreed, he would haul from as far as Fort Worth to a large mule barn at Texarkana. It is manifest, we think, that a permit to do so without regulation as to rate, and without regard to the ability of existing carriers in this area to render the same service, would amount to a discrimination in favor of Hunter, and deny to other regulated carriers equal protection of law. Such a construction of this section of the Act would render it invalid.

On the other hand, if it be construed, as the Attorney General construed it in the presentation of the case of Stephenson v. Binford, supra, to the Supreme Court of the United States, as subjecting this class of carriers to the other applicable provisions of the 1931 Act, it then becomes unassailable. And where a statute is capable of two constructions, one of which renders it invalid as contravening the constitution, and the other sustains its validity, the construction in favor of its validity should be adopted. This is true without regard to the departmental construction that may have been placed upon such law, if such construction render it invalid.

This construction of this section of the statute makes it unnecessary for us'to discuss the contention of the Attorney'General on behalf of the Railroad Commission that one of the appellants, a common carrier motor carrier, whose rights are derived from the Act, cannot, while claiming the benefits of the Act, attack its constitutionality. Such a general rule is now well settled. But if it be conceded that Sec. 6(d) is unconstitutional, the appellant named would not come within such rule. All the benefits accruing to this named appellant are derived from other valid provisions of the Act. It received none nor claimed any, under Sec. 6(d). And this Section of the Act, added to the House Bill by amendment thereto in the Senate, expressly provides that if such Section be declared invalid the legislature would have enacted all other provisions of the Act anyway. And if Hunter’s rights ■ are grounded entirely upon a distinct and separate invalid section of the Act, and those of another carrier derived entirely from other valid provisions of said Act, with whom Hunter’s operations injuriously compete; manifestly such other legally authorized carrier is not estopped to assert the invalidity of that portion of such Act under which he claims no rights and enjoys no benefits.

The question of whether or not appellants showed themselves to be such interested parties within the terms of the statute as to entitle them to bring this suit need not be discussed at length. It was, we think, effectually disposed of in favor of the right of competing carriers to do so, in Railroad Commission v. Red Arrow Freight Lines, Tex.Civ.App., 96 S.W.2d 735, 739, writ refused, to which we refer without further discussion here.

It follows, therefore, that the Railroad Commission did not take into consideration, in granting Hunter’s permit, the matters above outlined which the statute itself makes it their mandatory duty to determine. The appellants, protestants of Hunter’s application before the Railroad Commission were entitled to require a compliance by Hunter with the law in his application for such permit; and to present proof on the matters covered by the statute. Granting of such permit without compliance with the applicable provisions of the statute renders the permit invalid, under the agreed facts.

The permit attacked is therefore set aside as invalid, the judgment of the trial court is reversed and the cause remanded for such ancillary relief as may be appropriate.

Reversed and remanded.


author: SHARP, Justice.

text:
    RAMIREZ v. ACKER et al.
    No. 7560.
    Supreme Court of Texas.
    April 17, 1940.
    Clarence A. Miller and L. P. Lollar, both of Houston, for plaintiff in error.
    Kayser, Liddell, Benbow & Butler and Jack Binion, all of Houston, for Arnett et al.
    S. O. Lovejoy, of Houston, for Wofford.
   SHARP, Justice.

This is a trespass to try title suit. John Ramirez filed suit against Mrs. Sophie Acker and husband, William Acker, W. C. Arnett and wife, Lura Arnett, and Luke Wofford, and others, to recover lots 1, 2, 3, 4, 6, 7, 8, 9, and 10 of tract No. 144, South Houston Gardens No. 6, subdivision of the H. T. & B. B. R. R. Company, said lots containing about three acres of land, and being situated in Harris County, Texas. He also sought to recover 6,887.5 square feet of land adjacent to. and immediately east of said lot 144,, and alleged that the defendants Acker claimed lot 4 and the 6,887.5 square feet described in his petition, and that defendants Arnett claimed lot 10, and that defendant Wofford •claimed lot 7. His ground for recovery was based on the ten years statute of limitation. The cause was submitted to a jury on special issues, and, based upon the findings of the jury, the trial court entered. judgment for the defendants. Ramirez appealed to the Court of Civil Appeals, and the judgment of the trial court was affirmed. 124 S.W.2d 905. •

Reference is here máde to the opinion of the Court of Civil Appeals for a detailed statement of the testimony contained therein.

A writ of error was granted by this court because of the argument of counsel in the trial court.

It is shown by the opinion of the Court of Civil Appeals that most of the defendants have settled with the plaintiff, and the issues existing between them and Ramirez. are not involved here. Ramirez saw fit to include in the suit several persons claiming different tracts of land. They were represented by different counsel, and each relied on a distinct and separate defense. They did not make a common defense. The argument to which objection was made in the trial court was made by counsel for parties who have settled their differences with Ramirez and who are not interested in the outcome of this case. We are concerned here only with the argument made by counsel for the Ackers and the Arnetts, who claimed part of the land sued for.

The frequency with which this court is called upon to review assignments complaining of arguments of counsel in the trial of cases impels us to restate briefly some of the rules relating thereto. The rule has long been in force in this State that “counsel shall be required to confine argument strictly to the evidence and to the argument of opposing counsel.” See Rule 39, relating to district and county courts. The scope of argument by counsel to the jury is always under the supervision of the court. It is the duty of the court to maintain decorum during the trial of a case, and to require counsel to limit argument to the facts in evidence. Great latitude is allowed counsel in discussing the facts and issues. Counsel are permitted to show the. environments of the case; they may comment upon the bias or interests of the parties and witnesses, and may discuss the reasonableness or unreasonableness of the evidence and its probative effect or lack- of probative effect; but such latitude extends only to the facts and issues raised by the evidence in the case. It is only by adhering strictly to this rule that the rights of litigants can be protected and the law administered justly and impartially.

This court has announced two principal rules relating to the effect of arguments made by counsel in the trial of a case.

One rule is: If counsel goes outside of the record, or indulges in inflammatory language, in order to influence the jury to return a verdict favorable to his client, or if he gives the jury information not in evidence, calculated' to injure the opposing side, and such argument is not in reply to argument of opposing counsel, this constitutes misconduct, and requires a reversal of the case; unless it clea.rly appears that no injury resulted to the other side. And it is the duty of the court upon its own motion to repress such argument. Where the argument of counsel is so prejudicial or inflammatory that no instruction from the court would cure the error, the duty does not rest upon opposing counsel to object to the argument and request the court to instruct the jury not to consider same. - This rule has long prevailed in this State, and has been approved many times. 41 Tex.Jur. p. 801, sec. 78, pp. 815, 816, sec. 85; Willis & Bro. v. McNeill, 57 Tex. 465; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Bell v. Blackwell, Tex.Com.App., 283 S.W. 765; Prather v. McClelland, Tex.Civ.App., 26 S.W. 657.

In the early case of Willis & Bro. v. McNeill, supra, in discussing rules controlling arguments made by counsel in the trial of cases before juries, this court said: “Under these rules the duty devolves affirmatively, first, upon counsel to confine the argument strictly to the evidence and to the argument of opposing counsel; second, upon the court, on its own motion, to confine counsel to this line of argument. If both the counsel who is making the argument and the court should fail in the discharge of this duty, then the rules give to opposing counsel the privilege, hut does not make it his duty, to then present his point of- objection. This discretion given to counsel, as to whether he, will make the objection at the time, was doubtless based upon the well known embarrassments and often prejudice which generally attend the interruption of the argument of one counsel by another; and was intended to place that as a duty where it properly belongs— upon the presiding judge.”

The foregoing holding has been approved by this court many times, and it is embodied in the rules adopted by this court defining the nature of argument that is proper and improper. See Rules 39 and 41, relating to district and county courts.

The second rule is: If the argument is of such a nature or is made under such circumstances that if objection is made at the time, so that counsel can offer an explanation or make such corrections as will make such argument proper or harmless, or if the argument is of such a nature that its withdrawal by counsel or instruction by the court to the jury to disregard same will cure the error and render the effect of the argument harmless, the complaining party must object to such argument and request the court to instruct the jury not to consider same; and failure so to do waives the error. Robbins v. Wynne, supra; City of Waco v. Rook, Tex.Civ.App., 55 S.W.2d 649; Gulf, C. & S. F. R. Co. v. Greenlee, 70 Tex. 553, 8 S.W. 129; 41 Tex.Jur., p. 833, § 88.

The argument to which objection was urged in the trial court was made by counsel representing parties not involved here. This record discloses that counsel for the Ackers and the Arnetts disavowed the argument made by counsel for the other parties, and asked the jury to disregard same. Therefore it appears that the complaints involved here are restricted to the argument made by counsel for the Ackers and the Arnetts. In order to show the argument involved here, we quote and adopt the following from the opinion of the Court of Civil Appeals, 124 S.W.2d 905, 909, written by Mr. Justice O’Quinn:

“Assignments Seven, Eight and Nine complain of improper argument of counsel for defendants Ackers and Arnetts. They are presented together, and we shall so consider them. In effect they are: (a-7) That counsel told the jury that plaintiff’s suit was one that ‘stinks’ and that plaintiff was the victim of a scheme or design by somebody toiuse him to their advantage and not to the advantage of plaintiff, and that somebody ought to be indicted for filing and prosecuting the suit; it being urged that said argument was prejudicial in that it left the inference in the minds of the jury that plaintiff’s counsel, or others, conspired with plaintiff to bring the suit for some malicious or fraudulent purpose ; (b — 8) that defendants were not going to pay ‘blood-money’ in the form of a settlement as had been exacted from others who had made settlements, the objection to said argument being that same was without support in the record and prejudicial; and (c-9) that the suit was brought primarily for the benefit of the Stanolind Oil Company, • said argument was without evidence to support same and was prejudicial and calculated to deprive plaintiff of a fair and impartial verdict by the jury. The court approved these bills of exception presenting these matters with the qualification that no objections or exceptions were taken to any of said arguments when made.”

It is not the purpose of the rules announced by this court to unreasonably limit counsel in discussing the facts and issues raised by the evidence. Great latitude must be allowed in this regard. Counsel ofttimes in their zeal in their arguments to the jury make statements the effect of which can be controlled by the court’s telling counsel to desist making same and by instructing the jury to disregard same.

After a careful consideration of the record before us, and the peculiar facts involved in this case, we think the argument of counsel was of such a nature that, if it had been objected to, a reprimand by the court to counsel for making such argument and an instruction by the court to the jury to disregard such argument would have rendered it harmless. Under the state of this record it was the duty of counsel for Ramirez to make objection to the argument at the time it was made, if it was desired to reserve exception to such argument. This was not done. Therefore the exception was waived.

The judgment of the Court of Civil Appeals is affirmed.


author: CRITZ, Justice.

text:
    BROADDUS v. LONG.
    No. 7563.
    Supreme Court of Texas.
    April 17, 1940.
    E. T. Miller, of Amarillo, and Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for plaintiff in error.
    A. A. Lumpkin, R. E. Underwood, Jr., and James G. Lumpkin, all of Amarillo, for defendant in error.
   CRITZ, Justice.

This suit was filed in the District Court of Potter County, Texas, by Boyce Long against F. Leroy Broaddus to recover damages for personal injuries received by Long as the result of a collision between a motorcycle driven by Long and a taxicab owned by Broaddus, and driven by one Charles Shelly. The case was finally tried in the district court, where it was submitted to a jury on special issues. So far as pertinent to this opinion, the jury found:

1. That, at the time of the collision, Charles Shelly was operating the taxicab which collided with Long’s motorcycle, on a mission for and on behalf of Broaddus..

2. That Charles Shelly was negligent in the way he operated such taxicab.

3. That such negligence was the proximate cause of Long’s injuries.

4. That the collision was not the result of an unavoidable accident.

5. That Long was not guilty of contributory negligence.

6. That Long’s damages amounted to $3,999.15.

Based on the above verdict, the district court entered a judgment for Long, and against Broaddus, for the amount above indicated. This judgment was affirmed by the Court of Civil Appeals. 125 S.W.2d 340. Broaddus brings error.

By proper assignments, Broaddus contends that under the undisputed evidence contained in this record, the trial court committed error in not giving his requested charge to the jury instructing a verdict in his favor; and that the Court of Civil Appeals erred in its ruling that the district court did not err in refusing such instruction. This contention is based on the further contention that, under the undisputed evidence in this record, Shelly was not acting in the course of his employment as a servant or employee of Broaddus at the time of this accident.

On behalf of Long, the evidence contained in this record shows the following facts: That Broaddus at the time of this accident owned and operated a taxicab business in the city of Amarillo; that he employed eleven cabs and twenty-one drivers in the operation of such business; that such business was conducted from a certain premises in the city; that such business was in . operation at all hours during the day and night; that a telephone operator and checker was kept on duty at all times at such place of business; that the duties of such operator and checker were to receive calls, designate cabs to fill such calls, and settle each day with the cab drivers, who worked on a percentage basis; that the cab involved in this collision belonged to Broaddus, and was one of those operated by him in his taxicab business; that, at the time of the collision, the cab was being operated by Charles Shelly; that Shelly was one of Broaddus’ cab drivers regularly employed as such; that shortly before this collision, Shelly had driven a passenger to a certain point in the city, and on his return had picked up another' passenger, and that, at the time of this collision, Shelly was turning to stop-at a telephone to call Broaddus’ place of business to find out if the person in charge was ready for him to bring the cab in.

To our minds, the Court of Civil Appeals was correct in holding that the above evidence was sufficient, in law, to-support a fact finding that, at the time of this collision, Shelly was acting within the-scope or course of his employment as a servant or employee of Broaddus. In other words, we think that the above evidence is-sufficient, in law, to establish prima facie the fact just mentioned. In this connection, we think it is the law as applied to this case, that Long having proved Broaddus’ ownership of this cab, that his-servant negligently operated it at the time of this collision, and that such negligence was the proximate cause of his injuries, he proved a prima facie case against Broad-dus. We think further that, for Broaddus to escape liability under the above facts, he must prove that the servant was not acting within the scope of his employment at the time of such collision. Studebaker Bros. Co. v. Kitts, Tex.Civ.App., 152 S.W. 464; Mrs. Baird’s Bakery v. Davis, Tex.Civ.App., 54 S.W.2d 1031; Lightsey Black & White Cab Corp. v. Littlefield, Tex.Civ.App., 48 S.W.2d 766, writ refused; Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384; 5 Am.Jur., p. 842, § 612. We approve the rule as stated in 5 American Jurisprudence, supra. Such rule is as follows: “Again, if it is proved that the automobile in question was owned by defendant, and further proved that the driver was in the employment of defendant, a presumption then arises that such driver was within the scope of his employment when the accident occurred. The burden of proof is then placed on the defendant to prove that at the time of the accident the driver was not acting for him, but was using the machine for his own purposes, or outside the scope of the employment.”

Broaddus contends that the evidence contained in this record shows, as a matter of law, that Charles Shelly was not acting within the scope of his employment as his (Broaddus’) servant or employee at the time of this accident. This contention is based upon the further contention that the following facts are conclusively proved: That at the time of this accident Charles Shelly had been working for Broaddus a little more than a month; that Shelly was employed to drive cab No. 87 from 6:30 in the morning until 6:30 in the evening; that on the evening of August 5, 1937, the •date of this accident, Shelly operated his cab No. 87 until 6:30 in the evening, as he was employed to do; that on the evening •of August 5, 1937, Shelly returned the cab he was driving, and employed to drive, to Broaddus’ place of business, and checked out for the day to one Dale Mason, who represented Broaddus at his place of business as telephone man and checker; that at the time of this collision Broaddus had in his employment another cab driver, named Tommie Malone, who was employed to drive cab No. 77 from 6:30 in the evening until 6:30 in the morning; that on the afternoon of the date of this collision Malone requested Shelly to drive his (Malone’s) cab No. 77 some thirty or forty minutes while Malone was moving from one hotel to another in the city; that Shelly agreed to accommodate Malone, as requested; that after Shelly had checked in the cab he was employed to drive, being cab No. 87,’ at 6:30 in the afternoon on the date of this accident, he met a customer ■out in front of the cab lot; that in compliance with his agreement with Malone, Shelly took cab No. 77, which Malone was hired to drive, and drove such customer to his desired destination; that while returning from such destination, Shelly picked up another customer and delivered him to his destination; that after delivering such last-mentioned customer, Shelly was preparing to turn in to a place where there was a telephone, to get instructions from Broaddus’ place of business, when this collision occurred. Broaddus further contends that the evidence contained in this record conclusively shows that in driving this cab at the time of this collision, Shelly acted without authority from him or his agent in charge of his place of business, and without their knowledge or consent.

Simply stated, Broaddus contends that the facts above detailed show that at the time of this collision Shelly was driving this cab as an accommodation for Malone, and for Malone’s benefit, and not as his (Broaddus’) servant or employee. Stated in another way, Broaddus contends that since Shelly was not employed to drive this cab, and was not even employed to drive at all at the time of this collision, and since Shelly operated this cab without his (Broaddus’) knowledge or consent, and without the knowledge or consent of his (Broaddus’) agent in charge of his business, and since Shelly operated this cab against his (Broaddus’) express instructions, and since Shelly operated this cab solely to accommodate Malone, who was employed to drive the same, Shelly, in operating this cab, was not his (Broad-dus’) employee or servant; but was in the same position in that regard as a complete outsider, not in his (Broaddus’) employment at all, would have been had Malone induced or employed such outsider to drive this cab at the time of this collision, under the same circumstances that he induced or employed Shelly to do so. We have carefully examined this record in regard to the testimony therein contained, touching the question as to whether or not Shelly was acting within the scope of his employment at the time of this collision, and in our opinion, even to admit that such evidence, if believed by the jury, would constitute a complete defense for Broaddus in this action — a question we do not decide — still, we do not think that such evidence comes from witnesses whom, under the circumstances of this record, the jury was bound to believe.

Issue No. 1 propounded to the jury by the trial court reads as follows: “Do you find from a preponderance of the evidence that Charles Shelly, at the time of the collision in question, was operating the taxicab in question on a mission for and in behalf of the defendant, F. Leroy Broad-dus?”

As already indicated, the jury answered the above question, “Yes.”

Broaddus filed the following exception to such issue: “Defendant excepts and objects to special issue No. 1, because there is used in said issue the word ‘mission,’ which is a legal and technical term requiring definition and explanation for the benefit of the jury, and no where in said issue, or in the court’s charge elsewhere, is the jury instructed as to the meaning of the word ‘mission.’ ”

A reading of the above exception will demonstrate that it merely excepts to the above issue, and to the charge as a whole, because it does not define the word “mission” used in such issue. In order to render the master liable for the act of his servant, such act must be committed within the scope of the general authority of the servant,- in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed. In the argument contained in the application for the writ of error, counsel for Broaddus contend that the term "mission” embraced the question of scope of employment, and it seems to be on that ground that they contend that the term should have been defined. To our minds, the term “mission” has reference to the master's business, or the accomplishment of the object of the servant’s employment. It certainly has no remote reference to scope of employment. By asking the jury if Shelly was operating this taxicab on a mission for and in behalf of Broad-dus, the court, in effect, asked if Shelly was operating such taxicab in furtherance of Broaddus’ business, or for Broaddus’ benefit. The question does not submit the issue of scope of employment, and a mere exception that “mission” was not defined, was not sufficient to amount to a request that such issue be submitted.

The judgments of the district court and the Court of Civil Appeals are both affirmed.