author: GRAVES, Judge. HAWKINS, Presiding Judge. CHRISTIAN, Judge.

text:
    REED v. STATE.
    No. 20795.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Rehearing Denied April 2, 1941.
    Application for Leave to File Second Motion for Rehearing Denied April 9, 1941.

      Willis & -Via and Sturgeon & Sturgeon, all of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted under an indictment charging misapplication of the county funds of Gray County, and was by the jury sentenced to serve two years in the penitentiary.

It appears from the facts that Earl Talley, sheriff of Gray Comity, died sometime in the early part of June, 1938, and his wife, Roberta Talley, was doubtless appointed to serve out her husband’s unexpired term. That sometime in April, 1938, Earl Talley’s office was in possession of an execution issued out of a district court of Harris County in cause No. 233352, Federal Land Bank of Houston v. H. H. Lut-trell et al., and it seems that such execution was levied upon certain properties in Gray County, and by the sheriff such was sold under said execution. That the costs accruing for the services of the sheriff’s department were $27.64, and an additional sum of $12.48 was due as printer’s fees, evidently for giving notice of such levy and contemplated sale. It is further shown that in the account of Earl Talley for April, 1938, there was shown as fees earned by this sheriff and uncollected for that month the sum of $27.64, which report shows to have been signed and sworn to' as correct by Earl Talley, Sheriff, by Buford Reed, Deputy. This item never again appears in any further reports of the sheriff, either as paid or as uncollected.

It is further shown that these reports were rendered for Earl Talley, as well as for Roberta Talley, by appellant, who was their office deputy. It is further shown that the Federal Land Bank issued its check No. 311049 on July 15, 1938, payable to the order of the Sheriff of Gray County in the sum of $40.12, stating therein that same was in payment of sheriff’s costs and commissions in the above mentioned cause of Bank v. Luttrell, which check was shown to have been paid. As shown by the sheriff’s account, the printer’s fee of $12.48 deducted from the total of $40.12 leaves a payment of fees and commissions of $27.64, the amount alleged in the indictment as unlawfully appropriated from the county by appellant. The record further shows that such amount of $27.64 has not been paid into the county. It is also shown by two witnesses that appellant admitted to them that he had received this money and not reported this amount, and had spent the same himself.

Bill of exceptions No. 1 complains because of the introduction in evidence of the appointment of Buford Reed, appellant, as a deputy by Roberta Talley, Sheriff, for many and varied reasons, but suffice it to say that the county clerk testified that such appointments were a part of the records of his office, and same was on file therein as a public document, and .we are not impressed with the idea that it was necessary for the State to show the preliminary steps necessary to the making of such appointment before its introduction in evidence. It is also observed by us that the oath of office of appellant of date June 10, 1938, taken under and by virtue of such appointment, appears in the record without objection. We think the designation itself was the best evidence of his appointment, and overrule this bill.

Appellant’s bill of exceptions No. 2 is concerned with an effort to quash the indictment herein because, as appellant contends, while the indictment alleges that the appellant as a deputy sheriff was an officer of Gray County, nevertheless he was not such an officer as is contemplated by Art. 95, P.C., under which, article this prosecution is based, wherein it is said: “If any officer of any county * * * shall fraudulently take,” etc. We are not in accord with such contention. We think, under the authority of State v. Brooks, 42 Tex. 62, that this is an incorrect proposition of law. In the Brooks case, decided by the Supreme Court before the creation of this court, the State appealed from an order of the trial court quashing an indictment against Brooks which had alleged that Brooks was an officer of the government, to-wit: a deputy sheriff, etc. The statute under which the Brooks, case was filed was very similar to the statute here utilized, except that instead of using the words county, city or town, it used the words “the government,” and included some further provisions not now in the law. In a long and well reasoned opinion Justice Gould holds that a deputy sheriff is an officer of a county, and can be charged as such for misapplying public funds. This case has also been cited by this court in Griffin v. State, 4 Tex.App. 390, 410; Crump v. State, 23 Tex.App. 615, 617, 5 S.W. 182; Lewis v. State, 28 Tex.App. 140, 141, 12 S.W. 736, as well as many other cases.

Bill of exceptions No. 3 complains because Roberta Talley, Sheriff, was allowed to testify that on July 15, 1938, Buford Reed was a deputy under her as sheriff; that he was her office deputy, and he was the one designated to handle the money that came into her office. As was said in discussing bill No. 1, it was shown by the record that Roberta Talley designated and appointed appellant as her deputy, and we find in the record without objection his oath of office as such, and we can see no error in allowing this deputy’s superior officer to detail what appellant’s special duties were under her. As stated heretofore, we do not think it essentially important to set forth all the details surrounding this appointment. The main thing to be here proven is was he a deputy sheriff, and as such did he receive any money, and did he pay the same where the law directs.

Bill of exceptions No. 4 is concerned with the allowing an auditor to testify that in an audit of the sheriff’s accounts of Gray County, that there was an item of $27.64 which he found was received by the sheriff’s office, which amount did not show to have been paid over to Gray County. While the books themselves may have been the best evidence of such a failure to pay, on account of their size and voluminousness and their many involved transactions, we think the testimony of the auditor, who had audited these books, could be used to show what he found relative to this item as a shorthand rendition of facts rather than to have offered each item therein and have the jury listen to see if the wanted item of $27.64 appeared in the funds listed as paid to Gray County.

Bill of exceptions No. 5 is a resume of all the grounds submitted to the court in appellant’s requested peremptory charge to return a verdict of not guilty. We think such a request was properly overruled.

Appellant also contends that there is no proof that Gray County was under the salary bill as passed by the Legislature, with later amendments, and therefore it is not apparent that fees earned by the sheriff of that county belonged to Gray County. We judicially know that according to the last preceding census, at the time of the passage of this bill, Gray County was a county that contained 20,000 inhabitants or more, and as such, under Art. 3912e, Sec. 1, Vernon’s Ann.Civ.Statutes, it appears that such county compensated its county officers under the salary system, and that all fees earned by them belonged to the county, and were placed in what is called the “Officers’ Salary Fund” to be used by the county for certain purposes. The pertinent part qf such article being as follows: “No district officer shall be paid by the State of Texas any fees or commission for any service performed by him; nor shall the State or any county pay to any county officer in any county containing a population of twenty thousand (20,000) inhabitants or more according to the last preceding Federal Census any fee or commission for any service by him performed as such officer.”

In conclusion we say that this appellant was a county officer charged with the duty to collect and pay over moneys to the County of Gray. That he received moneys rightfully due such county, and according to the testimony, the records of the county fail to show that he paid over such money, but according to his own statement, so it is testified, he spent such money. We think this is shown by direct testimony, and therefore no charge on circumstantial evidence was called for.

We see no error presented in the record, and the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

It was charged in the indictment that appellant was a deputy sheriff of Gray County and “as such officer, by virtue of said office”, there had come into his possession certain money which he had converted to his own use.

The prosecution was under Article 95 of the Penal Code. Deleting that part not here applicable, said article reads as follows : “If any officer of any county * * * shall fraudulently take, misapply, or convert to his own use any money * * * belonging to such county * * * that may have come into his custody or possession by virtue of his office * * * he shall be confined in the penitentiary not less than two nor more than ten years.”

In his motion for rehearing appellant renews his contention that a deputy sheriff is not a county officer in contemplation of said Article 95. It is his further contention that the case of State v. Brooks 42 Tex. 62, cited in our original opinion, is not applicable here because the prosecution in that case was under a different statute. It is true that case was predicated on what is now Article 86 of the Penal Code, but we think the reasoning in the opinion as to what is meant by officers generally has application in the present case. We cite also Crump v. State, 23 Tex.Cr.App. 615, 5 S.W. 182; Hibbetts v. State, 136 Tex.Cr.R. 170, 123 S.W.2d 898. Appellant refers to Hartnett v. State, 56 Tex.Cr.R. 281, 119 S.W. 855, 23 L.R.A..N.S., 761, 133 Am.St.Rep. 971, as supporting his contention that a deputy sheriff is not, included under the term “officer” in said Article 95. Hartnett was a police officer in the City of Beaumont. It was alleged that by virtue of said office certain money which belonged to the city had come into his hands and that he converted it to his own use. It was held that the evidence failed to show that Hartnett was authorized by law to receive the money. We do not regard said case as authority supporting appellant’s position. It occurs to us that Article 6869, R.C.S. (Vernon’s Centennial Edition, 1936), should settle any question regarding a deputy sheriff’s status as an-officer of the county. Said article reads in part as follows: “Sheriffs shall have the power,, by writing, to appoint one or more deputies for their respective counties, to continue in office during the pleasure of the sheriff, who shall have power and authority to perform all the acts and duties of their principals; and every person so appointed shall, before he enters upon the duties of his office, take and subscribe to the official oath, which shall be indorsed on-his appointment, together with the certificate of the officer administering the same; and such appointment and oath shall be-recorded in the office of the County Clerk: and deposited in said office.” (Italics ours.)

By the very terms of said statute a deputy is clothed with the “power” and “authority” to perform all the duties of' his principal after he has taken the official oath. It would appear curious to require him to take an official oath and still hold that he was not an official of the county.

We are in accord with the appellant’s contention that, as a general rule, a sheriff is liable in civil actions for the acts,, defaults and misconduct of his deputy in the performance of a deputy’s official duties, but such liability is no bar to a prosecution-for a penal offense committed by such deputy.

Appellant again urges that the amendment to the State Constitution adopted in 1935, now appearing as Section 61 of Article 16 of the State Constitution in. Vernon’s Texas Statutes, 1936 Centennial Edition, was not self-enacting, and that until the Commissioners’ Court fixed the salaries of county officers, the fees accruing to any such office was the property of the officer. Appellant contends that the State failed to make proof that the Commissioners’ Court of Gray County had fixed the salary of the sheriff of said county, and therefore the money which appellant is charged with converting belonged to the sheriff and not to Gray County as alleged in the indictment. As supporting such proposition we are cited to-Glaister v. Board of Commissioners of Kit Carson County, an opinion from the Court of Appeals of the State of Colorado, reported in 22 Colo.App. 326, 123 P. 955, 957.. We think there is such a marked distinction between the constitutional provision dealt with by the Colorado Court and the one here referred to as to render said opinion inapplicable. As we understand it, the Constitution of Colorado, Section 15, Article 14, provided that: “Where salaries are provided, the same shall be payable only ■out of tbe fees actually collected in all •cases where fees are prescribed. All fees, perquisites and emoluments above the .amount of such salaries, shall be paid into the county treasury.” (Italics ours).

The court said: “Until salaries were provided by law for county officers, all of the fees collected by any such officer belonged to him absolutely.”

Our constitutional amendment, Art. 16, 3ec. 61, Const., as found in Vernon’s Texas 'Statutes, 1936, Centennial Edition, deleting the part not here applicable, reads as follows: “All county officers in counties 'having a population of 20,000 or more, according to the then last preceding Federal ■'Census, shall from the first day of January and thereafter, and subsequent to the first Regular or Special Session of the Legislature after the adoption of this Resolution, be compensated on a salary basis. * * * All fees earned by * * * county * * * officers shall be paid into the county treasury where earned for the account of the proper fund.” ((Italics ours.)

It will be observed that all fees are required to be paid into the county treasury under our constitutional - amendment and ■not those above the salary limit as provided in the Colorado Constitution.

Section 61, Article 16 of the Texas Constitution was adopted in August, 1935. The Legislature (2nd Called Session, in November, 1935, Chapter 465) put into effect the machinery for fixing the salaries of ■officers affected by the amendment, and the law so providing said machinery became operative on January 1, 1936. It was in effect at the time of the alleged conversion of the funds here involved. If Commissioners’ Courts were remiss in fixing salaries, the officers affected by such neglect had their remedy to compel the performance of such duty.

Appellant sought to have the court instruct the jury that even though they should find from the evidence beyond a reasonable doubt that appellant admitted to Goodrich and Wilson that he (appellant) received and appropriated the money involved, that such admission, standing alone, was not sufficient to authorize a conviction. Exception to the refusal of said special charge was reserved and it is again urged in the motion for rehearing that such refusal presents reversible error. The necessity or otherwise for such an instruction as here requested turns upon the facts of the particular case. If proof of the commission of the crime depends upon the extra-judicial statement or confession of the accused, it has been held that such a charge is appropriate. If the crime is shown by evidence other than the confession which admits accused's connection with it, such an instruction is not required. See Branch’s Ann.Tex.P.C., Sec. 75. Cases illustrative are Silva v. State, 102 Tex.Cr. R. 415, 278 S.W. 216; Richardson v. State, 90 Tex.Cr.R. 353, 235 S.W. 578; Randolph v. State, 122 Tex.Cr.R. 151, 54 S.W.2d 104; Willard v. State, 27 Tex.App. 386, 11 S.W. 453, 11 Am.St.Rep. 197; Sullivan v. State, 40 Tex.Cr.R. 633, 51 S.W. 375; Sowles v. State, 52 Tex.Cr.R. 17, 105 S.W. 178.

Under the facts here present, we think the failure to give the charge does not present reversible error. The evidence shows that Mrs. Talley had practically turned over the running of the sheriff’s office to appellant. She did not handle the money or make the reports. He did. She signed or endorsed such checks as were brought to her by appellant. The money here involved had been reported as earned fees. It is shown beyond question that it was paid into the office. It was the duty of appellant to report the collection and pay it into the treasury of the county. This he failed to do. These facts we think bring the case within the class where reversible error did not result from a refusal of the requested charge.

A further review of the record leads us to believe that the proper disposition of the case was made originally. The motion for rehearing is overruled.

On Appellant’s Application for Leave to File Second Motion for Rehearing

CHRISTIAN, Judge.

' Our re-examination of the record in the light of appellant’s application for leave to file second motion for rehearing leaves us of opinion that proper disposition has been made of the appeal.

The application for leave to file second motion for rehearing is denied.

■ 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.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    SHELLHAMMER et al. v. CARUTHERS.
    No. 3815.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 20, 1941.
    David E. O’Fiel, of Beaumont, for appellants.
    LeRoy McCall, of Beaumont, for appellee.
   O’QUINN, Justice.

For a statement of the nature of this suit, see the opinion on the former appeal, Shellhammer v. Caruthers, Tex.Civ.App., 99 S.W.2d 1054. The case is now before us on appeal prosecuted by appellants, Shell-hammer et al., from the judgment in favor of Caruthers, in the sum of $251 predicated on the jury’s affirm.ative answers to special issues Nos. 9 and 10.

“Special Issue No. 9.
“From a preponderance of the evidence, did the water from a portion of plaintiff’s land drain through said barrow pit or rice canal from the time you have found they were left open, if you have found that they or either of them was left open conteneously with each recurring rain, until 1932? Answer ‘it did’ or ‘it did not’.
“Special Issue No. 10.
“From a preponderance of the evidence, did the water drain through said canal or barrow pit peaceably and adversely as between plaintiff and defendant and those under whom they held the land? Answer ‘it did’ or ‘it did not’.”

No statement of facts is in the record.

We sustain appellants’ exceptions to the ruling of the court, refusing to define the words, “peaceably and adversely”, as used in special issue No. 10. To mature his right of drainage across appellants’ land, appellee rested under the burden of securing an affirmative answer to questions Nos. 9 and 10; he must have enjoyed this right “peaceably and adversely”; in actions of adverse possession these words have a special meaning, and they should have been defined in the language of Art. 5513, 5514, R.C.S.1925.

Appellants’ other exception to the court’s charge cannot be reviewed in the absence of the statement of facts.

It follows that the judgment of the lower court should be reversed, and it is accordingly so ordered.

Reversed and remanded.


author: MURRAY, Justice.

text:
    WESTERN RESERVE LIFE INS. CO. v. BURCHFIELD.
    No. 10905.
    Court of Civil Appeals of Texas. San Antonio.
    March 5, 1941.
    Rehearing Denied March 26, 1941.
    Kent & Brown, of Harlingen, for appellant.
    Carter & Stiernberg, of Harlingen, for appellee.
   MURRAY, Justice.

Appellee, Trixie Leola Burchfield, was beneficiary in a policy of life insurance written by appellant, Western Reserve Life Insurance Company, on the life of her husband, Leslie Earl Burchfield. The principal sum named was $2,000, with a provision for the payment of double indemnity, “if death shall result from bodily injuries caused directly, exclusively and independently of all other causes, by external, violent and accidental means.”

Appellant paid appellee the principal sum of $2,000, but declined to pay the further sum of $2,000 as double indemnity, and ap-pellee brought this suit seeking to recover that sum, together with the statutory penalty and attorney’s fees. A jury trial was had and resulted in judgment for appellee in the total sum of $2,790, which included interest, penalties and attorney’s fees. From this judgment the Insurance Company has prosecuted this appeal.

Appellant first contends that the evidence conclusively shows that Burchfield’s death did not occur by accidental means within the provisions of the double indemnity rider attached to the insurance policy, that therefore appellant was entitled to an instructed verdict in its favor, and not having been given such a verdict was entitled to judgment notwithstanding the verdict (non obstante veredicto). We overrule this contention.

It is true that there was only one purported eyewitness to Burchfield’s fall. This witness was a sixteen-year-old negro boy by the name of Ocie Jerome Woodson, who lived in Houston,'Texas, but happened to be in Harlingen at the time of Burchfield’s death. Woodson did not appear at the trial, but his testimony was taken by deposition. Appellee offered in evidence a portion of the cross-interrogatories and their answers, as follows:

“Q. Do you recall having made a sworn statement in the office of Carter & Stiern-berg, Harlingen, Texas, on the 2nd day of November, 1939, about this case? A. I made a statement but I didn’t swear.
“Q. Isn’t it a fact that you made and swore to such a statement and that the statement you made was as follows:
“ ‘My name is Ocie J. Woodson. I live back of the Horn Apartments in Harlingen, Texas. About five or six weeks ago I was coming from the Unemployment office and was going west on Monroe Street from the Unemployment office and I saw a man, whom I later learned was Mr. Burchfield. He was going north when I first saw him, but he turned west, and went about to the fire escape and then turned to go to his truck and fell, and his head bumpted against the pavement. He caught his stomach when he fell. When he fell he knocked a gash in his head and he seemed to be groaning from this gash. He fell pretty hard on his head. That is about all I know about his death.’
“A. I made that statement but I didn’t swear to it.
“Q. Isn’t it a fact that the statement you gave in the office of Carter & Stiern-berg was carefully read over to you before you signed it and you stated that the statement was correct ? A. I read it over. I said it was correct.”

Whereupon appellant offered the rest of the deposition, to-wit:

“Q. What is your name and how old are you? A. My name is Ocie Jerome Wood-son ; I am sixteen years old.
“Q. Your home is at Houston, Texas? A. My home is in Houston, Texas.
“Q. Were you in Harlingen, Texas, in September of 1939? A. Yes, ma’am.
“Q. Do you remember seeing a man fall ■down on Monroe Street near the Arcadia Theater about September 6, 1939? A. Yes, Ma’am.
“Q. Had you ever seen this man before, ■or did you know his name? A. No, I had neyer seen him before.
“Q. Did you afterwards sign your name to a written statement made to Justice of the Peace 'Nance in connection with this matter? A. Yes, Ma’am.
“Q. Did you see this man before he fell ■down, and if so, what was he doing when you first saw him? A. Yes, I saw him before he fell down; he was walking toward his truck.
“Q. What, if anything, did you see him •do just before he fell? A. He caught his ■stomach — put his hand right on his stomach.
“Q. Did you hear this man grunt or make any other sound ? State what, if "anything, you heard and whether it was before •or after he fell, or both? A. Yes, I heard him grunt, sort of like he was going to heave up something. That was both before and after he fell.
“Cross-Interrogatories.
“Q. Pías anyone talked to you about your testimony in this case in the last few days? A. Nobody but Judge A. M. Kent.
“Q. If you have stated that someone talked to you, then give his name and tell me who he represented himself to be, and tell me what, in substance, he has told you about this case. A. Judge Kent said he was •a judge of Brownsville and Harlingen. He asked me something about it. He didn’t tell me anything about it. Just said they wanted to know did I tell another man the same thing I told him.
“Q. Have you been paid anything for giving this deposition, and if so, how much ? A. No.
“Q. Have you been promised any sum of money for giving this deposition ? A. They said I might get something. That was the lawyer in Harlingen, I don’t know his name but his office is in the Baxter Building.
“Q. Has anyone talked to you today about what your testimony should be in this case? A. No, ma’am.
“Q. Has anyone suggested to you today anything about the facts in this case? A. No, ma’am.
“Q. Isn’t it a fact that on this occasion you were walking down the street and paying very little attention to what was ahead of you when this man fell on the pavement? A. Yes, ma’am.
“Q. Isn’t it also a fact that the deceased, Mr. Burchfield, never groaned until after his head hit the pavement? A. He do like that before and after he fell too- — before and after.
“Q. Isn’t it a fact that you saw him trip and stumble off of the curb at the edge of the pavement just before he fell? A. No, I don’t think he did.
“Q. Isn’t it a fact that when he tripped and stumbled he fell forward suddenly in such a manner that his head — above the eyes and nose — was the first part of his body to strike 'the ground, and that after it struck the ground he began to groan? A. He didn’t trip.
“Q. Isn’t it a fact that his head seemed to hit the concrete or street with great force and with such force that you could hear the crack or noise from where you were standing? A. No.
“Q. Isn’t it a fact that Mr. Burchfield was bleeding and his head was practically covered with blood when you got to him? A. He was bleeding. One side of his face was covered with blood. Some men turned him over and tried to put his head in his cap to keep it from laying on the cement.
“Q. Isn’t it a fact that he was walking perfectly normal and close to the curb just before he fell? A. I don’t know whether he walked like he always did or not. I just saw him come around in front of the Arcadia and turn just before'he fell.
“Q. Isn’t it a fact that you were very badly frightened and thought you were under suspicion immediately after you found out this mán was dead and all during the time you were being questioned by officers in the office of justice of the peace? A. I was frightened a little; it was the first time I ever saw anybody fall dead. When I first seen him fall I went and called two men. I wasn't frightened when I was being questioned by the Justice of the Peace.
“Q. State who is present while you are giving this deposition. A. The notary public, the lady who is taking my answers. Mr. Kent is in the other room, but not in the room where I am.
“Mr. Brown: I think it is understood and agreed between counsel that the Mr. Kent referred to by the witness in his answer was not Judge Kent, but was his son who lives in Houston or Bayview, and his initials are J. B. Kent.
“It is agreed that the office of counsel for the plaintiff is in the Baxter Building in Harlingen, and that neither Mr. Kent nor Mr. Brown have offices in the Baxter Building.”

Woodson admitted that on the occasion in question he was walking down the street and paying very little attention to what was ahead of him when Burchfield fell to the pavement, that he was frightened a little, and that he made a written statement on November 2, 1939, some two' months after the accident (which was at variance with his deposition taken some four months later). These admissions, when taken in connection with all the other facts and circumstance in the case, would justify reasonable minds in differing as to just what caused Burchfield to fall. Thus the matter was properly submitted to the jury whose duty it was to draw the inference from all the evidence as to what caused Burchfield to fall.

The evidence is overwhelming that Burchfield received a severe gash on his head when it struck the pavement, and that this blow on his head caused his death. Even if it be conceded that one of Burchfield’s hands was placed in the region of his stomach and that he grunted as though he was going to heave up something as he was falling, this would not conclusively establish that he was suffering from an internal sickness and that the same caused him to fall. The evidence also shows that he fell as he left the uneven edge of the sidewalk and attempted to alight on the street pavement. He was also shown to be a well man, capable of loading a 500-pound bale of cotton on his truck. The jury found that external, violent and accidental means, exclusively and independently of all other causes, were the proximate cause of the injury sustained by Leslie Earl Burchfield in striking his head on the pavement on the occasion of his fall on the date in question, and that such injury was the sole cause of his death. Such findings are reasonable deductions from all the evidence. The trial court properly overruled appellant’s motion for an instructed verdict and its motion for judgment notwithstanding the verdict (non obstante veredicto).

In making the above holding we are assuming without deciding that the expression “if death shall result from bodily injuries caused directly, exclusively and independently of all other causes, by external,, violent and accidental means,” when applied to the facts herein, should be construed to mean that if Burchfield was-caused to fall even in part by internal or natural causes, then and in such event the company would not be liable, and further that the burden of proof would be on ap-pellee to establish by a preponderance of the evidence that such- fall was not caused even in part by natural causes or internal pains.

Appellant next complains because of alleged improper argument made by counsel for appellee during the closing argument to the jury. The record discloses that this argument was counsel’s deductions drawn from facts in evidence and made in reply to an argument made by counsel for appellant. The court did not err in refusing to instruct the jury not to consider the argument.

Appellant next complains because a recovery for damages and attorney’s fees-was allowed. Appellant paid the principal sum of $2,000, stated in the face of the policy, but declined to pay twice that amount under the double indemnity rider attached to the policy. The damages and attorney’s fees were allowed for the suit to collect the extra $2,000, alleged to be due under the double indemnity rider. Appellant contends that Art. 4736, Vernon’s-Annotated Civil Statutes, when given a strict construction would not allow damages and attorney’s fees on the amount due under the double indemnity features of the policy. We overrule this contention. There is no reason why Art. 4736 should not be applied to the double indemnity features of the contract of insurance. Such provisions are as much a part of the insurance policy as any of its other provisions. Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093; Dorsey v. Fidelity Union Casualty Co., Tex.Civ.App., 52 S.W.2d 775; Ætna Life Ins. Co. v. Robinson, Tex.Civ.App., 262 S.W. 118; Robinson v. Ætna Life Ins. Co., Tex.Com.App., 276 S.W. 900. See, also, Southwestern Life Ins. Co. v. Green, Tex.Civ.App., 101 S.W.2d 594; Seaboard Life Ins. Co. v. Murphy, 134 Tex. 165, 132 S.W.2d 393.

The judgment is affirmed.


author: GRAVES, Justice.

text:
    GLASGOW et al. v. DE LAPP.
    No. 11017.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 27, 1941.
    Rehearing Denied March 27, 1941.
    Cole, Patterson & Cole, of Houston (Robt. L. Cole, Sr., and J. W. McDaniel, both of Houston, of counsel), for appellants.
    William Grimes, of Houston, for appel-lee.
   GRAVES, Justice.

This appeal is from the following $1,-517.44 judgment in favor of the appellee against the appellants, entered by the 55th District Court of Harris County, after it had taken the cause from a jury at the close of evidence heard, to-wit:

“The court was of the opinion that there was no question of fact to be submitted to the jury, but that the plaintiff was entitled to a deficiency judgment on the note sued on for principal, interest, and attorneys fees in the sum of Eight Hundred Thirty Three and 7½00 ($873.71) Dollars, and was further entitled to recover' damages in the additional sum of Six Hundred Eighty Three and 7¾00 ($683.73) Dollars for failure of the defendants to pay the taxes and assessments as contracted in the deed of trust set out in the pleadings, and discharged the jury and rendered such judgment for the plaintiff, and it is accordingly ordered, adjudged, and decreed that the plaintiff do have and recover of and from the said defendants, jointly and severally, the sum of Eight Hundred Thirty Three and 7½00 ($833.71) Dollars, with interest thereon at the rate of 10% per annum from date, and for the additional sum of Six Hundred Eighty Three and 7¾00 ($683.73) Dollars, with interest thereon at the rate of 6% per annum from date, and her costs 'in this behalf expended, and that she have her execution.
“Entered July 26th, 1939.”

The appellee, Mamie Kingman DeLapp, undertaking to declare upon a $500 note in her favor of the appellants, C. M. Glasgow and C. H. Waddell, went to trial upon her “first amended original petition”, whereas the appellants in their brief thus describe the status their pleadings were then left in, as well as the circumstances under which the quoted-judgment was rendered: “At the conclusion the court having, by its rulings, deprived the defendants (appellants) of any defense on which to go to the jury, through excluding their second amended original answer, and sustaining a general demurrer to their trial amendment, put the case to trial before the jury purely on the issue of limitations as the only issue surviving to defendants under their first supplemental answer filed July 17, 1939, and thereupon excluded all evidence offered or attempted to be offered by defendants on said question of limitations, and took the case from the jury and rendered judgment on July 26, 1939, against defendants as on a default judgment, as expressed by the Court, for a deficiency judgment on the note in the sum of $833.71, and for all the taxes, penalties, and interest in the sum of $683.73, making a total of $1,517.44.”

Ad limine to a mass of procedural entanglements, appellants, as their first structural ground for a reversal, contend that this trial-petition of the appellee was vulnerable to their general demurrer interposed against it, which, they insist, should have been sustained.

This presentment is held to be well taken. The sole counts of the petition undertaking , to state a cause of action upon the claimed note were these:

“I. On December 30,. 1931, plaintiff loaned to the defendants five hundred ($500.00) dollars and took their note for same, which is as follows:
“ ‘$500.00 Houston, Texas, December 30th, A. D. 1931.
“ ‘On or before three (3) years after date, I, we, or either of us, the undersigned, promise to pay Mamie Kingman DeLapp, or order, the sum of Five Hundred and no/100 Dollars with interest thereon from date until maturity at the rate of 8% per centem per annum, the interest payable annually as it accrues,, both principal and interest payable at Houston, Texas, for value received.
“ ‘This note, to the extent of the amount herein mentioned, represents money this day borrowed by us from the said Mamie Kingman DeLapp and, to secure the credit thus extended we have this day, by our certain deed of trust, conveyed to F. L. Tiller, trustee, the following lot or parcel of land:
“ ‘Block 40 and 41, N. T. Masterson Subdivision, Cameron County, Texas.
“ ‘The indebtedness evidenced by this note represents money advanced toward the purchase price of the property above described, and this note is secured by a vendor’s lien retained in deed of even date from Martin Henry Kingman and wife, Olga Kingman, to C. M. Glasgow and C. H. Waddell, which said land is fully described in said deed of trust.
“ ‘All past due principal and interest on this note shall bear interest from the maturity thereon until paid, at the rate of ten per centum per annum.
“ ‘It is understood and agreed that failure to pay this note, as above promised, or any installment of interest thereon, when due, shall, at the option of the holder of said note, mature same and it shall at once become due and payable, and subject to fore-' closure proceedings under said deed of trust.
“ ‘And it is hereby specially agreed that if this note is placed in the hands of an attorney for collection, or if collected by suit or through probate or bankruptcy proceedings, the undersigned agree to pay ten per cent additional on the principal and interest then owing herein as attorney’s fees.
“ ‘Due on or before the 30th day of December, 1934.
“ ‘C. M. Glasgow
“ ‘C. H. Waddell.’
“II. Plaintiff being from such date to the present date the legal owner and holder of such note, on January 1st, 1934, after the installment of interest due on December 30, 1933, was due, payable and unpaid, made demand on defendants for the payment of said installment of interest and in August, 1934, the plaintiff exercised her option to accelerate the maturity of said note and declared all of said note due and placed said note, after its maturity, in the hands of the undersigned attorney for collection, agreeing with him to pay the said amount of attorney’s fees for his services in connection with said note, which is a reasonable amount therefor.
“III. On October 2, 1934, the property securing the payment of this note was sold in accordance with the terms of said deed of trust for the sum of one hundred ($100.00) dollars, and said amount applied as a payment and credit on said note.
“IV. Though repeated demands have been made by the plaintiff on each of said defendants to pay the balance due on said note, principal, interest and attorney’s fees, the defendants have failed and still fail and refuse to pay said balance or any part thereof, to the plaintiff’s damage in the sum of nine hundred ($900.00) dollars.”

Our courts, it is thought, have held such a pleading insufficient and fátally defective as a declaration of such a cause of action as it essayed, in the following particulars, as indicated in the cited holdings under each of them, to-wit:

(1) There is no averment that the note was made and executed by the defendants. Jennings v. Moss, 4 Tex. 452; Frazier v. Todd, 4 Tex. 461; Ross v. Breeding, 13 Tex. 16; Gray v. Osborne, 24 Tex. 157, 76 Am.Dec. 99; Sneed v. Moodie, 24 Tex. 159; Fortune v. Kerr, 25 Tex.Supp. [309], 310: Parr v. Nolen, 28 Tex. 798; Belcher v. Wilson, 31 Tex. [139], 140; Unger v. Anderson’s Ex’r, 37 Tex. 550; Hall v. Matthews [Tex.Civ.App.], 119 S.W.2d 164; 6 Tex.jur., p. 903, Sec. 238; 10 C.J.S., [Bills and Notes], p. 1204, § 583; 8 Am. Jur., p. 562, Sec. 951.

(2) It is not alleged that the claimed note was delivered by the defendants to the plaintiff. Thigpen v. Mundine, 24 Tex. 282; Malone v. Craig, 22 Tex. 609; Moody v. Benge & Jewell, 28 Tex. 545; Wilson v. Martin [Tex.Civ.App.], 87 S.W.2d 539.

(3) The specific terms and provisions of the alleged note are nowhere set out, the mere copying of its recitations as an entirety not being sufficient to cure such a defect; that is, there is no allegation as to who executed the note, or to whom it was delivered, or when it was due, or what rate of interest it carried, as well as other provisions, such as acceleration of maturity and attorneys’-fee clauses, hence it was fatally defective in this regard. Carter v. Gray, 125 Tex. 219, 81 S.W.2d 647; Durham v. Foust [Tex.Civ.App.], 64 S.W.2d 1027; Grady v. [Glen] Walker [Collett & Rigg, Tex.Civ.App.], 68 S.W.2d 327.

(4) Neither were any of the three foregoing defects cured by setting out, in full a copy of such alleged note, and referring in connection therewith to there having been executed a mortgage to secure it. Jennings v. Moss, 4 Tex. 452; Sneed v. Moodie, 24 Tex. 159; Fortune v. Kerr, 25 Tex.Supp. [309], 310; Moody v. Benge & Jewell, 28 Tex. 545; Carter v. Gray, 125 Tex. 219, 81 S.W.2d 647, all supra.

The appellee’s sole answer to these assignments against her petition is thus stated in her brief: “Any defect in plaintiff’s pleading, when raised after verdict and judgment, is cured by defendants’ pleadings, or any other pleading.”

In substantiation of that reply, she then sets out this statement and argument:

“At line 30, page 51 of the Transcript, defendants plead:
“ ‘ * * * defendants would show that the note as described in plaintiff’s petition constituted deferred purchase money for that certain property known as Lots forty (40) and forty-one (41), in the N. T. Mas-terson Subdivision, Cameron County, Texas, as set forth in that certain deed dated December 30, 1931, from Martin Henry Kingman and wife, to defendants herein.’
“At line 24, page 73 of Transcript, defendants copy plaintiff’s Original Petition, in part as follows:
“ ‘On December 30, 1931, the defendants executed and delivered to the plaintiff their promissory note bearing said date and thereby promised plaintiff to pay her the sum of Five Hundred ($500.00) Dollars with interest at the rate of eight (8) per cent per annum, the interest payable annually, from date, until maturity, and all past due principal and interest to bear ten (10) per cent interest until paid, the principal to become due on or before and payable in Houston, Texas, and providing that upon any failure to pay any installment of interest when due, shall, at the option of the holder, mature the entire indebtedness, and further providing that if this note is placed in the hands of an attorney for collection, the makers agree to pay an additional ten per cent (10%) upon the principal and interest as attorneys fees, which note reads substantially as follows: (Then follows copy of note) ’
“At line 10, page 75: ‘Plaintiff being from such date to the present date the legal owner and holder of such note’, etc.
“Authorities: Pope v. K. C. M. & O. Ry. Co. [109 Tex. 311], 207 S.W. [514], 518; Southern Casualty Co. v. Morgan [Tex.Com.App.], 16 S.W.2d 533; Jones v. Womack [-Henning & Rollins, Tex.Civ.App.], 53 S.W.2d [635], 636.
“Argument. In the first case cited above, the Supreme Court of Texas held [109 Tex. 311, 207 S.W. 518]:
“ ‘If one party expressly avers or confesses a material fact omitted on the other side, the omission is cured. It may thus be made to appear, from the pleadings on both sides, that the plaintiff is entitled to the judgment, although his own pleading, taken by itself is insufficient.’
“In Southern Casualty Co. v. Morgan, supra, the Texas Commission of Appeals held:
“ ‘The question (of insufficiency of the petition) is raised after verdict and judgment, and, so, at a time when all that is possible must be presumed in aid of the pleading * * * and at a time when the answer may help the petition * * *.’ ”

The inadequacy of this answering1 position lies mainly in the undisputed fact that the “second amended original answer” of the appellants, upon which alone the ap-pellee thus relies, was excluded by the trial court, and in consequence was not read to the jury; it, therefore, could not be looked to as an admission against the appellants. Dailey v. Coker, 33 Tex. 815, 7 Am.Dec. 279; Watters v. Parker [Tex.Sup.], 19 S.W. 1022.

In this connection, it is quite true that the trial court qualified the bill of exceptions relating to this matter with the recitation that none of the defendants’ (appellants’) pleadings had been “stricken out either on motion or exception of the plaintiff” ; but, as indicated, it just as affirmatively appears also that such second amended answer of the appellants was excluded “on objection of plaintiff’s counsel”.

In the second place, this expunged amended answer of the appellants was not available to the appellee as a cure of her defective petition, because-it thereby not only became functus officio as a pleading, but it was not even offered by the appel-lee as evidence. Dunson v. Nacogdoches County [15 Tex.Civ.App. 9], 37 S.W. 978; Houston, E. & W. T. R. R. Co. v. DeWalt [Tex.Civ.App.], 71 S.W. 774; Miller v. Drought [Tex.Civ.App.], 102 S.W. 145; Colorado [Canal Co.] v. McFarland [& Southwell, 50 Tex.Civ.App. 92], 109 S.W. 435; Kimmons v. Abraham [Tex.Civ.App.], 158 S.W. 256; 22 C.J., Sec. 380, p. 336 et seq.; 49 C.J., Sec. 127, p. 126 et seq.

In the third place, .it likewise appears that appellants’ excluded answer first contained a general denial upon their part of any obligation whatever to the appellee, and was then followed by the recitations ap-pellee depends upon as constituting the admission she alleged.

In such a situation, our courts seem to hold that no such admission, after a general denial has been filed, can be used against the party making it. Bauman v. Chambers, 91 Tex. [108], 111, 41 S.W. [471], 472; Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Lovelady v. Harding [Tex.Civ.App.], 207 S.W. 933, 934.

These conclusions require a reversal of the challenged judgment, and a remanding of the cause for another trial; it will be so ordered.

Reversed and remanded.


author: HALL, Justice.

text:
    TALIAFERRO v. LAIRD.
    No. 5805.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 27, 1941.

      Hill & Bath, of Henderson, for appellant.
    Norman M. West, of Henderson, for ap-pellee.
   HALL, Justice.

This suit is on a note brought by ap-pellee against appellant and others in the County Court of Rusk County. Appellant, Taliaferro, denied execution of the note, alleging forgery; and, in the alternative, in event of judgment against him, sought judgment over and against his codefend-ants, the makers of said note. Trial was to a jury on special issues. The verdict was favorable to appellee and judgment was rendered accordingly.

The contention here by appellant is that the court improperly placed the burden of proof as to the execution of said note on appellant, when that burden, in law, rested with appellee. There is no merit in this contention. Traders & General Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431; Eichlitz v. Allen, Tex.Civ.App., 131 S.W.2d 43, writ dismissed; Traders & General Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391; Texas Employers Ins. Ass’n v. Watkins, Tex.Civ.App., 135 S.W.2d 296.

The judgment in all things is affirmed.


author: HALE, Justice. TIREY, Justice

text:
    FIRST NAT. BANK OF CORSICANA v. WM. CAMERON & CO., Inc.
    No. 2278.
    Court of Civil Appeals of Texas. Waco.
    Feb. 27, 1941.
    Rehearing Denied March 27, 1941.
    Taylor & McWilliams, of Corsicana, for appellant.
    Sleeper, Boynton & Kendall, of Waco, for appellee.
   HALE, Justice.

Appellee, Wm. Cameron & Co., Inc., hereinafter referred to as “plaintiff,” recovered judgment against the First National Bank of Corsicana, herein referred to as “Corsicana bank,” by reason of the latter’s alleged liability on a check drawn on said bank as county depository by the Pecan District No. 83, a common school district in Navarro county. The case was tried to the court without a jury upon an agreed statement of facts, supplemented by certain documentary evidence and the testimony of the cashier of the Corsicana bank. The facts giving rise to the litigation are without dispute and, as found by the trial court,' are substantially as follows:

On March 1, 1933, the school district issued its check or voucher, drawn on the Corsicana bank, payable to the order of plaintiff, in the sum of $980. About 3 o’clock in the afternoon of the same day, plaintiff, who was then and had been for a number of years a regular customer of the First National Bank of Blooming Grove (herein referred to as “Blooming Grove bank”) caused the check to be duly endorsed in blank and deposited in the Blooming Grove bank, at which time plaintiff received a deposit slip containing a printed notation to the effect that in receiving items for deposit or collection, said bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care, and that all items so received are credited subject to final payment in cash or solvent credits. Upon receiving such check the Blooming Grove bank entered a credit in plaintiff’s passbook for the amount thereof, which passbook contained the identical language as above set forth in the deposit slip. The Blooming Grove bank entered on its books at the same time a credit to plaintiff’s account for the amount of said check, which credit was never charged back against plaintiff on the Blooming Grove bank’s books, and it immediately endorsed the check to the order of any bank or trust company and forwarded same to its correspondent, the Corsicana bank, “for collection and credit.”

The Corsicana bank received the check and letter of transmittal in 'due' course of mail on March 2, 1933, which was a banking holiday. Effective March 3rd, and through March 15, 1933, neither bank was open for business, due to the national and state bank holidays declared by the President of the United States and the Governor of Texas, respectively. On March 16th the Corsicana bank again opened for business as usual, but the Blooming Grove bank, having been placed under the supervision of a national bank conservator, did not reopen for the general conduct of its banking business and in November it was placed in the hands of a receiver and thereafter liquidated. The Corsicana bank, immediately after opening for business on March '16th, debited the account of the school district with the amount of the check and c. edited the regular deposit account of the Blooming Grove bank with the same amount. The Corsicana bank had no knowledge of the notation on the deposit slip or in the passbook issued by the Blooming Grove bank to plaintiff, and it had no knowledge or notice of the insolvency or restricted operations of the Blooming Grove bank until after March 16, 1933. The Blooming Grove bank was indebted to the Corsicana bank on and prior to March 16th in the approximate sum of $16,000, represented by two past-due notes, which were partially secured by collateral. On July 29th the Corsicana bank, with notice of the insolvent condition of the Blooming Grove bank, debited the deposit account of the Blooming Grove bank with the full amount of such deposit account, including the amount represented by the check in question, and credited the same on the past-due notes held by it. Plaintiff made no demand on the Corsicana bank for the proceeds of the check here involved until some time in the month of February, 1934. By agreement between the Corsicana bank and plaintiff, and without prejudice to their rights as against each other, plaintiff has collected, for the benefit of the person entitled thereto, the sum of $490 paid as a dividend by the receiver on behalf of the Blooming Grove bank to its creditors, in so far as the $980 deposit is concerned.

Based upon the foregoing facts, the trial court filed conclusions of law substantially as follows: (1) The deposit by plaintiff with the Blooming Grove bank was for collection and did not pass title in said check to the Blooming Grove bank, but constituted such bank plaintiff’s agent for the collection of said check; (2) the Corsicana bank was not an innocent purchaser for value of said check, or the proceeds thereof, but was a sub-agent of plaintiff in collecting said check, and the collection thereof was not completed at a time when the collection of the check and the credit thereof to the deposit account maintained by the Blooming Grove bank could change the relationship between plaintiff and the Corsicana bank from principal and sub-agent to a relationship of debtor and creditor as between the two banks; (3) the credit of the proceeds from said check on the indebtedness due to the Corsicana bank by the Blooming Grove bank was not entered as an exercise of a debtor’s privilege to offset until the Corsi-cana bank had knowledge of the insolvency or restricted operations of the Blooming Grove bank; (4) plaintiff was entitled to recover of the Corsicana bank the sum of $490, being the amount of said check less the dividend collected from the receiver of the Blooming Grove bank, together with interest on said -sum from the time plaintiff made demand on the Corsicana bank for the proceeds of said check. The court entered judgment accordingly, from which the Cor-sicana bank has perfected this appeal, and by appropriate assignments it challenges the correctness of the legal conclusions above set forth and insists that plaintiff should have been denied any recovery against it.

We do not think the legal relationship which existed between the parties at the inception of the transactions here under consideration is of controlling importance. There has been a marked diversity of opinion on the issues thus presented. Heid Bros. v. Commercial Nat. Bank, Tex.Com. App., 240 S.W. 908, 24 A.L.R. 904; Commercial Nat. Bank v. Heid Bros., Tex.Civ.App., 257 S.W. 913; Mayfield Co. v. First Nat. Bank of Terrell, Tex.Civ.App., 287 S.W. 510; O’Hara v. Texas Nat. Bank, Tex.Civ.App., 299 S.W. 649; Suter v. City Nat. Bank, Tex.Civ.App., 12 S.W.2d 1037. In our opinion, a correct disposition of the case turns upon the question as to whether, in the course of the dealings between the parties, there was a 'change in their legal status, and if so, as to the effect thereof.

In deference to the conclusions of the trial court, we may assume that the deposit by plaintiff with the Blooming Grove bank was intended for collection by the latter in cash or solvent credits, and that the credit originally given to plaintiff by the Blooming Grove bank was conditioned upon the latter’s collection of said check in the manner indicated. Therefore, such deposit did not pass title in said check to the Blooming Grove bank at the time when the deposit was made, and the Blooming Grove bank was plaintiff’s agent for the collection of the check and the Corsicana bank was not a purchaser of the same but was merely a sub-agent in the transaction until the Blooming Grove bank admittedly received final payment of the check from the Corsi-cana bank in solvent credits.

However, when the Corsicana bank effected collection of the check on March 16th by charging the proceeds thereof to the existing account of the School District and by crediting the same to the deposit account of the Blooming Grove bank, as it was authorized and directed to do, the original relationship between the parties changed. The object for which the agency had been created was then accomplished. Thereupon the conditional credit which the Blooming Grove bank gave to the plaintiff at the time when the deposit was made became absolute and unconditional, and the Corsicana bank then ceased to be the agent either of plaintiff or of the Blooming Grove bank, but from that time on the Cor-sicana bank was a debtor of the. Blooming Grove bank, which was in turn a debtor of plaintiff. See United States Nat. Bank of Galveston v. Azar, Tex.Civ.App., 102 S.W. 2d 242, error refused, and cases there cited. We believe the holding referred to is decisive of the questions involved in this appeal. No reason is advanced as to why the Blooming Grove bank and its conservator, and later its receiver, could not have demanded and received from the Corsicana bank at any time prior to 'July 29th the proceeds from the check which was credited unconditionally to the deposit account of the Blooming Grove bank on March 16th. The Corsicana bank was in no way responsible for the fact that plaintiff could not legally demand and receive from the Blooming Grove bank all the money which it rightfully owed to plaintiff.

As we view the case, it is wholly immaterial whether the Corsicana bank had the right on July 29th to credit the proceeds from said check as an offset on the indebtedness due it by the Blooming Grove bank. If such offset was improper (which we do not attempt to decide) the sole right to question the impropriety, if any, of the same would vest in the receiver of the Blooming Grove bank for the benefit of its creditors. It appears that the receiver of the Blooming Grove bank has admitted its liability as an unconditional debtor, in so far as the deposit in question is concerned, by paying a fifty per cent dividend thereon. Such liability, if any, would necessarily be contingent upon the unconditional liability of the Corsicana bank to it. United States Nat. Bank of Galveston v. Azar, supra. And so, if the Corsicana bank’s knowledge of the insolvency of the Blooming Grove hank operated to deprive it of a debtor’s privilege of offset on July 29th, then the Corsicana bank might be liable to the receiver of the Blooming Grove bank for the entire amount of the proceeds from the check, but in no event would it be liable directly to plaintiff for any part of the same.

The facts having been fully developed, it becomes our duty to fender such judgment as the trial court should have rendered, and’it follows from what we have said that the judgment of the trial court is reversed and judgment is here rendered in favor of appellant.

TIREY, Justice

(dissenting.)

Not being able to agree with the majority opinion in this case, T hereby enter my dissent.

The material facts are fully set out in the maj ority opinion.

I think the controlling question presented is whether or not the collection of the $980 check by appellant was completed at such time that it changed the relationship of principal and agent, existing between the parties, to that of debtor and creditor. I think it did not, because: (1) appellant having received the check in question from the Blooming Grove Bank “for collection and credit” to the deposit account of the Blooming Grove Bank during the banking holiday, and appellant having reserved the right to charge back any item credited to the account of the Blooming Grove Bank which it could not collect, title to said check did not pass to appellant bank; (2) on March 16, 1933, the date that appellant re-opened for business and at which time appellant credited the amount of the check in question, to a regular deposit account maintained by the Blooming Grove Bank with it, it knew that under the rules and regulations in reference to the re-opening of banks after the bank holiday the Blooming Grove Bank could not be opened for business at that time; (3) on July 29, 1933, when appellant charged the deposit account of the Blooming Grove Bank with the amount of the proceeds of the check here in question and credited same on the past-due notes due it by the Blooming Grove Bank, appellant knew that all classes of banks which the government officials considered to be in proper condition to re-open at the close of said bank holiday, with reference to their former deposits and to carry on a regular banking business with reference thereto, had been permitted to re-open, and that the Blooming Grove Bank had not been permitted to re-open, with reference to its business prior to March 1, 1933. I think the forgoing undisputed facts would authorize the trial court to infer and conclude that the credit by appellant of the proceeds of said check on the indebtedness due'appellant by the Blooming Grove Bank was not entered as an exercise of a debtor’s privilege of offset until appellant had knowl.edge of insolvency and, in all events, of the restricted operations in reference to said funds of the Blooming Grove Bank;' otherwise appellant would not have waited until July 29, 1933, to have so credited the proceeds of said check. ‘ (In a case tried to the court without the intervention of a jury, the appellate court will take the view of the evidence most favorable to the prevailing party. Green v. Noah, Tex.Civ.App., 24 S.W.2d 113, point 1, page 1115, writ dismissed.) I think the foregoing facts distinguish this case from the facts in United States National Bank of Galveston v. Azar, Tex.Civ.App., 102 S.W.2d 242, relied upon in the majority opinion, for the reason that the rights of the parties were determined and fixed in the Azar case before they were put upon a restricted basis, and the rule announced in that case is not applicable to the facts in the case at bar. I think that the foregoing facts bring this case within the rule announced by the United States Supreme Court in Commercial National Bank v. Armstrong, 148 U.S. 50, 13 S.Ct. 533, 534, 37 L.Ed. 363, wherein it says: “If, before the subagent parts with the money, or credits it upon an indebtedness of the agent bank to it, the insolvency of the latter is disclosed, it ought not.to place the funds which it has collected, and which it knows belong to a third party, in the hands of that insolvent agent or its assignee; and, on the other hand, such insolvent agent has no equity in claiming that this money, which it has not yet received, and which belongs to its principal, should be transferred to, and mixed with, its general funds in the hands of its assignee for the benefit of its general creditors, and to the exclusion of the principal for whom it was collected. * * * No mere bookkeeping * * * could change the actual status of the parties, or destroy rights which arise out of the real facts of the transaction.”

My view is that the collection of the check and crediting of the proceeds by appellant under the undisputed facts were insufficient to terminate its agency, and I therefore think that the judgment of the trial court should be affirmed. See City Bank of Sherman v. Weiss, 67 Tex. 331, 3 S.W. 299; O'Hara v. Texas National Bank, Tex.Civ.App., 299 S.W. 649, point page 651, writ refused; Commercial National Bank of Hutchinson, Kansas v. Heid Bros., Tex.Civ.App., 257 S.W. 913, writ dismissed; Beane v. First National Bank & Trust Co., 4 Cir., 92 F.2d 382, point page 385.


author: WILLIAMS, Justice.

text:
    TYRECO REFINING CO. v. COOK et al.
    No. 5711.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 27, 1941.
    Rehearing Denied March 20, 1941.
    Pollard & Lawrence and William S. Reeves, all of Tyler, for plaintiff in error.
    Lasseter, Simpson, Spruiell & Lowry, of Tyler, Kyle Vick, of Waco, and Geo. W. Barcus, of Austin, for defendants in error.
   WILLIAMS, Justice.

Tyreco Refining Company, a defendant below, appeals from a judgment recovered by C. R. Cook for personal injuries sustained by him in ah explosion -which occurred on plaintiff in error’s premises. This company will be referred to as appellant. Cook’s allegations for cause of action against appellant and the other defendant, Waco Oil Company, and of appellant’s cross-action over and against Waco Oil Company are the same as detailed in Tyreco Refining Co. v. Cook, Tex.Civ.App., 110 S.W.2d 219. Certain alleged res gestae declarations discussed in the above opinion were admitted in evidence upon this second trial. With this additional testimony, the evidence is virtually the same as detailed in the former opinion. The special issues submitted to the jury, the verbiage of the charge and of each issue, and the jury’s findings are the same. Waco Oil Company was exonerated of negligence, and no assignment attacks such disposition. Appeal has been perfected by writ of error. No motion for new trial was filed. Appellant’s assignments of error are predicated upon the refusal of the court to give an instructed verdict to find for appellant; and upon certain exceptions to the court’s charge.

Under the first six propositions, appellant contends here, as in the former appeal, that there was no evidence of general or specific negligence on its part which proximately caused the injuries, and no evidence to warrant the submission of the. special issues Nos. 2, 3, 4 and 5. The nature of these issues is disclosed in the former opinion. The matter thus presented under above propositions were duly considered, discussed and concluded adversely to appellant in the former appeal. This record being in all respects substantially the same, the conclusion then reached became the law of this case. Bower v. Yellow Cab Co., Tex.Civ.App., 35 S.W.2d 519, and authorities there cited.

The court defined proximate cause, namely:

“ ‘Proximate cause,’ as that term is used in this charge, means the moving and efficient cause, unbroken by any new and independent cause, without which the injury in question would not have happened. An act or omission becomes the proximate cause of an injury whenever such injury is the natural and probable consequence of the act or omission in question, and one that ought to have been reasonably foreseen by a person of ordinary care and prudence, in the light of the attending circumstances. It need not be the sole cause, but it must be a concurring cause, which contributed to the production of the result in question, and but for which the said result would not have occurred.
“By the term, ‘new and independent cause,’ as used in this charge, is meant the act or omission of a separate and independent agency which destroys the causal connection between the negligent act or acts, or omission or omissions complained of, and the injuries alleged to have been sustained, and thereby becomes in itself the immediate cause of the injuries.”

Under the seventh proposition, appellant asserts that the court committed reversible error in the above definition of “new and independent cause,” in that the court over the objection and exception of defendant failed and refused to instruct the jury “that where an independent cause follows a negligent act, to connect the subsequent result with the original cause, such independent and controlling cause must be such that a person of ordinary prudence should have anticipated the same in the light of the attending circumstances.” In considering the merits of this proposition, it is to be borne in mind that the jury found that McNair did not strike a match at the time of the explosion. This was the only act, either in pleading or evidence, that appellant contended constituted a “new and independent cause.” If it be 'conceded that such jury finding did not render harmless the failure to include the element of “fore-seeableness” as complained of, nevertheless this proposition is overruled. When definition of “new and independent cause” is read in connection with the definition of proximate cause of which it is a part, and both instructions are construed as a whole, the elemfent of “foreseeableness,” complained of as being omitted, appears to be present in the definition as given. St. Louis S. W. Ry. Co. v. Lowry, Tex.Civ.App., 119 S.W.2d 130, 135. The instruction here attacked is in the language of the definition of “new and independent cause” as stated in Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61, reaffirmed in Young v. Massey, 128 Tex. 638, 101 S.W.2d 809. See, also, Vilbig & Co. v. Lucas, Tex.Civ.App., 23 S.W.2d 516, 520.

Under the ninth proposition appellant asserts that the court erred in permitting the jury’ to take into consideration in assessing the damages the nature and extent of the injuries, and any mental or physical pain or anguish suffered by Cook on account thereof, for the reason that the same permitted a double recovery. Issue No. 16 reads: “What amount of money, if any, if paid now, would reasonably and fairly compensate plaintiff, G. R. Cook, for the injuries and damages, if any he has sustained to his person as the direct and proximate result of the burns and injuries, if any, sustained by him on the occasion in question?” In connection with this question, the court instructed the jury that, “You may take into consideration the nature and extent of the injuries sustained to his person, and any mental or physical pain and anguish, if any, suffered by him on account thereof, * * * You will answer this question in dollars and cents, if any, as you may find.” In Gulf, C. & S. Ry. Co. v. Brown, 16 Tex.Civ.App. 93, 40 S.W. 608, 614, that court, in consideration of a similar proposition as here presented, said: “It was not improper for the court to inform the jury what items of damages they might consider, and this would not be allowing a double recovery, after telling them in general terms to find damages for injuries caused.” As stated in Industrial Lbr. Co. v. Bivens, 47 Tex.Civ.App. 396, 105 S.W. 831, 835: “It is * * * apparent that they are so submitted by the charge that no one of the grounds overlaps the others so as to allow a finding of double damages * * See, also, International & G. N. Ry. Co. v. Wray, 43 Tex.Civ.App. 380, 96 S.W. 74, 75; Sprague v. Hubert, Tex.Civ.App., 77 S.W.2d 738, 741.

Appellant’s eighth and tenth propositions are unsupported by any assignment of error, and present no fundamental error.

Tire judgment of the trial court is affirmed.


author: FOLLEY, Justice.

text:
    GOUNA v. O’NEILL et al.
    No. 5273.
    Court of Civil Appeals of Texas. Amarillo.
    March 10, 1941.
    Grady L. Fox, of Amarillo, for appellant.
    Simpson, Dorenfield & Fullingim, of Amarillo, for appellee Plains Creamery.
    E. T. Miller, of Amarillo, for appellee M. T. O’Neill.
   FOLLEY, Justice.

The appellant, Max Gouna, filed this suit against M. T. O’Neill and the Plains Creamery, Inc., seeking damages for personal injuries alleged to have been received by him from the discharge of a shotgun lying on the floor of an automobile driven by O’Neill, which automobile • had been struck from the rear by a truck belonging to the Plains Creamery, Inc. The trial court sustained a general demurrer to appellant’s petition and, upon his refusal to amend, dismissed the suit.

The appellant alleged that on December 28, 1939, he was standing- on the northeast corner of Polk Street where it intersects Seventh Street in the City of Amarillo, Texas; that M. T. O’Neill was parked in his automobile facing south on Polk Street at such intersection waiting for a street light to turn green; that the truck of the Plains Creamery, Inc., driven by an employee in the course of his employment, was traveling south on Polk Street; that such employee negligently failed to apply his brakes and, while operating the truck at a high and dangerous rate of speed and without keeping a proper lookout, raft into the rear of the automobile of M. T. O’Neill; that the truck struck the automobile in such a forceful manner it caused a shotgun lying on the floor of the automobile to move so violently as to break the hammerlock on the-shotgun and to jolt the safety loose; that immediately after the collision O’Neill opened the door of his car in an effort to determine what damage he had sustained; that when O’Neill shut the door of his automobile the shotgun discharged and a slug from it struck the appellant’s right ankle as he stood at the northeast corner of the intersection; that appellant did not know just what caused the gun to fire, whether a result of the collision or whether it immediately followed the shutting of the automobile door by O’Neill when he got out of his car after the collision, but in either event, he asserted, all of the above circumstances constituted one continual series of actions set about and caused by the employee of the Plains Creamery, Inc., negligently running into the rear of O’Neill’s car; and that said negligence of the Plains Creamery, Inc., was the direct and proximate cause of the injury. Appellant prayed for judgment for his damages in the sum of $3,193.85 as against M. T. O’Neill and the Plains Creamery, Inc.

Both defendants in the lower court filed general demurrers to appellant’s petition and both of the demurrers were sustained. There is no appeal from that portion of the judgment in favor of O’Neill. The appeal is prosecuted only with reference to the judgment in favor of the Plains Creamery, Inc. Therefore, the action of the court in sustaining the general demurrer of O’Neill and dismissing the suit as to him is not before us. Moreover, if it was, there was no act of negligence charged against O’Neill nor any assertion that negligence upon his part was a proximate cause of appellant’s injury. Our discussion will therefore be limited to the court’s action in sustaining the general demurrer of the Plains Creamery, Inc., and the dismissal of the suit as to it. ■ .

As we view this case, but one question is presented, and that is whether or not, under appellant’s allegations, viewed in their most favorable light, the driver of the truck should reasonably have anticipated in the light of the attending circumstances that by reason of his conduct the injury sustained or some similar injury would probably result.

In our recent case of Bledsoe v. City of Amarillo, 143 S.W.2d 215, writ refused, we reviewed four of the celebrated cases of our court of last resort upon the same issue presented in the instant case. Such cases are: Seale v. Gulf, Colorado & Santa Fe Ry. Co., 65 Tex. 274, 57 Am.Rep. 602; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; City of Vernon v. Lisman et al., Tex.Com.App., 17 S.W.2d 769; and San Antonio & A. P. Ry. Co. v. Behne et ux., Tex.Com.App., 231 S.W. 354. These cases pronounce very clearly the rule as to foreseeableness and anticipation of injury as an element of proximate cause. We deem it unnecessary to further elaborate upon such holdings, but think it sufficient to state that the rule thus announced is, in effect, that “one should' not be held responsible for those consequences of his acts which in the light of common experience he could not reasonably be expected to have anticipated”. Bledsoe v. City of Amarillo, supra [143 S.W.2d 218]. In the Bigham case [90 Tex. 223, 38 S.W. 163], it was said: “It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.”

It is our opinion the instant case comes squarely within the rule announced in the above cases and many others upon the subject. It would indeed be highly fantastic and speculative to assert that the truck driver should have reasonably anticipated in the light of the attending circumstances that by reason of his conduct in striking the automobile the injury sustained by the appellant, or one as remote, would probably'result. To so charge him he must necessarily have anticipated there was a loaded shotgun in the bed of the automobile; that the impact from the collision would break the hammerlock on the shotgun and jar the safety loose; that the driver of the car would immediately get out of the automobile after the collision and shut the door; that the shotgun would thereby be discharged; and that the appellant, standing nearby, would be hit by the discharge from the gun. To have anticipated these or similar consequences from his alleged wrongful conduct he would not only have been required to exercise the ordinary care of a reasonably prudent person in the light of common experience, but, in addition thereto, would necessarily have had to resort to philosophical or metaphysical speculation, which the law does not require. City of Dallas v. Maxwell et ux., Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927.

From the allegations of the appellant it is apparent the element of proximate cause is lacking and the causal connection between the negligence alleged and the injury-received is absent.

The judgment is affirmed.


text:
    BRANDON et al. v. SCHROEDER et al.
    No. 11116.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied March 20, 1941.

      J. Toll Underwood and Sewell, Taylor, Morris & Connally, all of Houston, for appellants.
    Vinson, Elkins, Weems & Francis, Thos. B. Weatherly, and C. M. Hightower, all of Houston, for appellees.
   GRAVES, Justice.

This appeal is from an order of the court below overruling the pleas of privilege of the appellants to be sued in Concho County, where they reside, instead of Fort Bend County, where the venue was laid by the appellees against them under and by virtue of Subdivision 9 of R.S., Article 1995.

The appellees, the wife and minor child of Carl Schroeder, deceased, were the plaintiffs below, and the two appellants were the defendants.

The appealed from judgment contains this preliminary recital: “It appearing that the plaintiffs’ cause-of-action was for damages due to the death of Carl Schroeder, the husband of the plaintiff, Mrs. Lydia, Schroeder, and the father of the minor plaintiff, Leon Schroeder, as the result of a collision between the car which he was driving and a truck driven by the defendant, Erwin Smith, and it being stipulated by counsel that the collision occurred in Fort Bend County, Texas, and that Carl Schroeder died as a result thereof, and it being established by the undisputed evidence that the truck driven by Erwin Smith was owned by the defendant, M. B. Brandon, and was being driven by Erwin Smith, his . employee, • in the course and scope of his employment and that said truck weighed in excess of six thousand pounds.”

The court thereupon submitted to the jury what it deemed to be the material issues of fact raised by the pleadings and evidence, eleven special issues, all of which it directed to be answered “from a preponderance of the evidence”, in response to which these findings — in the order and manner directed — were duly returned:

“(1) That Erwin Smith was operating the truck in excess of 25 miles per hour.
“(2) That such operation was a proximate cause of the collision.
“(3) That Erwin Smith was operating the truck at an excessive rate of speed.
“(4) That such operation was negligence.
“(5) That such negligence was a proximate cause of the collision.
“(6) That Erwin Smith was operating the truck with a portion thereof to the left of the center of the highway.
“(7) That such operation was negligence.
“(8) That such negligence was a proximate cause of the collision.
“(9) That the left-hand side of the highway was not clear and unobstructed for a distance of at least 50 yards ahead.
“(10) That operating the truck to the left of the center of the road was a proximate cause of the collision.
“(11) That the accident was not the result of an unavoidable accident.”

Pursuant to the quoted verdict and independent findings of the court itself, the challenged judgment was rendered.

As indicated supra, the sole issue so determined was whether or not the venue of the suit was maintainable in Fort Bend County, and had been properly joined upon the appellees’ petition, the appellants’ pleas of privilege, and the controverting affidavits of the appellees ⅛ reply thereto, all of which were in statutory form; appellants present these three main propositions for a reversal, to-wit:

“Proposition No. 1. In order to maintain venue in Fort Bend County, the plaintiffs were required to establish that their damage was proximately caused by a crime or trespass committed by the defendants in that county, and the evidence having raised issue of fact from which the jury might have determined that the conduct of the driver of the plaintiffs’ car was the sole proximate cause of the collision, therefore the trial court erred in refusing to submit to the jury issues inquiring whether or not such conduct was the sole proximate cause of the collision.
“Proposition No. 2. The evidence being undisputed that Carl Schroeder failed to stop his car before entering Highway 38, and the evidence having raised an issue of fact as to whether or not such failure was the sole proximate cause of the collision, it was error for the court to refuse to submit an issue of sole proximate cause when duly requested by the defendants.
“Proposition No. 3. The trial court erred in refusing to submit to the jury defendants’ requested issue No. B, which was duly requested and raised by the evidence, said issue inquiring as to whether or not the defendant, Erwin Smith, was operating the truck in the manner in which he did at the time of the accident in an 'emergency’, and in an effort to avoid striking the plaintiffs’ car, and in the event that the requested issue be defective, the trial court erred in refusing to submit to the jury a proper issue based upon this theory of defense.”

In the circumstances, it is determined that none of these ably presented contentions should be sustained, upon these considerations :

(1) The question of venue only of this suit, and not liability for the damages therein declared upon, being at issue, the essential venue facts were alone material. These, in addition to the facts so found by the court from the undisputed evidence, were simply whether or not “a crime, offense, or trespass” had been committed by appellants as against appellees, in Fort Bend County, on September 9th of 1939, within the meaning of Subdivision 9 of R.S., Article 1995. Bell Pub. Co. v. Garrett Engineering Co., Tex.Civ.App., 146 S.W.2d 301, decided December 12, 1940; 43 Tex. Jur. p. 857, and par. 114, note 14. Same volume, pp. 844, 845, par. 109, note 4; also notes 18 and 20, p. 844 of 1940 Supplement to 43 Tex.Jur.Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

(2) These specified venue facts were to be proven “from the preponderance of the evidence”, and not merely prima facie, as the trial court so instructed the jury in submitting the given issues. Compton v. Elliott, 126 Tex. 232, 86 S.W.2d 91, supra; Sisco v. Sklar, Tex.Civ.App., 113 S.W.2d 999; Belo Corp., v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Bell Pub. Co. v. Garrett, supra.

(3) Neither Subdivision 9 of R.S., Article 1995, nor R.S., Article 2007, required that any other matters than those thus necessary to determine whether the appellants were suable in Fort Bend County in this action should be tried. '43 Tex.Jur. Sec. 109, page 844, supra; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675.

(4) The quoted findings of the jury, Numbers 1, 3, 6, and 9, each in its attending circumstances, none of which are challenged as not having been supported by the required preponderance of the evidence, when taken together, plainly established the commission of a crime within the purview of such Section 9. 43 Tex.Jur. 755, and cited authorities; 43 Tex.Jur. 739, 857, 858; Martin v. Cable, Tex.Civ.App., 140 S.W.2d 894, 896; Article 801, Texas Penal Code; Younger Bros. v. Power, Tex.Civ.App., 92 S.W.2d 1147; Scott v. Carlos, Tex.Civ.App., 13 S.W.2d 957; Article 827a, Section 8, Texas Penal Code; Guajardo v. State, 139 Tex.Cr.R. 201, 139 S.W.2d 85; Vasquez v. State, 121 Tex.Cr.R. 478, 52 S.W.2d 1056, 1057; R.C.L. Vol. 2, p. 1212; 42 C.J. p. 1354.

(5) The appellees . having thus shown appellants to have been guilty of affirmative negligence toward them in the specified paticulars (Numbers 1, 3, 6, and 9) thereby having perpetrated a crime against them in Fort Bend County within the meaning of Penal Code, Articles 801, 827a, Section 8, thus discharged the full burden of proof placed upon them in such a venue hearing, hence were not required to go further and establish the liability of the appellants upon the merits of the controversy.

(6) By the undisputed evidence only two actors participated in this collision — appellant Erwin Smith, and appel-lees’ deceased husband and father, Carl Schroeder; consequently, it likewise appears that only they two, one or both, were negligent, and that no third person nor instrumentality in any way contributed to or could have caused the injury. Abercrombie Co. v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978; Safety Stores v. Rutherford, Tex.Civ. App., 101 S.W.2d 1055, affirmed by Supreme Court in 130 Tex. 465, 111 S.W.2d 688; Weatherford v. Vavithis, Tex.Civ.App., 135 S.W.2d 1008.

(7) The trial court submitted the inquiry as to whether the collision was the result of an unavoidable accident upon the same group of facts appellants made the basis of their requested issue as to whether the acts of Carl Schroeder had been the sole proximate cause of the accident, and the jury answered it was not; wherefore, it would have been, at all events, a useless duplication to submit essentially the same thing by terming it “proximate cause”. Dallas Ry. v. Goss, Tex.Civ.App., 144 S. W.2d 591; Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556.

(8) In the circumstances here presented — there being only the two participating actors — appellants’ requested issues as to whether Carl Schroeder’s allegedly negligent acts were the sole proximate cause of the accident, and whether Erwin Smith acted because of a sudden “emergency”, in committing the negligent acts the jury found him guilty of, raised, at most, only defensive matters on a parity with contributory negligence, which had no necessary place in a mere venue trial, like this was. Dallas, etc., Bank v. Harrison, Tex. Civ.App., 131 S.W.2d 742; Roadway Transport Co. v. Gray, Tex.Civ.App., 135.S.W.2d 200; 30 Tex.Jur. 694; Martin v. Cable, Tex.Civ.App., 140 S.W.2d 894; American Seed Co. v. Wilson, Tex.Civ.App., 140 S.W. 2d 269; Traders & General Ins. Co. v. Cole, Tex.Civ.App., 108 S.W.2d 864.

(9) Appellants’ requested issue on sudden emergency was this :

“If you have found in answer to any of the preceding special issues that Erwin Smith was driving on the left-hand side of the road immediately before the collision in question, do you find from a preponderance of the evidence that he turned to the left-hand side of the road immediately before the collision in question in an emergency and in an effort to avoid striking the plaintiffs’ car?
“Answer ‘Yes’ or ‘No’.”

The refusal of this inquiry did not involve prejudicial error, it is thought, for the further reason that, inherently, it did not raise a material nor ultimate issue of fact, an answer to which would have properly formed a basis for a judgment; it failed to define what “an emergency” was, and to ask whether such act, if answered yes, was either negligence or a proximate cause of the accident. Speer on Special Issues, p. 371; Wichita Falls & O. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85; Hooks v. Orton, Tex.Civ.App., 30 S.W.2d 681, 684.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.