author: LESLIE, Chief Justice.

text:
    RAPPMUND v. ZAIONTZ.
    No. 1973.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 26, 1940.

      Hayden C. Covington and Walter F. Schwartz, both of San Antonio, for appellant.
    D. Richard Voges, of Floresville, for appellee.
   LESLIE, Chief Justice.

Rose Rappmund filed her original petition herein against Frank Zaiontz September 26, 1938. She alleged that on November 1, 1926 Zaiontz executed and delivered unto Fritz Rappmund a promissory ■ note in the sum of $2,000 bearing 5 per cent interest and 10 per cent attorney’s fees in the event of suit and that the note was payable November 1, 1928. That the note was not paid at maturity but was “orally”' extended from time to time. That the payee in said note transferred same to plaintiff prior to February 1, 1937 as a part of her separate estate.

That at the time of suit plaintiff was the owner and holder of said note and the obligation sued upon. That said note was made the basis and grounds of a subsequent written agreement whereby defendant expressly acknowledged the debt and impliedly promised to pay the same. That the new promise constituted the cause of action sued on in the petition. The new promise was alleged in words and figures as follows:

“October 30, 1937.
“Mr. Walter F. Schwartz
“Attorney-at-Law,
“516 Hicks Building,
“San Antonio, Texas.
“Dear Mr. Schwartz:
“With reference to your letter of October 28th, addressed to Mr. Frank Zaiontz, Route 2, Poth, Texas, I wish to advise that Mr. Zaiontz, is in my office and says that he has paid all interest due on the Two Thousand Dollar note, together with approximately One Thousand and No/100 ($1000.00) Dollars, or more, and that he also paid the funeral expenses of Mr. Rappmund amount to about Two Hundred and no/100 ($200.00) Dollars, all of which he has a record of at home and therefore the amount shown by the note is not correct.
“Very truly yours,
“D. Richard Voges, (Signed).”

The defendant filed his original answer, consisting of a general demurrer, special exception, etc. In his answer he pleaded the following letter in response to which Zaiontz made the above communication.

“October 28, 1937.
“Mr. Frank Zaiontz,
“Route 2, Box 34,
“Poth, Texas.
“Dear Sir:
“This is to advise you thát I have been retained by Mrs. Rose Rappmund of this city to handle some legal matters appertaining to the estate of her deceased husband, and among the papers in my possession is one certain promissory note in the principal sum of $2,000.00. The amount due on said .note at the present time including all interest is $3266.50, exclusive of the usual 10% attorney’s fees.
“It is the purpose of this letter to ascertain from you as to whether or not you have, at any time in the past made any payments on said note; I am asking this by reason of the fact that there are no credits or payments shown on the reverse side of note.
“You will therefore acknowledge receipt of this letter and make immediate reply to the writer by mail and state fully whether or not the above is true and correct.
“Thanking you for your promptness in this matter, I beg to remain,
“Very truly yours,
“Walter F. Schwartz, (Signed)
“516 Hicks Building
“San Antonio, Texas.”

The question of four year limitation was raised by exceptions which the trial court sustained. Upon failure of the plaintiff to amend, the petition was dismissed and this appeal follows.

In her brief the appellant, Mrs. Rapp-mund, says that “The 'sole and only question presented on this appeal is whether or not the written letter of attorney Voges (for Zaiontz) of October 30, 1937, was sufficient to take the plaintiff’s cause of action out of the four years’ statute of limitation.”

Two propositions, one predicated upon the court’s ruling in response to the general demurrer, and the other in response to the ruling on the special exception, are presented.

In the appellee’s brief he states: “Appel-lee agrees with appellant that the two propositions present only one question, and appellee is therefore following appellant’s form of submitting both the first and second counter propositions together without a restatement of the same, for the purpose of brevity.”

In answering the question propounded by this appeal we shall do so in the light of the rule of law expressed in York v. Hughes, Tex.Com.App., 286 S.W. 165, 167, and other authorities as well, wherein it is held: “In order to remove the bar of limitation from a barred indebtedness, there must be a new promise to pay same, evidenced by writing on the part of the debtor. The liability of the debtor, in such a case, depends, not upon the old obligation, but upon the new promise. This new promise need not be expressed in the writing, but may be implied from what is written. An unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an unwillingness to pay same, will raise the implication of a new promise to pay the indebtedness. But if the acknowledgment of the existence of the indebtedness be qualified by an expressed promise to pay same conditionally, a promise different from the one so expressed will not be implied. In such a case the fulfillment of the named condition becomes a prerequisite to the debtor’s liability on the new promise.” Citing authorities.

We do not believe there was any error in the ruling of the trial court in sustaining the demurrer. The letter relied on to toll the statute of limitation does not have that effect for the following reasons:

The suit is for the aggregate sum, principal, interest and attorney’s fees, evidenced by the original $2,000 note. The Zaiontz letter affirmatively refuses acknowledgment of such debt.. It, in effect, states that any such intimation or suggestion to that effect is “incorrect.”

The letter states that Zaiontz has paid “all interest due on the $2,000 note together with approximately $1,000 * * * or more and that he also paid the funeral expenses of Mr. Rappmund amount to about $200, all of which he has a record of at home, and therefore the amount of such note is not correct.” Clearly there is no acknowledgment of the debt as evidenced in the amount sued for.

The letter written October 28, 1937 by Mr. Schwartz to Mr. Zaiontz made inquiry concerning the note according to its particular terms and provisions. In his reply letter Mr. Zaiontz says: “The note does not state the correct amount” and points out that approximately $1,000 has been paid on the note. The exact amount so paid is not stated, but doubtless the term “approximately” stated a sum “nearly exact” or “not perfectly accurate” according to the standard definition of such term.

He also stated he had paid about $200 funeral expenses of Mr. Rappmund (original payee in the note). Here js another uncertainty. Webster’s New International Dictionary says of the word “about”: “Legally ‘about’ is nearly equivalent to more or less; but the variation legally permissible varies with what appears as reasonable in the contemplation of the parties under the circumstances.”

If these definitions and analyses of the terms seem to be an exploration into the technical, as they do to the writer, it is equally true that they are also an exploration into the indefinite and uncertain; and it is these latter elements of Zaiontz’s letter which seem to bar the construction the appellant would give that communication.

Further, the funeral expenses paid —whatever the amount — represents a sum within itself which Zaiontz challenges. Such expenses may or may not be just and may or may not be a proper offset, but whatever the amount, uncertain as it is, to that extent the appellee gives no acknowledgment, but rather the contrary. The Zaiontz letter does not purport to state the exact amounts paid, etc., but merely approximates them, and states that he has a correct record of them at home. Hence, no definite amount is stated and the balance of the old obligation is for that reason left in uncertainty. There is no basis for a contention that the letter acknowledged the original debt or note, and it is equally clear there is no acknowledgment of any definite balance. Before the plaintiff could recover the whole amount, or a portion thereof, on the theory of this suit, the burden of pleading and proving such definite amount rested upon her. Zaiontz was under no duty to write the letter and appellant must accept it as it is, burdened with indefiniteness and uncertainty.

In McDonald v. Grey, 29 Tex. 80, a pertinent rule of law is stated thus: “But, on the other hand, it must be admitted, that an unconditional acknowledgment of a part of the debt, although coupled with a' denial of liability for the remainder and a refusal to pay it, if not made as a qualification of the admission, will take so much of the debt as is acknowledged out of the statute. The law will imply a promise to pay the amount admitted to be due." (Italics ours.)

There is no written acknowledgment, as required by the statute, of any part of the debt, and if it could be said from the contents of the letter, that there is an implied acknowledgment for some balance of the original debt, then such part or balance is left indefinite and uncertain in amount. We would then have nothing more than an implied promise resting upon an implied acknowledgment and, in our judgment, that does not meet the requirements of the statute. In Poe v. Poe, 118 S.W.2d 831, 834, writ refused, this court held: “A promise to pay is inferred from a clear and unequivocal acknowledgment of the existence of the debt in the absence of expressions indicating an unwillingness to pay it. The letter contains no acknowledgment of the existence of a debt. The existence of the debt cannot be inferred and then imply therefrom a promise to pay. One inference cannot be based upon another. Kleis v. McGrath, 127 Iowa 459, 103 N.W. 371, 372, 69 L.R.A. 260, 109 Am.St.Rep. 396.” In substance and effect it would be like resting a presumption upon a presumption.

We agree with the appellee that the opinion in William Leigh v. Byrd Linthecum, 30 Tex. 100, 101, is most nearly, if not in fact in point in this case. The letter relied upon in that case to toll the statute of limitation read in part as follows: “You said something about a note you have of William Leigh’s. You are apprized I have an offset of six bales of cotton, besides account for hauling. When I see you we will adjust the matter, and whatever is due on the note I will pay.” Perhaps this is even stronger than the Zaiontz letter involved in the instant case. The opinion in the Leigh case reads, in part, as follows: “If the letter may beheld as an agreement to pay such amount as may be due on the note, after allowing the credits to which the defendant is entitled, and which are alluded to in the letter of the defendant, it devolves on the plaintiff to show the amount of those credits. By this means he shows the amount which the defendant agreed to pay. The promise is not to pay the money specified in the note, but a part only of that amount. The plaintiff must establish his demand to entitle him to judgment. The note and letter are links in the chain of evidence, but alone are insufficient to authorize a judgment against the defendant for any amount.- If the letter may be held as an agreement to pay a part of the note of 1841, yet it is wholly insufficient to show what part of the note was left unpaid, after allowing the credits to which the defendant was entitled. A party who avers that he holds a legal demand against another must sustain the averment by testimony legally sufficient to warrant the court in rendering • judgment in his favor, or fail in his action. The evidence does not show that the plaintiff is entitled to a verdict against the defendant for any amount whatever. There is no error in the judgment, and it is affirmed.”

Under the facts of the instant case, and in the light of the rules of law announced and applied by the authorities in Texas we are of the opinion that the Zaiontz letter does not contain the elements and substance essential to toll the statute of limitation as applied to the obligation evidenced by the barred note. The letter does not contain the written acknowledgment from which a promise to pay may be implied. The nature of such an acknowledgment is set forth and fully discussed in the opinion by this court in Poe v. Poe, supra. Therein we quoted from the Supreme Court in Smith v. Fly, 24 Tex. 345, 76 Am.Dec. 109, the following: “The acknowledgment * * * must contain an unqualified admission of a subsisting indebtedness. * * * The acknowledgment must show positively, that the debt is due, either wholly or in part, and must be unqualified. * * . * If the expressions be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inferences only, it would not amount to an acknowledgment sufficient to take the case out of the operation of the statute.”

Further analysis of the Zaiontz letter is unnecessary.

For the reasons assigned, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    COMMERCIAL CASUALTY INS. CO. v. CITY JEWELRY CO.
    No. 14022.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1940.
    Rehearing Denied March 15, 1940.
    T. R. Boone and Kearby Peery, both of Wichita Falls, for plaintiff in error.
    Bert King and Harold Jones,‘both of Wichita Falls, for defendant in error.
   BROWN, Justice.

Appellee corporation, City Jewelry Company, brought suit against appellant corporation, Commercial Casualty Insurance Company, to recover under a certain insurance contract, and alleged:

“That on the 17th day of April, 1937, the defendant issued its policy No. BH 63399 of insurance, which is styled ‘Combination Inside and Messenger Robbery Policy’, -which contract of insurance plaintiff alleges insured the plaintiff and its place of business against robbery, as is fully set out in said policy, copy of which is hereby attached, marked Exhibit ‘B’ for identification, and made a part of the pleadings for all intents and purposes, and is fully pleaded as the contract upon which plaintiff sues.
“2. Plaintiff would further show to the court that on the night of June 3rd, 1938, and at a time when said policy was in full force and effect, and in the hours covered by said policy, that the property fully described in Exhibit ‘A’, hereto attached, was taken by robbery from within the store building of the City Jewelry Company at 713 Eighth Street, Wichita Falls, Texas, and was stolen and carried away from within said building so as to entitle plaintiff to recover herein under the policy, as set forth in Exhibit ‘B’, for loss of the property, as fully set out in Exhibit ‘A’, hereto attached, which is also fully pleaded as a part of this petition, fully describing and identifying the goods that were taken from within said premises so as to constitute a robbery and loss under the policy hereinabove pleaded, and at a time when a custodian and at least one other employee of the assured were on duty therein.”

The pertinent portions of the contract are as follows:

“Loss Outside Premises. I. To indemnify the assured for all loss of or damage to such property, including the wallet, bag, satchel, safe or chest in which it is contained, occasioned by robbery or attempt thereat committed during the hours beginning at 7 o’clock A. M. and ending at 7 o’clock P. M., from a custodian outside the Assured’s premises but within the United States or Canada.
“Loss Inside Premises. II. To indemnify the assured for all loss of or damage to such property, including the furniture, fixtures and other property in the premises, occasioned by robbery or attempt thereat committed during the hours beginning at 7 o’clock A. M. and ending at 12 o’clock P. M. (within the Policy period) within the assured’s premises, and for all damage to the premises provided the assured is the owner thereof or is liable for such damages. In no event shall this Policy cover damage to plate glass, or lettering or ornamentation thereon.
“Limits of Indemnity. III. The company’s liability is limited as specified in Sections (b), (c), (d), (f) and (g) of Item 4 of the Declarations and subject to such limits as respects each section, the total liability of the Company hereunder is limited to the amount stated in Item 6 of the Declarations.
“Policy Period. IV. This agreement shall apply only to loss or damage as aforesaid,' occurring within the Policy Period defined in Item 3 of the Declarations or within any extension thereof under renewal certificate issued by the Company.
“This agreement is subject to the following conditions which are conditions precedent to any recovery hereunder:
“Definitions. A. ‘Robbery1, as used in this Policy, shall mean a felonious and forcible taking of property: (1) By violence inflicted upon a custodian; (2) by putting him in fear of violence; (3) by an overt felonious act committed in the presence of custodian and of which he was actually cognizant; or (4) from the person or direct care and custody of a custodian, who, while having custody of property covered hereby, has been killed or rendered unconscious by injuries inflicted maliciously or sustained accidentally. ‘Money’, as used in this Policy, shall mean currency, coin, bank notes (signed or unsigned) bullion and uncan-celled postage stamps in current use. ‘Securities’, as used in this Policy, shall mean all negotiable or non-negotiable instruments, documents or contracts representing money or other property and shall include revenue and other stamps in current use, but shall not include postage stamps. ‘Custodian’, as used in this Policy, shall mean: (1) The assured, if an individual; (2) a member of the firm, if the assured is a co-partnership; (3) any officer of the assured, if the assured is a corporation; (4) any person not less than seventeen nor more than sixty-five years of age, who is in the regular employ of the assured and duly authorized by him to act as paymaster, messenger, cashier, clerk or sales person, and while so acting to have the care and custody of property covered hereby. In no event shall a watchman or a porter be considered a custodian. ‘Guard’, as used in this Policy, shall mean any male person not less than seventeen (17) nor more than sixty-five (65) years of age who accompanies the custodian by direction of the assured, but who is not a driver of a public conveyance. ‘Premises’, as used in this Policy, shall mean the interior of that portion of the building designated in Item 2 of the Declarations, occupied solely by the assured in conducting his business.
tt * * *
“Exclusions. C. The Company shall not be liable for loss or damage: (1) 'Occurring within a show window in the premises and occasioned by a person or persons breaking said window from outside the premises; (2) unless the robbery .is established by reasonable evidence; (3) ■of securities unless the assured shall, after their loss, use diligence in endeavoring to prevent their negotiation or payment; (4) if any one of the following persons is criminally implicated as principal or accessory in committing or attempting to commit the robbery: (a) the assured; (b) an associate in interest; (c) a custodian or any other employee of the assured directly in charge of property insured hereunder; (d) any guard accompanying a custodian; (5) unless the assured has taken all reasonable precautions to safeguard the property against loss by robbery; (6) unless books and accounts are kept by the assured in such manner that the Company can accurately determine therefrom the amount of the loss; (7) if the assured defrauds or attempts to defraud the company in the procuring of the insurance or in'the adjustment of any claim thereunder.
« * * *
“Declarations. N. The Statements in Items numbered 1 to 18; inclusive, in the Declaration hereinafter contained, are declared by the assured to be true, the company relying on the truth of such statements as conditions precedent to recovery hereunder, such policy being issued in consideration of such statements and of the total premium in the Declarations expressed.
“Item 1. Name of Assured is City Jewelry Company, Inc.
“Item 2. The location of the building containing the premises is 713 Eighth Street, Wichita Falls, Texas. The portion of the building occupied solely by the assured in conducting his business, and herein called 'the premises’ is Entire.
“Item 3. The Policy Period shall be from April 17th, 1937, to April 17th, 1938, at 12 o’clock noon, standard time, at the location of the premises as to each of said dates.
“Item 4. Section (a) The insurance granted under Indemnity Paragraph 1 of this Policy and the premium therefor shall apply specifically as provided in Section (b), (c) and (d) of this Item.
“Section (b) (Outside Coverage) Insurance Premium on money, securities and merchandise specified in Item 7, while in the care and custody of a custodian accompanied or unaccompanied by a guard, none.
“Section (c) On money, securities and merchandise specified in Item 7, while in the care and custody of a custodian accompanied by at least-guard(s). none.
“Section (d) On money, securities and merchandise specified in Item 7, while in the care and custody of a custodian accompanied by at least-guard (s), the property being otherwise safeguarded as follows: none.
“Section (e) The insurance granted under Indemnity Paragraph II of this Policy and the premium therefor shall apply specifically as provided in Section (f) and (g) of this item.
“(Inside Coverage)
“Section (f) On money, securities and merchandise specified in Item 8, from within the premises when at least one custodian is on duty therein.none.
“Section (g) On money, securities and merchandise specified in Item 8, from within the premises when a custodian and at least one other employee of the Assured áre on duty therein... .$5,000.00... .$90.00
“Total Premium for this Policy is .. 90.00
“Item 5. The premium is payable $90.00 in advance, $ Nil on first anniversary, and $ Nil on second anniversary.
“Item 6. Subject to the limits specified in Item 4, Section (b), (c), (d), (f) and (g) respectively, the company’s total liability under this policy is limited to Five Thousand and no/100 Dollars ($5,000.00).
“Item 7. The merchandise covered under Indemnity Paragraph 1 is None.
“Item 8. The merchandise covered under Indemnity 'Paragraph 11 is Usual to Assured’s business.
“Item 9. Assured’s business is Loans, Jewelry, Luggage, Sporting Goods and Novelties.
“Item 10. Not more than one custodian outside the premises will have custody of property covered hereby at any one time except as herein stated. Not applicable.
“Item 11. All custodians and guards will Tie armed with loaded firearms, except •as herein stated: Not warranted.
“Item 12. The property while in course of conveyance outside the premises, will he conveyed in-employed for the exclusive use of the custodian throughout his entire trip, except as herein stated: Not applicable.
“Item 13. There is in the premises a ■cashier’s office or similar enclosure provided for the use of the custodian, ex•cept as herein stated: Not warranted.
"Item 14. A watchman or guard with no ■other duties is on duty in the premises or at the door of the premises, while regularly •open for business, except as herein stated: .No exceptions.
“Item IS. A foot or hand push button 'burglar alarm system connected with a gong outside or inside the premises is maintained, except as herein stated: Not war.ranted.
“Item 16. The Assured has no other similar insurance, except as herein stated: No exceptions.
“Item 17. The Assured has not sustained, or received indemnity for, a loss by robbery, burglary, or theft within the last five years, except as herein stated. No •exceptions.
“Item 18. No robbery, burglary or theft •insurance applied for or carried by the Assured has ever been declined or can-•celled, except as herein stated: No exceptions,”
The insurance carrier denied liability, •and the cause being tried to a jury, the trial court gave the jury the charge using the following language: “1. ‘Robbery’, .as that term is used in this charge, means •a felonious and forcible taking of property hy overt felonious act committed in the •presence of’ custodian and of which he •was actually cognizant. 2. ‘Custodian’, as •used in this charge, means any person not less than 17 nor more than 65 years of ■age who is in the regular employ of assured and duly authorized by him to act .as paymaster, messenger, cashier, clerk or sales person, and while so acting to have the care and custody of property covered by the policy, and in no event is a watchman or porter to be considered as a custodian. * * *'4. ‘Felonious Act’ as •used in this charge, means an act wilfully done, without color of right or excuse, and includes the wrongful and wilful taking of property with the intent to deprive the owner of the value of same, and with intent to appropriate same to the use and benefit of the person taking.”

The case being submitted on Special Issues, the jury found, (1) “that merchandise was taken from the west window” of insured’s place of business by some person or persons other than insured’s employees, (2) that the merchandise ’so taken was that described in plaintiff’s Exhibit 4, (4) that such merchandise “was taken under such circumstances as to constitute robbery, as hereinbefore defined”, (6) that a custodian and one other employee of plaintiff were on duty at the time the merchandise was taken from the west window, (7) the reasonable cash market value of the articles taken was $2,962.32, (8) that the insured took all reasonable precaution to safeguard its property against loss by robbery at the time and place in question, (9) that insured'kept its books and accounts in such manner that the defendant could accurately determine therefrom the amount of loss claimed, (10) that “none of the articles described in plaintiff’s Exhibit 4 were returned to” the plaintiff.

The trial court refused the defendant’s request for a peremptory charge in its favor and overruled all objections to the court’s charge and rendered judgment for the plaintiff against the insurer for the amount found by the verdict.

The defendant has appealed and presents eleven propositions which are asserted to be bottomed on its 13 assignments of error.

The first proposition contends that the policy of insurance having provided that the insurer would not be liable for robbery of a show window caused by persons breaking the window from the outside, and the undisputed proof having shown that if any property was taken it was taken by persons standing outside the windows, it was immaterial under the policy that the windows were broken by a severe wind, the same result having been reached ' as if they had been broken by a person or persons, and the plaintiff failed to prove any liability on the part of- the defendant.

This proposition is germane to the first assignment of error, which complains of the refusal of the trial court to give the defendant a peremptory instruction.

We believe that this assignment of error is well taken.

It is quite evident that the policy was not written to cover “Loss outside the Premises”, which is provided for in paragraph or section 1, found in the forepart of the contract. Paragraph or section III of the contract dealing with the “Limits of Indemnity” specifically states: “The company’s liability is limited as specified in Sections (b), (c), (d), (f) and (g) of Item 4 of the Declarations and subject to such limits as respects each section, the total liability of the Company hereunder is limited to the amount stated in Item 6 of the Declarations.”

When we turn to the provisions of the contract called “Declarations”, under Item 4 we find that it is specifically provided in the contract that all “outside coverage” is excluded, that there is no liability for such. See Sections (b), (c) and (d) of said Item 4. Coming down to “Inside Coverage”, mentioned in said Item 4, we find:

“Section (f) On money, securities and merchandise specified in Item 8, from within the premises when at least one custodian is on duty therein. None.
“Section (g) On money, securities and merchandise specified in Item 8, from within the premises when a custodian and at least one other employee of the Assured are on duty therein . . . .$5,000.00 “Totaí premium for this policy is . $90.00”

We find Item 6 as follows: “Subject to the limits specified in Item 4, Sections (b), (c), (d), (f) and (g) respectively, the Company’s total liability under this Policy is limited to Five Thousand & No/100 Dollars ($5,000.00).”

Item 8 referred to is: “The merchandise covered under Indemnity Paragraph II is Usual to Assured’s business.”

Item 9 is: “Assured’s business is Loans, Jewelry, Luggage, Sporting Goods and Novelties.”

We conclude that the policy only covers “Loss Inside the Premises” and we are confined to such loss as is covered by the contract.

By Section II in the forepart of the policy, the insurer contracts to indemnify the assured “for all loss of or damage to such property * * * occasioned by Robbery or Attempt Thereat committed ⅜ * * within the assured’s premises. In no event shall this Policy cover damage to plate glass, or lettering or ornamentation thereon.”

The contract specifies: “This agreement is subject to the following conditions which are conditions precedent to any recovery hereunder: Definitions. A. ‘Robbery’, as used in this Policy, shall mean a felonious, and forcible taking of property: (1) by violence inflicted upon a custodian; (2) bjr putting him in fear of violence; (3) by an overt felonious act committed in the presence of custodian and of which he was actually cognizant; or (4) from the person- or direct care and custody of a custodian, who, while having custody of property covered hereby, has been killed or rendered unconscious by injuries inflicted maliciously or sustained accidentally. * * * ‘Custodian’, as used in this Policy, shall mean: (1) the assured, if an individual; (2) a member of the firm, if the assured is a co-partnership ; (3) any officer of the assured, if the assured is a corporation; (4) any person not less than seventeen nor more than sixty-five years of age, who is in the regular employ of the assured and duly authorized by him to act as paymaster, messenger, cashier, clerk or sales person, and while so acting to have the care and custody of property covered hereby. In no event shall a watchman or a porter be considered a custodian. * * * ‘Premises’, as used in this Policy shall mean the interior of that portion of the building designated in Item 2 of the Declarations, occupied solely by the assured in conducting his business.”

Under “Exclusions” covered by paragraph C, we find the following: “The company shall not be liable for loss or damage: (1) occurring within a show window in the premises and occasioned by a person or persons breaking said window from outside the premises; (2) unless the robbery is established by reasonable evidence; * * * (4) if any one of the following persons is criminally implicated as principal or accessory in committing or attempting to commit the robbery: (a) the assured; (b) an associate in interest; (c) a custodian or any other employee of the assured directly in charge of property insured thereunder; (d) any guard accompanying a custodian; (5) unless the assured has taken all reasonable precautions to safeguard the property against loss by robbery; (6) unless books- and accounts , are kept by the assured in such manner that the company can accurately determine therefrom the amount of the loss.”

We conclude that this is a robbery and not a theft insurance contract.

The loss covered is that “occasioned by Robbery or Attempt Thereat committed during the hours beginning at 7 o’clock A. M. and ending at 12 o’clock P. M., within the assured’s premises.”

These are the hours when the owners and employees may be found on- and in the premises.

The policy defines “robbery” as “a felonious and forcible taking of property”, and the definition goes further to describe what is meant by such “felonious and forcible taking”: “(1) by violence inflicted upon a custodian; (2) by putting him in fear of violence; (3) by an overt felonious act committed in the presence of custodian and of which he was actually cognizant; or (4) from the person or direct care and custody of a custodian, who, while having custody of property covered hereby, has been killed or rendered unconscious by injuries inflict-, ed maliciously or sustained accidentally.”

The contract in question having specifically defined the act or acts which constitute robbery, we are necessarily confined to its provisions.

It is quite evident to us that the evidence adduced (which we later give, in substance) does not support the definition of robbery given under subsections 1, 2 and 4. There is no testimony showing any violence inflicted upon the custodian, or that he was put -in fear of violence, or that he was killed or rendered unconscious by injuries inflicted upon him, either maliciously or accidentally.

If a recovery can be had, it must be bottomed on subsection 3 which defines the act covered by the contract as “an overt felonious act committed in the presence of custodian and of which he was actually cognizant” at the time of the commission of the offense.

We believe that this subsection would cover a forcible taking of property, within the assured’s premises, by a robber who enters the premises and forcibly takes property without any act on the part of the. robber that actually puts the custodian in fear of violence.

We do not believe that we are authorized to go further in our construction of the contract.

The testimony shows that a severe wind storm visited the City of Wichita Falls (in which City the premises involved are situated), on the evening in question, and the East display window of the premises was “blown out”, and that a man in a business establishment across the street from appellee’s premises telephoned one of appellee’s employees about the damage done and such employee came to the store as quickly as possible, and that another employee, being notified of the trouble, came just a short while afterwards. That while these two employees were on the premises the west window was blown out, and that a large crowd had gathered in front of and about the premises. The testimony goes no further than that persons, in this crowd of by-standers, reached in the broken display window and grabbed unidentified articles, thus appropriating them to their own use.

No witness attempted to show that any person came into the store and grabbed 'or took any article from the premises.

As a further evidence that the policy of insurance only covers articles lost by robbery and not by theft, the policy specifically excludes “loss or damage; (1) occurring within a show window in the premises and occasioned by a person or persons breaking said window from outside the premises.”

If the policy does not cover the taking from the show window by a person who stands outside and breaks the window for the purpose of reaching in and taking the property, how much more logical is it to say that it can not be said that the policy covers a loss occasioned by persons finding the window broken, who reach in and unlawfully take property therefrom ?

We do not believe that the testimony tends to establish a loss against which the contract agrees to indemnify.

Having reached this conclusion, we pre-termit a consideration of all other propositions and assignments of error as not being necessary to a proper determination of the matter involved.

The judgment of the trial court is reversed and judgment is here rendered for appellant.


author: SPEER, Justice.

text:
    LOARD v. COMO et al.
    No. 14082.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1940.
    Rehearing Denied March 15, 1940.
    W. F. Clark, of Dallas, for appellant.
    James H. Como, Jr., of Dallas, for appel-lees.
   SPEER, Justice.

W. C. Loard instituted this suit for an. injunction to restrain James H. Como, Jr., from acting in the capacity of City Attorney of the City of Lewisville, and to require-the City Council of said City to terminate the employment of Como and to revoke an ordinance theretofore passed authorizing-the contract.

Upon a hearing, the District Court of Denton County denied the relief sought, and Loard has appealed. The parties will be designated here as they were in the trial court, except when necessary to refer to-them by name.

Plaintiff bases his appeal upon two assignments of error, which, in effect, assert: (a) that it was error for the trial court to-hold that James H. Como, Jr., was an employee of the City of Lewisville, and not an officer of the city; and (b) since Mr. Como performs all the duties incumbent upon a City Attorney and assumes to act for the City in that capacity, and because he does not possess the residential qualifications of an official .of said City, plaintiff’s-relief should have been granted. '

The case was tried upon stipulated facts,, to the effect that the City of Lewisville is situated in Denton County, Texas, is duly incorporated as a town of more than six hundred inhabitants, and has complied with the terms of Title 28, R.C.S., Vernon’s Ann. Civ.St. art. 961 et seq. That plaintiff is a. bona fide tax paying resident of said City;, that James H. Como, Jr., is a regularly licensed and practicing attorney, residing in Dallas, Dallas County, Texas. In August, 1939, the City Council passed an ordinance abolishing the office of City Attorney for the City of Lewisville. Thereafter, the-City Council passed an ordinance authorizing: the Mayor and Secretary to enter into a contract of employment by the City of Lewisville with James H. Como, Jr., as special counsel for the City, to serve as such counsel under supervision and direction of the City Council, in all matters pertaining to the proper and orderly transaction of the business of the municipality. The ordinance is set out in full and one section reads as follows: “In the employment of said attorney it shall be agreed and understood that at no time during such employment shall he (Como) be vested with any of the rights ordinarily possessed by a city attorney, but, to the contrary, it shall be understood and agreed that the said James H. Como, Jr. shall at all times be an employee and not a City Attorney, or any other officer of said City.” The concluding paragraph of the ordinance reads: “Said employment shall be terminated by either party at any time upon thirty days written notice to the other party.”

Further stipulations show that at the time the ordinance was passed and a contract made in conformity therewith, the City Council was formulating plans for an equalization of property values for taxing purposes, endeavoring to collect delinquent taxes, realize upon judgments theretofore obtained against tax payers, to ascertain the names and residences of owners of property within the city subject to taxes and many other things about which it is agreed that the Council stood in need of legal advice. The stipulation enumerates many services performed by the attorney for the City in the performance of his contract. It is unnecessary to enumerate them here. He was paid by the City for such things done by him under the instructions of the City Council.

Plaintiff’s action was based upon the theory that since the duties which Como was employed to perform for the city were those enjoined by law upon a City Attorney, Como’s employment and his services rendered under the contract constituted him a City Attorney of the City of Lewisville; that Como was not a resident of the City nor of the county, but a resident of Dallas, Dallas County, Texas, and therefore was disqualified under the law to act in the capacity of City Attorney.

Article 977, R.C.S., enumerates the officers of a City incorporated under Title 28. Among those named is a City Attorney. That article also provides that the City Council may by proper ordinance dispense with Ihe office of City Attorney along with other offices named, and may confer the duties of those officers upon other officers of the City. Nowhere, insofar as we have been able to find, do our statutes prescribe the duties of a City Attorney nor his compensation. These duties are matters to be determined by custom and usage embracing the relation of attorney and client. The compensation is necessarily determined by ordinance.

It is a matter of common knowledge, such as we may take judicial cognizance of, that municipalities often have to litigate in the courts of the country. They of necessity must employ counsel to represent them. Under Article 962, R.C.S., such mu-nicipalites are made bodies politic, capable of contracting and being contracted with, suing and being sued in the several courts of the State. Only licensed attorneys in good standing may practice law in the courts and represent the interests of their clients. Municipalities, as such, cannot do this, but must be represented by an attorhey.

It is contended by plaintiff that under the provisions of Article 977, supra, wherein the City Council attempted to abolish the office of City Attorney, it is required that the usual and customary duties of that officer must of necessity be conferred by the Council upon some other officer or officers of the City, and not upon some other person residing outside the City. Such contention cannot be sustained. In the first place, conferring those duties upon another officer of the city is not made mandatory by the statute, but is directory in that the article, in that respect, reads: “ * * * and the powers and duties herein prescribed for such officers may be conferred by the council upon other officers.” The duties of other officers in the class referred to are defined by law, but those of the City Attorney are not.

In the second place, it will be observed from what we have said relative to litigation in the courts involving municipalities, they must be represented by attorneys qualified to practice law. If it may be assumed that the duty of a City Attorney is to represent the City in such litigation, and that there are no other officers of the City who can so practice that profession, those duties could not as a matter of law be enjoined by the council on any other city official. It must follow, then, that in some instances where the office of City Attorney has been abolished, the council would of necessity be compelled to employ a lawyer to represent the city in the courts.

This further observation may be significant in the construction we are placing upon Article 962, supra. In the enactment of that article, the Legislature must have known that in small towns qualifying thereunder, some one of which would not be a county seat, in all probability there would be no practicing attorneys residing therein. Certainly the Legislature did not intend to deprive such small municipalities of procuring legal advice and counsel to aid their governing bodies in their corporate affairs. Indeed, it is not unreasonable to assume that there would be no person residing therein who could or would qualify for the office of City Attorney. Hence, the provision of statute authorizing the City Council to dispense with the statutory office, and enjoin the usual duties of such officer upon another.

Insofar as we have been able to ascertain, the question now before us has not been decided by any appellate court of this State. The stipulation of facts tipon which the case was tried reveals that Mr. Como was employed by the City Council to aid and assist it in all legal matters in which the municipality had an interest, including litigation in the courts; that he was in no way disqualified to perform those duties. The above quoted provision of the ordinance under which he was employed specifically states that he is in no sense to be considered an officer of the City but an employee, and that his employment may be terminated at the will of the council upon giving thirty days’ written notice thereof. The fact that the attorney’s employment is general and continues until terminated in the manner provided, in no sense of the word makes him an official of the city. He is an employee, subject to discharge by the council, the same as any other person employed by the council for a specific duty.

There are material distinctions between one occupying an official position and another who performs duties purely by virtue of employment. An official may be and often is elected by the resident electors ; he subscribes the oath of office and is entrusted with the performance of some of the sovereign functions of government; is subject to removal for failure to so perform the duty or for misconduct or malfeasance in office; his election or appointment is for a definite period of time and his services thereby become continuing and permanent rather than temporary and transitory, as is the case of an employee under a contract, such as the one in the instant case. 34 Tex.Jur., pp. 32S, 326, § 4. See, also, the many cases there cited, especially that of Commissioners’ Court of Limestone County v. Garrett, Tex.Com.App., 236 S.W. 970, adopted by the Supreme Court.

Kindred subjects to the one confronting us have been before our courts which we think shed light to guide us in this case. Article 2748, R.C.S., denominates certain school districts, bodies politic, with power to sue and subject to being sued. In Arrington et al. v. Jones et al., Tex.Civ.App. 191 S.W. 361, it was held that the power conferred by statute on the trustees of such a school district to manage and control the schools therein, would inherently give them power to employ counsel to represent them in the courts, while in the performance of those duties.

Other courts in this State have held that municipalities have the power, acting through their councils, to employ attorneys to aid and assist the regularly elected and qualified City Attorneys, and to appropriate funds from the City’s treasury to compensate such employed attorneys. City of Corsicana v. Babb et al., Tex.Com.App., 290 S.W. 736; Sutherland et al. v. City of Winnsboro, Tex.Civ.App., 225 S.W. 63. Likewise, the Commissioners’ Court, acting in behalf of the county, may employ counsel for a specific duty, in aid of the county attorney, to represent the county in litigation. Adams et al. v. Seagler et al. 112 Tex. 583, 250 S.W. 413; Rusk County v. Maloney, Tex.Civ.App., 38 S.W. 2d 868, writ refused. The cases cited are not considered decisive of the point here involved, but the reasoning in each is persuasive' and has aided us in reaching our conclusions herein expressed.

Upon request, the trial court filed findings of fact and conclusions of law. Plaintiff has not complained of either. The facts found are as stipulated by the parties. Based upon the facts found, the court concluded as a matter of law that the City of Lewisville had complied with the provisions of Article 961, R.C.S., in forming its municipal corporation; that the City had authority to> dispense with the office of City Attorney; it had a right to employ an attorney to assist the council in the performance of governmental functions. That James H. Como, Jr., was not an official of the City of Lewisville, but was an employee, and that plaintiff was not entitled to injunctive relief against the attorney to prevent him from performing the duties for which he was employed, and that the City should not be required to cancel its contract with him.

We find no fault with the conclusions reached by the trial court, and his judgment entered herein. The assignments are overruled and the judgment is affirmed.


author: BAUGH, Justice.

text:
    BARNES v. GUTHALS.
    Na. 8891.
    Court of Civil Appeals of Texas. Austin.
    Feb. 14, 1940.
    Behearing Denied March 13, 1940.
    B. W. Smith, of San. Angelo, for appellant.
    Murphy & Leslie, of San Angelo, for ap-pellee.
   BAUGH, Justice.

Suit was by J. L. Guthals for himself and as next friend of his minor son, Laurence Guthals, against L. M. Barnes, for damages for personal injuries resulting from a collision between a car in which they were riding as guests of Frank Von Sprecken, and a truck belonging to L. M. Barnes. Barnes impleaded Von Sprecken on the ground that the collision resulted from his negligence and sought, in the event of a judgment against him, recovery against Von Sprecken. Trial was to a jury on special issues. A verdict was instructed in favor of Von Sprecken. Based upon the jury’s answers to the special issues, judgment was rendered for Laurence Guthals for $350, and that his father in his individual capacity take nothing; hence this appeal.

Appellant’s first contention relates to argument of appellee’s counsel to the jury complained of as being improper. Since we have concluded that the case must be reversed on other grounds, we pretermit a discussion of that issue here. It need not occur upon another trial hereof.

Reversal is required because of misconduct of the jury. It is not controverted that one of the jurors recited experiences he had had with trucks operating over the highways, and stated, “that they ought to be made to build their own roads and kept off the highway; that they were traffic hogs; those were experiences he had had.” This juror also related an experience he had had in a collision in which five persons were injured, including himself.

It was also stated by some of the jurors that Barnes carried a policy of insurance on his truck; that under the law he had to carry insurance; that Barnes would not have to pay any judgment that might be rendered against him; “that commercial carriers on the highways were bound to have policies, therefore we were not hurting Barnes when we rendered a judgment against him.”

That such statements of matters not in evidence constituted prejudicial misconduct is now well settled by numerous cases involving the same questions. Such misconduct requires a reversal, “unless the record shows beyond a reasonable doubt that such misconduct did not influence any juror in giving assent to the verdict.”

This question was fully discussed and all prior conflicts removed in an opinion of the Commission adopted by the Supreme Court in Traders & General Insurance Co. v. Lincecum, 130 Tex. 220, 107 S.W.2d 585, to which we refer for a full discussion thereof. See also Republic Insurance Co. v. Hale, 128 Tex. 616, 99 S.W.2d 909; 41 Tex.Jur., §§ 102 and 104, pp. 850 and 855; 31 Tex.Jur., § 38, p. 43.

Appellee insists that since the evidence would have sustained a verdict for a much larger sum than that awarded by the jury, it clearly appears that the misconduct did not affect the verdict. This, however, does not clearly appear. The juror who testified was somewhát doubtful as to whether such statements and arguments affected his own verdict. He also testified that at first four or five of the jurors were in favor of giving appellee only $100 damages; and that after these arguments and statements were made the $350 was agreed upon. This was sufficient to raise a reasonable doubt as to the effect of such improper conduct upon the verdict.

Appellant also asserts error of the trial court in refusing to submit to the jury his requested defensive issues that the car in which appellee was riding was at the time of, or just prior to, the collision being driven on its left hand side of the road. This defense was pleaded and appellant insists that the issue was raised by the evidence. It may be doubted that the evidence relied upon was sufficient to raise the issue. In view of another trial, however, it is not amiss to state that under the now well settled rule a defendant is entitled to have an affirmative submission of all defenses raised by the pleadings and the evidence; and if upon another trial, there be any competent evidence raising such issue it should be submitted to the jury.

In view of the reversal on the grounds stated, the other question presented — that is, refusal of the trial court to grant a new trial on the grounds of newly discovered evidence — becomes immaterial.

No appeal is prosecuted from, and no complaint made of, the judgment in favor of Frank Von Sprecken, and against J. L. Guthals individually. As to them the judgment is affirmed. As between Laurence Guthals and L. M. Barnes only the judgment of the trial court is reversed and the cause remanded for another trial.

Affirmed in part and in part reversed and remanded.


author: LOONEY, Justice.

text:
    TUCKER v. DOUGHERTY ROOFING CO., Inc.
    No. 12827.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1940.
    Rehearing Denied March 9, 1940.

      J. P. Miller, of Dallas, for plaintiff in error.
    Leake, Henry & Young and Hawkins Golden, all of Dallas, for defendant in error.
   LOONEY, Justice.

The Dougherty Roofing Company, Inc., sued Mrs. Bennie Ray Tucker, as testamentary trustee of an estate created by the will of W. H. Tucker, deceased, in favor of his granddaughter, Doris R. Tucker, a minor. The estate includes, among other properties, a thirteen and fraction-acre tract of land in the City of Dallas, known as White Rock Tourist Camp, consisting of twenty-two cabins, bath house, etc. As these structures needed re-roofing, the parties entered into a written contract whereby the company agreed to furnish all labor and material necessary, and re-roof the structures, for the sum of $475, the contract providing for the payment of IS per cent, attorney's fees in the event of suit; concluding with the following, “Terms of payment: cash on completion, subject to approval of loan being negotiated at present time”.

The company completed the work of re-roofing the structures about May 16, 1937, but, having failed to obtain the loan contemplated, the trustee was unable to pay cash when the work was finished, whereupon, the company fixed a lien upon the premises, as provided in Art. 5453, R.C.S., Vernon’s Ann.Civ.St. art. 5453, and the trustee having failed to pay as agreed, on October 4, 1937, the company instituted this suit, alleging the essential facts, sought judgment for the amount agreed upon, plus attorney’s fees, also sought foreclosure of its statutory lien on the premises.

The trustee answered by general and special exceptions, general denial, and pleading specially, alleged, in substance, that the contract never became effective in that its effectiveness was dependent upon a condition precedent that did not happen; that is, upon the ability of the trustee to obtain a loan upon the property, the contention being that this was a condition precedent to the accrual of any rights under the contract; also contended that, the encumbrance of the property was beyond the power and authority of the trustee, therefore, the company was not entitled to recover.

The case was submitted to a jury and their findings, and the facts otherwise appearing in the record, show conclusively that the company fulfilled its contract, that the trustee, having failed to obtain the contemplated loan, was unable to pay cash when the work was completed, and, later, having failed and refused to pay any part of the contract price, the company fixed a statutory lien on the premises, as provided in Art. 5453, R.C.S. The court rendered judgment in favor of the company for the amount of the contract price, plus 15 per cent, attorney’s fees, but refused to foreclose its statutory lien. The trustee appealed by writ of error and presents for consideration the questions raised in her pleadings, heretofore stated. The company cross-assigned error on the failure of the court to foreclose its statutory lien.

The first question raised by the trustee is that the court erred in overruling her general demurrer to the company’s petition. The record fails to disclose any action by the court on the general demurrer; however, the contention is overruled, because, we think, the petition stated a good cause of action as against a general demurrer.

The contention that the contract never became effective, in that the loan was never obtained, the consummation of which is claimed as 'a condition precedent, is also-overruled. We do not think the provision of the contract, upon which reliance is had for this assignment, was a condition precedent at all, but merely the statement of “Terms of payment”; in other words, if the loan, being negotiated, was consummated, cash would be paid for the work ore its completion. But, as the contract contained no other stipulation in regard to the time of payment, the law implied an obligation, on the part of the trustee, to pay within a reasonable time, and, having failed ta comply with that obligation, we think the suit was authorized at the time of its institution. In Boesen v. County of Potter, 173 S.W. 462, the Amarillo Court of Civil Appeals held (citing authorities) that, where a contract states no time for performance and fixes no time for payment, and the happening of the event which is ta mature its obligation as to payment depends entirely upon the defendant, the law implies an obligation upon him to pay within a reasonable time.

In this connection, it appears that the court submitted to the jury the following issue (No. 3), “Do you find from a preponderance of the evidence that the agreement, if any you have found in an-, swer to special issue No. 2, was contingent upon Mrs. Bennie Ray Tucker’s procuring a loan on the premises involved?”; ta which the jury answered “Yes”. We da not think that issue should have been sub- . mitted, because it left to the jury the construction of a written instrument, which, being a question of law, was for the court. Besides, obviously, the answer of the jury is incorrect, in that the provision in question was neither intended, nor does 'it state-a condition precedent, but is just what.it purports to be, that is, “Terms of payment”. However, the error in submitting the issue-became immaterial, as the court ignored the answer of the jury in rendering judgment for the company.

The contention that it was beyond the authority and power of the trustee ta contract indebtedness as an encumbrance upon the property, in our opinion, is also untenable. The will of W. H. Tucker provides, among other things, that, until his granddaughter attains the age of twenty-five, the trustee shall have possession of the properties, with full power and authority to control, rent, and manage same for the benefit of the devisee; also provides that the tourist camp property “ * * * shall not be sold, but shall be held in trust and delivered over to my said granddaughter when she shall have arrived at the age of twenty-five years.” As the cabins and structures needed new roofs, we think the trustee not only authorized, but that she would have been remiss in duty had she failed to have them repaired.

The doctrine is announced in 65 C.J. 694, 695, that: “Coupled with the Trustee’s right to possession is, the duty on his part to do not merely what he conceives to be his duty; but to exercise good faith and such care, prudence, and diligence as an ordinary man would exercise in the management of his own affairs, to protect such possession, and to preserve the property generally for the benefit of all the cestuis que trustent, and to this end must take such action regarding the trust property as will be most conducive to its welfare, such as to see that it is profitably employed, and take every reasonable and possible means of reducing any loss or decrease in value.” Also, at page 712, it is said:' “The trustee, however, has the power, as well as the duty, to make expenditures or incur indebtedness for whatever repairs and changes are reasonably necessary to the preservation of the property for the purposes for which it was placed in trust.” And, at page 715, it is announced that extraordinary repairs or permanent improvements for the preservation of the property may be paid out of corpus. In the case of McMullen v. Sims, 37 S.W.2d 141, the Commission of Appeals said, “Testamentary trustee held, as matter of law, to have violated trust by failing to keep estate revenue producing.”

So we conclude that the trustee was fully authorized to have the repair work done in order to properly discharge her duties as trustee, and that the right of the company to payment and foreclosure of its statutory lien is undoubted. Therefore, the judgment of the trial court is reformed by granting foreclosure of the lien upon the premises as prayed, and, as reformed, is affirmed.


author: HICKMAN, Commissioner.

text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS v. STATE ex rel. COBB et al.
    No. 7691.
    Supreme Court of Texas.
    March 13, 1940.
    Lawther, Cramer, Perry & Johnson, Harry P. Lawther, and Searcy L. Johnson, all of Dallas, for plaintiff in error.
    Andrew Patton, Crim. Dist. Atty., and E. G. Moseley, Harold McCracken, David M. Weinstein, and Paul Peurifoy, Asst. Crim. Dist. Attys., all of Dallas, for defendants in error.
   HICKMAN, Commissioner.

The State of Texas, upon the relation of Ed Cobb, Tax Assessor and Collector, and Andrew Patton, Criminal District Attorney, both of Dallas county, instituted this suit in one of the district courts of that county, naming the Dallas Joint Stock Land Bank, a corporation, as defendant, the suit being one in the nature of a bill of discovery. The allegations of the petition are well summarized by the Court of Civil Appeals as follows: “Plaintiffs alleged, in substance, that valid assessments had been made, against the shares of stock owned by each unknown stockholder of the Land Bank, for the years 1931 to and including 1938; that it was necessary for plaintiffs to ascertain the names of the stockholders who resided in Dallas County (alleging the belief that all resided in Dallas County), and the number of shares of stock owned by each on the respective dates mentioned; that such information was in the exclusive possession of the Land Bank and could not be obtained by plaintiffs from any other source; that, on demand, defendant had refused to furnish the information, and that the stockholders had failed to reveal their identity, that such information cannot be obtained from any other source, or by any means other than by the process of a bill of discovery ; that a valid cause of action existed in favor of the State of Texas and County of Dallas for the delinquent taxes due by each individual stockholder, wherefore, plaintiffs sought judgment, compelling the Land Bank to answer the following interrogatories: First: ‘State, as revealed by your books and records, the names and addresses of the stockholders of The Dallas Joint Stock Land Bank of Dallas, who resided in Dallas County, Texas, on the first day of January, for each of the following years: 1931, 1932, 1933, 1934, 1935, 1936, 1937, and 1938.’ Second: ‘State, as revealed by your books and records the amount and number of shares held by each of such stockholders as asked for in the foregoing interrogatory as of the first day of January, 1931, 1932, 1933, 1934, 1935, 1936, 1937 and 1938/ ”

In the trial court judgment was entered as prayed for ordering the bank,.by its officers, agents, servants and employees, to answer in writing and under oath the foregoing interrogatories. That judgment was affirmed by the Court of Civil Appeals. 133 S.W.2d 827, 828.

In 1923 the Legislature enacted what is now Article 2002 of our Revised Statutes, which reads as follows: “All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies.”

The first case to reach this court after the enactment of that article was an action by a judgment creditor against a judgment debtor to discover assets of the latter subject to execution. The trial court denied the relief prayed for, but its judgment was reversed by the Court of Civil Appeals. Chapman v. Leaverton, Tex.Civ.App., 263 S.W. 1083, 1088. From the opinion in that case we quote: “While it may be said that the purpose of pure bills of discovery is to provide needed testimony for a suit pending or contemplated, yet it would seem that the suit in the instant case was in the nature of a bill of discovery. * * * ”

That opinion recognized that it had been decided in Cargill v. Kountze, 86 Tex. 386, 22 S.W. 1015, 25 S.W. 13, 24 L.R.A. 183, 40 Am.St.Rep. 853, that a bill to discover assets of a judgment debtor would not lie in Texas, but held that same had been authorized by the statute. That opinion ascribed to the Legislature the intention of conferring upon courts a jurisdiction not theretofore possessed by them, not only to entertain bills of discovery, but other suits of that nature, provided only that the relief granted must accord with the usages of courts of equity. An application for writ of error was refused in that case. In reply to a motion for a rehearing upon the application, this court wrote a very significant opinion, which seems generally to have been overlooked. That case was one of several cases disposed of by one opinion which is reported in National Compress Co. v. Hamlin, 114 Tex. 375, 269 S.W. 1024. In that portion of the opinion dealing with the Chapman v. Leaverton case it was stated that the court, in refusing the writ of error, realized that the case involved the construction of a statute of far-reaching importance to the jurisprudence of this state; that the question had been given serious consideration ; and that the application was refused because the court was of the opinion that the statute had been correctly construed by the Court of Civil Appeals. The effect of that opinion was to make the opinion of the Court of Civil Appeals authoritative. The controlling question was regarded as being one of statutory construction. Thus viewing the case before us, its solution is not difficult. While it may not be a pure bill of discovery, it is clearly a suit in the nature of a bill of discovery, and the relief granted accords with the usages of courts of equity. Coca-Cola Co. v. Atlanta, 152 Ga. 558, 110 S.E. 730, 23 A.L.R. 1339; Kurtz v. Brown, 3 Cir., 152 F. 372, 11 Ann.Cas. 576, certiorari denied, 205 U.S. 544, 27 S.Ct. 791, 51 L.Ed. 923; Brown v. McDonald, 3 Cir., 133 F. 897, 68 L.R.A. 462; Post v. Toledo R. Co., 144 Mass. 341, 11 N.E. 540, 59 Am. Rep. 86; Annotation, 3 Am.St.Rep. 812.

One of the principal contentions of plaintiff in error is that its shares of stock are not taxable. If that contention is correct, the action becomes a mere fishing expedition and will not be entertained, but it appears that the contention cannot be sustained. As stated in the opinion of the Court of Civil Appeals: “Article 7145 provides that: ‘All property, real, personal or mixed, except such as may be hereinafter expressly exempted, is subject to taxation, and the same shall be rendered and listed as herein prescribed.’ The owner is required to list the same under oath. See Art. 7162, Subd. 38, that expressly requires the ‘Amount and value of shares of capital stock companies and associations not incorporated by the laws of this State’, to be rendered for taxation by the owners; and Sec. 11 of Art. 8 of the Constitution provides ‘ * * * And all lands and other property not rendered for taxation by the owner thereof shall be assessed at its fair value by the proper officer.’ ”

The Act of Congress creating joint stock land banks provides, in Title 12, Sec. 932, page 872, U.S.C.A., that: “Nothing herein shall prevent the shares in any joint stock land bank from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the bank is located;, but such assessment and taxation shall be in manner and subject to the conditions and limitations contained in section 548 of this title with reference to the shares of national banking associations.”

Section 548, referred to in the above section, reads in part as follows:

“ * * * The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income, provided the following conditions are complied with:
“1. (a) The imposition by any State of. any one of the above four forms of taxation shall be in lieu of the others, except as hereinafter provided in subdivision (c) of this clause.”

The case of State v. Buder, 308 Mo. 253, 271 S.W. 770, cited by plaintiff in error, cannot be regarded as authority for the proposition that no provision has been made by the Legislature of Texas for the taxing of this stock. That case merely held that the Missouri statute there considered did not fix a method for taxing such shares. It did not consider general taxing statutes like those referred to above. By the terms of the federal Act quoted above, the state was granted alternative methods of arriving at a proper basis of taxation of these shares. Our state has apparently provided for the adoption of the first method, namely, taxing the shares. It is not thought that it is necessary for us to make a more definite holding on the question, for all that is required of a plaintiff in a proceeding of this nature is that he convince the court “that there is a reasonable basis for a belief that a cause of action exists in his favor.” 17 Am.Jur., Discovery and Inspection, Sec. 11. The showing in this case is sufficient to warrant the relief granted. If there should be future litigation between the taxing authorities and the owners of the shares, a binding decision can then be made as to the legality both of the tax and of the assessment. A decision of such questions here would not be binding on the owners of the shares and would not, therefore, amount to any decision at all.

It is claimed that this action must fail for want of necessary parties, the contention being that' some officer of the corporation should have been joined as a party defendant. It has been stated many times that a corporation cannot answer under oath but only under seal. That principle is not given recognition in this state. For example, a writ of garnishment may run against a corporation requiring it “to answer upon oath what number of shares, if any, the defendant owns in such company * * Art. 4080. That is a statutory negation of the principle relied on. A corporation may cause its agent to make answer under oath to interrogatories the same as it may cause him to prepare an answer and affix the corporate seal thereto.

Defendants in error raise the question of whether or not the order of the trial court in this case is appealable. In the case of Equitable Trust Co. v. Jackson, 129 Tex. 2, 101 S.W.2d 552, it was held that the order in that case was interlocutory and not appealable, but could be reviewed only after final-judgment in the cause it was intended to aid. That was a pure bill of discovery case in which information was sought of a defendant in aid of a case pending. The opinion expressly limited the holding to the facts of that case. It is not an authority for the claim that the order in the instant case is interlocutory and, therefore, not appeal-able. Such an order is, in effect, a mandatory injunction and has all of the elements of finality so far as the plaintiff in error is concerned. It was expressly held by this court in the opinion in Chapman v. Leaver-ton, above referred to, that it had jurisdiction to review an order similar to that in this case. That is decisive of the matter. We approve the holding in Dallas Joint Stock Land Bank v. Rawlins, Tex.Civ.App., 129 S.W.2d 485, on this question.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


author: SLATTON, Commissioner.

text:
    PHOENIX ASSUR. CO., LIMITED, OF LONDON v. SHEPHERD et ux.
    No. 1811—7445.
    Commission of Appeals of Texas, Section B.
    March 20, 1940.
    Bryan & Bryan, of Houston, for plaintiff in error.
    Fulbright, Crooker & Freeman and Paul Strong, all of Houston, for defendants in error.
   SLATTON, Commissioner.

L. T. Shepherd et ux. sued Phoenix Assurance Company, Ltd., of London to recover upon a fire insurance policy covering a house situated at 1521 Fulton Street in the city of Houston.

The insurer defended upon an alleged breach of the following provision of the policy: “This entire policy shall be void if the building described be or become vacant and so remain for a period exceeding ten days or if a dwelling be or become vacant for a period exceeding ten days or unoccupied for a period exceeding thirty days.”

Issues were submitted to a jury and determined in favor of Shepherd et ux. Upon such verdict a judgment was rendered against the insurance company. On appeal the Galveston Court of Civil Appeals-affirmed the judgment. 115 S.W.2d 992. The insurance company was granted writ of error.

The question to be determined is whether under the evidence the house was vacant for a period exceeding ten days so as to avoid the policy under the quoted provision thereof.

The house was used as a dwelling and as-a boarding house. Tenant Dickey moved out of the house on July 2, 1933. The fire occurred on July 25, 1933. Thus it is clear that the provision as to occupancy does not apply. When the tenant moved out of the house there was left an old trunk with various articles of clothing contained therein which belonged to the tenant. In addition to the trunk there was left in the house .the following property which belonged to the owner Shepherd: A number of chairs, tables, dishes, cooking utensils, two ice boxes and a gas heater. Such.property was-estimated to be of the value of $150 to $200 according to the various witnesses.

This court, by refusing the application for writ of error in the case of Southern National Insurance Company v. Cobb, Tex.Civ.App., 180 S.W. 155, approved the following definition of the word “vacant” as used in a fire insurance policy: “Vacant” means entire abandonment, deprived of contents, empty. The words “vacant” and “unoccupied” are not synonymous as used in the policy in the present case. The trial court, in submitting the issue of vacancy to the jury, having defined the term substantially in accordance with the above approved definition, we are unable to say, as a matter of law, that the above evidence does not support the finding of the jury that the house was not vacant within the quoted provision of the policy. It follows therefore that the judgments rendered by the lower courts must be affirmed.

Opinion adopted by the Supreme Court.


author: HICKMÁÑ, Commissioner.

text:
    MANSELL et al. v. TEXAS & P. RY. CO. et al.
    No. 2300—7468.
    Commission of Appeals of Texas, Section A.
    March 20, 1940.
    W. F. Young, Alexander & Bird, and Frank J. Knapp, all. of Fort Worth, for appellants.
    Adair Dyer, of Dallas, Robert Harrison ánd Sewell, Taylor, Morris & Garwood, all of Houston, and Allen & Gambill, Cantey, Hanger.# McMahon, Wren, Pearson .& Jeffrey, Thompson & Barwise, and Fred L. Wallace, all of Fort Worth, for appel-lees.
   HICKMÁÑ, Commissioner.

The trial court sustained the general demurrer to the. petition of appellants. The Court of Civil Appeals, after preparing, a tentative opinion in yffiich the conclusion was reached that the petition was good as. against a general demurrer, has certified certain questions to this court. Appellants, in their petition, alleged that twelve railroad companies entering Fort Worth created for their mutual benefit, profit and advantage, an agency known as the “Joint Car Association of Fort Worth Railways”; that the purpose of the creation of the association was to set up an agency to employ men to make uniform inspection of railroad cars passing in interchange between the railways; that the association was organized by the railway companies with a president, vice-president, chief joint car inspector, secretary,’executive committee and efficiency committee; that the chief joint car inspector had the authority to employ and discharge laborers and to supervise them; and that it was the duty of the executive committee to hear all appeals from decisions of the chief joint car inspector. Appellants alleged that they were all employees of the said railroad companies, being employed as joint car inspectors by the" chief joint car inspector and engaged in the work which the joint car association was created to do; and that the duties of plaintiffs were to inspect and repair interchange freight and passenger cars entering into the City of Fort Worth over the lines of the railroad companies.

They alleged that for many years prior to the date of their discharge they had been operating under a working agreement or employment contract, a copy of which was attached to thei.r petition; that one of the provisions of the working agreement was that no employee should be discharged or suspended without a fair investigation; that he should be furnished with a copy of the charges against him twenty-four hours in advance and be granted a trial, and, within ten days, be given a decision by the chief joint car inspector, and that he should'have the right to appeal his case to the highest ranking officer of the association. They alleged that on October 19, 1933, without cause or previous notice, they were dis- ' charged by defendant railways; that no investigation was given any of them, nor were they furnished with any charges against them; that they requested the railways and their agent, the chief joint car inspector, to comply with their working agreement as to filing charges and granting an investigation and appeal, but defendants wholly failed and refused to comply with that agreement.

It was further alleged that the railway companies, as an excuse for their wrongful act of discharging the plaintiffs, fraudulently pretended that they had revoked their agreement creating the joint car association and, by so doing, had prohibited the officers of^said association from thereafter representing them and had refused to allow such officers to represent them, under the pretext that, by the pretended revocation of the agency agreement, the offices had been abolished and the holders thereof were no longer employees of the defendants. It was alleged that all of this was a fraudulent .pretext to create an apparent excuse for discharging the plaintiffs and to escape legal liability for a breach of the contract. It was further alleged that, after discharging plaintiffs, the railroad companies employed others to do the same work formerly, performed by plaintiffs; that such work is still being performed by men employed to take the places of plaintiffs. That after their discharge plaintiffs petitioned defendants to comply with the working agreement, and requested that an investigation and. trial be given them; but were advised that their jobs had been abolished. and that the chief joint car inspector could not comply with their request; that they petitioned the president of the association and the general manager of each of defendant railroads for redress of their grievances, but were met with refusals. Damages were sought for each of the twenty-five employees, the amount thereof being alleged as $10,000,actual and $10,000 exemplary damages. The first two questions are as follows:

“(1) In determining whatever rights appellants have, if any, under the contract sued upon, is it obligatory on the part of the trial court- and the appellate courts of Texas to read into such contract the provisions of Title 45, U.S.C.A.?
“(2) Do the provisions of said Title 45, U.S.C.A. supersede the provisions of the contract sued upon? That is to say, if appellants have any rights under the contract, must appellants seek relief by and through the provisions' of Title 45, U.S. C.A.?”

We consider these two questions together for the reason that, as we understand it, the parties regard these questions as calling upon this court for a ruling upon the specific question of whether a certain amendment of Title 45, U.S.C.A., which became effective in June, 1934, many months after the alleged breach of contract became a part of the contract under which plaintiffs had formerly worked. As we understand the position of the parties here, they all agree that it is a well settled rule that the right of employers and employees to make contracts relating to interstate commerce is subject to the superior right of Congress to legislate upon the subject matter. We do not, therefore, find it necessary to enter into a discussion-of that principle or even to cite the authorities establishing and announcing it. It appears that our precise question arises out of this background. In 1934 Congress amended the Railway Labor Act, Title 45, U.S.C.A. By such amendment in Section 151 et seq., there was created the National Railway Adjustment Board. Subdivision (i) of Section 153 of the amendment reads as follows: “(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; .but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.”

The petition did not allege that plaintiffs pursued the course there authorized by appealing to the Adjustment Board, and it is claimed that it was subject to a general demurrer because of the absence therefrom of such allegation.

Under the principle above referred to, that the right of Congress to regulate interstate commerce is superior to the right of parties to contract with relation thereto, this amendment became a part of all contracts by railroad companies with their employees subsisting at the time of its effective date. But, according to the certificate, the plaintiffs alleged that they had been discharged eight months before the amendment became effective. In passing on the general demurrer the court must not only accept such allegations as true, but must also indulge all reasonable intend-ments in support of their sufficiency. Plaintiffs alleged an effort on their part to present their cases to the authorities named in their contract, but alleged that the defendants wrongfully deprived them of that right by pretending to discharge those agencies to which they should appeal. According to the allegations of the petition, their cause of action, if any they have, is for a breach of contract. They sued, not as employees, but as former employees who had been damaged by being wrongfully discharged. They had no case pending on June 21, 1934. Their means for preparing a record for appeal had been wrongfully taken from them, according to their allegations. No authority or principle of law with which we are familiar would support a holding that the amendment reached back and brought appellants’ case within its terms.

The third question is. as follows: “(3) Does the fact that appellants allege a contract of employment that is wholly indefinite as to the term of such employment make of appellants’ suit a cause of action upon a contract terminable at the will of the employer ?’■’

In the working agreement, a copy of which was attached to the petition, there appear the following:

“Rule IV.
“No employees will be discharged on a charge of incompetency after thirty days’ service. No joint Car Inspector shall be discharged or suspended until given a fair investigation. He will be furnished with the charges against him in writing 24 hours or more before the time set for investigation to be held. The Chairman of the Committee will be furnished with a copy of the charge at the same time. The accused and the Chairman may summons witnesses that they deem necessary to appear before this investigation. A copy of this investigation will be taken and furnished to the Chairman of the Committee as soon as practical after investigation is closed. Chief Joint Inspector shall have ten days in which to hand the Committee his decision. The accused will remain in service pending this decision.”
“Rule V.
“Any joint car Inspector discharged or suspended without being given an investigation will be returned to work and an investigation held. If the facts of the case prove the man has been unjustly dealt with, he shall be returned to his former position and paid for all time lost.”

Obviously, these provisions of the contract constitute a limitation on the right of the employer to discharge the plaintiffs and negative the theory that the contract was one which cóüld he terminated with impunity by the employer at will without notice and hearing. ■

The foregoing will be certified as our answers, to the questions as interpreted in this opinion.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    KUNSCHIK et al. v. NICHOLS.
    No. 1844—7683.
    Commission of Appeals of Texas, Section B.
    March 20, 1940.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Morris C. Hodges, and A. S. Rollins, Asst. Attys. Gen., for plaintiffs in error.
    Dee Estes, of Fort Worth, and T. F. Morrow, of Dallas, for defendant in error.
   TAYLOR, Commissioner.

C. L. Nichols and four others filed this suit against Joe Kunschik, Commissioner of the Bureau of Labor Statistics of Texas. The allegations of the petition' against the Commissioner are embodied in six paragraphs. Omitting the formal allegations of paragraph one as to residence, the effect of the allegations of that paragraph is that Kunschik is the “duly appointed and acting Commissioner” of the bureau named.

In paragraph two plaintiffs allege that each is an owner and operator of a high pressure steam boiler within the classification of boilers covered by House Bill No. 352 of the 45th Legislature, Vernon’s Ann. Civ.St. art. 5221c, a safety measure commonly known as the Texas Boiler Law; that section 12 of the act provides that the commissioner shall, once every twelve months, charge certain fees for the inspection of boilers within the classification embraced ; that plaintiffs’ boilers are now subject to inspection and that they believe the department of labor is about to call upon them to have such inspection made, and that the commissioner’s boiler inspectors “are incompetent and cannot make a proper and lawful inspection” of such boilers for reasons thereafter set out.

The alleged reasons are embodied in paragraph three of the petition, which are stated on information and belief. They may be summed up in the statement that Commissioner Kunschik in violation of the provisions of section 8 of article 5221c of Vernon’s Revised Civil Statutes appointed W. Charles Kellum chief boiler - inspector and that Kellum “is now serving in that capacity.” It is alleged that he is not qualified as a boiler inspector, which fact, it is alleged, the commissioner knew or could have known by the exercise of reasonable diligence. It is specified in this connection that, Kellum is inexperienced and unqualified for the reason that “he has not had five years practical experience as is required by section 8 of article 5221c of Vernon’s Revised Civil Statutes; that the commissioner arbitrarily, and capriciously • appointed Kellum as an inspector “without regard for the safety of the citizens of this State.” There is a further allegation in this, connection that neither the commissioner nor. his appointee has had “the required experience and knowledge to tell whether or not a boiler is safe”; and that neither the commissioner nor his appointee is possessed of sufficient knowledge to examine prospective deputy boiler inspectors to determine whether they have “ability to make such inspections.”

In the fourth paragraph it is alleged that plaintiffs are entitled to have a “fair, proper and legitimate inspection” made of their boilers and that they, in so far as the required inspection is concerned, are compelled to rely upon inspections made by the boiler inspection division of the labor department; .that the purpose of the requirements of payment of the inspection fees is to provide a fund out. of which to pay the cost of lawful and proper inspections, and that it follows from the facts stated plaintiffs will not receive the public inspection .service, to which-they are justly entitled; that to require them to submit their boilers for inspection by “said incompetent division” would deprive them of their property without due process of law in violation , of the federal and state constitutions and subject them to-“great financial loss”;, that the -law requires the labor commissioner to “appoint competent and qualified boiler men of no less than five years practical experience-with steam boilers as a-steam engineer, boiler maker or boiler inspector, .and that such inspectors must show themselves ' competent to pass an examination and that “as plaintiffs verily believe,” most of “the said boiler inspectors” have not complied with the article of the statute above referred to.

In paragraph five plaintiffs allege that a 'penalty is. provided under the provisions of the act-relating to inspections, and that upon refusal on their part to meet its requirements in this particular théy will,-'unless Kunschik is restrained, be prosecuted and subjected to .such penalty, .as they verily believe:

Paragraph six alleges upon information and belief that the commissioner and his inspectors are threatening to have plaintiffs’ ■boilers inspected and' will, unless restrained, compel plaintiffs to either pay the inspection fees and submit their boiler.s to inspection, or be prosecuted under the provisions of the act.

Plaintiffs prayed for the issuance without notice of a “temporary restraining order or temporary writ of injunction” restraining the commissioner, his -agents, servants, and employes from attempting to inspect plaintiffs’ boilers, and froth filing any criminal prosecution against plaintiffs, and from in any manner molesting plaintiffs or otherwise interfering with them in the lawful conduct of their business; also that the commissioner be cited to appear on the date named to show cause, “if any he may have,” why he has not complied with the requirements of law in selecting competent inspectors to inspect plaintiffs’ -boilers, and that upon final hearing the commissioner be perpetually enjoined from the violation of-law with respect to examining and selecting boiler inspectors and from making' unlawful' inspections and from unlawfully demanding inspection fees from plaintiffs. , . ,

• -W. Charles Kellum, ‘ whose appointment as inspector is complained of, was-not made a defendant. Issuance of citation was not prayed for as to him. No service was had .upon him nor did he.enter an appearance in the case. • r - - - -

IJpon presentation by plaintiffs of the petition in chambers on May 18, 1939, the ’trial court caused to be issued a temporary restraining order, effective until June '5, 1939, 'at which time defendant, and defendant only, was notified-to--appear before the court to show cause, if any he had, why a temporary injunction -as prayed for should not be issued. - - ’ '

The cause came on to be heard at the-appointed time. According to the recitations of the judgment-the trial court, after hearing upon' the1 application, was- of opinión that an injunction should not be granted against the commissioner to restrain' him ' from- filing' criminal prosecutions ' ;a;gairiát plaintiffs,' but that' plaintiffs were entitled to a temporary injunction against Chief In- ■ spector Kellum to -restrain him “from inspecting or causing to be inspected, plaintiffs’ boilers, and from demanding inspection fees from them and from in any manner molesting them in the lawful conduct of their business.” The order recites in this connection that “the court finds that the said Kellum has not had sufficient experience to qualify under the law as boiler inspector.”

The injunction prayed for against Commissioner Kunschik was accordingly denied but injunction against Kellum was decreed by the court and it was ordered that the costs incurred be taxed against the commissioner.

The Attorney General, on behalf of Commissioner Kunschik and Chief Inspector Kellum, filed a brief in the Court of Civil Appeals; Upon hearing in that court the judgment of the.trial court restraining Kellum was affirmed. 133 S.W.2d 209. Writ of error was granted and the cause is before us for review.

The petition discloses on its’face that the sole defendant is the commissioner. The prayer-did not request issuance of citation to any one other than the defendant named in the petition nor does the petition contain any prayer that any one other than the commissioner be enjoined. The notice to appear before the court for hearing on June 5th was directed to the commissioner and to him only.

The Court of Civil Appeals in passing upon the assignment of error complaining of the granting of the injunction against Kellum because he was not a party to the suit and entered no appearance in the case, held that the assignment is without merit because Kellum is a part of the official family of the commissioner and “was appointed by the commissioner, who was served with process.”

This holding is erroneous. A right personal to Kellum was involved. He was not sued and was not before the court. The fact, as 'Stated- by the- Court of Civil Appeals, that Kellum “is a part of the official family” of the commissioner does not deprive Kellum of; his right to be heard upon the allegation that he is not qualified to perform the duties of the office to which he was appointed. .

The Court of Civil Appeals erred in affirming this holding of tlie trial court. The judgments of the courts below as to.Kel-lum are therefore void. Levy v. Roper, 113 Tex. 356, 256, S.W. 251 and--cases there cited; State Mortgage Corporation v. Traylor, 120 Tex. 148, 36 S.W.2d 440; Butman v. Jones, Tex.Civ.App., 24 S.W.2d 796.

The above holding disposes of the cause so far as Kellum is concerned.

It is contended by Commissioner Kun-schik, however, among other things, that the trial court was in error in taking jurisdiction of this case because the suit is' in effect an attack in a proceeding other than by quo warranto on his right to hold the office of commissioner of the bureau of labor statistics.

We sustain this contention also. Williams v. Castleman, 112 Tex. 193, 247 S.W. 263; McAllen v. Rhodes, 65 Tex. 348; Snow v. State, 134 Tex.Cr.R. 263, 114 S.W. 2d 898. It appears upon the face of the proceeding that Kunschik is the duly appointed commissioner, and that he in appointing Kellum was acting as such. He is alleged by defendant in error to be the “duly appointed,” as well as the “duly acting,” Commissioner of the Bureau of Labor Statistics of the state. Defendants in error make no complaint that he is unlawfully withholding the office from another. The gist of the complaint is that he is ineligible to hold the office, and is appointing ineligibles as inspectors. As stated in the Castleman case, supra [112 Tex. 193, 247 S.W. 270], “if appellant was ineligible [to hold the office of justice of the peace], the exclusive remedy to prevent his * * * unlawful occupancy of the office was by quo warranto,” citing article 6398, now 6253; and, as stated in McAllen v. Rhodes, supra, “Plaintiff had no right to an injunction * * * to -restrain the defendant from * * * discharging the duties of county judge * * *.” The court says in this connection: “It is to the interest of the public that the office should be filled, but it would be rendered vacant, if, by means of an injunction, the officer de facto were absolutely prohibited from discharging its duties, •* * ■ *.”

The court cannot by injunction restrain the commissioner from discharging the duty of making the inspections provided for by the act.

The judgment of the Court of Civil Appeals affirming that of the trial court is accordingly reversed and both judgments are set aside, and judgment is here rendered dissolving the temporary injunction.

Opinion adopted by the Supreme Court.