author: SMITH, Chief Justice.

text:
    MAY v. DONALSON et al.
    No. 10731.
    Court of Civil Appeals of Texas. San Antonio.
    June 5, 1940.

      C. C. Carsner, of Victoria, for appellant.
    Daniel, Edwards & Proctor and A. B. Chambers, all of Victoria, for appellees.
   SMITH, Chief Justice.

Appellant, Harry May; instituted this suit against Mrs. Bettie M. Donalson, a widow, to recover. on a $2,000 note executed by John A. Donalson and Bettie M. Donalson. It was alleged that John A. Donalson had died, that there was no administration upon his estate and no necessity therefor, and that the note was originally executed for the benefit of the separate property of his widow,- the said Mrs. Bettie M. Donalson.

Mrs. McCord, a widowed daughter of Mrs. Donalson, and the Victoria Bank and Trust Company, were made parties to the «uit on the theory that they had in their possession property and effects belonging to Mrs. Donalson, and for that reason a bill of discovery would lie against them. Attached to the plaintiff’s petition were interrogatories for each of the defendants to answer. The plaintiff prayed for an injunction to restrain the defendants from paying or delivering to Mrs. Don-alson, or any other person, any property, money or effects in their hands belonging to her.

The trial court denied the injunction and the appellant thereupon filed an application for ancillary writ of garnishment, which was issued to the bank. The bank answered as garnishee, admitting that it was indebted to Mrs. Donalson in the sum of $1,416.06, on deposit with it in the name of Mrs. Bettie M. Donal-son. Mrs., McCord intervened in the garnishment proceeding, but did not contest the garnishee’s answer insofar as it stated that it was indebted to Mrs. Don-alson. Mrs. Donalson alleged that the funds on deposit with the bank were not subject to garnishment, that they were exempt from execution, and further that Mrs. McCord was the true and lawful owner of the money on deposit. The principal suit and the garnishment proceeding were tried together to a jury, and at the close of the evidence the trial court discharged the jury and rendered judgment for the plaintiff against Mrs. Donalson for the principal amount sued for, and in favor of the plaintiff against the garnishee for $459.17 less $150 deducted therefrom for the payment of attorney’s fees incurred by the garnishee.

Appellant complains of the denial of the injunction, contending that" this is a remedy vouchsafed by Article 2002, R. S.1925, the bill of discovery statute. Mrs. Donalson contends that, when the defendants attached to their pleading the answers to the interrogatories filed by appellant, the requirements of the statute had been met and that the bill of discovery became moot, and further that there was an adequate remedy provided to appellant by law, and therefore he was not entitled to equitable relief. The statute provides “such remedy [of discovery] shall be cumulative of all other remedies,” and by invoking it a litigant does not yield any existing right to equitable relief. Samuels v. Finkelstein, Tex.Civ.App., 25 S.W.2d 923. In other words, a bill of discovery in Texas is a remedy additional to the other remedies provided by statute. 2 Tex.Law Rev. 483; Chapman v. Leaverton, Tex.Civ.App., 263 S.W. 1083; National Compress Co. v. Hamlin, 114 Tex. 375, 269 S.W. 1024; Avery & Sons Plow Co. v. Mayfield, Tex.Civ.App., 111 S.W.2d 1134.

But, we are of the opinion that appellant was not injured by the denial of the injunction. If the bank and Mrs. McCord were indebted to Mrs. Donalson, or had effects belonging to her, appellant could reach the same by writ of garnishment. The fact that a writ of garnishment would lie, would not, of itself, prevent appellant from resorting to his remedy of a bill of discovery in order to ascertain what effects were held by the other defendants, and to what extent they were indebted to Mrs. Donal-son, but appellant could go no further than to obtain the necessary information pertaining to the property of Mrs. Don-alson. Equitable Trust Co. v. Jackson, 129 Tex. 2, 101 S.W.2d 552.

As to the garnishment proceeding appellant complains of the action of the trial court in discharging the jury and entering a judgment on the facts found by him. If there were no controverted issues of fact for determination, there was nothing to submit to a jury, and it was the duty of the trial judge to discharge the jury and enter judgment upon the undisputed facts. Adams v. Houston National Bank, Tex.Com.App., 1 S.W.2d 878; American Surety Co. v. Hill County, Tex.Com.App., 267 S.W. 265. We will examine the record as it relates to this rule.

The bank admitted that it was indebted to Mrs. Donalson for $1,416.06, and the testimony explains where this money came from. John A. Donalson during his life owned a $10,000 life insurance policy, and prior to his death he had borrowed $5,000 from his daughter, Mrs. McCord. In his will he assigned to her $5,000 out of the proceeds of the policy in liquidation of the debt, and devised the remainder of his property to his wife, appellee herein. Prior to his death he had gotten two loans upon the policy, out of which $459.17 remained, which was on deposit in a bank in the name of his daughter, Mrs. McCord. After his death, the insurance company paid the amount owed on the policy to Mrs. McCord, who retained $5,000 in payment of her note, and deposited the balance of $2,678.77 and the $459.17 referred to above, to the credit of her mother, Mrs. Donalson.

The trial court held, as a matter of law, that the $2,678.77 was not subject to garnishment, on the theory that it was a trust. In support of this theory appellee Mrs. Donalson contends that the evidence shows that the money was deposited in her name for a special purpose only, and that she was only a trustee of the funds. Mrs. McCord testified that she transferred the $2,678.77 out of the money collected from the insurance company to her mother, Mrs. Donalson, so that she would have something to spend and live on in the event Mrs. McCord died, and that she had paid doctors’ and drug bills, and funeral expenses. We hold that the court erred in this conclusion. We cannot say, and least of all as a matter of law, that this evidence was such as to impress a trust upon the fund. The general effect of the testimony was rather to negative than affirm a trust, for, after all, it showed that the fund was deposited in the bank, to Mrs. Don-alson’s credit, for her exclusive benefit, and without any restriction upon her right or power to withdraw it at will and apply it to her own uses. The very intention of Mrs. McCord in depositing the money to her mother’s credit was, as she testified, to warrant that her mother would have something to spend and live on in the event the daughter died and could not herself provide for her mother. These facts would seem to constitute a pure gift, rather than a trust. The evidence upon this issue was meager and unsatisfactory, and may be better developed upon' another trial, to which end the matter will be left open. It is sufficient to hold here that the trial court erred in concluding, as a matter of law, that a trust was established.

There is no evidence in the record as to what services, if any, the attorneys for the garnishee had rendered. The trial court allowed the garnishee $150 attorneys’ fees. If it were not for the fact that attorneys’ names were signed to the pleading, we would be relegated to mere surmise in order to find that attorneys had been employed. It has been held that in a trial before the court, the judge can fix the attorneys’ fees, even though there is no testimony from which to determine the value of the attorneys’ services. Johnson v. Blanks, 68 Tex. 495, 4 S.W. 557. It has also been held that the Court of Civil Appeals may fix the attorneys' fees. Roscoe State Bank v. J. M. Radford Grocery Co., 50 S.W.2d 839. But, in a trial to a jury there must be evidence of what services the attorney had rendered, and of the reasonable value of such services, and the jury, but not the judge, should, from this evidence, fix the amount of the fees. Smith v. Texas Co., Tex.Com.App., 53 S.W.2d 774.

The trial court held that the item of $459.16 .was subject to the garnishment, and that out of this sum the $150 allowed the garnishee as reasonable compensation should be deducted. Appellant contends that since he was the successful party, the costs should have been adjudged against the appellee Mrs. Donalson, the unsuccessful party. The garnishee contends that it was a mere stakeholder, and that the rules pertaining to interplead-ers are applicable. We overrule this contention of the garnishee. The application for the writ of garnishment was in the usual statutory form and the writ issued to the garnishee was in the statutory form. The garnishee in its answer admitted that it was indebted to the defendant Donalson for the amount of money that was on deposit in her name. It denied that it held any effects belonging to Mrs. Donalson or was otherwise indebted to her except as admitted. There were also some allegations in the answer pertaining to an account that was in the name of Mrs. McCord. No one in the garnishment proceeding was claiming that this fund belonged to Mrs. Donalson. Mrs. McCord filed an answer in the garnishment proceeding in regard to the fund that was in her name, but made no claims by her pleadings- for the money deposited in Mrs. Donalson’s name. The garnishee by its answer did not contend that any one other than Mrs. Donalson was claiming the money deposited in her name. We are therefore of the opinion that the bank was not in a position of a stakeholder insofar as the garnishment proceeding was concerned.

A garnishment proceeding is not equitable in nature, but of statutory creation. Therefore, we must look to the statutes to determine who should pay the cost of the proceeding, including the at-torpeys’ fees. In the absence of statutory authority, the trial court has a right to determine who shall pay the costs. Where two parties are claiming the same fund, it is only equitable that the - stakeholder should be allowed to hold the expenses incurred by him out of the fund. In a garnishment proceeding, however, only one party, the defendant, is claiming the fund, and the other party, the petitioner, claims that he has the right to have the fund applied on the debt owed him by the defendant; hence the decisions in interpleader cases do not apply to garnishment proceedings.

Article 4100, R.S.1925, provides for the taxing of costs in a garnishment proceeding and it must be followed. Where the garnishee is discharged upon his answer, the statute provides that the costs of the proceeding, including a reasonable compensation for the garnishee, shall be taxed against the plaintiff. This reasonable compensation to the garnishee includes a reasonable attorneys' fee incurred by it in the case. In order to determine what is meant by the “garnishee is discharged upon his answer,” we must look to Article 4086, R.S.1925.

Where the answer of the garnishee shows it is indebted to the defendant and such answer is not controverted, Art. 4100 provides that the court costs, including reasonable compensation to the garnishee, shall be taxed against the defendant and included in the execution provided for by the garnishment statutes. In such case -the judgment should conform to the provisions of Art. 4088, R. S.1925.

Where there has been a contest of an answer filed by the garnishee, Art. 4100 provides “the costs shall abide the issue of such contest.” This portion of the statute should also be construed in connection with Art. 4088. If the garnishee denies that it is indebted to the defendant and the answer is contested by the plaintiff, the garnishee becomes a party litigant and is entitled to no attorneys’ fees in the event it is unsuccessful. Automobile Underwriters’ Ins. Co. v. Murrah, Tex.Civ.App., 40 S.W.2d 233. In the event the defendant is a party to the suit and contests the answer of the garnishee and is unsuccessful, the costs and attorneys’ fees should be assessed against the defendant, and that should have been done in this case.

Art. 2056, R.S.1925, provides:

“The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Art. 2052 provides: “Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may issue against any party in such suit for the amount of costs incurred by such party, but no more.” We are of the opinion that these two statutes do not change the rule provided for in garnishment cases by Art. 4100, insofar as the ultimate liability for the costs is concerned. If the costs cannot be collected from the defendant, execution may issue against the plaintiff for the amount of the costs incurred by him, but no more. However, demand must first be made upon the defendant, unless he is insolvent. Beauchamp v. Withers, 25 Tex.Civ.App. 575, 62 S.W. 1084.

The costs incurred by the plaintiff in a garnishment proceeding include the garnishee’s attorneys’ fees, and the plaintiff may be called upon to pay this amount in the event it can not be' collected from the defendant, and this is true even though all of the costs are adjudged against the defendant. In this respect, attornéys’ fees are comparable to the fee of a guardian ad litem and the same rules will be applied. Ashe v. Youngst, 68 Tex. 123, 3 S.W. 454.

If the defendant, by contesting the answer of the garnishee, causes it to incur additional attorneys’ fees, the plaintiff would not be considered as having, incurred the additional fees and would not be responsible for them. The garnishee may thus be deprived of some of the compensation which it is entitled to receive under the statute,' but that affords no reason for making the plaintiff pay the additionál fee. Doss v. Chambers, Tex.Civ.App., 188 S.W. 296. The garnishee can protect itself to some extent ’ by availing itself of Art. 2068, R.S.1925, providing for rule for costs.

In this case, the costs of the garnishment proceeding were taxed against the appellant, who was the successful party in the contest. This was error. The costs should have been taxed against Mrs. Donalson, the unsuccessful party, although the plaintiff may have been called upon to pay them in the event Mrs. Donal-son was unable to do so.

The judgment in favor of appellant upon the promissory note, from which no appeal was taken, will be affirmed; the judgment in the garnishment proceeding will be reversed, and that proceeding remanded for another trial.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    SOUTHERN UNDERWRITERS v. HODGES.
    No. 2236.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1940.
    Rehearing Denied June 20, 1940.

      Will R. Saunders, Henry D. Akin, and W. E. Johnson, all of Dallas, for plaintiff in error.
    Bailey & Shaeffer and George McHam, all of Dallas, for defendant in error.
   TIREY, Justice.

This is a workmen’s compensation case. H. B. Hodges,-an employee of B. F. Walker, was killed as the result of an automobile accident in Andrews county, Texas, while returning from Odessa, Texas, to Hobbs, New Mexico. Mrs. H. B. Hodges, the putative wife of the deceased, and Mrs. Laura M. Hodges, mother of the deceased, each filed notice with the Industrial Accident Board of Texas for compensation. The Industrial Accident Board made art award in favor of Mrs. H. B. Hodges. The Southern Underwriters, the compensation carrier, perfected an appeal by filing suit in the district court of Andrews county. The Industrial Accident Board denied the claim of the mother, Mrs. Laura M. Hodges, and she likewise perfected an appeal by filing suit against the Southern Underwriters in the district court of Andrews county. The suits in Andrews county were transferred by agreement to the district court of Ellis county, where the same were consolidated under one number and style. On the trial in the district court of Ellis county, the court instructed the jury to return a verdict against Mrs. H. B. Hodges, the putative wife, in favor of Mrs. Laura M. Hodges, the mother of the deceased, and in favor of the Southern Underwriters as to the said Mrs. H. B. Hodges. On motion of the Southern Underwriters, its cause of action was non-suited and dismissed without prejudice to the cross-action of Mrs. H. B. Hodges and Mrs. Laura M. Hodges. On the verdict of the jury, judgment was entered in favor of Mrs. Laura M. Hodges against the Southern Underwriters for 360 weeks’ compensation,, at $20 per week. Judgment was further rendered that Mrs. H. B. Hodges recover nothing against Mrs. Laura M. Hodges and the Southern Underwriters. The Southern Underwriters, plaintiff in error, has perfected this appeal against Mrs. Laura M. Hodges, defendant in error.

Owing to the fact that the major question at issue in this appeal is whether H. B. Hodges, at the time he was injured, occupied the status of a Texas employee of B, F, Walker, we deem it vital to make a comprehensive statement of the facts in this case. The case was tried before a jury partly upon an agreed statement of facts and partly upon testimony adduced. It appears from the stipulation that (1) B. F. Walker, the employer, is a trucking contractor, his business being confined to the various oil fields in Oklahoma, Texas, New Mexico, and Louisiana; (2) that he utilizes a large number of trucks and other oil field equipment in his business and employs a large number of men; (3) that in 1929 he employed H. B. Hodges as a mechanic and driver for work in the state of Oklahoma; (4) that Hodges remained' in Walker’s employment in Oklahoma until some time prior to 1933, when the Oklahoma work was finished, and Walker brought Hodges with him to Houston, Texas, where Hodges continued to work as an employee as mechanic and driver; (S) that in the latter part of 1933, Walker moved Hodges to Odessa in Ector county, where a new oil field was located, and where Walker established headquarters for Hodges in Odessa and placed him in charge of the operations there as truck pusher; (6) that Walker’s trucks in that area were equipped with both Texas and New Mexico licenses and the car furnished by Walker to Hodges for his use was likewise equipped with both Texas and New Mexico licenses; (7) that Hodges remained at Odessa for a period of 7 or § months, and when the business slowed up at Odessa and the oil development became more active in and near the town of Hobbs, New Mexico, Walker moved Hodges from Odessa, Texas, to Hobbs, New Mexico; (8) that Hodges’ salary was increased when he moved from Odessa to New Mexico; (9) that Hodges established his residence at Hobbs, New Mexico, received his mail there and continued his residence there until the time of his death in July 1936; (10) that the records of the New Mexico operations were kept separate and apart from the Texas operations, and. that the employees in New Mexico were listed separately from the Texas employees; (11) that B. F. Walker cárried a policy of workmen’s compensation insurance under the New Mexico law with the Maryland Casualty Company, and that H. B. Hodges was reported and carried with the Maryland Casualty Company on the payroll reports in the Walker office at Hobbs,' New Mexico; (12) that B. F. Walker carried compensation insurance in Texas, but that B. F. Walker never at any time reported to the •Southern Underwriters, the Texas carrier, that H. B. Hodges was an employee, and no premiums were paid to the Southern Underwriters on the wages being earned by Hodges at and for more than a year prior to the time of his death in July 1936; (13) that while H. B. Hodges was so living and residing at Hobbs, New Mexico, in the employ of B. F. Walker, his duties required him to go into the state of Texas, across the state line, but such trips and visits into the state of Texas were not permanent in nature and character, and after the trips had been completed, Hodges would return to Hobbs; (14) that.on the morning of the 28th day of July, 1936, Hodges left Hobbs in an automobile furnished to him by Walker for use in his master’s business and licensed in the states of New Mexico and Texas, and went to the city of Odessa in Ector county, Texas, for the purpose of ordering material and supplies for his master, which he could not obtain in the state of New Mexico; (15) that while on the return trip to Hobbs from Odessa, and while in Andrews county,'Texas, the car that Hobbs was driving' collided with a truck and Hodges received injuries in such collision and a short time thereafter he died in a hospital in Ector County, Texas; (16) that for at least two and one-half years prior to the time of his death he was steadily employed in New Mexico and lost no appreciable time during that period, that at the time of his death Hodges was drawing a salary of $165 per month; and (17) that the foregoing stipulation was not to be construed as an agreed case but both plaintiff and defendant reserved the right to introduce testimony in addition thereto and the cause was to be determined by the trier of the facts in the light of the stipulation and the evidence adduced by, the parties, the inferences from the stipulation to be considered in the light of the other evidence, if any, introduced by the parties. It further appears from the uncontroverted testimony that (a) while Hodges was at Odessa (maintaining his headquarters at a tourist camp), in charge of the operations there, the trucks of B. F. Walker were operating in both Texas and New Mexico and Hodges was in charge of the same; (b) that when business slowed down at Odessa- and the activity became greater near Hobbs, Walker caused a camp to be established at Hobbs- and directed Hodges to remove his headquarters from Odessa, Texas, to the Walker camp at Hobbs, New Mexico; (c) that Hodges, after removing to Hobbs, was doing the same character of work that he was doing at Odessa, and that his work at Hobbs required him to make trips into Texas once or more a week, and that on some of these trips to Texas he would have to remain in Texas for as long as three days at a time; (d) that after Walker came to Texas he maintained his office in Houston, Texas; (e) that Hodges had charge of the payroll at Odessa and Hobbs and hired and fired the men and did the things that B. F. Walker would have done had he been present in furtherance of his master’s business; that the Southern Underwriters, the compensation carrier, issued a Texas standard policy covering injury or death under the terms and conditions of the workmen’s compensation employers’ liability law; that Item 3 of the policy, as to the location of operations, among other things, provided: “Locations of all factories, shops, yards, buildings, premises or other work place of this subscriber, be town or city, with street and number Houston and elsewhere in Texas” and that defendant in error elected to claim compensation as a Texas employee.

The plaintiff in error’s assignments Nos. 1 to 5, inclusive, attack the judgment of the trial court on the ground that the facts show, as a matter of law, that H. B. Hodges was not a Texas employee at the time he was injured, or that he did not occupy the status of a Texas employee of B. F. Walker, but on the contrary was an employee of B. F. Walker in the state of New Mexico, and that by reason thereof the policy of compensation insurance in Texas does not cover the injury.

Under the authority of Southern Underwriters v. Gallagher, Tex.Sup., 136 S.W.2d 590, the test is, What was the status of FI. B. Hodges at the time of the injury with regard to being a Texas employee? This record indisputably shows that H. B. Hodges was a Texas employee looking after the master’s business at Odessa prior to the time that he went to the B. F. Walker camp at-Hobbs, New Mexico. We think it likewise indisputably shows that when H. B. Hodges changed his headquarters from Odessa to Hobbs, he continued to perform services for his master in both Texas .and in New Mexico. In fact, the jury found in its verdict that H. B. Hodges spent twenty per cent of his time in Texas in the service of B. F. Walker after he, Hodges, moved to Hobbs, New Mexico. The evidence is ample to support said finding. In fact, the evidence indisputably shows that there was no interruption of the service that Hodges was rendering to his employer in Texas when he was moved from Odessa to the Walker camp at Hobbs. There is no question that Hodges occupied the status of a Texas employee before leaving, the state. In as much as the evidence indisputably shows that H. B: Hodges continued to give a substantial portion, of his time in Texas to the service of B. F. Walker, after he removed to Hobbs, and that there was no interruption or change in the service that he rendered to his master in Texas before removing to the Walker camp in New Mexico, we think that the evidence shows that Hodges was temporarily in Hobbs, N. M., and that he occupied the status of a Texas employee in so far as he continued to render service to his employer in Texas. Moreover, the trucks over which Hodges had supervision and control were licensed in both Texas and New Mexico and were being operated in both Texas and New Mexico, and in addition thereto, the car furnished by Walker to Flodges for his use in the furtherance of his master’s business had both Texas-and New Mexico licenses, and we are of the opinion that such facts, plus the fact that Hodges’ duties required him to be in Texas as and when his master’s business required him to be, show that it was contemplated that his services to his employer were to be rendered in both Texas and New Mexico, and that his status of a Texas employee was not severed by the fact that the camp where he resided was located and situated in Hobbs, New Mexico, or that a part of his services rendered to his employer was rendered in the state of New Mexico. Moreover, section 6 of the policy of insurance provided as follows: “This agreement shqll apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this contract, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or in relations to, such work places.” We therefore hold that the evidence shows that H. B. Hodges was a Texas employee because of the service he rendered to his employer in the state of Texas, and was rendering at the time he received his injuries, and that said H. B. Hodges was protected by our compensation law for the services he performed for his master in Texas. Our Supreme Court has uniformly held that our workmen’s compensation law-should be liberally construed in favor of Texas employees. Southern Underwriters v. Gallagher, 136 S.W.2d 590. We are in accord with that rule. See also Texas Employers Ins. Ass’n v. Robertson, Tex.Civ.App., 137 S.W.2d 836, writ dismissed, correct judg. Plaintiff in error’s assignments on the. above question are overruled.

Plaintiff in error’s fourth proposition complains of the action of the trial court in refusing to instruct a verdict for it on the ground that the uncontroverted evidence, as well as the pleadings, shows that Laura M. Hodges, defendant in error, had waived all of her interest in the compensation claim in favor of Mrs. H. B. Hodges, and had assigned all of her interest to Mrs. H. B. Hodges. We have carefully considered this assignment, and, in our opinion, it is without merit.

Error is assigned to the action of the trial court in refusing to grant the motion of the Southern Underwriters to declare a mistrial and to discharge' the jury on the ground that reversible error was committed by attorneys for defendant in error, to-wit: Geo. W. McHam, in reading to the jury the contents of paragraph 8 of the consolidated petition of said defendant in error, which pleading advised the jury that the Industrial Accident Board had made an award, and that the defendant in error, the Southern Underwriters, had perfected an appeal therefrom. It appears that, while counsel for defendant in error was reading the pleading to the' jury on which this case proceeded to trial, when he reached that part of his petition which said: “And that on the 6th day-of April, 1937, before it entered its final ruling and award,” counsel, reading the pleading, then stated: “For jurisdictional purposes only,” which statement was not in the pleading ' he was reading. At that point counsel for plaintiff in error called counsel’s attention to the fact that he was not reading the paragraph as written and asked him to read it as it was written. Counsel for defendant in error immediately replied, “I will read it as written if you desire,” and thereupon he did read it as written, reading the entire pleading to the court and jury without any further interruption or objection being made. Immediately after counsel had finished reading the petition, plaintiff in error’s counsel made a motion to the court to declare a mistrial and discharge the jury. The trial court overruled said motion, and, in qualifying the bill, among other things, said: “Whether he was calling upon him to' read the whole pleading, or what object the attorney had in 'his mind, of course, was a matter of conjecture, and I think reasonably and fairly it could be construed as inviting it , either way, the way the thing came up, and especially that the jury had no idea in the world but what the party was trying to put one by within the mind of any man.” It is our opinion and we find that if the action of defendant in error’s counsel in reading the entire pleading to the jury under the circumstances set forth in the record was error, such error was invited by plaintiff in error’s counsel and he cannot complain of the action of the trial court. Each of the assignments attacking the action of the trial court on the motion to declare a mistrial and discharge the jury is therefore overruled.

Assignments 8 to 38, inclusive, complain of the court’s refusal to pass on general demurrers and various special exceptions in defendant in error’s amended pleading. We have carefully considered the order entered overruling same- and the reasons therefor given by the trial court, and we are of the opinion that plaintiff in error has failed to show an abuse of discretion. Moreover, the pleading was not subject to a general demurrer and under the undisputed record of this case, the sole question was whether H. B. Hodges was a Texas employee within the meaning of our compensation statute at the time he received the injuries that resulted in his death. The trial court, having given peremptory instructions against, the putative wife iti favor "of the compensation carrier and" against the putative wife in favor of Mrs. Laura M. Hodges, many of the special exceptions became immaterial. Moreover, a large measure of discretion is lodged in the trial court in passing on the exceptions to the pleadings, as well as to the time that he hears' the same, and, in the absence of a.showing of abuse of discretion or injury resulting from the ruling of the trial court, the ruling will not be disturbed. No injury is shown. Constitution Indemnity Co. of Philadelphia v. Armbrust, Tex.Civ.App., 25 S.W.2d 176, 180, pars. 9 and 10, writ refused; Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 825, pars. 5 and 6; Rule 62a of the Courts of Civil Appeals. Each of the foregoing assignments _ is therefore overruled.

Assignments 41, 42, 43 and 44 complain of the action of the trial court in permitting defendant in error’s attorneys to reopen the case and put on additional testimony and argue the same after the conclusion of all the evidence and after the case had been argued and the jury had retired. It appears from the record that this cause was submitted to the jury at about noon; that they went to the jury room, selected a foreman and then adjourned for lunch. In the meantime, a motion on behalf of defendant in error was submitted to the court for permission to be permitted to reopen the case and adduce testimony as to the amount of money earned by H. B. Hodges, deceased, in the-year prior to his death. When court resumed, inquiry was made of the jury as to whether or not they had considered of their verdict and they had not done so. The court then permitted the defendant in error to reopen the case (over objection made by local counsel for plaintiff in error) and Mrs. H. B. Hodges, the putative wife, testified, in substance, that her husband was paid $165 per month at the time of his death and had been paid such monthly salary for something over a year prior to his death. After Mrs. Hodges had been interrogated by both counsel for defendant in error and local counsel for plaintiff in error, the court then submitted special issue No. 10, and ten minutes was allowed to each side for further argument. Special issue No. 10 reads as follows: “Do you find from a preponderance of the evidence that B. ,F. Walker -paid H. B. Hodges a salary of $165.00 per month, for twelve months pre.ceding his death?’’ To which the jury answered “Yes.” Various exceptions were made to the action of- the trial court in permitting the case to be reopened and. evidence adduced. Article 2181 of our Re-' vised Statutes of 1925 is controlling on this question. Our courts have uniformly held 'that this statute is necessarily directory and a party complaining of its infraction must, in order to obtain a reversal of the judgment, show that he has been injured. Prescott-Phœnix Oil & Gas Co. v. Gilliland Oil Co., Tex.Civ.App., 241 S.W. 775; Texas & Pac. Ry. v. Smith, Tex.Civ.App., 115 S.W.2d 1238, points 4 and 5, page 1242; Western Union Telegraph Co. v. Roberts, 34 Tex.Civ.App. 76, 78 S.W. 522, writ refused. The question therefore arises, Has the trial court abused his discretion and deprived the plaintiff in error of a substantial right? We do not think so. The stipulation agreed to by the parties showed that Hodges -entered the employment of Walker in the year 1929 in the-state of Oklahoma, and that he continued in Walker’s employment in the state of Oklahoma until some time prior to the year 1933, at which time Hodges came with Walker to Texas, and that he had been in the employment of Walker continuously since that time. It was further stipulated “that for at least two and one-half years prior to the time of his death, he was steadily employed in New Mexico and lost no appreciable time during that period; that at the time of his death the said H. B. Hodges was drawing a salary of $165.00 per month.” We think we must keep in mind that our compensation law was enacted for the benefit and protection of our employees rather than for the benefit and protection of the compensation carriers. It would be folly to say that the compensation carrier could have been surprised or prejudiced by the court permitting the case to be reopened and evidence introduced showing the salary of H. B. Hodges for the year immediately preceding his death. We are of the opinion that the trial court did not abuse his discretion, and we feel that he should be commended for his action in seeking to make his court an efficient tribunal for the administration of justice. Plaintiff in error’s counsel bitterly complain that their chief counsel had left the city when the case was reopened. It is not contended that plaintiff in error’s counsel had been excused by the court. Their active local counsel was present and cross-examined Mrs. Hodges, when she was placed on the -stand. Our Supreme Court has held that a trial is not concluded until motions for judgment and motion for new trial are disposed of. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 48 A.L.R. 355.

Assignments of error Nos. 43 and 44 attack the judgment on the ground that there is no proof or pleadings to support the computation of the wage rate under the plans and methods specified in the law. It was stipulated by the parties that H. B. Hodges, for at least two and one-half years prior to the time of his death, was steadily employed and lost no appreciable time from his work; and that at the time of his death he was drawing a salary of $165 per month. In addition thereto, the evidence was uncontroverted that H. B. Hodges was paid $165 per month for more than a year prior to his death. The jury found, in response to special issue No. 10 of the court’s charge, that B. F. Walker paid H. B. Hodges a salary of $165 per month for twelve months immediately preceding his death. Under the foregoing condition of the record, the trial court was required to compute the average weekly wage of Hodges by taking ⅜2 of the amount actually paid. Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553; Traders & General Ins. Co. v. Boysen, Tex.Civ.App., 123 S.W.2d 1016, point 20, page 1027. The foregoing assignments are overruled.

The judgment of the trial court is affirmed.


author: McCLENDON, Chief Justice.

text:
    RAINEY et al. v. MALONE.
    No. 9029.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1940.
    Rehearing Denied June 12, 1940.

      Gerald C. Mann, Atty. Gen., and George W. Barcus, Robert E. Kepke, Ocie Speer, and James Noel, Asst. Attys. Gen., for appellants.
    Robert C. Eckhardt and Creekmore Fath, both of Austin, for appellee.
   McCLENDON, Chief Justice.

Malone brought this (a mandamus) suit against the members of the Board of Regents, the President, Auditor and Registrar of the University of Texas, to compel his admission as a student of the University without paying a $1 “compulsory student fee” (popularly called “Student Union Fee”), levied by the Board of Regents under authority conferred by Subsection 19, § 2, of the 1939 general appropriation bill for the support of the several State institutions of higher learning. Vol. 2, Chap. 8, p. 310, H.B. 255, Special Laws Reg.Sess. 46th Leg., 1939. Malone had previously been denied the right to file an original mandamus proceeding in the Supreme Court upon the ground that the respondents were not “officers of the executive departments of the government of this State,” within the meaning of R.C.S. Art. 1735. Malone v. Rainey, Tex.Sup., 133 S.W.2d 951. Respondents filed in the instant suit a plea in abatement, upon the ground that relator had an adequate remedy at law provided by Vernon’s Ann.Civ. St. art. 7057b, under which, in order to test validity of the fee he was required to pay it under protest, and bring suit- for its recovery. The plea was overruled, and in a trial to the court without a jury the judgment was for the relator awarding the mandamus as prayed. The respondents have appealed.

Since we are holding that the trial court improperly overruled the plea in abatement, we will confine our discussion to that issue, pretermitting the several grounds upon which the relator contends that -the “Student Union Fee” is an illegal exaction, and the respondents contend that the fee was authorized and valid.

As to the pleading and proof it is only necessary to say that they were sufficient to sustain relator’s right to be admitted as a student of the University in every respect except as to the payment of the “Student Union Fee.” The pertinent portion of Art. 7057b reads: “Sec. 1. Any person, firm or corporation who may be required to pay to the head of any department of the State Government any occupation, gross receipt, franchise, license or other privilege tax or fee, and who believes or contends that the same is unlawful and that such public official is not lawfully entitled to demand or collect the same shall, nevertheless, be required to pay such amount as such public official charged with the collection thereof may deem to be due the State, and shall be entitled to accompany such payment with a written protest, setting out fully and in detail each and every ground or reason why it is contended that such demand is unlawful or unauthorized.”

This article was expressly held to be valid and to afford adequate legal remedy in Rogers v. Daniel O. R. Co., 130 Tex. 386, 110 S.W.2d 891. However, it was held that the remedy was not adequate in those cases where its employment required a multiplicity of suits; in which event the equitable remedy of injunction might be resorted to. This defect in the original Art. 7057b was cured by amendment in 1939 (S.B. 400, Chap. 11, p. 643, Gen.Laws 46th Leg., Vernon’s Ann. Civ. St. art. 7057b, §§ 2, 2a, 2b).

The respective contentions of the parties upon the merits of the plea in abatement present two questions of statutory construction:

1. Is the Board of Regents of the University of Texas “the head of any department of the State Government,” within the meaning of Art. 7057b, Sec. 1 ?

2. Is the “Student Union Fee” a “tax or fee” within the meaning of said section?

It must be conceded at the outset that these questions present no little difficulty, especially in view of the holding in Betts v. Johnson, 96 Tex. 360, 73 S.W. 4, on the one hand, and that in Herring v. Houston Nat. Exch. Bank, 113 Tex. 264, 253 S.W. 813, 814, on the other. In the former the Supreme Court had for determination whether the “Board of Eclectic Medical Examiners” constituted an “officer of the state government,” within the meaning of Art. 946, R.C.S.1895, which conferred original jurisdiction upon the Supreme Court, or any justice ' thereof, “in term - time or vacation” to “issue writs of quo warranto or mandamus against "any district judge or officer of the state government, except the governor of the state.” The holding was that “officer of the state government” was used in the sense of “head of a department of the State government” and as such it included only those executive officers who are “intrusted with the general administration of state affairs and who exercise general governmental functions.”

The course of reasoning by which this conclusion was reached is contained in the following quotation: “We fail to see any very good and sufficient reason why the Legislature should have deemed it appropriate to confer original jurisdiction upon this court to grant a writ of mandamus against executive officers, other than those intrusted with the general administration of state affairs and who exercise general governmental functions. Others are officers in a certain sense, but in another sense, they are mere agents charged with the performance of special functions. The district courts have jurisdiction to issue the writ of mandamus to all other officers except heads of departments, and, as in other cases, appeals are allowable for the correction of the errors of those tribunals. Therefore we think the Legislature might have well considered that it was neither necessary nor proper to give the Supreme Court jurisdiction to issue the writ of mandamus against such officers.”

In the Herring case the court had for determination whether the Board of Prison Commissioners constituted the “head of any department of the state of Texas,” within the meaning of Art. 2105 (present Art. 2276), the pertinent portion of which reads: “Neither the State of Texas, nor any county in the State of Texas, nor the Railroad Commission of Texas, nor the head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case.”

The holding was that “head of any department of the state” was used in its popular sense and was not limited to the executive officers and departments of the government. So construed, it applied to all “governmental agencies, while ‘prosecuting and defending in any action in their official capacity.’ * * *

“It could hardly have been in the mind of the Legislature, in enacting this general statute exempting governmental agencies, while ‘prosecuting and defending in any action in their official capacity,’ from giving bond on appeal in civil cases, to limit its application to the departments named in section 1, article 4, of the Constitution as constituting the executive department of the state.”

The fact that the Railroad Commission was expressly mentioned in the article afforded no impediment to the conclusion that “departments of thq State Government” was intended to include all governmental agencies.

“It is a matter of common knowledge that the state, through its Legislature, has zealously guarded the Railroad Commission. It is thought that in its zealous care for the Railroad Commission, and the knowledge that much litigation would arise concerning it and growing out of the administration of its functions, it was inserted in this article, without intending to limit its general application to the executive departments of the state of Texas enumerated in section 1, article 4, of the Constitution [Verncm’s Ann.St.].”

In the Betts case, on the other hand, significance was attached to the fact that “officer” and not “officer or board of officers,” was used in the 1895, Art. 946.

We have then for construction an expression (“head of any department of the State Government”) of varied and therefore of equivocal meaning — an expression construed, on the one hand, to have been employed in a narrow, restricted sense, and on the other, to have been used in its general popular sense — as such respective constructions were deduced from the context and the legislative objective in enacting the legislation in which the expression was used. In other words, the controlling element in each of these diametrically opposed lines of decision was the effectuation of the legislative objective, as that objective was interpreted to inhere in the several legislative enactments under consideration.

As illustrative of the equivocal meaning of “department of government”: If one were asked the abstract question, what are the departments of government, the probable, and no doubt appropriate, answer would be, the three departments mentioned in the Constitution — the legislative, the executive and the judicial. Manifestly the term was not so employed in any of the statutes under consideration.

We have here for construction a statute the general objective of which is to facilitate the collection of the revenues of the State; and to prevent impeding such collection by injunction or other suits brought against officials of the State charged with the duty of such collection. It may be conceded that the primary occasion which brought about the legislation was the ever growing frequency of suits brought to enjoin collection of various excise taxes from time to time imposed. But the language of the statute (as in Art. 2276) is broad enough to include any agency (“head of any department”) of the State Government to whom anyone might “be required to pay” any privilege tax or fee falling within the meaning of the act. Many State governmental agencies have been created within recent years charged with the duty of collecting fees for privileges conferred or to defray the administration expenses of such agencies. No impelling reason suggests why impediment to the collection of such fees should not be removed; nor why such officials should- not be relieved of harassment by injunction or other suits in like manner as provided in the case of excise taxes. The specific enumeration of such taxes may readily be explained, without limitation of the general scope of the statute, just as was specific enumeration of the Railroad Commission in Art. 2276. We therefore conclude that Art. 7057b applies to any “privilege tax or fee” required to be paid to any .agency (“head of department”) of the State Government.

The Regents qf the University are clearly officers of the State charged with a most important governmental function. This was expressly held in Splawn v. Woodard, Tex.Civ.App., 287 S.W. 677. That the Board is the “head of a department of the State Government” within the meaning of Art. 2276 admits of no substantial doubt under the holding in the Herring case. Respondents are appellants in this court without having filed an appeal hond, and their right to do so is not challenged; as was also the case in Splawn v. Woodard.

The importance of public education, not -only as an appropriate, but as an essefitial governmental function, has always been recognized in Texas. Every school boy and girl is early taught to know that one of the grievances in the' Texas declaration of independence against the then Mexican government was its “failure to establish any public system of education.” The messages of the presidents of the Republic are replete with expressions emphasizing this importance, and the promotion of public education has been a professed chief objective of every succeeding state administration. As early as 1838 the Congress of the Republic began to lay the foundations for a State, educational system by the grant of portions of the public domain for that purpose, and the following year (January 26, 1839) an act was approved requiring the President “to appoint a surveyor and have surveyed on and from any of the vacant lands of the Republic, fifty leagues of land, which is to be set apart and is hereby appropriated for the establishment and endowment of two colleges or universities, hereafter to be created.”

When at long last the University was actually established, the establishing act provided: “The fee of admission to the University shall never exceed thirty dollars. It shall be open to all persons of both sexes in this State on equal terms, without charge of tuition, under the regulations prescribed by the regents, and to all others under such regulations as the board of regents may prescribe.”

The provision for free tuition was in accordance with a policy expressed in previous enactments, beginning in 1858, providing that “Instruction at the University shall be free.” Chap. 116, Gen.Laws 7th Leg., p. 148; 4 Gammel’s Laws, p. 1020. The admission fee of $30 was paid by each student only once upon his first admission to the University, regardless of the length of- time of his attendance. There was no change regarding student fees until enactment of what is popularly known as the Pollard Fee Bill in 1927 (Art. 2654a, Vernon’s Ann.Civ.St.). That bill applied generally to all “State educational institutions.”' Section 1 retained the inhibition against any “tuition fee.” Section 2 authorized a “matriculation- fee” of not exceeding $30 for any term of nine months. We are not concerned here with the other provisions of the act. In- 1933 the legislature passed an act (Vernon’s Ann.Civ.St., Art. 2654c) applying to the several institutions of collegiate rank, requiring collection of “tuition” as follows:' “1. From each resident student, who registers for twelve (12) or more semester hours of work per semester of four and one-half (4½) months, Twenty-five Dollars ($25.-00) per semester; or, who registers for twelve (12) or more term hours of work per term of three (3) months, Sixteen Dollars and Sixty-seven Cents ($16.67) per term.” Section 1.

This act also provided: “5. The foregoing provisions, requiring the governing hoards to collect tuition, shall not be interpreted as depriving the said boards of the right to collect such library, laboratory, and other fees as they are now permitted by law to collect.” Section 1.

The above fees have been uniformly appropriated biennially to the support of the University or other designated institution.

The only subsequent legislation upon the subject of student fees is Subsection 19 of the 1939 appropriation, authorizing the “student union fee,” which we quote in full:

“Subsection (19) The Board of Regents of The University of Texas is hereby authorized to levy a compulsory student fee not to exceed One Dollar ($1) per student for each semester of the Long Session and not to exceed Fifty Cents (50c) per student for each term of the Summer Session, or any fractional part thereof as may in their discretion be just and necessary, for the sole purpose of operating, maintaining and improving the Texas Union; provided, however, that the amount of this fee may be changed at any time by the Board of Regents within the limits hereinbefore fixed in order that sufficient funds to support the Union may be raised and yet insuring that no surplus, other than the customary reserves, shall ever be accumulated.
“The Auditor of The University of Texas is hereby directed to collect the fees provided for above and shall credit the money received from the said fees to an account to be known as the Student Union Fee Account; provided, however, that said money shall be used exclusively for the purpose of operating, maintaining and improving the Texas Union and shall be placed under the control and subject to the order of the Board of Directors of the Texas Union.
“The Board of Directors of the Texas Union shall annually submit a complete and itemized budget to the Board of Regents of The University of Texas, said budget to be accompanied by a full and complete report of all activities conducted during the past year and all expenditures made incident thereto. The Board of Regents shall make such changes in the budget as it deems necessary before approving same, and shall then levy the student fees under the provisions of this Section in such amounts as will be sufficient to meet the budgetary needs of the Union, within the statutory limits herein fixed.”

While the above statutes with reference to student fees present several interesting and even difficult questions of statutory construction, which may have bearing upon the merits of the case; they do not involve the merits of the plea in abatement and, as already stated, their discussion is pretermitted. We will state, however, that we have had no difficulty in arriving at the conclusion that the legislature has the power (when properly exercised) to authorize the “Student Union Fee.” The Student Union is a commodious building erected on the University campus, the funds being provided partly by private subscription and partly by the University. It provides facilities for the conduct of various extra-curricular activities of social, recreational, and educational natures; all of which are conducted or supervised under the direction of the Board of Regents in accordance with the above Subsection 19. That these activities for the support of which the “Student Union Fee” was authorized and assessed fall appropriately within the functions of a present day university does not, we believe, admit of serious question.

From the above discussion we think it follows that the “Student Union Fee” constitutes a fee within the meaning of Art. 7057b. Certainly it is a fee. Equally certainly it is a “privilege fee.” It is exacted as a prerequisite to enjoyment of a privilege — that of obtaining the advantages afforded by the University — in connection with the State’s performance of one of its most important governmental functions. It is required to be paid to the governing board of the University, whose members are public officers of the State, and (collectively as a board) constitute a department of the State government within the general meaning of that term. The fee constitutes the revenue for the support of one of the appropriate functions of the University; and every consideration prompting' the enactment of Art. 7057b impels its application to the case at bar. There is as cogent reason for preventing impeding the collection of fees properly assessed as prerequisites to entrance into,the University as for preventing impeding collection of other fees or taxes; nor is there more urgent need for exempting other state officials or “heads of departments” from harassment by injunction and other suits than for so exempting the University Regents. We believe the inclusion of.the “Student Union Fee” within the purview of Art. 7057b is as well supported by reason and authority as are the decisions in the Betts and Herring cases; and we so hold.

The trial court’s judgment is reversed and' judgment is here rendered abating appellee’s suit, without prejudice, however, to whatever rights he may now have to proceed under the provisions of Art. 7057b.

Reversed and rendered.


author: O’QUINN, Justice.

text:
    DALE v. DALE.
    No. 3686.
    Court of Civil Appeals of Texas. Beaumont.
    June 7, 1940.
    Rehearing Denied June 19, 1940.
    George Sergeant and Garland Armstrong, both of Dallas, for appellant.
    Frank & Frank, of Dallas, for appellee.
   O’QUINN, Justice.

This is an appeal from a judgment in a divorce case. Appellee, Genevieve Dale, sued appellant, James D. Dale, for a divorce and an adjustment of their property rights. She alleged . cruel treatment consisting of numerous specified acts, including personal physical assaults, and threats to take her life, insulting acts and conduct toward her mother who at times resided ' with them, temporary abandonment, constant drunkenness and other wanton acts of humiliation. She prayed for divorce, maintenance during the pendency of the suit, partition of the community property and that, she be adjudged one-third of the separate property of defendant. Her petition was duly verified. On application the court ordered appellant to pay appellee the sum of $100 per month for her support during the pendency of the suit.

Appellant answered by general demurrer, general denial, and specially denied certain allegations of fact in appellee’s petition and also plead condonement by appellee of the -matters alleged. He specially plead that he did not interpose any defense to the action for divorce, but opposed the property adjustment sought by her.

Trial was to the court without a jury, and judgment entered in favor of appellee for divorce, reciting that both parties appeared in person and by attorney, and that the court found that the material allegations alleged by appellee were true and supported by the evidence, and disposing of the community property, and further awarded appellee, for her support and maintenance, one-fourth of the stock in the Briggs-Weaver Machinery Company owned and held by appellant (308 shares of the value of $100 per share), 77 shares, amounting to $7,700 in value, together with an attorney’s fee of $500. Before said judgment was entered of record, appellant on August 21, 1939, filed motion to modify same, setting out at great length reasons why the judgment should be modified. We do not believe that any good purpose would be served by setting out the various matters pleaded by defendant in this motion.. This motion was verified. On September 9, 1939, appellant filed a Second motion to-modify the judgment again setting out at great length the various reasons and charges against appellee why the judgment should! either be set aside in toto or modified, repeating with additions the matters set out in the first motion.

To these motions appellee duly filed verified answer. On September 13, 1939, the matter was called for hearing, each of the litigants appearing in person and by counsel, and a trial on all of the issues were tried by the court without a jury, and judgment entered granting appellee a divorce from appellant, the court in his judgment again reciting that he found all of the material facts alleged by appellee as grounds for her cause of action to be true and supported by the evidence; the judgment reduced the $100 per month granted in the prior judgment for support and maintenance of appellee, to $50 per month to be paid to her by appellant; again disposed of the community property; and reduced the award to appel-lee of 77 shares of the 308 shares of the stock owned and held by appellant in the Briggs-Weaver Machinery Company to 40 shares, amounting to $4,000 in value.

Other motions were filed by appellant— original and amended motions for a new trial; original and amended motions to discontinue alimony. The court sustained this last motion, and entered an order discontinuing the alimony theretofore allowed. The motion for a new trial was overruled. This appeal is from that order.

In 1929, appellant and appellee were married in Wichita 'County, Texas. They lived together until February 8, 1935, when they separated. On application of appellee they were divorced on March 21, 1935. June 6, 1935, they remarried in Kaufman County, and lived together until about March 25, 1939, when they separated, and appellee filed this suit for divorce, and a settlement of their property rights. This suit resulted as above stated.-

Appellant makes no complaint other than to the action of the court in awarding to ap-pellee 40 shares of the stock of appellant in the Briggs-Weaver Machinery Company. It is contended that the court abused his discretion in making said award. Article 4638, Vernon’s Annotated Civil Statutes, provides: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.”

On oral submission it was agreed that the only question for decision was whether in making the award to appellee of 40 shares of stock in the Briggs-Weaver Machinery Company, which was the separate property of appellant, the court abused his discretion. The court twice heard the evidence and both times sustained appellee finding that all the material allegations in her petition were true and were sustained by the evidence. She was married to appellee at the age of twenty-one and lived with him some six years, when, because of alleged cruel treatment, she had to separate from appellant and sued for and obtained a divorce in March, 1935. In the short time of about two and one-half months, appellant wooed and won her consent to a remarriage, and on June 6, 1935, she married him again. She continued to live with appellant until March 25, 1939, when, because of alleged cruel treatment she again separated from him, and brought this suit for divorce. Appellant after living with her for some ten years, and knowing full well whether the acts of cruelty charged against him were true, made no defense — offered no evidence to rebut her charges. As stated above, the court twice heard the evidence in this case and sustained appellee’s charges, finding appellant guilty of the cruelty alleged, and so finding appellee the unoffending party. After having given appellant the ten most precious years of her life, from twenty-one to thirty-one — and as the court sustained the allegations of her petition he must have found that appellee performed fully her part of the marital duties — how can it be said that the court mindful of his duty to deal out justice to both parties, abused his discretion in awarding $4,000 out of $30,800 of personal property to appellee. There is a statement of facts in the record consisting of nearly 500 pages and after a careful consideration of the whole record, we find the judgment fully supported by the evidence. Numerous cases could be cited similar on the facts sustaining the judgment.

It amply appearing that the court did not abuse his discretion in making the final award of the property, the judgment should be affirmed, and it is so ordered.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    TOOLE v. CHRIST CHURCH, HOUSTON, et al.
    No. 10986.
    Court of Civil Appeals of Texas. Galveston.
    May 9, 1940.
    Rehearing Denied June 20, 1940.

      Bracewell & Spiner and Lawrence P. Gwin, all of Houston, for appellant.
    Baker, Botts, Andrews & Wharton, William M. Ryan, and Hugh M. Patterson, all of Houston, for appellee Christ Church, Houston.
    Joe Entzminger, of Houston, for persons cited by publication and the unknown heirs.
   MONTEITH, Chief Justice.

This is an appeal in an action originally brought in the form of an ex parte action by appellee, Christ Church, Houston, to remove the dedication for cemetery purposes from 2.2 acres of land located in the City of Houston.

The action was brought pursuant to an ordinance passed by the City Council of Houston abating the property in controversy as a public nuisance and ordering the removal of all bodies, headstones, etc.

Appellant, Emily T. Toole, filed an answer in said cause, including a general demurrer and general denial. By cross-action in trespass to try title she set up title to the land in controversy in herself and by special plea she attacked the ordinance of the City of Houston abating said property as a nuisance.

Appellee, Christ Church, Houston, answered the cross-action of appellant by general demurrer and general denial. By cross-action complaining of Emily T. Toole and others it set up title to said property in itself. It pled specially the 3, 10 and 25 years’ statutes of limitation, R.S. arts. 5507, 5510, and art. 5519, Vernon’s Ann.Civ.St. art. 5519, and a plea of res adjudicata based on a prior judgment of the district court of Harris County in its favor against Emily T. Toole involving the 2.2 acres of land in controversy.

An attorney appointed by the court answered for the defendants named in appel-lee’s cross-action who were cited by publication who did not appear in person or disclaim.

In answer to the one issue submitted, the jury found that Emily T. Toole was not a blood relation of Ann West. No other issues were submitted to the jury or requested, and no objections were made to the court’s charge by any of the parties to the suit.

Judgment was rendered by the court removing the dedication of said property for cemetery purposes and decreeing that Christ Church, Houston, have and recover title to and possession of the land in controversy as against all parties in the case, subject to a right of way easement of the City of Houston, and that appellant, Emily T. Toole, take nothing by her cross-action.

The court found in its decree that due notice had been given in the action for the removal of said dedication; that the further maintenance of a cemetery on said property had been abated by an ordinance of the City Council of the City of Houston; that all bodies, monuments, etc., had been removed therefrom, and that the land in controversy was no longer required for, or suitable for, cemetery purposes.

The record shows that by deed dated June 5, 1850, James West conveyed the property in controversy to Ebenezer B. Nichols, James Roily and Peter W. Gray, “as Trustees of the Protestant Episcopal Congregation known as Christ Church, Houston, * * * and their successors in office as trustees.”

The granting clause in said deed reads: “That I, James West of the City of Houston, for and in consideration of the sum of One hundred and ten dollars to me paid by Ebenezer B. Nichols, James Reily and Peter W. Gray as Trustees of the Protestant Episcopal Congregation known as Christ Church, Houston, have bargained, sold, released and conveyed, and do bargain, sell, release and convey unto said Nichols, Reily and Gray and their successors in office as Trustees aforesaid a certain tract of land situate in the County of Harris * *

The habendum clause in said deed provided : “To have and to Hold the said land with the right of engress and egress over and through the land of said West as aforesaid and other appurtenances, to them the said Nichols, Reily and Gray and their successors as Trustees aforesaid forever, in trust however that said land, &c., shall be held, used and reserved for the benefit of the said congregation of Christ Church Houston as a cemetery, and for no other purpose. * * *.”

Appellant contends that the stipulation contained in the habendum clause of the deed from James West to the trustees of Christ Church, conveying said property in trust for the benefit of said congregation as a cemetery and for no other purpose, created a conditional conveyance and that an abandonment of said property for cemetery use resulted in a reversion of title to the grantee or his heirs.

The deed in question recites and acknowledges the receipt of a valuable consideration, the sum of $110, as a consideration for the conveyance of said property to the named trustees and their successors in office. There are no words of condition, re-verter or right of re-entry in the deed and there are no conditions in the deed with the exception of the provision in the habendum clause to the effect that the property was conveyed “in trust however that said land, etc., shall be held, used and reserved for the benefit of the said congregation of Christ Church Houston as a cemetery, and for no other purpose.”

It has long been the settled law in this state that where a deed contains apt language denoting the grant of an unconditional fee estate in land, other language contained in the instrument which denotes .that the land was granted for a particular purpose is not regarded as implying that the grant is conditional. Hughes et al v. Gladewater County Line Ind. School Dist. 124 Tex. 190, 76 S.W.2d 471; Texas & P. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867.

The facts in the case of Hughes v. Glade-water County Line Ind. School Dist., supra, are similar in practically all respects to those in the instant case, with the exception of the fact that in the Gladewater case the deed under consideration contained a statement, not only in the habendum clause, but also in the granting clause, that the land was to be used “for school purposes only”, and following the description there was another clause which provided that the grant to the trustees was “for school purposes only.” The Commission of Appeals, in an opinion which was adopted by the Supreme Court, held that the clauses in said deed denoting a grant of the property in question fox-school purposes only did not import either a condition subsequent or a limitation respecting the duration of the grant.

In the case of Stanbery v. Wallace, Tex.Com.App., 45 S.W.2d 198, 199, the court in its opinion says: “It will be observed that the granting clause of the deed under consideration does not purport to grant over this land a right of way for street purposes, but that it conveys the land itself. It is true such clause is followed by a recital restricting the use of the land for street purposes. Such restriction, however, does not operate to limit the grant to a mere easement, as it is generally held that, if the granting clause conveys a fee title to the property, subsequent recitals, which merely limit the use to which the same may be put, do not restrict the conveyance to an easement.” (Cases cited).

In the case of Barker v. Hazel-Fain Oil Company, Tex.Civ.App., 219 S.W. 874, 875, writ refused, the court had before it a deed to the trustees of the Methodist Episcopal Church. The granting clause conveyed the described tract of land to the said trustees and their successors in office for the use and benefit of the church as a public cemetery. The habendum clause contained the following recitation: “To have and to hold above-described premises, together with all and singular the rights and appurtenances •thereto in any wise belonging unto the said trustees of said church and their successors and their heirs and assigns forever.”

The warranty clause made no reference to use. In response to a contention that such deed conveyed to the trustees only an estate upon a condition subsequent, subject to a right of re-entry in the grantors, the court said: “This deed we think, in effect, vested in the church the fee-simple title to the burial lot free from any right of reversion to the grantors. The parenthetical expression in the grant, ‘for a cemetery/ is a limitation of the use to which the lot was to be put, and not a limitation of the title.”

The facts in this case were similar in all respects to those in the instant case, with the exception of the fact that in the deed construed in this case the words “and for no other purpose” did not appear.

Under the above authorities we think that the granting clause in the deed under consideration conveys an unconditional fee title to the property in controversy and that the subsequent recital in the habendum clause limiting the use to which the property may be put, even though, it contains a phrase prohibiting other use, falls within the rule above stated and that it does not create a condition subsequent.

We are strengthened in this conclusion by the fact that our courts have uniformly held that if the deed under consideration is upon a valuable consideration, as in the instant case, as distinguished from a deed of gift or a deed for a nominal consideration, the court will lean even more strongly away from a construction which creates a condition subsequent. Olcott v. Gabert, 86 Tex. 121, 23 S.W. 985; Texas & Pac. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867, 870.

It is further held that a deed of conveyance does not create a condition subsequent where no words of conditioñ, re-verter, or right of re-entry are used in the conveyance. Hughes v. Gladewater County Line Ind. School Dist., supra; Community of Priests v. Byrne, Tex.Com.App., 255 S.W. 601; 12 Tex.Jur., 131.

Appellant contends that the district court’s decree removing cemetery dedication from the property in controversy entered by virtue of Articles 922a and 930a, Vernon’s Ann.Civ.St., is void by reason of Article 930b, Vernon’s Ann.Civ.St., which provides that where land has been purchased for •cemetery purposes and the owners thereof had thereafter entered into contracts or written obligations evidencing the intention to use said land for such purpose, that said land so purchased was exempt from the provisions of Arts. 930 and 930a.

We do not think that the provisions of said Art. 930b apply in the instant case, for the reason that, prior to the filing of this suit, the City Council of the City of Houston had passed an ordinance prohibiting the further use of said land for cemetery purposes. It has been uniformly held that where a deed has been made on the condition subsequent that the land should be used as a cemetery and an act of the Legislature or an ordinance of a municipality renders further performance of the condition unlawful, the condition is discharged and the title of the grantee is no longer subject to said' condition. Devlin on Deeds, Vol. 2, page 1785, section 961; 47 A.L.R. page 1182, section 4; Scovill v. MacMahon, 62 Conn. 378, 26 A. 479, 21 L.R.A. 58, 36 Am.St.Rep. 350.

Appellant assigns error in the failure of the trial court to instruct the jury not to consider the following argument made by the attorney for Christ Church: “Mrs. Toole lost her case in the previous trial, on the ground that the court held she was not a blood relation of Ann West and now she wants to relitigate that question here”, for the alleged reason that such argument was outside of the record, highly prejudicial, and calculated to influence the jury to believe that Emily Toole was not related to' Ann West.

Counsel for Christ Church on the trial of this cause introduced in evidence without objection the second amended original petition, the' record of the trial testimony, and the judgment in the case of Emma Toole v. City of Houston et al., No. 95827, in the 11th District Court of Harris County, Texas. Emily Toole admitted in her testimony in the trial of the present case that she was known by the name of either Emma or Emily Toole; that she was the Emma Toole named as a party plaintiff in cause No. 95827, and that she had testified in the trial of that case. Said second amended original petition in cause No. 95827 alleged a cause of action in trespass to try title for the same 2.2 acres of land involved in the present case. Appellants therein alleged that they were the heirs of James and Ann West and that they were entitled to all of their estate, including the land herein sued for; they alleged specially that Christ Church, Houston, appel-lee herein, held title to said land for a restricted cemetery use under a deed from James West, which use had been abandoned, and that they were electing to re-enter as reversionists.

The following judgment was entered in said cause No. 95827:

“On this 26th day of April, A. D. 1926, came the parties both plaintiffs and defendants by their attorneys and a jury being waived, the matters in controversy, as well of fact as of law, were submitted to the court, and the court having heard, and considered of the evidence, and having heard the argument of counsel, and fully understanding the same, it is considered by the court that the said plaintiffs, Emma Toole and John Tucker, suing for the following described property, to-wit: (Here follows a description of the 2.2 acres involved in the present case).
“Take nothing by their suit against the defendants, and City of Houston, and Christ Church of Houston, Texas, and it is further ordered, adjudged, and decreed that the defendants recover of the plaintiffs, Emma Toole and John Tucker, all costs in this behalf expended, for which they may have their execution.”

The record shows that plaintiff in cause No. 95827 specially pled her title as an heir of James West and Ann West; that appellant testified that she was not an heir of Ann West; that James West pre-deceased his wife, Ann West, leaving no children or parents, and the property being presumably community, it descended on his death to his wife.

It is elementary that when a plaintiff in' trespass to try title specially pleads his title he can rely on no other; Gatewood v. Graves, Tex.Civ.App., 241. S.W. 264; Hunt v. Turner, Tex.Civ.App., 88 S.W.2d, 520; 41 Tex.Jur., 562. The appellant as plaintiff in cause No. 95827 must have recovered on her own title therein or not at all. Mills v. Pitts, 121 Tex. 196, 48 S.W.2d, 941, 84 A.L.R. 319.

It is the established rule in this state that attorneys are not only allowed much latitude in arguing issues of fact before the jury, but that an attorney in his argument may draw from the facts and circumstances in evidence any inferences and deductions that are reasonable and fair, and that he may state to the jury such facts as he in good faith draws from all of the circumstances of the case and that he may argue any hypothesis supported by the evidence even though there is evidence to the contrary. 41 Tex.Jur. p. 772, section 56; Wells v. Henderson, Tex.Civ.App., 78 S.W.2d 683; Lamar Life Ins. Co. v. Bauer, Tex.Civ.App., 70 S.W.2d 600; Moore v. Parrish, Tex.Civ.App., 70 S.W.2d 315.

Under the record presented we are constrained to hold .that this assignment presents no reversible error.

Further, under the record above presented, we think that the plea of res ad-judicata filed by appellee, Christ Church, Houston, was good as to appellant, Emily T. Toole.

The issue of title to the property in controversy was first -raised in this case by appellant, Emily T. Toole, filing her answer and cross-action. Her right to title and possession of said property depended upon her establishing title thereto in herself. The answer of appellee, Christ Church, was sufficient to raise the question of res adjudicata. The “take nothing” judgment against the 'plaintiffs in the former trespass to try title suit had the effect of adjudicating title to the land in controversy in appellee, who was defendant therein, as effectively as if it had expressly adjudicated the title and possession of the land to the defendant. Houston Oil Co. v. Village Mills Co., Tex.Com.App., 241 S.W. 122; Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 111 A.L.R. 1152; 26 Tex.Jur. 298, Sec. 492.

It is apparent from plaintiff’s petition in said cause No. 95827 that the same issues were before the court in that case as are presented for adjudication in this case, with the exception of the issues of limitations, viz.: (1) The title and possession to the property; (2) Emily Toole’s status as an heir of James and Ann West; (3) the construction of the deed from James West to the trustees; and (4) cessation of the use of the property for cemetery purposes.

A party losing under a valid judgment in an action of trespass to try title is precluded thereby from asserting title to the land in controversy through any fact that existed at the time that judgment was rendered. Ewing v. Wilson & Howell, 63 Tex. 88; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596; 26 Tex.Jur., 137. These issues having been adjudicated in the former suit, appellant is precluded from again raising them in this cause.

Appellant contends that the court erred in entering judgment in this cause in favor of Christ Church, because the evidence wholly fails to show a title vested in Christ Church as a religious corporation, in' the capacity in which it sues and is sued herein.

By act of the Republic of Texas, dated January 30, 1845, the trustees of Christian denominations, selected according to such method as the congregation might adopt, were made a body politic and corporate, capable of holding real estate in trust for the use and benefit of the church appointing them. This act provided that any denomination of Christians might, by methods •of its own adoption, appoint not less than three nor more than nine trustees to hold title to property in trust for the benefit of the denomination, and that a certificate of appointment should be filed within 60 days with the county recorder of the county in which the appointment was made. The act •specifically created such trustees, upon appointment, as a corporate body in the following language: “Sec. 4. Be it further enacted that when a board of trustees shall be so constituted, they shall be considered in law and equity a body politic and corporate, capable of making contracts, of suing and being sued, of pleading and being implead-ed, of receiving and holding (in trust), lands and other property for the purpose of building meeting houses, camp grounds, parsonages or school houses as the case may be, for the use and benefit of the church or people appointing them; * * * ”

The record shows that in April, 1847, the congregation of Christ Church, Houston, complied with the terms of this act and selected a board of trustees. On January 5, 1850, James West conveyed the 2.2 acres of land in controversy to Nichols, Reily and Gray, as trustees of Christ Church, Houston. The board of trustees appointed in 1847 having been dissolved by resignation and otherwise, the congregation of Christ Church, on April 5, 1858, selected nine trustees to succeed the former ones. The record of such appointment was recorded in Harris County on April 6, 1858, as required by the act of 1845. On April 23, 1874, the Legislature of the State of Texas enacted a general incorporation statute, which provided that any religious society might, by the consent of a majority of its members, become a body corporate under said act, electing directors or trustees and performing the things as are directed in the case of other corporations, and that when so organized they should have all the powers and privileges and be subject to all the restrictions in said act contained, for the object named in the charter. Revised Statutes of Texas 1879, Arts. 637, 638; Act of April 23, 1874, Chapter 69, Art. XI, Sec. 17.

In compliance' with the general incorporation statute of 1874, the congregation of Christ Church, Houston, in 1893, with the consent of a majority of its members, amended their corporate structure and became a corporate body of the structure prescribed in the act of 1874. These articles of incorporation state: “And whereas thé said congregation is desirous of so amending and changing its incorporation under the aforesaid act of January 30, 1845, as to become a religious corporation under Title 20 of the Revised Statutes of Texas.”

Christ Church, Houston, obtained title to the land in controversy through its then trustees in 1850 and held that title at the time of the general act ot 1874, and through its subsequent trustees down to 1893. The act of 1874 did not obliterate the old corporate body of trustees or divest the title to this property out of Christ Church, Houston. In 1893 it amended its corporate structure to conform to the requirements of the new act. Its name was not changed, nor was there any change in the object and purpose of the organization. The act of filing articles of incorporation with the Secretary of State, constituted only an amendment to the charter theretofore existing, and the title to the property in controversy continued in appellee, Christ Church, Houston.

Further, the jury in the instant case having found, on what we deem to be sufficient evidence, that appellant, Emily T. Toole, was not a blood relation of Ann West, to whom the reversionary interest in the land in controversy, if any, passed at the death of James West, it follows that the trial court entered the correct judgment in decreeing that appellee recover title and possession of the land in controversy, and that appellant, Emily T. Toole, take nothing by her cross-action.

The judgment of the trial court is in all things affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    BERNDT v. TEXAS INDEMNITY INS. CO.
    No. 3683.
    Court of Civil Appeals of Texas. Beaumont.
    May 23, 1940.
    Harper & Abright and Ray Holder, all of Dallas, for appellant.
    Webster Atwell and John A. Pace, both of Dallas, for appellee.
   WALKER, Chief Justice.

This was an action in district court of Dallas county by appellant, Mrs. Alice Berndt, as guardian of her husband, Fred R. Berndt, a non compos mentis, against appel-lee, Texas Indemnity Insurance Company, to set aside a compromise settlement of a claim under our Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq., duly approved by the Industrial Accident Board. On trial to a jury, judgment was for appellee on an instructed verdict, from which appellant attempted to prosecute her appeal to the Dallas Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

The case is before us without a statement of facts or a bill of exceptions. The court had jurisdiction of the parties and of the subject matter of the litigation. On appellant's pleadings, if the evidence failed to raise in her favor the issues plead by her as grounds of relief, it was the duty of the court, on appellee’s answer, to instruct the verdict in its favor. Without a statement of facts or a bill of exceptions, we must presume that the court correctly instructed the verdict in favor of appellee, and that judgment was correctly entered on the instructed verdict, that appellant recover nothing against appellee and that appellee go hence without day and recover its costs. Dunaway v. Easter, Tex.Com.App., 129 S.W.2d 286; Murphy v. Carter, Court Civ. Appeals Beaumont, 125 S.W.2d 384; King v. Furay, Tex.Civ.App., 130 S.W.2d 1029; Piner v. State, Tex.Civ.App., 119 S.W.2d 164; Uvalde Const. Co. v. Joiner, Tex.Com.App., 126 S.W.2d 22; 3 T.J., p. 555, sec. 389.

We pretermit a discussion of appellee’s motion to dismiss the appeal.

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

Affirmed.


author: BAUGH, Justice.

text:
    HITT v. BELL.
    No. 8965.
    Court of Civil Appeals of Texas. Austin.
    June 5, 1940.

      Fowler Roberts, of Big Lake, for appellant.
    E. M. Davis, of Brownwood, for appel-lee.
   BAUGH, Justice.

This appeal presents but one question. That is, whether the appellant prosecuted his suit diligently after it was filed, so as to toll the four-year statute of limitation (Art. 5527, Sec. 1, R.C.S.1925) as against his cause of action. The trial court found as a fact that he did, overruled appellant’s plea of limitation, and rendered judgment against him; hence this appeal.

The history of the case and the undisputed facts are as follows:

On September 11, 1935, Bell filed suit against three defendants, including appellant, on a promissory note due on November 10, 1931. Citations were issued immediately to all three, duly served upon the other two defendants, one of whom resided in Brown County, and the other in Tom Green County. The petition alleged that appellant, the other defendant, resided in Howard County, and citation issued to that county, but was mailed to Big Lake in Reagan County, and there served upon appellant by a Reagan County officer, who returned it to the County Court of Brown County. No answer was filed by any of the defendants. In February, 1936, the plaintiff Bell took default judgment against all defendants, execution was issued, the judgment abstracted, and an abstract thereof filed in Reagan County, where appellant resided. After this was done, and within six months after the entry of that judgment, Hitt prosecuted a writ of error to this court, and we reversed said judgment as to him only because as to him the judgment was void for lack of service. See Tex.Civ.App., 111 S.W.2d 1164.

Upon return of the mandate from this court to the trial court, Hitt answered, setting up his plea of limitation and urging that the facts above outlined showed lack of diligence on appellee’s part in prosecuting his suit against appellant; that the limitation statute was therefore not tolled; and that judgment should have been rendered for appellant.

When appellant herein sued out his writ of error on the former appeal on August 3, 1936, that constituted an appearance. Oetting v. Mineral Wells Crushed Stone Co., Tex.Civ.App., 262 S.W. 93; Ft. Worth Mut. Benev. Ass’n v. Petty, Tex.Civ.App., 293 S.W. 290. After judgment was entered in the original suit in February, 1936, nothing occurred to call appellee’s attention to the irregularity of, or lack of, service upon appellapt until he sued out his writ of error in August, 1936. When this was done the trial court, of course, had no jurisdiction over the case until that appeal was disposed of. Consequently, appellee’s lack of diligence, in the last analysis, must be tested by his failure to discover, prior to the entry of the judgment in February, 1936, that the original process issued to appellant in Howard County was defective in the respects stated.

The general rule as to what is required in order to toll the statutes of limitation is well settled. Not only must suit be filed in time, but there must be a bona fide ifitention to have process issued, and due diligence exercised to see that it is done. 28 Tex.Jur., § 100, p. 193; Ferguson v. Millinbruck, Tex.Civ.App., 134 S.W.2d 680; Ricker et al. v. Shoemaker, 81 Tex. 22, 16 S.W. 645. In the instant case, process promptly was issued and served. /Bell testified that it was his continuing intention to prosecute his suit; and in effect, that had he known the process served on appellant in September, 1935, was defective he would have had new process issued and served without delay. In view of these facts, and his undisputed testimony, we think there was no evidence of a lack of intention on appellee’s part to prosecute his suit with diligence. No intentional delay was shown in the issuance of process; and plaintiff’s failure to promptly discover the defective service cannot be said to indicate any intent not to prosecute his suit with diligence and in good faith. This issue was, unless concluded as a matter of law by undisputed facts, an issue of fact to be determined by the court or jury. 28 Tex.Jur., § 102, p. 197, and cases there cited. In the instant case the trial court found against appellant’s contention of lack of diligence and we cannot say that there was no evidence to support that finding.

The judgment of the trial court is therefore affirmed.

Affirmed.


author: BLAIR, Justice.

text:
    ATTAS v. COX.
    No. 8961.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1940.
    W. M. Zachry and D. M. Wilson, both of Waco, for appellant.
    Sam D. Snodgrass, of Temple, for 'ap-pellee.
   BLAIR, Justice.

Appellee, Geo. A. Cox, sued appellant,. Michael Attas, for a real estate broker’s commission of $337.50. In answer to, special issues submitted, the jury found: (1) That appellant listed the property in question with appellee for sale; (2) that appellant agreed to pay appellee a commission of 5% of the sale price, if he found, a purchaser satisfactory to appellant;. (3) that appellee, acting through Antone-Bravanec, procured J. W. Lagow and Mrs., lone Lagow Biggs as prospective purchasers; and (4) that appellee, acting for-himself and through Antone Bravanec, was. the procuring cause of the sale of the property to J. W. Lagow and Mrs. lone Lagow Biggs. These special issues presented the case of appellee as raised by his pleadings and evidence; and upon the jury’s findings judgment was rendered for him as prayed.

By his propositions I and III, appellant contends that fact questions were raised as to whether appellee had the authority to appoint Antone Bravanec as sub-agent, and whether appellant knew of the appointment; and that the court erred in refusing to submit to the jury the special issues requested by appellant covering these questions.

The general rule that an agent, except upon express or implied authority, does not have the power to appoint a sub-agent has no application to the facts of the instant case, because the services performed by Antone Bravanec in aiding ap-pellee in finding purchasers for the property did not involve the exercise -of any discretion or judgment on his part. The authorities are uniform in holding that a land broker or agent may employ persons to find purchasers for real estate listed with the broker or agent for sale, without express or implied authority of the owner. Bound v. Simkins, Tex.Civ.App., 151 S.W. 572; Coggin v. Burson, Tex.Civ.App., 70 S.W.2d 338; Dunn v. Second Natl. Bank of Houston, 131 Tex. 198, 113 S.W.2d 165, 115 A.L.R. 730; Cross v. White, Tex.Civ.App., 112 S.W.2d 502.

The rule is also settled that where a broker procures a person to buy land of his principal, and the latter sells to the purchaser procured by the broker, he is liable for the commission on the sale, “it [being] of' no consequence that the owner did not know the fact, and made the sale himself.” Graves v. Baines, 78 Tex. 92, 14 S.W. 256, 257; McDonald v. Cabiness, 100 Tex. 615, 102 S.W. 721; West Bros. v. Thompson, 48 Tex.Civ.App. 362, 106 S.W. 1134; Ross v. Moskowitz, 100 Tex. 434, 100 S.W. 768; Bound v. Simkins, supra. And since in the instant case the jury found upon sufficient evidence that appellee, acting through Bra-vanec, found the purchasers, and that ap-pellee, acting for himself and through Bra-vanec, procured the sale of the property to the purchasers, it is of no consequence that appellant did not know of the appointment of the sub-agent. Appellee alleged and testified that Bravanec found the purchasers, told him about them, that he told appellant who the purchasers were; that appellee and Bravanec were to divide the commission; that appellant agreed to the arrangement, and that he later sold the property to the purchasers whom ap-pellee through Bravanec sent to him.

Appellant further contends that the court erred in permitting Antone Bravanec to testify over objection to conversations had out of the presence of appellant with Lagow, the purchaser, about the .sale of the property in question and the price to be paid for the same. The testimony complained of was admissible to prove the allegation of appellee that he, acting through Bravanec, found the purchasers and procured the sale of the land. Ross v. Moskowitz, supra. The substance of the testimony objected to was that in the latter part of November of the year in question, J. W. Lagow requested witness Bravanec, who was a tenant of appellant, to ascertain if the building in question were for sale and its price. Bravanec then contacted appellee and found that he had the building listed for sale, gave him the name of the purchasers, and they agreed to divide the commission if the sale were made. Bravanec then reported to Lagow that the building was for sale at the price of $7,-500, and to go see appellant. Lagow testified that about ten days after this conversation, he began negotiations with appellant. Appellee testified that he reported the names of Lagow and Mrs. Biggs to appellant, who told him to go ahead, and hoped the sale could be made because he needed the money. This testimony was clearly admissible to show the efforts of appellee to find a purchaser and to procure the sale to .them. A broker does not have to talk with prospective purchasers in the presence of the owner.

In this connection, however, it seems to be the claim of appellant that Lagow approached him before appellee did, and that therefore appellee was not the finder of the purchasers. But under the rule cited that it is of no consequence that the owner did not know that the agent had procured the purchasers, the fact that they approached him before he learned that appellee had procured them would not be material. Both appellant and appellee testified that during the negotiations ap-pellee talked with appellant at least four times, and appellee urged appellant not to take less than $7,500 for the building, insisting that the purchasers would pay that sum for the building. Appellant admitted these, four conversations with ap-pellee, but insisted that he told appellee he did not desire his services in the matter; and he later sold the building to the said purchasers for $6,750, the deed passing about thirty days after appellant’s last conversation with appellee. Under these facts and the findings of the jury thereon, appellant was liable for the commission.

The judgment of the trial court is affirmed.

Affirmed.


author: COMBS, Justice..

text:
    COPELAND v. STANDARD INV. CO.
    No. 3675.
    Court of Civil Appeals of Texas. Beaumont.
    May 23, 1940.
    James D. O’Connor, of Dallas, for appellant.
    H. B. Houston, of Dallas, for appellee.
   COMBS, Justice..

This appeal is from a judgment of the County Court at Law A, of Dallas County, in the amount of $150 and foreclosure of chattel mortgage lien on certain personal property. There is no statement of facts, but from recitals in the judgment appellant Copeland admitted the indebtedness in the-amount adjudged, and execution of the mortgage.

On the record the judgment is just. Appellant’s brief presents no reversible error, and we affirm the judgment without discussion of the several assignments. See Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.

Affirmed.