author: BAUGH, Justice.

text:
    HUBERT v. COLLARD.
    No. 8930.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1940.
    Rehearing Denied June 12, 1940.

      Wallace & Wallace, of Cameron, for appellant.
    Fred S. Dudley, of Fort Worth, for ap-pellee.
   BAUGH, Justice.

Appeal is from a judgment, after trial to a jury on special issues, in favor of Collard, plaintiff below, against Hubert, defendant below, in the sum of $225 for conversion by Hubert of oil well casing belonging to Collard.

The following substantial facts appear: In April, 1936, Hubert executed an oil and gas lease on a tract of land owned by him in Bell County to Collard. Collard assigned the lease to Summers on April 24, 1936, who employed Hickey & McClung to drill a well. Collard loaned them the casing in question in May, 1936, which they placed in the well; but did not drill it to the depth specified in the lease, abandoned it in June, 1936, removed all the machinery from the premises, leaving the casing in the well. Hickey & McClung failed to plug the well as required by law (Art. 6005, R.C.S. 1925) and the rules of the Railroad Commission, and on July 7, 1937, Hubert, the landowner, had the well plugged and the casing pulled at his own expense and sold the casing. Collard, the owner of said casing, filed this suit on December 3, 1938, against Hubert for damages for conversion of his property. Among other pleas, Hubert pleaded limitation under Art. 3999, R.C.S. 1925. In answer to issues submitted the jury found the value of the casing' at $375 ; cost of pulling it from the well at $150; and that three months would have been a reasonable time in which to remove the casing after the well was abandoned in June, 1936. The court rendered judgment for plaintiff for $225; hence this appeal.

Appellant’s first contention is that appel-lee’s failure to file suit for more than two years after the loan of the casing was made, or more than two years after the expiration of a reasonable time for removing it from the well as found by the jury, his title thereto was extinguished under the provisions of Art. 3999, R.C.S. This Article provides : “Where any loan of goods or chatties [chattels] shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for the space of two years without demand made and pursued by due process of law on the part of the pretended lender; or when any reservation or limitation shall be pretended to have been made of a use of property, by way of condition, reversion, remainder or otherwise in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken as to the creditors and purchasers, of the persons aforesaid so remaining in possession, to be fraudulent within this title, and that the absolute property is with the possession, unless such loan, reservation or limitation of use of property were declared by will, or by deed or other instrument in writing, duly acknowledged or proved and recorded.”

It may be seriously doubted if this Article has any application to the facts of the instant case. Appellee never loaned the property to appellant nor voluntarily placed it in his possession. The loan was to Hickey & McClung, and the property placed in their possession. They did not claim it adversely to appellee, nor did they sell it to anyone. They merely abandoned it in the well on the premises of appellant. Nor did appellee seek a recovery of his property from nor any relief against the purchasers thereof.

When the well was abandoned it became the duty of the owner or operator thereof, whether Hickey & McClung, the drillers, or Summers, assignee of the lease, “before drawing the casing therefrom” to plug the well. In the event of their failure to do so this duty is imposed by statute (Art. 6005, R.C.S.) on the owner of the land, and he is given a lien upon the fixtures and machinery on the premises to the extent of the expense incurred in doing so, which he may enforce in any court of competent jurisdiction. Appellee, who owned the casing, was not required to plug the well. Nor did he have a right to remove the casing from the well until it was plugged. Appellant did not discharge that duty until July 7, 1937, at which time he merely acquired personal possession of the casing for the first time, and at which time he sold it. Manifestly he had no title to the casing at that time even under Art. 3999, and his sale of it without the knowledge or consent of the owner amounted to a conversion. The placing of the casing in the well did not make it a part of the realty. Moore v. Carey Bros. Oil Co., Tex.Com.App., 269 S.W. 75, 39 A.L.R. 1247; Id., Tex.Com.App., 272 S.W. 440, 442, 39 A.L.R. 1247; Pearson v. Black, Tex.Civ.App., 120 S.W.2d 1075, 1079. And as stated in the case last cited, “We know of no rule or principle of law to the effect that abandoned personal property becomes the property of him upon whose land it happens to be left.” That, we think, is the case here presented. No adverse claim to said property by appellant was made until July, 1937, at which time he sold it without authority of the owner, which amounted to a conversion. The only cause of action appellee had against him was for conversion. Since appellee no longer owned the lease, he was not required to plug the well, and in view of the provisions of Art. 6005, he had no right to remove the casing until the well was plugged. This duty rested first upon the operator, and if he failed to do so, upon the landowner, who did not discharge it until July 7, 1937. The right of appellee to repossess the casing and remove it from the premises did not arise, therefore, until that date. Limitation against his ownership would consequently begin to run only from that date, and not from the date of abandonment by the drillers in June, 1936.

Appellant next contends that this casing was a trade fixture’placed upon the leased premises, which should have been removed upon the expiration of the lease (which appellant contends occurred in June, 1936), or within a reasonable time thereafter; and that not having been so removed, it became the property of the landowner. Citing particularly Armstrong v. Federal Supply Co., Tex.Civ.App., 17 S.W.2d 170, and Meers v. Frick-Reid Supply Corp., Tex.Civ.App., 127 S.W.2d 493. See also for a general discussion 19 Tex.Jur., §§ 23-25, pp. 730-732.

As against an innocent purchaser, or as against any claim Summers or Hickey & McClung might have made, had they owned the casing, this contention might be correct. Or had appellee been the owner or operator of the lease at the time it might apply as against him. But no such case is here presented. It must be borne in mind that such casing was not a permanent fixture, nor improvement, nor a part of the soil. Nor would its removal in any manner injure the freehold, nor cause any loss to the owner of such freehold. If appellee, instead of loaning this property to Hickey & McClung, had sold it to them, taking a note therefor and a mortgage thereon to secure its payment, we think there can be no doubt that as against appellant appellee’s lien would have been valid, enforceable, and superior to any claim to the casing appellant could have asserted on July 7, 1937, when he pulled the casing from the well. Moore v. Carey Bros. Oil Co., Tex.Com.App., 269 S.W. 75, 39 A.L.R. 1247. His rights as owner of the title would manifestly be greater than if he had merely had a lien on the property.

The jury found that 90 days after abandonment of the well would have been a reasonable time in which to remove said casing from the well. No objection was made to the submission of this issue. It now seems clear, however, that what constitutes a reasonable time for such removal is a mixed question of law and fac See Meers and Armstrong cases, supra. The court apparently ignored this finding, and, we think, properly so. This question, if applicable to the instant case, is referable to the time when appellee’s right to remove the casing arose. This, as above stated, was on July 7, 1937. Under the undisputed facts, therefore, we think this finding of the jury was immaterial.

By cross assignment appellee urges that appellant was a willful trespasser and therefore not entitled to a deduction of the cost of pulling the casing; and that he should have had judgment for the full $375. This contention is not ‘sustained. Under the authorities above cited, appellant was guilty only of conversion; and the measure of appellee’s damages was the market value of the property at the time and place of conversion. The issue submitted without objection, and obviously at the instance of appellee, was the reasonable market value of the casing “after the same had been pulled from the well on defendant’s land”. The market value of the casing in place in the well would manifestly have been different. Had appellee removed the casing himself he would have been compelled to pay the cost of the pulling it, upon failure of Hickey & McClung to do so. The cost of pulling it might have been a proper charge against Hickey & McClung, but they are not parties to this suit, and appellee sought no damages against them. Appellee cannot, therefore, complain of an item of expense which he would necessarily have incurred had there been no conversion, and had he repossessed the property himself.

Finding no error the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    BIRDVILLE INDEPENDENT SCHOOL DIST. et al. v. DEEN.
    No. 14092.
    Court of Civil Appeals of Texas Fort Worth.
    May 17, 1940.
    Rehearing Denied June 21, 1940.

      Robert Sansom and W. L. Coley, both of Fort Worth, for appellant.
    Houtchens & Houtchens and J. Harold Craik, all of Fort Worth, for appellee.
   BROWN, Justice.

This suit involves the validity of called meetings of the Board of Trustees of the Birdville Independent School District (of Tarrant County) and the action of four of the seven Trustees in electing appellee, R. A. Deen, to serve the said school as its superintendent for a period of two years, the term to begin July 1, 1936, and to end June 30, 1938.

There was much friction in the Board of Trustees, as it was then composed, in March, 1936, and before the April election, when two Trustees were to be elected because the terms of such Trustees were about to expire.

It appears that the citizens of the school district were almost equally divided on the issue of re-electing the then superintendent, and that a small majority favored his re-election, but that a majority of the Board of Trustees, as then constituted, were not in favor of his re-election, but believing that it would be for the best interest of the school to elect a new superintendent, called or attempted to call a special meeting of the Board, to be held on April 7, 1936, which was three days after the election of school trustees. It appears that the notices of the called meeting were prepared the morning of April 7th, and delivered at the homes of the seven trustees, calling for the meeting at 11:30 A. M.

Four Trustees, Booth, Box, Portwood and Reeves, met at the appointed hour and elected R. A. Deen superintendent for a period of two years, beginning July 1, 1936, and ending June 30, 1938, at an annual salary of $2,000. A contract was prepared, signed by the president of the Board and the Secretary, and same was carried to the office of the County Superintendent of 'Schools of Tarrant County, and Deen was notified orally of his election and was told where he could find the contract. Deen accepted the employment in writing and signed the contract.

The Board of Trustees met on April 9, 1936, to canvass the votes cast at the Trustees’ election held on the 4th of April, and at such meeting the three Trustees who were absent from the meeting of April 7th, to-wit, Brooks, Hovenkamp and Kingsbury, protested against the action of the majority in holding the called meeting on April 7th, asserting that they had no opportunity to be present.

It further appears that notices were then prepared in writing, on the* morning of April 13th, and delivered or attempted to be delivered to the Trustees, calling for a meeting of the' Board at 11 o’clock a. m. on such date “for the purpose of confirming and ratifying contracts, etc. Meeting to be held at the school house.”

It appears that when Trustees ' Booth, Box, Portwood and Reeves gathered at the school house for the called meeting, a disturbance took place and some one (not a Trustee) assaulted Trustee Reeves, and because of the confusion, etc., ño meeting was attempted by the Trustees at the called hour and at the designated place, and it was testified to by Mr. Booth that the meeting “was adjourned over until two o’clock.” It' docs not appear that the Trustees ever met and were called to order, or that any such called meeting was officially recessed or “adjourned over”; it simply appears that these four Trustees were on the school grounds, had never met, and that then the disturbance took place.

Trustee Booth, who detailed the facts, said that he notified “the persons present that the meeting had been recessed until two o’clock that day.” He further testified that the meeting was held in the home of a “Mr. Greenwood”, who lived near the school grounds. ’

We have been cited to no place in the record where the other Trustees, Brooks, Hovenkamp and Kingsbury, or either of them, were ever notified that the Boar.d meeting was recessed or “adjourned over” to 2 o’clock, or that the same was adjourned to meet at Mr. Greenwood’s home instead.of at the school house. .

In this meeting, held at Mr. Greenwood’s home, at 2 o’clock P. M., April 13th, there were present Trustees Booth, Reeves, Portwood and Box, and we quote the minutes : “The Board of Trustees met in called executive session, April 13th, 1936, at the home of Mr. Greenwood, in Bird-ville, to ratify and confirm the action taken in meeting of April 7th, 1936, in regard to all teachers and janitor contracts. Present: Ray Booth, R. M. Reeves, W. N. Portwood and L. J. Box. Motion was made and seconded to ratify and confirm all teachers and janitor contracts as well as other business transacted and recorded in minutes of April 7th, 1936. • Motion unanimously carried.”

When we turn to the minutes of the meeting of April 7th, we find the following: “The Board of Trustees met in called session, at eleven-thirty A. M., April 7th, 1936, at the school building, for the purpose of electing and contracting a Superintendent and other teachers for our school for the next year or j'ears, and discuss and act on other matters of vital importance to the school. Present: Ray Booth, R. M. Reeves, L. J. Box and W. N. Port-wood. There were also present five taxpayers and patrons of the school, not members of the Board. Motion was made by R. M. Reeves and seconded by W. N. Port-wood to elect Mr. R. A. Deen to place of Superintendent, for a two year period, at a salary of $2,000.00 per year, payable in twelve equal payments on the first day of the month, salary to start July 1st, 1936. Motion carried unanimously.”

Subsequently, during the month of April, the newly elected member of the Board and one of the old members who was reelected were sworn in and at a meeting of the Board the three old members who were not present at the Board meetings mentioned above and the new member (being a majority) protested the action of the old Board, notified Deen that he was not wanted as Superintendent and requested that he surrender his contract, but Deen declined to do so, and the Board then met and “disapproved.” .the minutes of the former meeting and ’passed a resolution declaring Deen’s contract “illegally passed”, and so notified Deen by mail. Deen notified the Board, in writing, that he would not abide by the decision of the Board, and promptly appealed to the State Superintendent of Public Instruction, of Texas, who,' upon a hearing, held that Deen had a valid contract with the school. An appeal was then taken by the School District to the State Board of Education, of Texas, and upon a hearing the following findings and ruling were made:

“On this the 15th day of September, A. D. 1936, the State Board of Education being in special session in the City of Austin, six members thereof being present, to-wit: Honorable Ghent Sanderford, President Pro Tem; Messrs. R. S. Bowers, J. O. Guleke, F. L. Henderson, John W. Laird, and Mrs. J. E. Watkins, with L. A. Woods, State Superintendent and ex officio Secretary, there came on to be reviewed and considered in due and regular order in the above styled and numbered cause, the appeal of Birdville Independent School District vs R. A. Deen, from the decision made, rendered and entered herein by the Honorable L. A. Woods, State Superintendent of Public Instruction, on the 3rd day of September, A. D. 1936, and the State Board of Education after duly considering and reviewing said decision and the facts and the law in support thereof, is of the opinion and finds by a vote of five members present, one voting in the negative, that the said decision of the Honorable L. A. Woods, Superintendent aforesaid, should be in all things reversed, set aside, and overruled.
"The State Board of Education is of the opinion and finds that the law and facts in the case are against R. A. Deen.
“It is the opinion of the State Board of Education and it so finds that at the time of the election of said R. A. Deen there had not been a legal call for a meeting for the Board of Trustees of the Birdville Independent School District, and it is the further opinion of the State Board of Education that at said meeting there was no legal quorum present and the contract entered into by and between Birdville Independent School District and R. A. Deen is invalid and is of no force and effect. The State Board of Education further finds that the subsequent meeting of the Board of Trustees of Birdville Independent School District on the 13th day of April, 1936, was also illegal for the reason that no legal call had been made and no legal notice given for the call of said meeting, and that there being no legal quorum present all things done at said meeting were illegal and of no force and effect.
“It is, therefore, ordered,'adjudged and decreed by the State Board of Education that the decision of the State Superintendent in this cause be and the same is hereby in all things overruled and set aside. The State Board of Education finds and so holds that the contract by and between Birdville Independent School District and R. A. Deen, covering a period of time from July 1st, 1936, to June 30th, 1938, is of no binding force and effect, and it is in all things invalid.”

The findings and ruling being against Deen, he-brought suit in the District Court of Tarrant County to recover the difference between what he earned while engaged in other employment and the salary at which he was supposed to have been employed for the two year period. A jury being had the case was tried on special issues and the following findings were made:. (1) That the Trustee Kingsbury had notice of the meeting held at 11:30 A. M., April 7, 1936, (2) that such notice was reasonably sufficient to have enabled Kingsbury to attend the meeting, if he so desired; the same findings were made to issues 3 and 4 as to the meeting “called for 11:00 o’clock A. M. on the 13th day of April, 1936.” To issues 5, 6, 7 and 8 the jury found as to Trustee Brooks, as it did to Trustee Kingsbury, and to issues 9, 10, 11 and 12 the jury found as to Trustee Hovenkamp as it did to Trustees Kingsbury and Brooks.

To issues 13 and 14 the jury found that these twO' meetings were “held and conducted in the usual and customary way and manner in the transaction o.f the affairs of said school district.” To issue 15 the jury found that Deen, by the use of ordinary care and diligence, could not have found similar employment. To issue 17 the jury found that Deen earned during the two year period $2,682.

The School District requested a peremptory charge, which was refused, and duly presented a motion for judgment notwithstanding the verdict, which was overruled, and exceptions taken; and the trial court rendered judgment for Deen in the sum of $1,318, with six per cent interest from July 1, 1938.

The appeal is from such judgment, and the propositions discussed disclose the defense that was urged by the School District.

The first proposition asserts, in effect, that the ruling and findings of the State Board of Education are res ad judi-cata, and that Deen had no right of appeal.

We do not believe this contention sound, in the case at bar.

The rule laid down in Vol. 37, Tex.Jur., page 1046, seems to state the situation with which we are confronted: “Thus where the issue presented is whether, under disputed facts, a legal contract was entered into, the parties have the right to a court determination on a state of facts to be ascertained by a jury, if legal demand be made therefor by either party.” In other words, if the controversy does not appear to be one that involves simply questions of regulation, or policy, or the employment or discharge of teachers or employees, or any other question merely incident to the management and control of the school, but involves the legality of a contract made with a teacher, then such matter is appealable to the courts of the land. Los Angeles Heights Ind. School District v. Whitehead, Tex.Civ.App., 34 S.W.2d 895, writ refused.

The second proposition urges, in effect, that Deen has elected to take his claim and grievance before the school authorities, and, having so elected, he cannot, after an adverse adjudication, appeal to the courts.

We see no merit in this contention.

The third proposition is akin to the first, and contends that the District’s plea to the jurisdiction is well taken.

We see no merit in this contention.

The fourth proposition is akin to the second. We see no merit in it.

The seventh assignment is to the effect that under the evidence as adduced the trial court erred in not sustaining the School District’s motion for judgment notwithstanding the verdict.

In connection with the motion for judgment notwithstanding the verdict, we shall •consider the assignments of error which urge that the trial court erred in submitting to the jury the several issues as to notices being given or served upon each •of the three Trustees, Kingsbury, Brooks .and Hovenkamp, of the meetings that were supposed to have been called for April 7th and April 13th, respectively.

We believe that there is merit in these •contentions.

This School District is a municipal corporation. It functions through its Trustees in the same manner that other corporations function through Boards of Directors.

It is quite evident, from the record, that the majority of the Trustees who met on April 7, 1936, and attempted to elect and contract with Deen were doubtful of the validity of such meeting and action and that they felt insecure in their 'position, and when the absent Trustees protested against the meeting and actions of April 7th, they concluded to call a meeting for April 13th, for the express purpose of ratifying the acts attempted to be done at the former meeting.

This, to our way of thinking, left the matter of the making of the contract of employment with Deen open until favorable or adverse action was had on same thereafter, and Deen’s pleadings in effect adopt this view.

We have shown in the forepart of our opinion that this last called meeting was called to be held at one of the school buildings at 11 o’clock A. M. on April 13th, but that the Board never in fact met on or about such hour. On the other hand, it affirmatively appears that the four Trustees came to the school grounds, that they did not assemble as a Board, but, because of an altercation had by one of the Trustees with some person, no effort was made to hold such meeting, and that one of the Trustees “adjourned the meeting over” to 2 o’clock P. M., to be held at the home of a Mr. Greenwood, near the school grounds, and that such Trustee notified the other three Trustees, who were present, of such “adjourned” meeting.

It is sound reasoning to hold that special notice of an adjourned meeting is generally unnecessary where the fact and record of adjournment constitute notice, and these facts arose at a meeting that was regularly called. Such cases as Whitcomb v. Giannini et al., 43 Cal.App. 229, 184 P. 887 so hold.

But it is likewise essential to the application of such rule that the original meeting shall have been regularly notified and legally held and that its minutes show the specific time to which it is adjourned.

Such cases as Whitehead v. Hamilton Rubber Co., 52 N.J.Eq. 78, 27 A. 897, and Thompson v. Williams, 76 Cal. 153, 18 P. 153, 9 Am.St.Rep. 187, so hold.

This “adjourned” meeting was held at a place other than on the premises of the corporation, and at a place where the Trustees were not accustomed to meet.

This meeting was called in the morning of April 13th, to meet at 11 o’clock such morning, and, viewed in the most liberal light, was a meeting that was hurriedly called.

If it was impossible for some of the Trustees to attend such a meeting, under such circumstances, it appears to us that the bare majority who called this meeting should have regularly met and regularly adjourned the meeting to some other convenient hour or day and should have notified the absentees in ample time prior to the holding of the adjourned meeting. This would have made,a record that could not be questioned.

It will be noted that appellee, Deen, pleaded his case as follows: “That heretofore, to-wit, on April 7th, 1936, said board of school trustees, in behalf of said defendant school district, as then duly and legally constituted and existing, duly and regularly elected plaintiff herein, and entered into a valid, binding and written contract and agreement with plaintiff herein, by virtue of and by the terms of which said contract and agreement plaintiff herein was employed as superintendent of said public schools of said defendant school district, for a period of two years, beginning July 1st, 1936, at an annual salary of. $2,000.00 per year, payable at the rate of $166.66 per month, during said two year period, which said contract was duly and regularly executed by said school board, after that said defendant school board had duly and regularly elected plaintiff herein, as such superintendent of said defendant school district,' and which said contract was duly' and regularly signed and executed by defendant school district, by and through Ray Booth, its then president, and L. J. Box, its then secretary, for and in behalf of said defendant, Birdville Independent School District, No. 35.

“That plaintiff herein did, on said date, accept said employment and in writing duly notify said defendant, .Birdville Independent School District and its board of trustees, of his acceptance of said contract and position, and signed and executed said contract, etc.”

The remaining allegations of the paragraph from which the quotations are made allege that the contract was binding; was made by the officers, agents and Trustees of the school district while acting within the general scope of their authority; and such paragraph then is followed by paragraph 4 of the plaintiff’s pleading, which alleges:

“That on April 13th, 1936, after due notice to all members of said Board of School Trustees, of said Birdville Independent School District, at said time, a meeting of said defendant school board, its trustees, was had, and said contract of employment of plaintiff herein, as made on April 7th, 1936, was duly and in all things confirmed and ratified and by legal import declared binding and effective and in full force and effect and said contract was from April 7th, 1936, to the present time, and is now binding upon all parties thereto, and the same is in full force and effect, and plaintiff herein is entitled to the amount provided therein, less his earnings since said time, as hereinafter plead and alleged.”

While it is true that plaintiff’s pleadings, in subsequent paragraphs, refer to meetings by the Trustees on April 7th, and April 13th, and allege that each was a valid meeting, called in the usual and customary manner, we do not believe that plaintiff’s pleadings disclose, or are sufficient to disclose, that the plaintiff relies for the validity of his contract upon any valid called meeting of the Trustees had. and held on April 7th.

Our construction of his pleadings is that the Trustees made a contract with him on April 7, 1936, and that a meeting of the Board was called for April 13th, for the express purpose of ratifying and confirming such contract theretofore made, and that this was done.

If the contract made on April 7, 1936, was made under circumstances that are binding upon the parties, then no ratification meeting was necessary to effect such purpose.

It-is clear that the plaintiff has not pleaded in the alternative, and whatever rights he may have, in our opinion,‘depend solely upon the validity of the meeting actually held by the Board on April 13th, and there being no meeting held at the time and the place designated in the call, the validity of plaintiff's contract must depend upon the regularity of the so called “adjourned meeting” and the right of the four Trustees to hold such meeting and to bind the corporation by the acts had and done then and there by the Board.

An interesting discussion of special meetings of directors of corporations is found in Vol. 3 of Fletcher’s Cyclopedia of the Law of Private Corporations, pages 3059 to 3061, para. 1868. This text announces the rule:

“The great weight of authority, therefore, is to the effect that notice of a special meeting must be given to every director, unless there is some express provision in the charter or by-laws or established usage to the contrary, or unless it is impossible or impracticable to do so.
“Except in these cases, a special meeting held in the absence of some of the directors, and without notice to them, is illegal, and the action at such a meeting, although by a majority of the directors, is invalid, unless subsequently ratified.”

This text cites in support of its pronouncements Federal cases, and many from the states of Arkansas, California, Delaware, Illinois, Iowa, Kansas, Kentucky, Michigan, Missouri, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Dakota, Utah and England.

The opinion in the case of Vaught v. Ohio County Fair Co., 49 S.W. 426, 20 Ky. Law Rep. 1471, seems to be very applicable to the facts in the case at bar.

It is our conclusion that the findings made by the jury touching the notices given of the special called meeting of April 7, 1936, are not findings on which a judgment, holding valid Deen’s contract, may be predicated, and the findings, of the; jury touching notices given of the special called meeting of April 13, 1936, are not sufficient to cover the issues and, facts relating to the so called “adjourned meeting”, which was actually held on such day, and at which meeting an attempt was made to ratify the prior acts of the Board of Trustees, on the validity of which meeting Deen must depend. There must be both pleading and proof to sustain a valid judgment.

We 'do not desire to prevent appellee from recovering upon his contract, if he can establish that it was regularly and lawfully entered into, but we feel that under his pleadings, as they now stand, and under the findings that he must depend upon, the judgment rendered for him cannot be sustained.

It is moreover our opinion that the evidence is insufficient to support the finding by the jury in answer to Issue 14, that the meeting of the Board of Trustees held on April 13, 1936, was held and conducted in the usual and customary way and manner in the transaction of the affairs of the School District.

All of the evidence touching such meet-irlg is contrary to the finding'made by the jury.

The record discloses that the meetings were usually and customarily held on the school premises and at night, after the business of the day had been transacted.

We gather from the evidence that these' Trustees are men whose vocations require them to attend'to their businesses during ordinary workaday hours, in order that they may support themselves and their families.

The finding of the jury in answer to Issue 13, that the meeting held on April 7, 1936, was held and conducted in the usual and customary way and manner in the transaction of the affairs of the School District, is not supported by the evidence.

These issues touching notices and notices given and the manner of giving notices of these meetings and the manner and custom with respect to giving notices and holding meetings of the Trustees, and whether or not the Trustees had a reasonable time within which to be present at such meetings, must be considered in the light of all of the facts.

Let us observe again that there was a lack of harmony in the old Board of Trustees touching the question of the employment of a Superintendent. An election for 'two Trustees had just been held and one new face was to appear when the new Board assembled. That newly elected Trustee would take the place of one of the four old members who proposed to call the two meetings with which this case is so vitally concerned. ,

The Trustee who called these two meetings did not rely upon mere oral notices. With the friction that was existent and the desire upon the part of a majority of the, old Board to elect and employ a Superintendent before a reorganization of the new Board, after the election of two Trustees, these four Trustees resorted to written notices of these meetings. They necessarily relied upon these written notices and we do not believe that they can be heard to now say that they relied upon -oral notices.

For these reasons we do not believe that any testimony relating to oral notices given of either of these meetings is relevant or competent.

When we discard the testimony of oral notices of the meeting called for April 7th, it is quite evident that all of the Trustees were not given notice of such meeting, prior to the meeting.

We believe that the four Trustees who called the meeting so realized when they called the meeting of April 13th, for the express- purpose of ratifying the acts had and done at the first meeting.

We believe that had the president and secretary of the Board made a contract with Deen, without any action by the Board, such a contract could be ratified by the Board at a meeting properly and regularly held.

There does not appear to be an insuperable barrier to Deen’s right to recover, and we conclude that the trial court should have set aside the verdict and ordered a new trial, giving the plaintiff leave to amend his pleadings to meet the facts' disclosed.

For the reasons assigned, the judgment of the trial court is reversed and the cause remanded for a new trial not inconsistent with the conclusions reached.


author: CODY, Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N v. GRIFFIS.
    No. 11038.
    Court of Civil Appeals of Texas. Galveston.
    May 30, 1940.

      Wheeler, Atchley & Vance, of Texar-kana, for appellant.
    Caldwell, Baker & Jordon, of Dallas, for appellee.
   CODY, Justice.

This is a workmen’s compensation case, which was tried in the district court of Lamar County, and has been by an equalization order of the Supreme Court transferred to this court, and, under our rules, advanced for submission.

The suit was instituted by appellee against appellant to recover for total permanent disability as a result of an injury to the back alleged to have occurred on December 20, 1938, while appellee was'working for Cummer-Graham Company, his employer, in attempting to lift a piece of concrete which weighed approximately 120 pounds; appellee alleged that while he was exerting all his strength his back was severely strained, and he was caused to suffer an injury as a result thereof that totally and permanently disabled him; and prayed for a lump sum judgment. Appellant filed a formal answer; specially denying certain jurisdictional matters, denying under oath that either the Insurance Company or the Employer were notified or had actual knowledge of the appellee’s accident or injury within the thirty days required by law.

The court refused appellant’s motion for an instructed verdict’; the jury found:

“Special Issue No. 1. Do you find from a preponderance of the evidence that on the 20th day of December, 1938, plaintiff Thomas A. Griffis sustained an injury when lifting a concrete block while working for Cummer-Graham Company?” Answer: “Yes.”
“Special Issue No. 2. Do you find from a preponderance of the evidence that the injuries received by plaintiff, if any, on December 20, 1938, were injuries sustained in the course of his employment with Cumnier-Graham Company ?” Answer: “Yes.”
“Special Issue No. 3. Do you find from a preponderance of the evidence that the plaintiff, Thomas A. Griffis, sustained total incapacity to labor on account of the injuries, if any, received by him on December 20, 1938?” Answer: “Yes.”
“Special Issue No. 4. Do you find from a preponderance of the evidence that said total incapacity to labor, if any, is permanent?” Answer: “Yes.”
“Special Issue No. 5. If you have answered yes to question No. 3, that is that the plaintiff was totally incapacitated to labor (and only in that event) then do you find from a preponderance of the evidence that said total incapacity to labor, if any, is temporary?” Answer: “No.”
“Special Issue No. 7. Do you find from a preponderance of the evidence that the plaintiff, Thomas A. Griffis, has or will suffer partial incapacity to labor solely as a result of the injuries, if any, sustained on December 20th, 1938?” Answer: “No.”
“Special Issue No. 12. Do you find from a preponderance of the evidence that the injuries, if any, which the plaintiff, Thomas A. Griffis, received on or about the 5th day of January, 1938, and May 9th, 1938, or March 14, 1935, or on either one or more of said dates, or their effects have not contributed to the incapacity to labor, if any, which he suffered after December 20th, 1938, the date of the injury complained of?” Answer: “Such injury or injuries has not contributed to the incapacity following December 20th, 1938.”
“Special Issue No. 14. What percentage of plaintiff’s present incapacity of \tóhich he now complains, if any, you have found, is attributable solely to the alleged injury of December 20th, 1938?” Answer: “100 per- cent.”
“Special Issue No. 15. Do you find from a preponderance of the evidence that this is a case in which a manifest hardship and injustice will result to the plaintiff if defendant fails to redeem its liability, if any, to the plaintiff, by the payment of the money, if any, owing to him in one lump sum rather than in weekly installments?” Answer: “Yes.”
“Specially Requested Charge No. 4. Do you find from a preponderance of the evidence that the plaintiff’s incapacity, if any you have found, will not be directly attributable to causes independent of the alleged injury of December 20th, 1938?” Answer: “Yes.”
“Specially -Requested Charge No. 6. Do you find from a preponderance of the evidence that the plaintiff’s physical disability, if any he has, is not the result solely of such injury of January 5, 1938?” Answer: “Yes.”
“Specially Requested Charge No. 7. Do you find from a preponderance of the evidence that the plaintiff’s incapacity, if any, to labor, would not have resulted but for the alleged injury of December 20th, 1938?” Answer: “Yes.”
“Specially Requested Charge No. 9. Do you find from a preponderance of the evidence that the plaintiff’s physical disability, if any, is not the result solely of such injury of May 9, 1938?” Answer: “Yes.”
“Specially Requested Charge No. 15. Do you find from a preponderance of the evidence that the plaintiff’s incapacity, if any he has, of which he now complains, is not the result solely of an injury received by him on or about the 4th of March, 1935, when a bale of cotton fell on him?” Answer: “Yes.”
“Specially Requested Charge No. 16. Do you find from a preponderance of the evidence that the plaintiff’s physical incapacity, of which he now complains, if any, is not the result solely of an injury received by him on or about the 4th of March, 1935, and an injury received by him on or about the 5th day of January, 1938, and an injury received by him on or about May 9, 1938?” Answer: “Yes”.

Upon the findings of the jury, the court entered judgment for appellee for compensation for total permanent disability; and ordered a lump sum payment.

Appellant contends that, since appellee admitted that he had suffered back injuries on March 4, 1935, and on January 5, 1938, and on May 9, 1938, on which he drew compensation, that it was error for the court:

(a) To permit appellee to testify that at the time he went back to work for Cum-> mer-Graham Company in 1938, he had fully recovered from those injuries, over appellant’s objection that such testimony involved an expert opinion on his own physical condition, which appellee was not qualified as an expert to give.

(b) To permit appellee’s counsel to ask appellee’s witness, Dr. Spell: “That occurrence on the 20th day of December, 1938, Could that reasonably and probably account for the condition that you found in Mr. Griffis (appellee) when you examined him on the 23rd day of December?” over appellant’s objection that the question was for an opinion based on possibilities rather than probabilities, and was therefore speculative, and permitted the witness to answer: “Under normal conditions the injury at that time could account for all his troubles.”

(c) To submit to the jury Special Issue No. 3, inquiring if appellee sustained total incapacity on account of the injuries sustained by him on December 20, 1938, over the evidence of Dr. Spell that the total incapacity complained of by appel-lee was to some degree contributed to by the prior injuries received by appellee, and the jury could not- answer in the affirmative without going against such evidence (which appellant states is undisputed).

We overrule this contention, and appellant’s assignment based thereon. Ap-pellee testified to receiving an injury in January, 1938, and going back to work in about a month, on February 11, 1938, and worked until the factory shut down in July, 1938; and that he received another injury in May, 1938, and was treated by Dr. Spell, the company’s doctor, until June 28, 1938, when he was dismissed as well, and lost no time on account of that injury. That he went to work for the Coca Cola Bottling Works in September, 1938. That when he worked for the Coca Cola Company he was in perfect condition; that he got about in a normal manner; that he carried sugar, the sacks weighing 100 pounds, as his main work at the Coca Cola Company; that he rested perfectly at night, and had no pain in his back. That he returned to work for Cummer-Graham Company on November 1,1938, helping repair the mill; helped to level the ground, ánd put. in a tram, and that nearly all this work was lifting, and that it did not affect him. We will not burden the record with appellee’s testimony relating to the character of work he ,did after he had received his injury in 1935. We know of no_ reason why appel-lee could not testify that he had fully recovered. Certainly the cases relied on by appellant are not authority . thereagainst. In Stanley v. State, 44 Tex.Cr.R. 606, 73 S.W. 400, cited by appellant, the testimony of the witness “that it was the cotton-root tea that caused her abortion”, is clearly an expression of an opinion of the effect’ that some drug or concoction will have on the condition of pregnancy, and is not a fact relating to the witness’ health. Stowell v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 259 S.W. 311, is likewise not in point: There the testimony of the plaintiff that he would be unable to work again for the balance of his.life, was clearly an opinion as to the condition of his health in the future, that only a doctor is qualified to give. A man who has suffered an injury certainly knows better than any doctor, whether the injury causes him pain, either when he attemjpts to work, or does not. -The fact that appellee had returned to work after his injuries, and performed his work as usual, and without complaint, is evidence from which anyone would conclude that he had recovered. That his testimony that he was well at the time he sustained the last injury related to a fact and not an opinion is well settled. Parker v. Harrell, Tex.Civ.App., 212 S.W. 542; Armour & Co. v. Tomlin, Tex.Civ.App., 42 S.W.2d 634; St. Louis S. F. & T. Ry. Co. v. Carter, 275 S.W. 224. The rule is stated in 19 Texas Jurisprudence, 354, section 231; A witness need not be an expert in medical matters in order to be competent to express an opinion as to the physical condition of himself or of another and it is not clear that in describing such condition the witness is not required to state all of the evidentiary facts on which his opinion is based; his statement may partake largely of the nature of the summary of or a conclusion from such facts. These rules are applicable alike whether the testimony re- • lates to generah health or a particular disease or injury.”

What has just been said, in our opinion, is’sufficient to dispose of any claim of error by reason of the claimed error on the question asked Dr. Spell. We further hold that the question did not call for a 'mere speculation, and the objection was without merit. Galveston, H. & S. A. Ry. Co. v. Harris, Tex.Civ.App., 172 S.W. 1129; Hunter v. Ithaca, 141 Mich. 539, 105 N.W. 9.

It having been proved that ap-pellee had received compensation for disability suffered at former times, the burden was on appellee to prove by a preponderance of the evidence the. amount of disability produced solely by the injury of December 20, 1938. Sec. 12c, Art. 8306. In addition to the testimony of appellee himself, and of Dr. Spell on direct examination to the complete recovery of appellee from his former disability, a letter to appellant from its physician, Dr. M. A. Walker, under date of February 19, 1938, was introduced in evidence, advising appellant that appellee had returned to work ón February 11, 1938, fully recovered, which letter concluded: “There is no deformity and neither will there be any permanent injury resulting”; and also the evidence of appellee’s neighbors, and members of his family, and fellow-workmen, which tended to establish that appellee was in a healthy condition before the injury of December 20, 1938. Appellant, therefore, is in error in its claim that it is undisputed that prior injuries contributed to some extent to appellee’s permanent disability. The disability of 1935 was settled for something like $500; the other two instances were settled for small amounts, amounts that indicate the injuries were trivial. The opinion expressed on cross-examination by Dr. Spell that the former injuries might contribute to the disability resulting from the accident-of December 20, 1938, was in conflict with that expressed by himself on direct examination, and was not binding on the jury. The rule of the weight of opinion of skilled witness is discussed in 22 C. J., page 728. His opinion was not binding on the jury. Universal Life & Accident Insurance Company v. Nanes, Tex.Civ.App., 92 S.W.2d 473.

Appellant contends that special issue No. 4 was erroneously submitted, in view of Dr. Spell’s testimony that the former injuries could have contributed to appellee’s disability. Said special issue No. 4 reads: “Do you find from a preponderance of the evidence that said total incapacity to labor, if any, is permanent?” It followed, and was conditioned on special issue No. '3, reading: “Do you find from a preponderance of the evidence that the plaintiff, Thomas R. Griffis, sustained total incapacity to labor on account of the injuries, if any, received by him on December 20, 1938?”

Since special issue No. 4 is limit-, ed in its scope to injuries sustained on December 20, 1938, we cannot assume that the jury disregarded its instructions, and took into consideration disability flowing from injuries received at any other time. Of course, it was necessary for the court to submit special issue No. 4, as it formed a primary issue for appellee. We overrule the assignment that special issue No. 4 was erroneously submitted. Appellant was entitled to have its theory, that a part of the disability suffered by appellee was sustained at former times, submitted. And it seems to us that special issue No. 12 does this. It reads: “Do you find from a preponderance of the evidence that the injuries, which the plaintiff, Thomas R. Griffis, received on or about the Sth of January, 1938, and May 9, 1938, or March 14, 1935, or on either one or more of said dates, or their effects have not contributed to the incapacity to labor, if any, which he suffered after December 20, 1938, the date of the injury complained of?” And the jury answered: “Such injury or injuries has not contributed to the incapacity following December 20, 1938.” In addition to special issue No. 12, special issue No. 14, and specially requested charges Nos. 4, 6, 7, 9, 15 and 16, were given, and fully present appellant’s defensive issue in this connection. And, in particular, special issue No. 12 is not subject to the construction that it places the burden of proof on appellant. The law places the burden, in such case, on the plaintiff to prove that other injuries do not contribute to the disability sued on. And the special issue, as framed, does this very thing.

Appellant offered no testimony at the trial. Appellee testified to the occurrence of the injury to him on December 20, 1938. And appellant paid appellee weekly compensation for nine weeks, and reported the injury to the Industrial Accident Board. Appellee testified to reporting the injury to his employer, and was sent to Dr. Spell by his employer, and Dr. Spell was paid for his services by appellant. There was no dispute, whatever, that appellee suffered an injury on December 20, 1938; and besides, the question of whether he had suffered an injury on that date was submitted in special issue No. 1. It was not error for the court to assume the occurrence of the injury in special issue No. 12, there being no dispute relative thereto.

We have considered appellant’s other assignments of error and find them without merit. The judgment of the trial court should be affirmed, and it is so' ordered.

Affirmed.


author: MURRAY, Justice.

text:
    MAGNOLIA PETROLEUM CO. v. PAGE et al.
    No. 10723.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1940.
    Rehearing Denied June 19, 1940.

      Boone, Henderson, Boone & Davis, of Corpus Christi, and Walace Hawkins and Ross Madole, both of Dallas, for appellant.
    Vinson, Elkins, Weems & Francis and I. M. Wilford, all of Houston, and Sidney P. Chandler, of Corpus Christi, for appel-lees.
   MURRAY, Justice.

Appellee Sallie H. Page, a widow, and her four children, J. H. Page, R. C. Page, Mary Riley and Maude Nichols, joined also by F. M. Riley and C. R. Nichols, husbands of Mrs. Riley and Mrs. Nichols, instituted this suit, on November 3, 1937, in the 28th District Court of Nueces County, against appellant, Magnolia Petroleum Company, a corporation, seeking to recover damages for failure of appellant to use due diligence in drilling offset wells to those on adjacent lands in order to prevent drainage and for failure to use due diligence in developing the premises of appellees for oil and gas. A copy of the mineral lease executed by appellees to appellant was made a part of the'petition.

Magnolia Petroleum Company filed a cross-action against Crown Central Petroleum Corporation, alleging that on May 3, 1937, it entered into a contract with the Crown Central Petroleum Corporation, said contract being completed by an assignment dated June 24, 1937, wherein and whereby Magnolia Petroleum Company sold the Sallie Page lease to Crown Central Petroleum Corporation, reserving from said assignment 8.83 acres in the northwest corner of said lease.

Magnolia Petroleum Company further alleged that it had joined the Crown Central Petroleum Corporation in releasing to Mrs. Page and her children all of the original 75 acres held by it under the lease, save and except the 8.83 acres immediately surrounding the Sallie Page No. 1 well drilled by it in the north end of the lease, and also excepting 10 acres immediately surrounding each of the three wells, known as Sallie Page — Crown Central Petroleum 'Corporation Nos. 4, 5 and 6. The premises thus released amounted to 36.17 acres.

The situation at the time of the trial was as follows: The Sallie Page original lease covered 75 acres, 30 acres was held by Crown Central Petroleum Corporation, 8.83 acres was held by Magnolia Petroleum Company, and 36.17 acres had been released to Mrs. Page and her children.

The Sallie Page lease is located in what is known as the Saxet Oil Field, and the regulations of the Railroad Commission of Texas allows only one well to every 10 acres. Therefore, at the time of the trial that part of the lease which had not been released was fully developed. Appellees •did not request any issues as to the 8.83 acres held by Magnolia Petroleum Company, and no issues were asked as to the 36.17 acres released to the Pages. The real issue finally submitted to the jury was "whether the 30 acres now held by the Crown Central Petroleum Corporation should have been developed while it was held by the Magnolia Petroleum Company and prior to the time it was transferred to rthe Crown Central Petroleum Corporation.

The case was tried to a jury on special issues, and upon the verdict judgment was entered for appellees (other than the Crown Central Petroleum Corporation) in the sum of $22,256.70. No recovery was allowed Magnolia Petroleum Company on its cross-action against Crown Central Petroleum Corporation, from which judgment Magnolia Petroleum Corporation has prosecuted this appeal.

The Sallie Page lease contained the following expressed covenants which have a hearing on the duties of the lessee to prevent drainage from the lease and to use •reasonable diligence to develop the premises for oil and gas, to-wit: “In the event a well or wells producing oil or gas in paying quantities should be brought in on adjacent land, and within 200 feet of and draining the leased premises, lessee agrees to drill such offset wells as a reasonably prudent -operator would drill under the same or similar circumstances. The judgment of the lessee, when not fraudulently exercised, in carrying out the purposes of this lease shall be conclusive.”

It is unquestionably the law that -where the lease is silent as to the duty of a lessee to drill offset wells to prevent drain.age that an implied covenant will be presumed and such implied covenant would re-_ quire the drilling of such offset wells as a reasonably prudent operator would have drilled under the same or similar circumstance. Texas Law Review, June, 1933, p. 399. Article by Hon. A. W. Walker, Jr.; Texas Co. v. Davis, 113 Tex. 321, 336, 254 S.W. 304, 255 S.W. 601; Chapman v. Ellis, Tex.Civ.App., 254 S.W. 615; State Line Oil & Gas Co. v. Thomas, Tex.Civ.App., 35 S.W.2d 746; Taubert v. Earle, Tex.Civ.App., 133 S.W.2d 145.

It is likewise the law that when a lease is silent as to the duty of the lessee to develop the lease and there is no provision for the payment of delay rentals in lieu of drilling or where the period of the lease when delay rentals may be paid has expired, then there is an implied covenant requiring the lessee to use such diligence in drilling and developing the lease for oil and gas as a reasonably prudent operator would use under the same or similar circumstance. There must be a reasonable expectation that oil or gas can be produced in paying quantities. By paying quantities is meant that it must be reasonably certain that oil can be produced in such quantities as to pay the cost of development and production and a reasonable profit to the lessee.

However, when expressed covenants appear in the lease, implied covenants disappear. In this lease there is an expressed covenant as to appellant’s duty with reference to avoiding drainage from the leased premises. It is true that such a covenant as to drainage applies only during the primary term of the lease. In other words, only so long as the provision for the payment of delay rentals in lieu of drilling is effective. Humble Oil & Refining Company v. Strauss, Tex.Civ.App., 243 S.W. 528.

However, regardless of this there was an expressed covenant in the lease which provides that “the judgment of the lessee, when not fraudulently exercised, in carrying out the purposes of this lease shall be conclusive”. It is therefore apparent that before appellees can recover from appellant they would be required to both allege and prove that when appellant decided not to further develop the Page lease, after it completed the Sallie Page Well No. 1, as a gas well, it did so fraudulently, or at least in bad faith. Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61.

The only allegations made by appel-lees as to fraud are found in paragraph IX of the petition, which reads as follows: “The plaintiffs would further show to the Court that under the facts and circumstances as hereinbefore alleged, the action of the defendant in not drilling, exploring, developing and causing production to be obtained upon said land, and in not preventing the drainage therefrom as hereinbefore alleged, has been in bad faith, deliberately and fraudulently done in violation of the terms and provisions of said lease to the damage of the plaintiffs, as hereinbefore alleged, for all of which they are entitled to have judgment with interest and costs of suit.”

These allegations are mere conclusions of the pleader and when taken in connection with the other allegations of the petition mean nothing more than that appellant did not use due diligence in developing the lease and in preventing drainage. „ Such allegations are insufficient. Before a recovery could be had under the provisions of this lease the allegations and the proof would have to not only show that appellant did not use due diligence to develop the lease and to prevent drainage,' but that it had been guilty of bad faith in determining not to further develop the lease.

Appellant’s exception to the petition should have been sustained. Neither is the proof sufficient to establish fraud.

The judgment will be reversed and the cause remanded.


author: MONTEITH, Chief Justice.

text:
    GUARANTY BUILDING & LOAN CO. et al. v. BRAZIL et al.
    No. 11097.
    Court of Civil Appeals of Texas. Galveston.
    June 20, 1940.
    Stewart, Burgess & Morris and Byron Economidy, all of Galveston, for relators.
    W. J. Garrett, of Jacksonville, for respondents.
   MONTEITH, Chief Justice.

This is an original proceeding instituted directly in the Court of Civil Appeals by-relators, Guaranty Building & Loan Company and Guaranty Federal Savings & Loan Association, against respondents, CE. Brazil and Mrs. Bill Brunt, district judge and sheriff, respectively, of Cherokee County, Texas, and W. H. Gould and wife, for writs of prohibition and injunction bo-protect.and enforce the alleged jurisdiction of the district court of Galveston County in cause No. S16S8, styled Guaranty Building & Loan Company v. W. H. Gould et ux.

The material facts are undisputed. They are substantially as follows :

On May 6, 1936, relator Guaranty Building & Loan Company instituted said cause No. 51658 in the district court of Galveston County against respondents, W. H. Gould and wife, on a promissory note secured by certain real estate situated in Cherokee County, Texas. On November 9, 1939, judgment was rendered in favor of plaintiff, foreclosing its lien and ordering the sale of said property and that purchaser be placed-in possession thereof. Pursuant to said order, the property .was sold and deed was delivered to relator, Guaranty Building & Loan Company. However, the sheriff of Cherokee County was prevented from placing the purchaser in possession of said property by a writ of injunction issued by the district judge of Cherokee County, restraining Guaranty Federal Savings & Loan Association, not a party to the Galveston suit, and the said sheriff from dispossessing respondent W. H. Gould from said property.

Said writ of injunction was issued pursuant to an application made therefor in a suit filed by respondent W. H. Gould in the district court of Cherokee County on March 12, 1940, in which he alleged that the judgment of the district court of Galveston County had been fraudulently procured and that he had no other remedy, -except by injunction, to prevent the plaintiff therein from dispossessing him from said property.

A temporary writ of prohibition was granted by this court pending a hearing -on relators’ application for'permanent relief. It is now determined that the permanent relief sought by relators should be :granted.

Respondents concede that Courts of Civil Appeals have authority to issue writs of -mandamus and prohibition within the appellate district of the courts for the purpose of enforcing their appellate jurisdiction; they contend, however, that a court of Civil Appeals has no original authority to issue .a writ of prohibition or to mandamus a judge presiding over a court which lies •outside of its appellate district.

Under the Constitution; Article V, 'Section 6, Vernon’s Ann.St., and under Article 1823, Revised Civil Statutes, Courts of Civil Appeals and the judges thereof have the authority to issue all writs which may be necessary to enforce their jurisdiction. This express original jurisdiction conferred on Courts of Civil Appeals to issue writs of prohibition and to mandamus a judge presiding over a court within its appellate district of necessity carries with it the authority- to prohibit the trial judge of a court which lies outside of the court’s appellate district from interfering with the orders, of a district court within its appellate .district which has previously acquired jurisdiction of the parties and subject matter of a suit.

The identical questions presented in this appeal have been decided by this court in the cases of Driscoll v. Casstevens, Tex.Civ.App., 110 S.W.2d 958, and National Debenture Corporation v. Adams, Tex.Civ. App., 115 S.W.2d 757. In both of these cases it is held that a Court of Civil Appeals has original jurisdiction to issue writs of prohibition and to mandamus a judge presiding over a district court which lies outside of its appellate jurisdiction. In each of said cases suit had been filed in district courts within the appellate jurisdiction of the court. Their jurisdiction was questioned by suits filed in district courts outside of their appellate jurisdiction. In each case it was held that, while the appellate jurisdiction of Courts of Civil Appeals is confined by statute to cases within the limits of their respective districts, they are vested with original jurisdiction and power to protect and enforce the orderly trial of cases and to insure the carrying out of the orders of courts within their respective districts from interference by' courts beyond the limits of their appellate districts and that the power to issue writs of prohibition to the presiding judges of courts outside of their appellate districts is conferred upon the Courts of Civil Appeals by the same statutory grant of jurisdiction that confers jurisdiction on said courts to issue writs of mandamus.

It follows that the temporary - injunction granted by the district court of Cherokee County was improper for the reason that that court was without jurisdiction to act therein because the district court of Galveston County had previously acquired full jurisdiction over the subject matter of-the suit filed in Cherokee County and that this jurisdiction' will continue until the orders of the Galveston Court are fully complied with. Cleveland v. Ward. 116 Tex. 1, 285 S.W, 1063.

Said temporary injunction was further improper for the reason that, although it involved the subject matter of a suit in which a judgment had been entered by the district court of Galveston County and sought to enjoin the execution of an order entered by that court, it was made returnable to the district court of Cherokee County in violation of Article 4656, Revised Civil Statutes.

It is therefore ordered that writs of prohibition issue in substance as prayed for by relators.

Writs of prohibition granted.


text:
    LONE STAR BUILDING & LOAN ASS’N v. FORD.
    No. 10997.
    Court of Civil Appeals of Texas. Galveston.
    May 16, 1940.
    Rehearing Denied June 20, 1940.
    J. L. Webb, of Houston, for appellant.
    C. H. Chernosky and A. B. Gerland, both, of Houston, for appellee.
   MONTEITH, Chief Justice.

. This is an appeal in an action brought by appellee, Mrs. C. H. Ford, against appellant, Lone Star Building & Loan Association, for the cancellation of an application for the purchase of stock of appellant Association by reason of fraudulent representations and for the recovery of the sums of money paid thereon.

Appellee alleged that she had entered into an agreement with appellant, through its agent, one L. S. Holler, to deposit with appellant Association the proceeds of two Federal Land Bank bonds of $1,000 each, with the understanding that all sums so deposited would pay interest at the rate of 8 per cent per annum and that she would be permitted to withdraw all or any part of said funds, with accrued interest thereon, at any time •she desired; that by reason of the fraudulent acts and representations of said Holler, acting within the scope of his authority, she •endorsed and assigned said bonds to appellant and that she subsequently deposited an additional sum of $72 with appellant. Ap-pellee alleged that upon the representations of said Holler that she was signing a “signature card”, which she did not read, she was induced to sign an application to purchase 850 shares of stock of appellant Association of the par value of $100 per share and that said application provided that $1,700 of the amount so deposited by her represented a membership fee and was not subject to withdrawal.

Appellant answered by general demurrer, general denial and special exceptions. It pled specially that it had never condoned or ratified any misrepresentations made by its agents; that, if made, they were beyond the scope of the agent’s authority, and that the appellee had full knowledge of the trend and character of the transaction involved in this undertaking.

The jury, in answer to special issues submitted, found that L. S. Holler represented to appellee that, if she would deliver said bonds to him to deposit with appellant Association, it would pay her 8 per cent interest on the money ‘ represented by said bonds and would permit her to withdraw at any time all or any part of the money represented by said bonds, with accumulated interest thereon; that she believed and relied upon said representations and would not have delivered said bonds to Holler if said representations had not been made to her; that she did not know that she was subscribing for Building and Loan Association stock and that she did not learn until September, 1936, that, in exchange for the two Federal Land Bank bonds which she had delivered to Holler, she had obligated herself to purchase 850 shares of stock of the par value of $100 per share from appellant Association; that, after September, 1936, appellee did not accept payments of dividends on said stock; that said agent, L. S. Holler, represented to appellee at the time she signed said application card that it was a signature card and that she did not know the contents thereof; that she relied on said representations and would not have signed said application card if it had not been represented to be a signature card.

Based on these findings judgment was rendered in favor of appellee in the sum of $2,485.66. The application for membership in appellant Association, the receipt for stock certificate, the stock certificate and pass -book, and all agreements between the parties were cancelled and adjudged to be void.

The record shows that appellee was a widow 77 years of age; that she earned her livelihood by raising chickens and keeping a few cows; that she was the owner of two Federal Land Bank bonds of $1,000 each, which bore interest at the rate of 4 per cent per annum; that in September, 1936, appel-lee went to the office of appellant to withdraw the money which she thought she had deposited with the Association and then, for the first time, learned that she had signed an application for the purchase of $85,000 in stock and that said application provided that she should pay $2 per share, amounting to $1,700, which was to be retained by the Association as a membership fee.

At the time of the assignment of said bonds to appellant, L. S. Holler, was employed by F. O. Statler, the vice-president and manager of appellant Association, to sell stock in said association, under a contract between Statler and appellant Association under which he was to receive $1.50 per share out of the $2 membership fee paid on all stock sold by him. Statler received $1,275 out of the $1,700 charged appellee as a membership fee.

Appellant contends that appellee’s case is based on allegations of misrepresentations and fraud which relate to matters which might occur in the future and upon promises to be performed in the future and that, therefore, no cause of action is stated against it. This contention cannot be sustained.

Article 4004, Revised Civil Statutes, reads : “Actionable fraud in this State with regard to transactions in real estate or in stock in corporations or joint stock com* pañíes shall consist of either a false representation of a past or existing- material fact, or false promise to do some act in the future which is made as a material inducement to another party to" enter into a contract and but for which promise said party would not have entered into said contract. * * ”

In the instant case appellee alleged and the jury found that there was a definite oral agreement between appellee and the agent of appellant that, if appellee would deposit certain funds with appellant Association, she would be permitted to withdraw said funds so deposited, with 8 per cent interest at any time she desired; that appellee believed said representations and relied thereon, and that she would not have delivered said bonds to appellant’s agent if said representations had not been made to her. Unquestionably these were representations of material existing facts and are supported by the evidence.

Appellant further contends that appellee is charged with the knowledge of the fact that the representations on which her case is based were in direct violation of the law and that they were ultra vires, and that they can form no basis for the fraudulent representations relied upon by appellee.

This contention is completely answered by the fact that appellee does not seek in this action to enforce the said alleged oral agreement with appellant’s agent, or to reform the written contract alleged to have been fraudulently obtained, and that she does not seek damages by reason of said alleged fraudulent acts and representations. Appellee’s case is based entirely on the alleged fact that there had never been a meeting of the minds of the contracting parties. She does not seek in this action to enforce an illegal contract or to enforce promises and representations that were ultra vires. Her action is to rescind and cancel a contract alleged to have been procured by fraud and misrepresentations and to recover her money alleged to have been obtained through fraudulent acts and misrepresentations.

The record shows that appellee was an elderly woman inexperienced in matters pertaining to building and loan associations; that she acted in absolute reliance upon the representations made to her by appellant’s agent, and that she did not read the application card signed by her at his suggestion whereby she became obligated to purchase stock of appellant Association valued at $85,000 and to pay $1,700 as a commission therefor.

In the case of Trammell v. San Antonio Life Ins. Co., Tex.Civ.App., 209 S.W. 786, 789, the court, in passing on the identical question involved in the instant case says: “Appellant is not seeking to enforce an illegal contract, but he wants the money back obtained from him through a fraudulent and void contract. He seeks to disaffirm and destroy the illegal contract, and have both parties placed in the same position they occupied before the void contract was made. Federal Life Ins. Co. v. Hoskins [Tex.Civ.App.], 185 S.W. 607. If the contract for the policy was illegal, appellee will not be permitted to profit by it, but will be forced to return the money and leave the parties as they were when the contract was made.”'

We have fully considered all propositions presented in appellant’s brief. In our opinion none of them show error in the record which requires a reversal of the judgment. The judgment of the trial court will therefore be in all things affirmed.

Affirmed.


text:
    KNOX et al. v. JOHNSON.
    No. 9030.
    Court of Civil Appeals of Texas. Austin.
    June 5, 1940.
    Rehearing Denied June 12, 1940.

      Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, R. O. Fairchild, and Geo. W. Barcus, Asst. Attys. Gen., for appellants State Board of Control and another.
    Claude A. Williams and John Vickers, both of Austin, for appellants Claude A. Williams and W. J. Lawson.
    Dan Moody, of Austin, and Carl Wright Johnson and Wm. N. Hensley, both of San Antonio', for appellee.
   BAUGH, Justice.

Appeal is from an order of the District Court of Travis County, granting a temporary injunction against the Texas State Board of Control restraining the members thereof from passing an order or resolution removing Dr. W. J. Johnson from the office of Superintendent of the San Antonio State Hospital, or in any manner interfering with his lawful discharge of his duties as such superintendent; from placing anyone else in said office; and from discharging any of the employees of said hospital except upon the recommendation of Dr. Johnson.

The agreed statement of the issue presented to the trial court herein was as. follows: “The issue which the court has to try on this hearing is: If the Board! of Control does not have the power, after notice to the regularly elected, qualified and acting Superintendent of the San Antonio State Hospital and after a hearing and determination by the Board of Control that good cause exists for the removal of such Superintendent, to remove him, then in this hearing plaintiff is entitled to a temporary injunction; on the contrary, if the Board of Control has such power, then the plaintiff is not entitled to a temporary injunction.”

The questions presented on this appeal are: First, whether Dr. Johnson, as superintendent of the San Antonio State Hospital, is an “officer of this State” within the meaning of Sec. 7 of Art. XV of the Constitution of Texas, Vernon’s Ann.St.; and, secondly, whether under Arts. 691 and 3184, Vernon’s Ann.Civ.Tex.Stats., the Board of Control has the power to remove him from office, upon its own determination of what constitutes “good cause” for such removal.

We think there can be little, if any, doubt that the superintendent of the San Antonio State Hospital is an officer of the State of Texas. Much has been written on whether the occupant of a public position is a public officer as contradistinguished from a public employee. The best and most comprehensive discussion of this subject that we have found is contained in State of Montana ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583-595, wherein decisions from many states are cited and reviewed. See, also, 34 Tex.Jur. § 2, p. 322; 46 C.J. § 2, p. 922; 22 R.C.L. § 2, p. 372. The rule deduced by the annotator in 53 A.L.R. 595, from numerous cases reviewed in determining the status of such a public position, is as follows: “It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements.”

An examination of the constitution and the statutes, in the light of the authorities, leads to the inescapable conclusion that Dr. Johnson, as such superintendent, is an officer of the State. Sec. 24 of Art. IV of the Constitution requires him to keep account of all moneys received and disbursed by him and make semi-annual reports thereof under oath to the Governor. Art. 691, R.C.S., provides for the election of such superintendents, prescribes their qualifications, and fixes the “term of office” at two years. Art. 692 requires him to take the constitutional oath of office, and to make a bond to be approved by the Governor, “conditioned for the faithful performance of all the duties of said office,” both to be filed with the Comptroller. Art. 695 denies to the Board of Control any power to fix, or to regulate such superintendent’s-salary; and the Board cannot authorize payment of accounts by voucher, until they have been certified by the superintendent as correct. Arts. 3175 to 3180 specifically set forth the powers and duties of such superintendent, wherein he is expressly and specifically treated and referred to as-an officer of the State. Thus we have his position designated as an office. He is required to take the constitutional oath of office, and execute an official bond as is. required of other state officers. He is made a custodian of and responsible for state property and state funds. His “term of office” and the salary therefor are fixed by law. Definite and specific governmental duties and powers are imposed upon him ini which the State as a whole is interested. Manifestly, he discharges strictly a governmental function affecting the public as a whole, and clearly is an officer of the State.

Since the rights, duties and status of Dr. Johnson are determined by, and dependent upon, the Constitution and statutes of this-State, decisions from other states predicated upon their own Constitutions and upon statutes different from ours are of little value on the questions here presented. Appellants, for example, cite Willis v. Scott, 146 Ky. 547, 142 S.W. 1012, wherein the Court of Appeals of Kentucky held that the superintendent of the Kentucky Asylum for the Insane was not an officer within the contemplation of the Constitution of that state. The opinion, however, does not indicate what provisions of the Constitution were involved, nor what were the provisions of the Kentucky Statutes then in force (1911) relating to the powers and duties of such superintendent. The Supreme Court of Arkansas, on the other hand, in Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667, held that a superintendent of a similar eleemosynary institution was a state officer under the constitution and statutes of that state. But, as above stated, the issues here presented depend upon a proper interpretation of our own Constitution and statutes, and the decisions from other states involving different constitutional and statutory provisions are of little value.

Nor is the holding of our Supreme Court in Betts v. Johnson, 96 Tex. 360, 73 S.W. 4, urged by appellants, applicable here. That case dealt only with the jurisdiction of the Supreme Court, subsequent to the Act of 1892, to issue writs of mandamus against a certain class of state officers. It in nowise restricted the phrase “all officers of this State” to mean heads of departments only.

The language and necessary implication of Sec. 7, art. XV of the Constitution itself negatives any such restriction of the term “all officers of this State.” After providing in prior sections of Art. XV, and in Sec. 8 thereof, for the removal by impeachment or other prescribed modes, named officers of the Executive Department and Appellate and District Judges in the Judicial Department, the framers of the Constitution then provided in Sec. 7: “The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.” This language necessarily comprehends, in addition to those otherwise specified in the Constitution itself, not only all officers of the State then provided for, but in addition those authorized by the Constitution to be thereafter created by the Legislature; and clearly included, as contemplated in Sec. 24 of Art. IV of the Constitution, relating to “all officers * * * of State institutions,” superintendents of its eleemosynary institutions.

Thus Dr. Johnson was clearly an officer of the State within the purview of Sec. 7 of Art. XV. Consequently, the decision of the Supreme Court in Dorenfield v. State, 123 Tex. 467, 73 S.W.2d 83, 86, on which the trial court rested his decision, is controlling. We think the difference in the language employed in the act, “removal for cause,” involved in the Doren-field case; and that employed in Art. 691, R.S., “removal by the Board for good cause,” and in Art. 3184, “may be removed by the State Board of Control for good cause,” applying to appellee herein, in the light of holding in the Dorenfield case, is immaterial. As there stated, “a trial was an indispensable part of the constitutional mode for his removal as an officer of this state.” And further that the term “trial” was used in the constitution in its ordinary accepted meaning in law as being “the judicial investigation and determination of the issues between parties.” A judicial determination of an issue between parties is essentially a function inhering in, and devolved by the Constitution upon, the judicial department of the government as defined in that instrument. It involves a hearing of evidence according to rules of law, and the rendition of a judgment by some legally constituted judicial tribunal of competent jurisdiction.

Since the Constitution has prescribed a “trial” as a necessary prerequisite for the removal from office of “all officers of this State,” neither the Legislature can authorize, nor the Board of Control effect, the removal of any .such officer of the State except in compliance with its mandate. If it was the purpose of the Legislature in Arts. 691 and 3184 to authorize the Board of' Control to remove a superintendent of a state hospital without a “trial” as used in Sec. 7, Art. XV of the Constitution, as that term was interpreted in the Dorenfield case, such attempt to do so was abortive and in contravention of the express language of the Constitution. But no such construction of these statutes is necessary. A construction which would render them valid is apparent. That is, that the Board of Control may remove, and if good and sufficient cause for removal exists, it becomes its duty to bring about the removal of a superintendent of such state hospital. But it must do so in. conformity with the mode authorized by the Constitution. That is, by “trial” in a court of competent jurisdiction, and a judicial determination of whether good cause exists for such removal.

In no sense can the Board of Control be deemed a judicial or quasi judicial body. It is purely an administrative agency of the state government of legislative creation. It is not given by statute any power to summon witnesses, enforce their attendance, administer oaths, punish for contempt, hear evidence, or render judgments; such as is given by law to administrative agencies, as for example the Railroad Commission, to which are delegated quasi-judicial functions and duties. It was, therefore, without power or authority to itself judicially determine whether Dr. Johnson should be removed from office.

We are not unmindful of the fact that this conclusion might seriously affect the Board’s power of control over the State Hospitals and perhaps delay the removal of •incompetent or otherwise unfit officers thereof. But the remedy for this must lie with the Legislature. Our duty in the matter is to interpret the law in the light of the Constitution and the decisions construing it.

We have read and considered the numerous cases cited by the several appellants, but have not undertaken to discuss, review, nor distinguish them.

The Texas cases cited and largely relied upon involve the removal of municipal officers, who, under the decisions, are not state officers within the purview of Sec. 7 of Art. XV of the Constitution. The cases from other jurisdictions involve either different provisions of the Constitution of such states; or different statutory provisions; or both. Consequently, in view of the conclusions above reached;the language of our own Constitution; and its interpretation by the Supreme Court in the Dorenfield case, no good purpose would be served by a consideration of them here.

Finding no error in the record presented, the judgment of the trial court is- affirmed.

Affirmed.