text:
    WICHITA FALLS & SOUTHERN R. CO. v. ANDERSON et ux.
    No. 2049.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 18, 1940.
    Rehearing Denied Nov. 8, 1940.

      Conner & Conner, of Eastland, for appellant.
    Grisham & Grisham of Eastland, for appellees.
   FUNDERBURK, Justice.

This suit was brought by D. Anderson and wife, father and mother of Ovada Anderson, against Wichita Falls & Southern Railroad Company to recover damages for the death of said Ovada Anderson, a 17 year old girl, growing out of a collision between an automobile, in which said daughter was a guest, and one of defendant’s trains at a crossing in Ranger, Texas, of said railroad with the Bankhead Highway. In a jury trial judgment upon the verdict of the jury was given for the plaintiffs amounting to $3,270, from which judgment the defendant has appealed.

Plaintiffs’ alleged cause of action embraced five separate grounds of negligence (grounds of recovery) in effect as follows: (1) Failure to sound whistle, at least 80 rods from the crossing; (2) failure to ring bell continuously for 80 rods from crossing; (3) failure to clear timber and underbrush from defendant’s right of way (alleged to have constituted an obstruction to the view of the train from the highway, thereby rendering the crossing dangerous); (4) failure to maintain at said crossing an automatic bell, a wigwag, and a watchman; (5) failure to maintain at said crossing either an automatic bell, or a wigwag or a watchman.

The distinctive elements of said first and second grounds of negligence, or grounds of recovery, were submitted and found in favor of the defendant. The third ground of negligence was submitted thus: “Do you find from a preponderance of the evidence that at the time of the accident the defendant had failed to clear the timber and underbrush, if any, of sufficient size to obstruct the view from its right of way to the left of the occupants of the automobile as- they approached the crossing in question?” This question was answered “Yes”, as also the further questions of whether such failure was (1) negligence, and (2) a proximate cause of the accident.

Alleged ground of negligence designated (4) above (i.e., failure to maintain at the crossing an automatic bell, a wigwag and a watchman) was not submitted, and no question is raised regarding the failure to submit it. In fact, plaintiffs frankly state in their brief that they do not contend that the defendant was under duty to do more than maintain either an automatic bell, a wigwag or a watchman.

Relating to the fifth ground of negligence as pleaded, and which was alternative to (4), issues were submitted, and found in favor of the plaintiffs, to the effect, as follows: (A-l) failure to maintain an “automatic signal light”; (A-2) whether such failure was negligence; and (A-3) whether a proximate cause. (B-l) 'Failure to maintain an “automatic bell”; (B-2) whether negligence; and (B-3) whether a proximate cause. (C-l) Failure to have a watchman at crossing; (C-2) whether negligence; and (C-3) whether a proximate cause. The driver of the automobile was found-to have been guilty of contributory negligence, but said Ovada Anderson was acquitted of contributory negligence. The damages were found to be $3,270.

It is admitted by plaintiffs that the verdict upon said third ground of negligence, although in favor of the plaintiffs, will not support the judgment. Such admission is made in recognition of a legal proposition ,to the effect that the failure of the operator of a railroad to remove obstructions to the view of the railroad by persons upon a highway, approaching a crossing, is not a ground of actionable negligence. This proposition is supported by many decisions of the courts of this State, of which it is deemed sufficient to mention only the following: Galveston, H. & S. A. Ry. Co. v. McCrorey, Tex.Com. App., 23 S.W.2d 691;. Missouri, K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S.W. 956; International & G. N. Ry. Co. v. Knight, 91 Tex. 660, 45 S.W. 556; Oden v. Texas & P. Ry. Co., Tex.Civ.App., 9 S.W.2d 367.

The judgment is sought to be sustained upon the ground that the evidence regarding trees and brush as obstructions to the view of the railroad by the occupants of the automobile as they approached the crossing is available to support the verdict upon one or another of the grounds of negligence wherein the several alleged omissions were (1) failure to maintain an “automatic bell”, failure to- maintain a “wigwag” and failure to maintain a “watchman.” We agree that such evidence, subject to questions of the sufficiency of pleadings to support it and of its applicability and sufficiency, is available for such purposes.

Subject to one possible exception hereafter noticed, no facts were alleged which would support the alleged legal conclusion that “it was the duty of the defendant to maintain at said crossing an automatic bell, a wigwag * * * or a watchman to give some character of warning to people operating automobiles in the night time thereat.” The facts necessary to support such legal conclusion would be such conditions, if any, surrounding the crossing as rendered it more than ordinarily dangerous; facts to show that the crossing was a place of extraordinary danger, meaning “a place so peculiarly dangerous that prudent persons cannot use the same with safety.” Missouri, K. & T. Ry. Co. v. Long, Tex.Com.App., 299 S.W. 854, 855. Allegations of mere legal conclusions, absent the averment of any facts to support such legal conclusions,' do not amount to an allegation of such facts. Gray v. Osborne, 24 Tex. 157, 76 Am.Dec. 99; Glasscock v. Hamilton, 62 Tex. 143; McCamant v. Batsell, 59 Tex. 363; City of Austin v. Walton, 68 Tex. 507, 5 S.W. 70.; Western Union Telegraph Co. v. Mitchell, 91 Tex. 454, 44 S.W. 274; Brush Electric Light & Power Co. v. Lefevre, 93 Tex. 604, 57 S.W. 640, 49 L.R.A. 771, 77 Am.St.Rep. 898; City of Amarillo v. Tutor, Tex.Com.App., 267 S.W. 697; Bluitt v. Pearson, 117 Tex. 467, 7 S.W.2d 524; Millican v. McNeil, 92 Tex. 400, 49 S.W. 219; Laas v. Seidel, 95 Tex. 442, 67 S.W. 1015; Blaisdell, Jr., Co. v. Citizens’ Nat. Bank, 96 Tex. 626, 75 S.W. 292, 62 L.R.A. 968, 97 Am.St.Rep. 944; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Wichita County Water Imp. Co. v. Curlee, 120 Tex. 103, 35 S.W.2d 671; Sereno v. Triggo, Tex.Com.App., 1 S.W.2d 607; Rotsky v. Kelsay Lumber Co., 118 Tex. 180, 12 S.W.2d 973:

There was no allegation, even as a legal conclusion, to the effect that the crossing was extraordinarily dangerous. Railroad crossings are inherently dangerous, and knowledge of a railroad crossing imputes a knowledge of danger. Gulf, C. & S. F. Ry. Co. v. Gaddis, Tex.Com.App., 208 S.W. 895; San Antonio & A. P. Ry. Co. v. Singletary, Tex.Civ.App., 251 S.W. 325; Wichita Valley Ry. Co. v. Fite, Tex.Civ. App., 78 S.W.2d 714; Compton v. Texas & N. O. Ry. Co., Tex.Civ.App., 96 S.W.2d 239. Manifestly not every mere difference in the degree of such danger can imply the legal duty of providing extraordinary means of warning consisting of the maintenance of an automatic bell, wigwag or a watchman. The real test is that stated in the Long case, supra, namely, is the crossing a place so peculiarly dangerous that prudent persons cannot use the same with safety unless extraordinary care to avoid injuring such persons required such extraordinary means? By this test we think plaintiffs’ pleadings were insufficient to support a judgment based upon a failure to maintain an automatic bell, a wigwag or a watchman.

It may be that plaintiffs’ insistence to the effect that the judgment is supported by the evidence of obstructions should be construed as including the contention that the allegations regarding the obstructions aided the allegations of legal duty, which, as we have said, are but allegations of legal conclusions. Those allegations expressly referred to a ground of negligence admittedly not sanctioned by law as a ground of recovery.

If, however, it be assumed that they may nevertheless be appropriated in aid of the allegation of the defendant’s duty to maintain one or another of the extraordinary means of warning, then we are forced to the conclusion that the evidence admissible within such construction of the pleadings was insufficient. The trees and brush are alleged to be on the railroad right of way. The evidence was not so confined; but related as well to trees and brush along the highway and not upon the railroad right of way. The evidence of trees and brush confined to the railroad right of way, taken most strongly in favor of the plaintiffs, was insufficient, we think, to show, or raise an issue of the fact that the crossing in question was extraordinarily dangerous within the meaning of that term, or the usual' equivalents of such term.

The jury found that the driver of the automobile was guilty of contributory negligence. Such finding was based upon evidence almost if not quite conclusive. While under the circumstances the negligence of the driver was not shown to be imputable to the deceased, as contributory negligence, yet such evidence had great weight upon the issues of the defendant’s negligence. The effect of the evidence was that the driver, in the absence of the extraordinary signals, could, by the exercise of ordinary care in observing the usual signals that were given, have made the crossing safely. In the face of such evidence there is a total absence of any other evidence of probative force that the occupants of the automobile could not by the exercise of ordinary care by stopping and waiting have made the crossing safely without there being an automatic bell, wigwag or a watchman at the crossing.

Furthermore, we are of the opinion that the general question of the defendant’s liability in this case under the undisputed evidence is to be determined the same as if it were admitted, or conclusively established, that the train was running across the highway completely blocking it when the automobile ran into it. In other words, the decisions in cases like Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714, Cisco & N. E. Ry. Co. v. McCharen, Tex.Civ.App., 118 S.W.2d 844, by this court, and cases therein cited, are applicable. Apparently disinterested witnesses, including two police officers, in a position most advantageous to see what happened, testified that the automobile approached the crossing at a high rate of speed and to within 12 steps of the railroad and then too late attempted to avoid the collision by turning to the right onto the track, and that at the time the train was partly on the highway with its headlight shining upon the crossing. There was neither testimony nor physical facts contradictory of such evidence. The circumstances conclusively shown by the evidence leave no basis, we think, to support a conclusion that if there had been an automatic bell, wigwag or watchman they could have given any more effective warning of the presence of the train than was given. The blowing of the whistle, the ringing of the bell, the presence of the locomotive partly upon the highway with a standard locomotive headlight shining in front of it along a straight track, and, therefore, necessarily upon the crossing, gave all the warning, so far as there was any evidence to show, that one in the exercise of reasonable care required.

The evidence, as we view it, does not present a case of concurring negligence of the defendant and the driver of the car. The evidence fails to show negligence on the part of the defendant, and, therefore, there could be no concurrence of such nonexistent negligence with the negligence of the driver to produce the collision. The conclusion seems inescapable that the sole cause of the collision was the negligence of the driver of the automobile. These observations are made in reference to the contentions of the appellant that the court erred in overruling its motion for an instructed verdict and/or in overruling its motion for judgment notwithstanding the verdict of the jury. It is deemed unnecessary to discuss other assignments of error.

In our opinion, the judgment of the court below should be reversed and the cause remanded, which is accordingly so ordered.

       It thus appears that a pleaded single ground of recovery alternative to another single ground of recovery was split into three parts and each submitted as in itself a separate ground of recovery. The finding of all three in favor of the plaintiffs produces a curious result. Such result is the exact legal equivalent of a finding in favor of the plaintiffs upon the unsubmitted alternative ground of recovery, viz., failure of defendant to maintain an automatic hell, a wigwag and a watchman. There was no pleading to the effect that failure to maintain an automatic bell was alone either negligence or á proximate cause of the collision, nor was there any such allegation as to the failure to maintain a wigwa'g, or the fáilure to maintain a watchman. No point is made of this, nor do we find it necessary or deem it advisable to make any disposition of the case dependent upon it.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    DAVIS v. WILLIAMS.
    No. 8936.
    Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1940.
    Rehearing Denied Nov. 13, 1940.

      Upton, Upton & Baker, of San Angelo, for appellant.
    ■ W. A. Wright and D. I. Durham, both of San Angelo, for appellee.
   BLAIR, Justice.

Appellant, Mrs. B. E. Davis, surviving wife of Jeff D. Davis, deceased, instituted this proceeding to contest his will and to annul the order of the County Court probating it, alleging mental incapacity of testator to make it and that it was made because of undue influence practiced upon him. The jury found these two issues against appellant, and judgment was accordingly rendered for proponent; hence this appeal.

Three propositions or points complaining of asserted errors in the admission of testimony are presented. The first point presented by the first and second propositions arose as follows:

As tending to show that the testator did not have mental capacity to know and understand the nature and extent of his property, and as tending to show that he did not own the land he devised by his will, appellant offered in evidence two deeds. The first was a warranty deed dated February 14, 1903, whereby testator conveyed to his wife, appellant, the 480 acres of land described in the will “for and in consideration of the sum of Ten Hundred and Forty ($1040) Dollars, to me paid out of her own, separate estate and means,” and further reciting that the conveyance was “to and for her separate individual use and benefit.” The second was a deed dated January 2, 1935, whereby testator conveyed to appellant as a gift in prsesenti an undivided one-half interest in the same 480 acres of land, the deed reciting that “on the 27th day of July, 1905 the undersigned Jeff D. Davis did convey to his wife B. Lizzie Davis” the described .land, and further that “the said B. Lizzie Davis has had conveyed to me an undivided one-half interest in and to said land above described as my separate individual property.” In rebuttal, proponent introduced in evidence two other deeds, each dated January 2, 1935. By the first deed testator and his wife, appellant, conveyed an undivided one-half interest in the same 480 acres of land to Elizabeth Passow for a recited consideration of $10. By the second deed, Elizabeth Passow and her husband conveyed this undivided one-half interest in the same 480 acres of land to testator, the deed reciting that the conveyance was made in consideration of the payment of $10 by testator, “and for the further consideration of carrying into effect the will of B. Lizzie Davis, as expressed in her deed to Elizabeth Passow of even date herewith.” And over appellant’s objection, proponent’s witness, Hon. W. A. Wright, was permitted to testify as follows: “On the 2d day of January, 1935, Jeff Davis and his wife and Mrs. Edward Passow came into my office in San Angelo, Texas; it may be that Ed Passow was there; I don’t remember about that; Mr. Davis, in the presence of his wife and never denied by her, told me that back in 1904 he had deeded the land described in the deeds that I then wrote, and the land that is described in the application here, was deeded to Mrs. Davis by Jeff Davis; that she gave him nothing for it, and the deed was made for the purpose of protecting their property in case the widow of a man Smith, or any of their relatives, had sued, or were going to sue, and get judgment against Jeff Davis for killing Smith; * * * that they had agreed among other things they were going to divide that property; that Mrs. Davis was to have half of it as her separate property and that Jeff Davis was to have the other half as his separate property. Jeff Davis also told me that he had been advised that they couldn’t make the deeds one to the other, but that they would have to deed all that property to someone else, and then let that someone else deed an undivided half interest to Jeff Davis as his separate property, and they seemed so set on that * * * they wanted it done that way, and I did it that way.”

The specific objection to this testimony was and the contention here made is that the consideration recited in the 1903 deed was contractual, and therefore the parol testimony was not admissible to show that the consideration was different from that expressed in the deed. Further, it is contended that the effect of the parol testimony was to ingraft a parol trust on and to contradict the contractual recitals in the deed that the property was conveyed to appellant as her separate property and for her individual use and benefit. And further, appellant contends that by the admission of this illegal parol evidence she was prevented from, showing by the deed that testator did not own the property he attempted to devise by his will, and that in consequence she was, by the illegal testimony, deprived of the deed as competent evidence on the issue of the mental capacity of testator to know and understand the nature and extent of his property. These contentions are not sustained.

It may be observed that this is not a suit in trespass to try title to determine in whom the deeds actually vested title, but it is one contesting the will and to annul the 'order probating it upon the grounds of mental incapacity of testator to make it and because of undue influence practiced upon him in making the will. In such cases the rule is settled that “in determining the issues of mental capacity and undue influence, wide latitude is allowed both contestants and proponents, the circumstances of any probative value being admissible.” Moos v. First State Bank, Tex.Civ.App., 60 S.W.2d 888, 891; Kennedy v. Upshaw, 64 Tex. 411; Johnson v. Brown, 51 Tex. 65; Reinhardt v. Nehring, Tex.Com.App., 291 S.W. 873. Under this rule the court did not err in admitting in evidence the four above mentioned deeds ; and the oral testimony explaining the circumstances under which they were executed was admissible, not for the purpose of .showing who actually had title under the deeds, but as circumstances which the jury might take into consideration in testing the knowledge and understanding of testator as to the nature and extent of his property, which was an incident the jury might consider in testing the mental capacity of testator to dispose of it by will, and being the ultimate and controlling fact issue submitted to the jury for determination. The last three mentioned deeds were each dated February 2, 1935, and by specific reference showed that they were a part of the same transaction, and were executed about 90 days prior to the execution of the will by testator on April 30, 1935. From the evidence bearing directly upon the issue of mental capacity of testator and the incidental facts relative to these deeds and the circumstances surrounding their execution, the jury could have and apparently did conclude that testator thought he owned as his separate property a one-half undivided interest in the lands which he devised by his will, and that in consequence he possessed sufficient mental capacity to execute the will.

Nor do we regard the oral testimony as varying or showing a different consideration from that recited in the deed. The oral testimony was that the recited consideration had never been paid, and the general rule is that where a deed recites a consideration paid in full, .it may be shown between the parties and those having notice, that the consideration was not in fact paid. Mackay v. Tally, Tex.Civ.App., 220 S.W. 167; 14 Tex.Jur. 810, § 51.

Nor do we regard as material the question of whether the parol' evidence had the effect of ingrafting a parol trust upon the land conveyed by the 1903 deed, and as contradicting its'térms. In the first place, the facts and circumstances adduced by the oral testimony .were merely incidental to the issue of mental capacity of testator to make the will, and the admission of such testimony is controlled by the general rule that trial courts have a wide discretion in the admission of any circumstances of probative value pursuant to the liberal rule herein above quoted.

In the second place, it is apparent that the parties to all the deeds, and particularly to the three deeds executed January 2, 1935, intended to settle and fix the respective interests of testator and appellant in the lands, and the deed of 1903 became of no further consequence. When the three 1935 deeds are considered in the light of the oral testimony concerning the purpose of their execution, which oral testimony as to these three deeds was not objected to, it is manifest that their purpose was to effectuate the wish of testator and his wife to vest in each other an undivided one-half interest in the lands as their respective separate and individual property, and from these deeds and the facts and circumstances surrounding their execution, the jury was authorized to conclude that testator thought he owned the land devised by his will, and as tending to show that testator had sufficient mental capacity to make the will. In any event, the question of title as evidenced by the deeds •could not be determined in this probate proceeding, but is to be determined in the trespass to try title suit between the parties, which the brief of appellee states is now pending.

Proponent’s witness, Ira Davis, over various objections, the principal ones being that the testimony of neither the father nor the mother is admissible to prove illegitimacy of a child born in wedlock, and as being pure hearsay, was permitted to testify that his mother told him she would confess that he had been named “Davis,” and that his father was Jeff Davis; and further that Edward Rue Davis, the devisee named in the will, was witness’ son.

We do not regard the testimony as being materially important to any issue in the case, because testator had the right to devise his property to whomsoever he saw fit. We are also of the view that considered as a whole the evidence was to the effect that his mother confessed to him that he was the illegitimate son of Jeff Davis, and this was admissible “as being family history.” Coker v. Cooper’s Estate, Tex.Civ.App., 176 S.W. 145, 146.

Nor do we sustain the contention of appellant that the court erred in admitting in evidence the opinion of nonexpert witnesses as to the mental capacity of testator at the time he executed the will, without stating the facts upon which the opinion was based; and because such testimony invaded the province of the jury; and in particular witness Willis Smith, one of the attesting witnesses to the will. This witness testified that he had been well acquainted with testator about five years next preceding the execution of the will; that he had numerous conversations with him in which they talked about horse trading, the rounding up of horses and cattle, old times, but as to the particular language used he did not remember, but detailed the exact conversation that took place at the time he was asked to and did sign the will as a witness; and that he had during the time stated observed almost daily the conduct and conversations of testator ; and that from such observations and conversations he was of the opinion that testator was of sound mind when he made his will. We think the nonexpert witness detailed sufficient facts, observations and conversations to enable him to express an opinion as to the soundness of the mind of testator, and particularly under the well-settled rule that it rests largely within the discretion of the trial judge as to whether a nonexpert witness has by conversation and observation of conduct had sufficient opportunity to testify as to the mental soundness or unsoundness of a person’s mind. Keding v. Kveton, Tex.Civ.App., 254 S.W. 612; Shields v. State, 104 Tex.Cr.R. 253, 283 S. W. 844; 24 Tex.Jur., 429, §§ 44 and 45.

The judgment of the trial court is affirmed.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    STATE v. LANGFORD et al.
    No. 11045.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 3, 1940.
    Rehearing Denied Nov. 14, 1940.

      Fred Erisman, of Longview, for appellant.
    No brief filed for appellees.
   MONTEITH, Chief Justice.

This action was brought by the State of Texas, through the District Attorney of Gregg County, against Dewitt Langford, who was alleged to have been the owner and operator of four described marble machines, and Red Purtle, Maxine Parker, Jeff Burgess and Ruel F. Brown, in whose places of business' said machines were alleged to have been exhibited under .his direction, for the purpose of having appellees appear and show cause why said machines should not be destroyed as gambling devices under Art. 637 of Vernon’s Annotated Penal Code. Appellees answered by general demurrer and general denial.

In a trial before the court judgment was rendered that the property be returned to Langford. The court found in his decree that the machines in question were not gambling paraphernalia per se and that the State had failed to show that they had been used or exhibited for gambling purposes.

The record shows that the four marble machines in question were owned and operated by Dewitt Langford and were exhibited under his direction by the other four appellees. The machines consisted of a playing board in which there were a number of holes in which marbles used in playing the game could be lodged. The playing board was protected by a glass cover. Springs and resilient pins were driven into the surface of the playing boards for the purpose of diverting the marbles and causing them to roll in uncertain directions across the surface of the boards. The player in order to secure a marble with which to play the game was required to deposit a five-cent piece in a slot in the machine. When the coin was inserted in the slot the marble was released and was propelled by a plunger inside of the machine on to the playing board. The player could, through chance, obtain a designated number of free games by the marble striking a sufficient number of pins or falling into designated holes on the playing boards of said machines. If the score was not sufficiently high, no free games were won. It was possible to redeem the plays on each of said machines in cash or trade, but it was not shown that plays on any of the machines in question were so redeemed. Appellee Langford testified that he had directed the parties with whom said tables had been placed not to redeem plays on said machines in cash or trade.

Art. 637, Vernon’s Annotated Penal Code, provides, in effect, that if upon a hearing before a justice of the peace or a county or district judge the property seized is found to be a gaming table or bank, or that it is used for equipment or paraphernalia for a gambling house, and was being used for gaming purposes, the judge shall order that the property be destroyed. Section No. 2 of said Article further provides that if the judge before whom the case is pending shall determine that the property seized is not gambling paraphernalia per se but that the same or any part thereof was being used as equipment or paraphernalia for a gambling house and was being used for gaming purposes, and that said property was capable of being used for some illegal purpose, he may, in his discretion, by order of the court declare the same confiscated and cause same to be delivered to the State of Texas.

Art. 619, Vernon’s Annotated Penal Code, provides among other things that: “Any such table, bank, wheel, machine or device shall be considered as used for gaming if money or anything of value is bet thereon.”

The controlling question to be determined in this appeal is whether or not free games won on the said machines constitute a thing of value within the meaning of said Art. 619, and thereby renders said machines gambling paraphernalia, tables or devices.

Appellant contends that free games won are things of value, and that since the undisputed evidence shows that the machines in question were exhibited as contemplated by Art. 623, Vernon’s Annotated Penal Code, which provides that “The word ‘exhibited’ is intended to signify the act of displaying the bank or game for the purpose of obtaining bettors”, that said machines were gambling paraphernalia and that they should be ordered destroyed as such.

No brief has been filed in this court by appellees. ,

While w.e have been cited to no case of parallel facts decided by the courts of this state, and have found none, the courts of the State of Arkansas, under statutes similar in practically all respects to the Articles of the- Penal Code in force in this state, under similar states of fact, have held a machine to be a gambling device where its operation is such that, although the player in any event will receive something, he stands to win something in addition thereto.

The Supreme Court of Arkansas in the case of Rankin, Constable, v. Mills Novelty Company, 182 Ark. 561, 32 S.W.2d 161, 162, a case in which a device upon which a game of baseball could be played, says:

“In order to constitute a gaming device under the statute, it must be one that is adapted or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, and any one who shall bet any money or valuable thing, or ‘any representative of any "thing that is esteemed of value,’ is guilty, under section 2634 of Crawford & Moses’ Digest, of betting on a gambling device. By section 2640 of the same chapter of the Digest ‘gambling’ is defined as the betting of any money or any valuable thing on any game of hazard or skill. It is clear from these sections and the entire chapter on gaming that the word ‘property,’ as used in section 2630, and the word ‘valuable thing,’ mentioned in other sections, are used synonymously, and that any valuable thing or ‘any representative of any thing that is esteemed of value’ is ‘property’" within the meaning of section 2630, supra.
“The machine in question is one which always gives in exchange for a nickel a package of mints, and, in addition to the mints, a number of ‘slugs,’ in varying amounts from two to twenty, with which a game may be played, there being an element of chance in the number of slugs obtained for a nickel. Is the right to play a game obtained in the above manner ‘property’ or a ‘thing of value’ within the meaning of our statute prohibiting the setting up of gambling devices and gambling? We think it is. It is a matter of common knowledge that the maintenance of places, having no value in themselves, but, which are used for amusement only, are among the most remunerative kinds of property, such as miniature golf courses and other like means of amusement, and any thing that contributes to the amusement of the public is a thing of value. * *. * ”
The holding in the Rankin case is followed by the Supreme Court of Arkansas in the case of Howell v. State, 184 Ark. 109, 40 S.W.2d 782.

In the case of Mills v. Browning, Tex. Civ.App., 59 S.W.2d 219, suit was brought to recover automatic mint vending machines which had been seized under Arts. 636 and 637, Vernon’s Annotated Penal Code. The machines in question were operated by inserting a coin in the slot and pulling a lever. The player received a varying number of tokens, some of them reciting thereon “good for in merchandise”, others bearing no inscription. Each of these tokens could be, if the player desired, played back into the machine‘with the hope of increasing the number of the player’s tokens. The court in its opinion held that the machines in question were essentially gaming devices as a matter of law.

In the case of Chambers v. Bachtel, 5 Cir., 55 F.2d 851, 852, the court held that a machine which paid off in tokens which could be played in the machine was a gambling device. In this case there was no proof of an agreement to redeem the tokens received, in cash or merchandise, however by the removal of a pin in the machine coins ranging from a nickel to a half dollar could be substituted for tokens and the machines thereby converted into gambling devices. The court in its opinion says: “He would be a credulous person indeed who could believe that the customers playing with nothing but tokens expected only amusement and were not actuated by the belief that they could exchange them for money or other thing of value. It is of no significance that there was no agreement to redeem the tokens in cash or in goods.”

In the cases of Houghton v. Fox, Tex. Civ.App., 93 S.W.2d 781; Carroll v. State, Tex.Cr.App., 81 S.W. 294; Brogden v. State, 47 Tex.Cr.R. 121, 80 S.W. 378, the courts in each of said cases held that it was unnecessary to prove that money or anything of value was bet upon the game.

The trial court’s implied conclusion that it was necessary for the State to establish that said machines were gambling paraphernalia per se, and that they had been used for gambling purposes, before they could be seized and confiscated cannot be sustained.

In the case of Roberts et al. v. Gossett et al., Tex.Civ.App., 88 S.W.2d 507, 509, under a state of facts similar in many respects to those in the instant case, in that appellant’s suit was against the sheriff and other officers to prevent them from seizing and confiscating the machines and instituting criminal proceedings against them, the court in its opinion says: “The burden of proof was on relators to establish the facts which entitled them to the relief prayed for. We think the record sufficiently shows that respondents were proceeding under an applicable valid statute, and upon facts which prima facie gave them this right. They did not have to show the marble machines were per se gaming tables. Being so constructed as to be capable of being operated as such, their right to proceed is absolute, if they were in fact so operated.” (Emphasis ours.)

Under above holdings, the judgment of the trial court is reversed and the cause remanded with instructions' that the same marble machines in controversy be ordered destroyed as gaming devices or paraphernalia.

Reversed and remanded, with instructions.


author: SMITH, Chief Justice.

text:
    BLOCKER v. BROWN EXPRESS, Inc.
    No. 10750.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 9, 1940.
    Rehearing Denied Nov. 13, 1940.
    Roberts & O’Connor, of Breckenridge, and Kent & Brown, of Harlingen, for appellant.
    Abney & Whitelaw and Seabury, Taylor & Wagner, all of Brownsville, for appel-lee.
   SMITH, Chief Justice.

Plaintiff below, Lois Blocker, was injured in a head-on collision between a car she was driving and a truck owned by Brown Express, Inc., defendant below, and driven by its authorized employee, Arlis Cummings.

The accident occurred between 3 and 4 •o’clock p. m., December 7, 1938, on U. S. Highway 281, at a point seven miles north of the City of Brownsville. Plaintiff was driving south and Cummings north. The collision occurred when the vehicles were passing a gasoline filling station, as plaintiff’s car entered and the truck emerged from a curve of a much-traveled highway.

The plaintiff, Lois Blocker, brought this action against Brown Express, Inc., to recover damages for her injuries, but was denied recovery upon an adverse jury verdict, and has appealed. She will be designated as plaintiff and Brown Express, Inc., as defendant, as in the trial court.

The case is essentially one of fact. Each party charged that the accident was proximately caused by each of numerous acts of negligence of the other, and the jury found that each party was guilty of numerous negligent acts proximately causing plaintiff’s injuries.

The jury .found‘that defendant’s driver was negligent and that such negligence was a proximate cause, in that he (1) failed to keep a proper lookout, and (2) was operating, the truck on his left side of the highway.

On the other hand, the jury found that plaintiff was negligent, and such negligence was a proximate cause of her injuries, in that she (1) was driving at an excessive speed; (2) failed to keep a proper lookout; (3) failed to apply her brakes at two specified stages of the emergency; (4) failed to keep her car under proper control; (5) failed to drive her car to the right and on to the shoulder of the highway.

The elements of unavoidable accident and discovered peril were eliminated by jury findings.

In numerous propositions of law appellant takes the position, or, rather, several related positions, that (1) the evidence did not support the jury findings that plaintiff was negligent in numerous material respects, and that such negligence, in each particular, was a proximate cause of plaintiff’s injuries, and (2) that in view of other facts, not found by the jury but assumed by plaintiff, the findings of contributory negligence should have been disregarded and judgment rendered for plaintiff notwithstanding them. We cannot sustain these contentions. In our opinion there was material evidence to support the several findings of contributory negligence, which were approved by the trial judge and are binding upon this court. The result is that plaintiff cannot recover in the face of those findings, regardless of plaintiff's contrary appraisal of the evidence, and regardless of jury findings that defendant was also guilty of acts of negligence which were themselves proximate causes of the deplorable accident, and regardless of the finding in favor of plaintiff that she did not discover the perils of the situation in time to avoid their consequences.

As stated, the case was essentially one of fact, submitted upon appropriate supported issues, which the jury resolved against plaintiff through controlling findings which settle the case. Upon these conclusions we overrule all of plaintiff’s propositions and affirm the judgment.

On Motion for Rehearing.

In her motion for rehearing plaintiff questions the accuracy of the statement in the original opinion that the accident involved occurred in a “thickly settled community” on United States Highway 281. Being immaterial to the decision, and based perhaps more upon an assumption of the writer than upon evidence in the record that U. S. Highway 281 traverses a continuous “thickly settled” community in the Lower Rio Grande Valley, the statement has been deleted from the original opinion.

Plaintiff requests certain specific findings of fact. We have adopted the findings in the trial court as the findings of this court and conclude they sufficiently cover the case.

Plaintiff urges her conception of the inconsistency between the judgment in this case and that in the companion case of Brown Express, Inc., v. Henderson, Tex. Civ.App., 142 S.W.2d 585. There is this very material difference in the two cases: In this case the plaintiff was the driver of the wrecked automobile, while in the other case the plaintiff was but a mere passenger in the same automobile. Besides, the two appeals present and were determinable by entirely different questions of law, and it is only those questions which we have decided in the respective cases, letting the results fall where they might.

Plaintiffs motion must be overruled.


author: CODY, Justice.

text:
    PALUXY ASPHALT CO. v. HELTON.
    No. 11043.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 10, 1940.
    Rehearing Denied Nov. 14, 1940.
    R. T. Wilkinson, Sr.,-of Mt. Vernon, and Verne H. Maxwell and W. E. Tomlinson, both of 'Dallas, for appellant.
    Maxberry & Vance, of Mt. Pleasant, for appellee.
   CODY, Justice.

This is a suit by appellee to recover damages to his farm, consisting of 163 acres, from appellant, alleged to have been caused by appellant releasing into Trent Branch refinery waste, oil and salt water, which flowed down stream on to and through such farm. Recovery was not sought on the appellant’s negligence, except as negligence is imputed by law to the violation of Articles 698 and 698a, of Vernon’s Annotated Penal Code. Appellee’s allegations were, in substance, that during the spring of 1937, and the winter and spring months of 1938, rains caused Trent Branch to overflow on part of appellee’s farm, and that refinery waste was caused to collect on the soil and Bermuda grass, and that oil and salt were present in the water, which penetrated the mud in the bed and banks of the stream, which caused pollution of ap-pellee’s stock water, and damaged his soil and killed his grass and permanently damaged his land, so that his stock would not drink the water in the Branch, and parts of his pasture land and plowed land ad-joi.ni.jig,- the Branch were permanently injured, for pasturing and farming purposes £q his damage in the sum of $1,500.

Appellant excepted to appellee’s petition because it- did not allege that the refinery waste, etc., were unlawfully and knowingly cast into the waters of Trent Branch; and because the allegations as to damages done by appellant were insufficient. Appellant further pleaded, in addition to a general denial, that many oil wells were located in the Talco oil field, and that many déhydraters were used ⅛ connection therewith ; also, that there were other refineries in the área drained by Trent Branch, and if the Branch was polluted it was caused by others than appellant. Appellant further-pleaded due care to prevent the escape of salt water and refinery waste, and that none had ever escaped except in extremely' high' water, and then not in sufficient quantities' to cause the pollution complained óf.

’In response' to special issues the jury fchind':' '

1. That during the years 1937 and 1938, the appellant’s employees knowingly discharged, or caused to be discharged, on the.--water's of Trent Branch oil and refinery waste, which at one time covered the surface of such stream a distance in excess of 300 feet.

2. That such oil and refinery waste was carried down by its natural flow to appel-lee’s- land.

3. That: as a direct result the reasonable cash value of appellee’s land was permanently depreciated.

4. That the extent of this permanent depreciation, directly resulting from appellant’s employees’ acts, is $750.

5. That appellant did not maintain a trap at its plant adequate to prevent the escape of oil and refinery waste and the spread thereof over the waters of such stream for a distance in excess of 300 feet.

6.- That the damages to plaintiff’s land were not wholly caused by the acts of others.

The evidence disclosed that appellee’s land was about five miles down stream on Trent Branch from appellant’s plant. The Branch originated near the townsite of Tal-co, and drained practically the entire area of the Talco' oil field. Oil had been discovered there in February or March of 1936,. and there were extensive drilling operations for the rest of the year, and much crude oil drained from slush pits of different wells in to the Branch. The oil field is about nine miles long and from a quarter to a half mile wide. Appellant’s refinery was completed about June, 1937. The American Liberty Pipe Line Company and the K. D. Refinery were also adjacent to the Branch. Owen H. Eichblat, Jr., an employee of the Game and Oyster Commission, testified that the major part of the waste of the oil wells in the town-site drained through a ditch known as the W.P.A. ditch into Trent Branch above appellant’s plant, and had no connection with appellant’s plant. Oil placed on the streets of Talco, before it became worked in, was carried by rain down ■ such ditch; that in 1937 a well belonging to Housh & Thompson got loose, and its output was held down the Branch. . He testified that the town-site and surrounding parts of the field created the most serious part of the pollution problem, and that the K. D. Refinery turned quite a bit of oil loose, and was a continual pollution hazard. He also described the trap which he had required appellant to build to prevent the escape of waste. Other evidence showed there were sixty-six producing wells in the field. There was evidence to the effect that a trifle more than half of them were owned by major companies who prevented the escape of waste oil therefrom.

The evidence shows that salt deposits and oil deposits had occurred on ap-pellee’s land. It is a matter of common knowledge that salt deposited on land kills vegetation, and renders land sterile. And there was no evidence that any salt water ever escaped from appellant’s plant; indeed, the evidence was that it would not accept any oil where the contents exceeded one per cent salt water, and that this would evaporate in the process of distilling. Ap-pellee must sustain his judgment for damages, if at all, upon the testimony of his witness, to the effect that he had observed the oil in the Branch, and that half or more of it was cast into.the Branch by appellant. Appellant objected to such evidence on the ground that such evidence was an opinion, and that the witness did not even profess to be an expert. But without taking up appellant’s various assignments of error, we are constrained to hold that the court erred in refusing appellant’s request for a peremptorily instructed verdict in its favor.

In the first place, as already noted, appellant’s liability is predicated not on acts which would have constituted negligence at common law, but upon violation of Articles 698 and 698a, Vernon’s Annotated Penal Code. And we fail to find any testimony to the effect that oil and refinery waste from appellant’s plant spread over the waters of the Branch or covered its surface for a distance of 300 feet. But it would not, of itself, fix liability on appellant for the damages suffered by ap-pellee through the pollution of the stream, if it were established that appellant had been guilty of violating the statutes against stream pollution. For the undisputed evidence showed that the sources of the established pollution were various, and appellant 'could not be held liable for the damages caused by otters. Were we to assume that oil alone caused the damages to appellee’s land, it is still largely conjectural as to how much of the oil deposited on appellee’s land came from appellant’s plant. And what was said in De Garza v. Magnolia Petroleum Company, Tex.Civ. App., 107 S.W.2d 1078, 1082, where salt was the agency complained of, is here applicable : “In other words, there were so many ways, and so many sources from which the salt that contaminated appellants’ tanks may have come, that we cannot indulge in the presumption that this salt came from the leases of appellee, and certainly we cannot presume that it came in sufficient quantities to do damage.”

In Tucker Oil Co. v. Matthews, Tex.Civ.App., 119 S.W.2d 606, 608, the court said: “The first assignment presented here is to the refusal of the court to grant the motion for an instructed verdict, on the ground that the evidence relied on was insufficient to show the right of recovery against the defendant, in that, there was no possible basis in the testimony for a determination of how much of the pollution of the water was caused by the acts or omissions of the defendant, and how much resulted from other causes with which defendant was in no manner connected. And therefore, the judgment rendered against the defendant was necessarily based on mere surmises or suspicion and conjectures, which was no more than a mere scintilla of evidence, which was incompetent to support a recovery. That assignment is sustained, for the reasons urged, which we believe arc unanswerable.”

But in addition to the uncertainty as to-the source of the oil that was deposited', upon appellee’s land, as between appellant, and the various other unquestioned sources-of pollution, there must be added the uncertainty as to whether the agency causing the damage to appellee’s farm was the deposited oil or the deposited salt. There was no evidence that any salt water escaped from appellant’s plant; but to the contrary, there was direct, positive proof' that none did. There is no basis in the evidence whatever for charging up the damages resulting from the deposit of salt, on appel-lee’s land against appellant. And the situation thus confronting us makes applicable the principle thus stated in Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713, 715: “The rule is well established. in this state, and supported by almost universal authority, that an action at law for damages for tort cannot be maintained against several defendants jointly, when each acted independently of the others and there was no concert or unity of design between them. In such a-case the tort of each defendant is several when committed * * *. Under such circumstances, each tort-feasor is liable only for the part of the injury or damages caused by his own wrong; that is, where a person contributes to an injury along with others, he must respond in damages, but if he acts independently, and not in concert of action with other persons in causing such injury, he is liable only for the damages which directly and proximately result from his own act, and the fact that it may be difficult to define the damages caused by the wrongful act of each person who independently contributed to the final result does not affect the rule.” (Citing authorities.) Now, while we know from the jury’s answer to special issue No. 6 that they were not assessing against appellant the entire damage which had been sustained by ap-pellee, we cannot know what proportion of such damage they found to have been caused by appellant. But it was impossible to do more, from the evidence before them, than merely guess at the damages for which appellant was legally responsible.

We have carefully examined the authorities cited by appellee and do not consider them in point in the respects relied on by appellee. It is well settled, as ap-pellee points out, that “where the evidence establishes that a plaintiff has suffered substantial damages, he is not to be denied a recovery merely because others than the defendant contributed to bring about his loss and he is unable to show distinctly the amount of damages contributed by each tort-feasor. All that the law requires is that .the best evidence of which a case is susceptible be produced, and if from such evidence the amount of damages caused by the defendant can be inferred or estimated by the jury with reasonable certainty, then the amount of such damage is for the jury.” (Citing authorities.) Powell Salt Water Co. v. Bigham, Tex.Civ.App., 69 S. W.2d 788, 790. But, as we have indicated, we are constrained to hold that under the evidence in the record before us. the jury is without any guide to determine the extent of injuries caused by appellant. They may infer that appellant caused some of appellee’s damages, in so far as such damages resulted from petroleum, but there is no basis, no reasonable certainty, for determining the extent of damage caused by petroleum or that caused by salt. If it be conceded, for the sake of argument, that there is admissible evidence in the record from which the jury might infer that appellant caused half of the injury resulting from deposits of petroleum, there is no evidence to furnish any basis for arriving at the damage caused by salt in comparison to that caused by petroleum, and no way to separate same, and none was attempted.

As the court below should have instructed a verdict for appellant, it is our duty to reverse the'judgment and here render it for appellant.

Reversed and rendered.


author: CRITZ, Justice.

text:
    SMITH et al. v. BUSS et al.
    No. 7568.
    Supreme Court of Texas.
    Nov. 13, 1940.

      ' S. N. McWhorter, of Weslaco, for plaintiffs in error.
    Griffin & Kimbrough, of McAllen, and Leroy H. Buss, of Weslaco, for defendants in error.
   CRITZ, Justice.

This suit was filed in the District Court of Hidalgo County, Texas, by Ruth Elizabeth Buss, joined pro forma by her husband, Leroy H. Buss, Katherine Wall, joined pro forma by her husband, T. A. Wall, Jr., and Rosemary Hall, joined pro forma by her husband, G. M. Hall, against C. K. Smith and his wife and several others to recover title and possession of certain land in Hidal-go County, Texas, described in the petition as follows: “The South Ten (10) acres of Farm Tract No. Seven Hundred Twenty-seven (727) of the West Tract Subdivision of lands out of the Llano Grande Grant, Hidalgo County, Texas, as per map or plat thereof on record in the office of the County Clerk of Hidalgo County, Texas, to which reference is here made.”

It is alleged in the plaintiffs’ petition that they.owned the fee simple title to the above-described land, except that their father, Thomas F. Rives, and his-grantees and assigns own a life estate in an undivided one-third thereof. We shall not attempt to detail the pleadings. It is enough to say that we treat them as sufficient to raise the questions of law which we shall discuss and decide.

Plaintiffs in the district court claimed title to this land as children and heirs at law of their mother, Mrs. Mary Rives, deceased wife of their father, Thomas F. Rives. The defendants claim title through certain deeds made by Thomas F. Rives acting as qualified, community survivor of the community estate of his deceased wife and himself.

On March 22, 1924, J. S. Moore and wife, Elizabeth Moore, by two separate general warranty deeds conveyed to Mrs. Mary Rives two tracts of land out of Farm Tract No. 727 in Hidalgo County, Texas. These two deeds seem to be identical in every particular, except that one purports to convey 15.75 acres of land, and the other. 14.75 acres. As we understand this record, the land involved in this suit is part of the land included in one or both of the above two deeds.

In each of the deeds above mentioned, omitting formal parts, it is first recited: “That I, J. S. Moore, joined herein by my wife, Elizabeth Moore, of the County of Henry and the State of Missouri for and in consideration of the sum of Twenty two Hundred Twelve and B%oo ($2212.50) Dollars, to us paid and secured to be paid by Mrs. Mary Rives, out of her own separate property, funds and estate, as follows: The sum of Seven Hundred Thirty seven and B9ioo ($737.50) dollars in cash, the receipt of which is hereby confessed and acknowledged, and the balance of said consideration, to-wit: The sum of Fourteen Hundred Seventy five ($1475.00) dollars is represented by Five (5) promissory vendor’s lien notes, in the principal sum of Two Hundred Ninety five ($295.00) dollars, each, executed by the Grantee herein and payable to the order of J. S. Moore and Elizabeth Moore, bearing even date herewith and due and payable in One (1) to Five (5) years after date, respectively, bearing interest at the rate of Six (6%) per cent per annum from date until maturity, and at the rate of Ten (10%) per cent per annum thereafter until paid, providing for the payment of Ten (10%) per cent additional on the amount of principal and interest then due, as attorney’s fees, if placed in the hands of an attorney for collection, etc., and further providing that a failure to pay each or any of said notes at maturity will, at the option of. the owner and holder thereof, mature all of said notes.”

After the above the two deeds proceed to convey to Mrs. Mary Rives the land described therein in the usual form of a general warranty deed. Nothing is said in the granting, habendum, or warranty clauses about the land being conveyed as the separate property or estate of Mrs. Mary Rives.

On August 28, 1924, Mrs. Mary Rives died, leaving as her only surviving heirs at law her surviving husband, Thomas F. Rives, and the three daughters above named, all then minors.

During, the year 1925, after the death of Mary Rives, Thomas F. Rives duly qualified in the County Court of Hidalgo County as community survivor of the community estate of his deceased wife and himself. In such community survivorship proceedings the county court appointed appraisers, and such appraisers, with Thomas F. Rives, returned into court what purported to be an inventory and appraisement of the community estate of Mary Rives, deceased, and her surviving husband. Among the items of property so inventoried and appraised were the two tracts of land conveyed to Mrs. Mary Rives by the two deeds executed by J. S. Moore and wife, supra. Such inventory and appraisement was duly approved by the county court. After qualifying as community survivor Thomas F. Rives sold the land here involved. In making such conveyance he acted for himself and as community survivor of the community estate.

We shall not attempt to trace the title of the various defendants. It is enough to say that if the deed of Thomas F. Rives operated to convey the title, they should recover, and the judgment of the district court should be affirmed; if it did not, plaintiffs should recover, and the judgment of the Court of Civil Appeals should be affirmed. If the land was the community property of Thomas F. Rives and his deceased wife, his deed conveyed the entire title. If the land was the separate estate of the wife, then her three daughters, as her heirs, succeeded to her title, except the surviving husband succeeded to a life estate in one-third thereof. Art. 2571, R.C.S.1925. Of course, all property acquired by either the husband or the wife during marriage, except that which is the separate property of either,, is deemed the community of the husband and wife. Art. 4619, R.C.S.1925. It follows that even if this land was the separate property of Mary'Rives, the deceased wife, still, if the vendee of Thomas F. Rives took without notice of that fact, he took good title. Alexander v. Barton, Tex.Civ.App., 71 S.W. 71. In this instance, however, the deed to Mrs. Rives gave notice.

On final trial in the district court judgment was rendered against the plaintiffs, the three daughters of Mrs. Mary Rives, and in favor.of those claiming title through the deed of Thomas F. Rives as community survivor. The plaintiffs appealed to the Court of Civil Appeals at San Antonio, but on equalization of the several dockets of such courts, the case was transferred to El Paso. On fipal hearing in that court the judgment of the district court was reversed, and judgment rendered for the plaintiffs, the three daughters of Mary Rives, deceased. 125 S.W.2d 712. The defendants and cross defendants bring error.

As we interpret their petition for writ of error, plaintiffs in error contend that the three daughters of Mrs. Mary Rives cannot recover in this case filed as an original action in the district court because of the proceedings in the County-Court of Hidalgo County whereby Thomas F. Rives qualified as the survivor of the community estate of his deceased wife and himself, and wherein this property was inventoried and appraised, and sold as part of the community estate. We are unable to sustain such a contention. If this land was not a part of the community estate, the county court did not have jurisdiction over it. Certainly the county court could not change the ownership of property from separate to community by simply approving- an inventory and appraisement to that effect. A different question might arise if Thomas F. 'Rives should attempt to question such proceeding. No such case as that is presented here.

We think that it is the settled law of this State that property acquired during marriage takes its status as separate or community property at the very time of its acquisition. Also, such status is fixed by the facts of its acquisition at the time thereof. Lusk v. Parmer, Tex.Civ.App., 87 S.W.2d 790; Stiles v. Hawkins, Tex.Com.App., 207 S.W. 89; Gebhart v. Gebhart, Tex.Civ.App., 61 S.W. 964; Creamer v. Briscoe, 101 Tex. 490, 109 S.W. 911, 17 L.R.A.,N.S., 154, 130 Am.St.Rep. 869; Speer’s Law of Marital Rights in Texas (3d ed.), p. 414, sec. 339.

We agree with the holding of the Court of Civil Appeals that the recitals in the deeds from J. S. Moore and wife to Mrs. Mary Rives, above quoted, prima facie constituted the land thereby conveyed the separate property of Mrs. Rives. Each of such deeds recited that the consideration paid, and to be paid,' by Mrs. Rives was “out of her own separate property, funds and estate, * * * .” It is then recited in each deed that $737.50 was paid in cash and $1475.00 was to be “represented by Five (5) * * * notes * * *, executed by the Grantee herein * * *The grantee was Mrs. Mary Rives. It thus appears that each of the deeds recited that $737.50 .was paid in cash by Mrs. Rives out of her separate property and estate, and that the five notes executed alone by Mrs. Rives were also to be paid out of her separate estate. Such deeds prima facie show that at the very time Mrs. Rives acquired the land thereby conveyed, she took the entire title in >,her separate right, and not in community. Lusk v. Parmer, supra, and authorities there cited; Speer’s Law of Marital Rights in Texas, 3d Ed., p. 515, sec. 429, .and authorities there cited.

Plaintiffs contend that there is evidence contained in this record sufficient, in law, to rebut the prima facie showing contained in the deeds to Mrs. Rives that this land was taken in her separate right. If this record contains any evidence which would make this land community, and not Mrs. Rives’ separate property, at the time it was deeded to Mr.s. Rives, such evidence is found only in the testimony of Mr. Rives, who was called by, and testified as a witness for, his daughters. Mr. Rives testified, in substance, that several years before the land was deeded to Mrs. Rives, she received several gifts of money; that such money, several years before this land was deeded to Mrs. Rives, was placed in a common bank account subject to his check; that no separate account of such money had been kept; that he conducted the transactions by which this land was purchased and deeded to Mrs. Rives; that the deeds were drawn according to his direction; and that he drew the check for the cash consideration named in the deeds on the common bank account above described. When we consider these facts together with the fact that the deeds recited that the consideration paid, and to be paid, was out of Mrs. Rives’ separate estate; that Mrs. Rives alone executed the notes to be paid out of her separate estate, and that the land was deeded to her, we are forced to the conclusion that, as between Mr. and Mrs. Rives, it was intended, at the time of acquisition, that she should take title in her separate right, and not in community. 23 Tex.Jur., p. 159, sec. 129; Id., p. 161, sec. 131.

Generally speaking, it is the law that a bank account consisting of separate and community funds commingled in such a manner that neither can be distinguished from the other must be regarded as a community account. Saylor v. Saylor, Tex.Civ.App., 20 S.W.2d 229. In spite of this rule, we think that, as between themselves, the husband and the wife intended this property to become Mrs. Rives’ separate estate. It is settled that it frequently happens that in the matters of transfers or conveyances to the wife, the intention of the parties may become of vital importance. Such intention is to be judged by the facts of acquisition. When this transaction is viewed as a whole, there can be no doubt that, at the very time this land was conveyed to Mrs. Rives, Mr. and Mrs. Rives legally intended that she should take in her separate right. If this were a suit between Mr. Rives and his daughters as to who owned this land, there is no doubt but that it would be adjudged the property of the daughters as the heirs of their mother. This being true, Mr. Rives’ vendees stand in no better position than he would stand had he never attempted to convey the property away. This is because Mr. Rives’ vendees took with full record notice that this land was the separate estate of Mrs. Rives, deceased. Alexander v. Barton, Tex.Civ.App., 71 S.W. 71. The deed to Mrs. Rives was on record when Mr. Rives attempted to convey.

It seems that after Mrs. Rives’ death the notes executed by her were discharged by the husband with certain property. It seems to be contended that such property was not Mrs. Rives’ separate estate. Assuming that to be true, we are unable to see how it could aid the vendees of Mr. Rives. The land, as already shown, took its status as to whom it belonged at the very time it was deeded to Mrs. Rives, and the mere fact that the notes she executed binding her separate estate only were paid after her death out of funds not her separate estate, could not alter the situation, or change the title. Neither would such fact disprove the prima facie title established by the contents of the deeds.

The fact that Mr. Rives took part in having this land inventoried and appraised as community property in the community survivorship proceedings above described, and the further fact that he purported to convey it as community property, under the facts of this record, do not constitute any proof that it was community. Such acts and statements on the part of Mr. Rives were purely ex parte in so far as the rights of these heirs are concerned. Of course, had Mr. Rives’ vendees taken without notice of the fact that this was Mrs. Rives’ separate property, they would have taken a good title as innocent purchasers.

The judgment of the Court of Civil Appeals, which reverses the judgment of the district court and renders judgment for the defendants in error, is affirmed.


author: HICKMAN, Commissioner.

text:
    UVALDE ROCK ASPHALT CO. v. HIGHTOWER et al.
    No. 2325—7541.
    Commission of Appeals of Texas, Section A.
    Nov. 20, 1940.
    Kampmann & Burney and W. P. Dobbins, all of San Antonio, for appellant.
    E. B. Votaw, of Beaumont, for appellees.
   HICKMAN, Commissioner.

This case is before us on certificate from the Honorable Court of Civil Appeals of the Ninth District. The concluding paragraph of the certificate is as follows: “We make a part of this certificate our tentative opinion on the questions certified. The other propositions of law, raised by the appeal and stated in the tentative opinion, are not submitted to your Honorable Court by this certificate. We reserve these questions for decision by this court on return of your answers to the questions certified.”

The concluding paragraph of the tentative opinion accompanying the certificate is as follows: “There are other material points in the appeal — the claim that Mrs. Hightower, after the death of her husband, renewed the lien; the claim advanced by Mrs. Hightower in her brief, but not adjudicated on-the trial of this cause, that the property was her separate property; and a third point, that appellant did not prove due performance of the obligations assumed by it under the original contract. These are points only of reversible error, and we do not discuss them in this tentative opinion, which is written to accompany and constitute a part of our certificate to the Supreme Court, certifying the questions discussed.”

By the foregoing it is made known to this Court that the judgment which hereafter may be rendered by the Court of Civil Appeals may not at all rest upon the answers of this Court to the questions certified. We are informed, in effect, that, while the Court desires our views upon the questions certified, the character of judgment which it will render in the case may not be determined by our answers, but may be determined by its decision of other questions presented.

The case is certified under the authority of Article 1851, R.C.S., which reads in part as follows: “* * * Pending the decision of the Supreme Court, the cause in which the issue is raised shall be retained for judgment in harmony with the decision of the Supreme Court upon the issue submitted.” (Italics ours).

In County Democratic Executive Committee v. Booker, 122 Tex. 89, 52 S.W.2d 908, 909, wherein the above quoted provision of the statute was before the court for construction, it was stated: “These statutes forbid the Supreme Court from answering purely abstract questions of law.”

In Owens v. Tedford, 114 Tex. 390, 393, 269 S.W. 418, 419, it was stated: “No answer is to be made to any question which is not to become a final and conclusive determination of some question of law. Article 1625, Revised Statutes. No matter what answer we gave to question No. 2, it could furnish no basis for any adjudication whatever.”

The questions certified in this case are but abstract questions of law. The suit is for the foreclosure of a paving lien created by contract upon certain lots in the City of Beaumont, which constituted the homestead of Judge and Mrs. L. B. Hightower. Judge Hightower died before the suit was instituted. Before the contract was barred by the statute of limitation he, without being joined by his wife, entered into a contract of extension and renewal with the appellant. Recovery was denied appellant in the trial court. Two questions are certified. The first calls upon us to decide whether Judge Hightower, without the knowledge or consent of his wife, had the power to make a binding contract of renewal and extension. The same law question is submitted from another angle in the second question.

Were we to hold that Judge Hightower had the power to execute the renewal note and contract, it would not follow that the judgment of the Court of Civil Appeals would be in harmony with our decision. Suppose that court should thereafter decide that the property was the separate property of Mrs. Hightower, a question reserved by it, or that the appellant failed to prove due performance by it of the obligations which it assumed, another question reserved by it, its judgment would be one of affirmance,, and our opinion would amount to no more than an advisory opinion upon an abstract question of law. It would not furnish the basis of any adjudication. Its judgment would be based upon its own conclusions and not upon our answers. On the other hand, should we decide that Judge Hightower did not have that power it would not necessarily follow that the judgment- of the trial court denying appellant any recovery would be affirmed. We are advised by the Court of Civil Appeals that it is reserving for decision the question of whether or not Mrs. Hightower renewed the lien áfter her husband’s death. Should that court determine that she did so renew it, its judgment doubtless would be one of reversal which would be based upon its own conclusions and not upon our answers. It thus appears that we are called upon to answer questions of law which will furnish no basis for an adjudication of the issues involved. Such questions are abstract and we are prohibited by the statute from answering them. Booker case,' supra.

The certificate will therefore be dismissed without any expression of our views on the questions submitted.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    BREITKREUTZ v. COOK et al.
    No. 1839—7549.
    Commission of Appeals of Texas, Section B.
    Nov. 20, 1940.

      Wm. M. Nathan, Stewart & DeLange, A. J. DeLange, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for plaintiff in error.
    Grady C. Fuller, P. Harvey, and Geo. N. Lusch, all of Houston, for defendant in error.
   TAYLOR, Commissioner.

This suit, filed by Mrs. Nannie Breit-kreutz, a feme sole, as plaintiff, in trespass to try title against Pinkie Cook, as defendant, to recover lot 6, block 11, of the W. B. Walker Addition to the City of Houston, took final form as a trespass to try title suit by Mrs. Breitkreutz against Pinkie Cook and Ida Williams to recover title and possession of the property; and, in the alternative, for foreclosure of liens against it. The trial court, by an instructed verdict, awarded Mrs. Breitkreutz judgment against defendants for title and possession. The judgment further decreed that defendants take nothing by their various alleged claims against plaintiff, and that plaintiff’s alternative plea for foreclosure of liens he denied for the reason that title and possession of the property had been adjudged to plaintiff. The Court of Civil Appeals reversed and remanded the cause. 123 S.W.2d 990.

Mrs. Breitkreutz was the widow of H. Breitkreutz, who died January 4, 1934, and the sole devisee under his will. The allegations of her petition, under the alternative plea, are briefly, that on October 15, 1929, Pinkie Cook executed her note for $640 payable to George H. Graham, payable in monthly installments of not less than $10 each, payments to begin November 15, 1929, and secured by a mechanic’s lien on the property, executed by Pinkie Cook and others not necessary to name; that Graham, prior to maturity, by written endorsement, transferred the note, together with the lien securing its payment, to Breit-kreutz; that thereafter, about December 13, 1929, Pinkie Cook executed to Breit-kreutz her note for $1,242.50 payable in monthly installments of $15 each, to begin January 13, 1930, and to continue until the full amount of the debt had been paid; that of even date with the note Pinkie Cook executed and delivered to Breitkreutz her deed of trust, Meyer C. Wagner, trustee, conveying the property in trust as further security for the payment of the note. The deed of trust contained the following recitation : “Of the $1242.50 represented by the note above described, the sum of $638.53 represents the unpaid balance of principal now remaining unpaid on that certain note for $640.00 executed by Pinkie Cook, widow, dated October 15, 1929, payable to the order of Geo. H. Graham, as more fully appears from the mechanic’s lien contract between said Geo. H. Graham and Pinkie Cook, et al, recorded in Vol. 181, page 628, of the Harris County Contract Records, and $603.97 represents money advanced by said H. Breitkreutz at our request to pay off past due and current taxes, interest and penalties.”

It was alleged by plaintiff that it was the purpose of the parties to merge the balance of $638.53 owing on the Graham note with the additional sum of $630.97 then advanced by Breitkreutz to pay off past due and current taxes, interest and penalties; that the deed of trust merged the two debts into one and created a superior lien upon the property in controversy, but if not, then it created liens inferior to those provided in the deed of trust executed to secure the payment of the Graham note, and that all of the liens were held by Mrs. Breitkreutz.

It is further alleged that upon default of [several installments of the indebtedness (referred to and also upon default in payment of taxes that had accrued since January 1, 1930, plaintiff matured the entire note and indebtedness and requested the trustee to exercise the power of sale under the deed of trust, and that after compliance with the law the trustee sold the property on the first Tuesday in August, 1935, which was purchased by plaintiff, Mrs. Breit-kreutz. This is the sale under which she procured title to the property through the trustee’s deed, executed and delivered to her pursuant thereto.

The pleadings of the defendants are stated in the opinion of the Court of Civil Appeals, which see 123 S.W.2d 991.

Pinkie Cook pleaded, in addition, the following- itemization of payments, aggregating $266:

The Court of Civil Appeals holds that the evidence raised the issues, among others, against the deed of trust and $1,242.50

1-20-30 $15.00 6-15-31 $ 5.00 5-16-33 $ 3.00
2-17-30 3-17-30 15.00 7.00 7-21-31 9-14-31 7.50 5.00 6-12-33 7-2-33 1.00 2.50
4-21-30 10.00 10-19-31 9.00 7-17-33 3.00
5-13-30 8.00 1-13-32 3.50 8-28-33 3.00
6-13-30 8.00 2-16-32 5.00 10-2-33 3.00
7-14-30 10.00 3-14-32 12.00 10-16-33 2.00
8-18-30 8.00 3-16-32 8.00 11-17-33 3.00
9-13-30 ,15.00 8-22-32 5.00 12-18-33 3.00
10-21-30 ,10.00 9-19-32 3.50 5-20-34 2.50
12-15-30 9.00 11-2-32 5.00 6-25-34 5.00
1-13-31 15.00 3-13-33 1.50 7-31-34 2.50
2-24-31 15.00 4-10-33 2.00 9-11-34 2.50
4-13-31 10.00 5-1-33 3.00

The foregoing pleading is based upon payments shown by the receipt book kept by Pinkie, which will be later referred to.

She stated generally in connection with the above itemization that she had “paid other amounts,” and in this connection pleaded that if upon accounting “it develops that she owes plaintiff anything” she is willing “to pay any amounts that the court shall decide is justly due.”

It is stated in the opinion [123 S.W.2d 992] that the “basic facts — the execution of the $640 note, the Mechanic’s lien, the $1242.50 note, the deed of trust to Wagner, the death of Breitkreutz and the vesting of the title of the note in appellee [Mrs. Breit-kreutz], and the sale of the property * * * by her trustee — were as plead” by plaintiff.

The foreclosure sale was on August 6, 1935. Plaintiff was the purchaser and on that date received a trustee’s deed conveying to her the property in controversy. At that time the premises were occupied by Ida Williams, a feme sole, who, prior to the trial, was ousted by a writ of sequestration sued out by plaintiff. Ida was a niece of the defendant, Pinkie Cook, and claimed an interest in the property by inheritance. It was her suit for damages for alleged wrongful sequestration that was consolidated with the trespass to try title suit against Pinkie, and in which, after consolidation, she became a codefendant with Pinkie. As ■it appears from the record that the outstanding title, which includes the chain through which Ida claims, was acquired by Breitkreutz prior to the deed of trust sale, her claim will not be further discussed. note, that the plumbing improvements installed by Graham, the “low tank closet and sewer” and necessary openings, could have been installed for $92.50; that they were installed without connection with the city sewer; that, without such connection, they had little value and did not constitute a substantial compliance with the contract to install; that Breitkreutz was not an innocent holder of the Graham note in that ;he acquired it with actual knowledge of Graham’s failure to make the improvements as contracted; that with respect to the $603.97 item of the $1,242.50 note, recited therein as being for “past due and current taxes, interest and penalties,” the evidence raised the issue that the note was usurious in that there was testimony that the tax, interest and penalty items paid for Pinkie Cook was only $478.87, and that she had paid Mr. and Mrs. Breitkreutz on the note more than that amount plus the reasonable value of the Graham improvements. The court is of opinion also that if Mrs. Breit-kreutz refused to make an accounting and demanded payment in full, including items improperly charged, and that such demand prevented defendants from paying the amount justly due, “then upon'principles of equity regardless of the issues above mentioned the amount, if any, remaining just, due and unpaid by appellants [defendants] should be ascertained and appellants permitted to pay same into court and retain their property.”

What is relied upon by Pinkie as a tender of payment by her of any amount justly remaining unpaid, was pleaded as merely an offer to pay such sum as the court might find upon the trial she justly owed. Pinkie’s own view of the character of the offer is reflected in her counsel’s statement upon the trial that “in case it is found we owe anything, we are willing to pay it.” It does not appear that any demand for accounting and tender meeting the requirements of either law or equity was made.

While our decision of the case is not predicated upon a total lack of evidence to raise an issue as to an overcharge by Graham for the plumbing improvements installed by him on the property, or an issue as to whether Breitkreutz incorporated in the final note a larger amount for taxes,, interest and penalties than he actually paid, a statement from the record of a portion of Pinkie Cook’s own testimony relating to those matters, and to the amount actually paid by her prior to foreclosure, will serve to disclose the lack of legal merit in her various belated claims. The basis of the decision is that the deed of trust sale at which Mrs. Breitkreutz purchased the property was valid, which we will proceed to show, thereby eliminating questions that would otherwise be presented.

•Pinkie admitted signing the $64'0 note on October IS, 1939, and also the mechanic’s lien to secure its payment; also that she subsequently signed the $1,242.50 note and deed . of trust securing its payment; and that when she signed the deed of trust the parties told her she was “signing up for the toilet and for the taxes.” Nor did she deny she signed an acceptance of the work under the mechanic’s lien contract after its completion, which acceptance is shown by the record. She testified that she talked to Mr. Breitkreutz about the toilet facilities not being connected with the city sewer before she signed the last note; but that she ■continued making payments to him by the month about four years (until his death), as shown by her receipt book. It appears from her testimony that she retained custody of the book and that Breitkreutz entered the payments therein as made. While she testified to a general conclusion that she paid $726.50, her testimony shows it was necessarily based upon an aggregate of payments of $15 per month in full each and every month for four years. The monthly payments are shown by the receipt book, and the incorrectness of the conclusion appears from her subsequent testimony that she did not pay “any additional amount besides what is shown in this receipt book,” and that she herself retained custody of the book. The book shows monthly payments ($1 to $15 per month) aggregating $266, and that they were made at the times and in the amounts stated in her itemized plea of payment set out above, beginning January 20, 1930, and continuing monthly to September 11, 1934. The book shows a continuation of payments after the last payment receipted' for by Mr. Breitkreutz on December 18, 1933, as follows: May 20, 1934, $2.50; June 25, 1934, $5; July 31, 1934, $2.50 and September 11, 1934, $2.50. The last four payments are noted in the book in the same manner as .those made to Breitkreutz, and appear to have been receipted for, as made, by H. J. Suhr, Mrs. Breitkreutz’ agent. Pinkie did not testify to making any item of payment other than as shown by the receipt book. Tax receipts and certificates in evidence show payment of taxes alone against the property in the sum of $538.66..

The concluding statement of the opinion reflects the basic erroneous conclusion of the Court of Civil Appeals. It reads: “The case- of Hall v. Edwards, Tex.Com. App,. 222 S.W. 167, cited and relied upon by appellee as sustaining her deed of trust sale, is not in point. In that case the sale rested Upon an unquestioned debt. In the case at bar appellants raised fact issues against the debt.”

C "The payments made by Pinkie according to her own testimony did not offset the amount of indebtedness conclusively shown against her and incorporated in the note secured by the deed of trust. The payments were in default at the time of the foreclosure sale, the last having been made on September 11, 1934, and the sale having been made on August 6, 1935.

The indebtedness remaining unpaid included moneys advanced by Breitkreutz for payment of taxes, penalties and costs on the property, the advancement of $477.60 for that purpose being admitted in defendants’ brief. No offer or tender of payment of any amount was made by Pinkie prior to foreclosure. The sale was not void. Hemphill v. Watson, 60 Tex. 679; Belcher Land Mortg. Co. v. Taylor et al., Tex.Com.App., 212 S.W. 647; Wood et al. v. Eastland Bldg. & L. Ass’n, Tex.Civ.App., 75 S.W.2d 466, writ refused.

We find no warrant in the facts for holding the deed of trust sale invalid, or that the trust deed delivered pursuant thereto did not convey all of the right, title and interest of Pinkie Cook in the property to plaintiff in error.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    SIMMONS et al. v. GARDNER et al.
    No. 2333—7700.
    Commission of Appeals of Texas, Section A.
    Nov. 20, 1940.
    John S. Morris and H. C. Ray, both of Fort Worth, for plaintiffs in error.
    G. L. Robertson, H. T. Cooper, and Samuels, Foster, Brown & McGee, all of Fort Worth, amici curiae.
    Boykin & Seideman, of Fort Worth, for defendants in error.
   GERMAN, Commissioner.

This action originated in the probate court of Tarrant County. It had for its purpose the probating of the will of Gertrude S. Wilson, deceased. Application for probate was denied by the county court, and by certiorari the matter was taken to the district court. There probate of the will was again denied. Findings of fact were filed in the district court showing that the reason for denying probate was lack of sufficient pleadings. The Court of Civil Appeals affirmed this judgment. 134 S.W.2d 338. The opinion of the Court of Civil Appeals shows the peculiar situation with reference to the pleadings. Writ of error was granted because the Supreme Court thought the pleadings were sufficient.

Defendants in error by their attorneys of record have filed in this Court a confession of error on the part of the district court and of the Court of Civil Appeals, admitting that the pleadings were sufficient to justify an admission of the will to probate. They also request that the judgments of the Court of Civil Appeals and of the district court be set aside, and judgment rendered ordering the will to be admitted to probate.- In the alternative, they prayed that the cause be reversed and remanded to the district court.

We do not think this Court is authorized, under the circumstances, to render judgment, but in pursuance of the admission of error and request of interested parties, the cause should be reversed and remanded.

The judgments of the Court of Civil Appeals and of the district court are both reversed and the cause is remanded to the district court for such further action as the court may find to be appropriate in light of the agreements of the parties and developments since the former hearing.

Opinion adopted by the Supreme Court.


text:
    ARMSTRONG v. GADDIS, County Treasurer.
    No. 2327—7545.
    Commission of Appeals of Texas, Section A.
    Nov. 20, 1940.
    O. R. Armstrong, of El Paso, for plaintiff in error.
    L. B. Cooper, of Cotulla, for defendant in error.
   GERMAN, Commissioner.

Plaintiff in error, Mrs. A. Y. Armstrong, instituted this suit in the District Court of LaSalle County against H. P. Gaddis, County Treasurer and Ex Officio Trustee of the LaSalle County Water Improvement District Number One, which has been dissolved in the manner provided by law. The parties will be designated as in the trial court.

Plaintiff sought recovery of the sum of $10,000, alleged to be the contract price of certain easements claimed to have been conveyed by her to the Water Improvement District. In the alternative, the pleading was sufficient to entitle plaintiff to recover the actual damages caused her land by reason of entry thereon, and work done in the matter of constructing a dam and reservoir, which was never completed. In the trial court judgment was entered for plaintiff in the sum of $2,098 as damages to plaintiff’s land. She was denied a recovery as to what she terms the “contract price.” It was the conclusion of the trial court that payment of the full sum of $10,000 was conditioned upon the building to completion of the dam and reservoir; and as same was never completed, plaintiff was remitted to the action for damages.

The Court of Civil Appeals concluded that plaintiff had elected to accept the benefits of the judgment to the extent of $2,098, awarded her as damages, and was precluded from claiming error as to the “contract price.” 122 S.W.2d 1115. Writ of error was granted upon an assignment questioning the correctness of this holding. Plaintiff expressly dis-affirmed any attempt to seek a double recovery. As we construe her brief, she was merely attempting to assert on appeal that the trial court had erred in applying a wrong measure of compensation. Manifestly it was her purpose to have the judgment reformed, if the appellate court found the wrong measure had been applied; but if mistaken in this theory, then it was her purpose to have the judgment affirmed. We are therefore of the opinion that the Court of Civil Appeals erred in failing to consider her assignments relating to her right to recover upon the theory of confract price. Plaintiff’s assignments upon this theory of the case present only a question of law. We are_ therefore authorized to consider them and dispose of the appeal.

Plaintiff relied upon a contract in the form of a letter or communication made by her attorney, O. R. Armstrong, to the supervisors of the district March 23, 1929, and which was accepted by the supervisors April 8, 1929. The gist of plaintiff’s whole contention is that this contract, considered as a whole, “unmistakably shows a contract of sale of an easement, which took effect immediately,” and the sum of $10,000 which the district agreed to pay her was a consideration for the purchase of this easement. We are inclined to the view that if this instrument had been executed by .plaintiff, or by someone duly authorized to execute same for her, there would be some force in this contention. However, the proposition which was submitted to the supervisors of the district was signed “Mrs. A. Y. Armstrong, by O. R. Armstrong.” No power of attorney authorizing O. R. Armstrong to bind plaintiff is shown. He appears to have been her son and represents her as attorney in this proceeding. It is evident, however, that he was representing her only in the capacity of an attorney at law, and not as an attorney in fact, with power to execute instruments of conveyance. We are, therefore, of the opinion that the instrument in question did not rise to the dignity of a conveyance of an easement. If by acceptance it became a contract, we think plaintiff’s action for its breach was limited to one for damages. Unless it could be said that the amount stipulated as payments to be made to plaintiff were to be regarded as liquidated damages, then plaintiff’s damages would be measured by just compensation for the injury to her lands. Without going into an extended discussion of the contract we express the opinion that the stipulated payments are not to be regarded as liquidated damages. To so hold would in effect amount to a holding that the instrument was an executed conveyance of an easement, which cannot be said to be true. Plaintiff manifestly will be adequately compensated by the judgment for the damages to her land.

For the reasons herein stated, the judgment of the Court of Civil Appeals affirming the judgment of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    PETROLEUM PRODUCERS CO. et al. v. REED et al.
    No. 2331—7557.
    Commission of Appeals of Texas, Section A.
    Nov. 13, 1940.
    Perkins & Floyd, of Alice, and Kilgore & Rogers, of Wichita Falls, for plaintiffs in error.
    Chas. L. Black, of Austin, amicus curiae.
    Daniel B. Purvis, of Alice, for defendants in error.
   HARVEY, Commissioner.

This is a suit, in the statutory form of trespass to try title, instituted by the Petroleum Producers Company and the United Producers Company, as plaintiffs, to recover the title to and possession of the oil and gas leasehold estate in and to a certain tract of land in Duval County. The defendants in the suit are M. H. Reed, Ralph R. Ogden, Daniel B. Purvis, and R. R. Stolley. The defendants Reed, Ogden and Purvis filed a plea in abatement of the suit. The abatement is sought because the State of Texas is not a party to the suit— the said defendants claiming that the State is an indispensable party. As basis for their claim that the State is an indispensable party, said defendants allege in their said plea, substantially, that said tract of land, in its entirety, is vacant, unsurveyed school land belonging to the State, and that said defendants hold the oil and gas leasehold estate in a designated portion of said tract under an oil and gas lease duly executed by the Commissioner of the General Land Office according to law. Upon due' hearing of said plea in abatement and the evidence introduced at such hearing, the trial court sustained the plea and entered judgment dismissing the suit. The plaintiffs appealed from this judgment and same was affirmed by the Court of Civil Appeals. 122 S.W.2d 1116. The plaintiffs have been granted the writ of error.

As we have seen, the said defendants claim the oil and gas leasehold estate in a portion of said tract of land, under an oil and gas lease executed by the State. In other words, according to the claim of said defendants, whatever rights which accrued to them, under said lease, belong to them and not to the State. It is thus seen that the 'possession which the plaintiffs challenge is in no sense and in no respect the possession of the State, but is that of the defendants themselves. The very crux of the question which the plaintiffs propose, in their petition, to litigate is whether, as. against the defendants in the suit, the plaintiffs have the right to the possession of the oil and gas leasehold estate for which they sue. Undoubtedly, the plaintiffs are privileged to litigate this question with the defendants in the absence' of the State. Short v. W. T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953.

From what has been said, the conclusion follows that the State is not an indispensable party to this suit, and that the trial court erred m sustaining the plea in abatement and entering judgment dismissing the suit. The judgment of the trial court, and that of the Court of Civil Appeals, are therefore reversed and the cause is remanded.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge.

text:
    McCLAIN v. STATE.
    No. 21190.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is knowingly passing a forged instrument; the punishment, confinement in the penitentiary for five years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

In passing sentence the court failed to take note of the Indeterminate ‘Sentence Law. See Article 775, C.C.P., Vernon’s Ann. C.C.P. Art. 775. Therefore the sentence is reformed in order that it .may be shown that appellant is condemned to confinement in the penitentiary for not less than two nor more than five years.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


text:
    McCLAIN v. STATE.
    No. 21191.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is forgery; the punishment, confinement in the penitentiary for seven years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

In sentencing appellant the court failed to take note of the Indeterminate Sentence Law. Article 775, C.C.P., Vernon’s Ann.C.C.P. art. 775. Therefore the sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than two nor more than seven years.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals • and approved by the Court.