author: CODY, Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. PEPPERS.
    No. 10939.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 26, 1939.
    Rehearing Denied Nov. 16, 1939.

      Royston & Rayzor, of Galveston (M. L. Cook, of Galveston, of counsel), for plaintiff ' in error.
    Thornton & Markwell, of Galveston, for defendant in error.
   CODY, Justice.

This is a workman’s compensation case, and as such, advanced on the docket of this court.

The defendant in error is a longshoreman, and was seriously injured while unloading scrap iron from 'a car at Texas City, and loading same upon a ship, when the electric magnet weighing some two tons, and which was used to lift the scrap iron from the car onto the ship, fell on him. The Industrial Accident Board rendered an award of 200 weeks compensation at the rate of $18.60 per week, less a credit of $399.60 theretofore voluntarily paid defendant in error by plaintiff in error. In due time plaintiff in error filed its suit in the district court of Galveston County to set aside such award, and judgment was there rendered against plaintiff in error, and in favor of defendant in error, upon the answers of the jury to numerous special issues, for compensation at the rate of $20 a week for 401 weeks, payable in a lump sum, less the credit of $399.60.

It is well established that longshore work is irregular, not only with respect to the number of days worked in a year, but also with respect to working for the same employer, — -a longshoreman may work for fifteen different employers on fifteen consecutive days. In this case it is admitted that neither defendant in error, nor any other longshoreman, has worked substantially the whole of the year within the meaning and provisions of the Workman’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., and no question is made but that defendant in error’s average weekly wage must be determined under Section 1, Subdivision 3, Art. 8309, R.S.1925, which reads:

“When by reason of the shortness of the time of the employment of the employé, or other employes engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined, it shall be computed by the board in any manner which may seem just and fair to both parties.”

Plaintiff in error pled that if defendant in error is entitled to any compensation that such compensation should be based on an average weekly wage of $18 per week, as defendant in error was bound by the terms of the contract existing between the international Longshoremen’s Association and the members of the Maritime Committee of the Galveston Cotton Exchange and Board of Trade, and the Master Stevedores Association of Texas, and others, which contract governed the rules, rates of pay, and working conditions of longshoremen; that among other things the contract contained the following provision, being Section IS of such contract:

“It is mutually agreed by all of the parties signatory to this contract that for the purposes of computing and ascertaining the average weekly wages of longshoremen covered by this contract, when such longshoremen are claiming compensation under the Workmen’s Compensation Laws of the State of Texas, or of the Longshoremen and Harbor Workers Act of the United States Congress, that average weekly wage shall be eighteen dollars ($18.00).”

And plaintiff in error pled that defendant in error was bound by such Section IS of the contract, and therefore was precluded from proving that his compensation exceeded $18 per week; that such provision was fair and just, and — quoting from plaintiff in error’s pleading verbatim — '“The persons who negotiated the contract, after due and full consideration of the earnings, work opportunities and all other relevant factors entering into the average weekly wage of longshoremen, and especially Texas City longshoremen, and having found and being of the opinion that an average weekly wage of $18.00 per week would be just •and fair to the longshoremen who might have claims for compensation, and to the plaintiff herein, secured the consent and approval of plaintiff to agree upon and insert in said contract a definite and certain average weekly wage, and plaintiff agreed to the average weekly wage of $18.00 and that the provision of the contract herein-above referred to should be incorporated in and made a part of that contract. That each and every claim for compensation which was presented to plaintiff by longshoremen subject to the agreement referred to was paid and allowed on the basis of the agreed average weekly wage of $18.00 per week; that said rate was and is fair and just to defendant herein; that the average weekly wage of $18.00 is fair and just to defendant for the further reason that he accepted all of the other benefits of the Longshoremen’s Contract and by continuing to work thereunder he ratified, approved and acquiesced in said rate in addition to having been bound by the Longshoremen’s Contract as a member of the I. L. A. Local No. 636; that any average weekly wage above $18.00 per week would be unfair to plaintiff herein because it has heretofore, at all times, and in all other cases, conducted its business and affairs on the basis that the average weekly wage for longshoremen was the average weekly wage provided for in the longshoremen’s agreement, and in handling such claims has never attempted to pay any claimant on any average weekly wage basis other than $18.00, and has never concerned itself with or attempted to lower the average weekly wage in the many instances where, as a matter of fact, the claimant’s average weekly wage was less than $18.00; that it would be manifestly unfair and inequitable to plaintiff to permit defendant to claim or recover compensation on an average weekly wage basis other than $18.00; that it would be unfair to plaintiff to permit defendant to avoid, refuse' to abide by, or depart from the agreed average wage of $18.00.”

The court below, being of the opinion that such Section 15 was illegal, refused to permit plaintiff in error to introduce it into evidence, or to enforce such average weekly wage provision, and plaintiff in error urges numerous assignments of error to such action of the court.

Whatever the object of the quoted paragraph 15 of the aforementioned contract may be, it is perfectly clear that the purpose of plaintiff in error in urging it upon the court is to prevent defendant in error from proving facts which, under the provisions of the Workmen’s Compensation Act, would entitle defendant in error to a greater compensation than that based upon the agreement contained in paragraph 15 of the contract.

Now the Workmen’s Compensation Act was enacted principally to protect the employee and to assure him, without delay or expense, the compensation for injuries which the Act provides for. Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675. And any agreement which violates the Act is void; and the courts will not enforce contracts which are either expressly or impliedly prohibited by the Act. Id. See, also, James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743; Hennessy v. Automobile Owners’ Ins. Ass’n, Tex.Com. App., 282 S.W. 791, 46 A.L.R. 521,—and the additional authorities cited in Woolsey v. Panhandle Refining Co. It is perfectly clear that, if defendant in error was able to prove he was entitled to recover on the basis of $40 weekly compensation under the provisions of the Act, no act or agreement of his own, nor any made on his behalf by others, to accept compensation on the basis of $18 weekly compensation is legally enforceable. The question before us is not whether, generally ^speaking, the provisions of paragraph 15 would .be just and fair to longshoremen and their employers. We can .conceive of cases where such provisions would be just and fair. But in cases where an employee is able to offer proof which would sustain a jury finding that he was entitled to compensation under the Act, based on a weekly wage substantially in excess of $18 per week, it is self-evident that no agreement by an employee, the effect of which would be to limit him to compensation less than, that fixed by the Act is enforceable.

Since such an agreement is not directly enforceable against an employee who offers to prove weekly earnings greater than those fixed by agreement, because violative of the Act, it was not error for the court to refuse to permit plaintiff in error to try to enforce it indirectly by estoppel, etc. Hence all of plaintiff in error’s assignments of error relating to such agreement are overruled.

Over the objection of plaintiff in error, the defendant in error was permitted to testify that during the year immediately preceding his injury he worked for Foster and Wheeler as a laborer, — pipe-fitter’s helper and an electrician’s helper, for which services he received 68-½ cents per hour; that he was classified as a laborer while working for Southport Oil & ■ Refining Company; that he worked as a laborer for the Kellog Construction Company, digging foundations, carrying steel, etc.; that he worked for the Pan-American Refining Company. At the time of the injury he was working as a longshoreman for the Texports Stevedore Company at a rate of 85 cents an hour straight time, and $1.37-⅜ overtime. Regular time consisted of hours worked between 8 A. M. and 5 P. M. Plaintiff in error earnestly insists that claimant’s employment and earnings as an electrician’s helper, pipe-fitter’s helper, and common laborer were inadmissible, while he was injured as a longshoreman, there being no similarity between such work and longshore work, and that it was reversible error for the court to admit evidence of claimant’s earnings and earning capacity with respect to such other work. Plaintiff in error contends that the point here involved was ruled upon and definitely settled in Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, majority holding on rehearing (writ of error refused), beginning on page 359. Defendant in error concedes that the point was definitely settled by the cited case, but contends that it was settled adversely to plaintiff in error’s contention. In the opinion referred to, the court said:

“The decisions of our courts have not laid down any specific rule or guide for determining just what facts may and what may not be considered in determining the just and fair wage rate contemplated by the statute. First subdivision 3, section 1, of article 8309, is general in its provisions and clothes the Industrial Accident Board (or, as here, the court) with broad discretionary powers in considering matters that bear upon the question of a just and fair weekly wage. * * * ”

Again the Court said:

“In Texas, as in a number of other states, it has been held that the compensation statute is designed to compensate the injured employee, not for loss of earnings, but for loss of earning capacity. * * *
“So it would seem settled that when the subject of inquiry is a just and fair wage rate under first subdivision 3, evidence of earnings in other employment than that in which the claimant was injured is proper to be considered in determining his wage rate or ‘earning capacity.’ ”

The court then proceeds to discuss what evidence of earning capacity is proper to be considered, and concludes:

“It seems to us that evidence to be ‘pertinent’ to the ascertainment of the just and fair wage rate contemplated should tend reasonably to establish the capacity of the claimant to earn in the same or similar employment to that in which he was engaged at the time of his injury. * * * We think the compensation statute clearly contemplates that the earning capacity covered by the compensation insurance shall bear a direct relationship to the capacity of the insured to earn wages on the employment in which his injury is received. * * *

It manifestly would not be just and fair to permit one who accepts employment and engages voluntarily in the work of a common laborer, carrying a low rate of pay, to show as a basis for compensation for an injury received in that work that he is a skilled mechanic having the capacity to earn a much higher rate of pay.”

What we next quote from the opinion is decisive here:

“In considering the matter of fixing just and fair wage another question arises on the record before us, which is, where the injured employee was employed for part time work only is his weekly wage rate to be limited to his capacity to earn in similar part-time employment, or shall it be based on what he could earn by working full time? We think the authorities * * * have settled the proposition that the wage rate is to be based on the employee’s capacity to earn when employed on a full-time basis. The limitation upon the hours of work under the particular contract of employment is no more conclusive in fixing the insured’s earning capacity than is the wage rate being received by him. This might at first seem to be unfair to the insurer, but it is not. The premium rates otfe based upon the pay roll and it makes no difference in the total liability assumed by the insurer whether the pay roll is made up of the wages of a hundred men working full time or two hundred men working half time. In either instance the total premium paid for the policy is based upon the total hours worked by the employees. And so, although twice as many employees are covered on the half-time basis as on the full-time basis, each employee in such group is exposed to injury but half the time of a full-time employee, and the total liability of the insurer is the same.” (Emphasis ours).

In the case from which we have quoted so extensively, the court held that it was error for the trial court to permit proof of the claimant’s earnings as an electrician, as there was no apparent similarity between such work, and that of a steam crane signal man (which the claimant there was), and that the wages of such claimant in the former employment could not have been a pertinent fact tending to establish his weekly wage or “earning capacity” in the latter employment. But the court held such error harmless, because the proof as to the claimant’s capacity to earn in the very kind of employment in which he was engaged when injured would have sustained the finding of a much larger wage rate than was fixed by the jury. Now, as noted above, the wage rate of defeñdant in error as a longshoreman was greater than his wage rate in the other employments that he testified to. So, if it should be held that it was error for the court to have admitted evidence of such employments, then it would constitute harmless error, so far as the insurer is concerned. And its assignment of error is overruled.

We overrule plaintiff in error’s various assignments of error to the effe.ct that claimant is precluded from recovering because of Article 283 of the Penal Code, relating to working on Sunday. By the express terms of the succeeding Article, the prohibition does not apply to works of necessity, nor to the running of steamboats or other water crafts, rail cars, common carriers, nor to the delivery of goods by them. The presumption that the conduct of men is lawful placed the burden on plaintiff in error to prove that the work on which claimant was engaged when injured did not come within one of the exceptions referred to, before it could claim that claimant was acting in violation of law. But we are unable to concur in what we take to be plaintiff in error’s views, that violation of the law against working on Sunday would result in making defendant in error an outlaw, and would leave him without all legal remedy for injuries them done to him. The law itself contemplates that a violator shall be made to suffer by a fine of not less than ten, and not more than fifty dollars. Could it be seriously claimed that if a wrongdoer should injure a fellow-man on Sunday under circumstances which, had such injury been inflicted on Monday, would have entitled the injured man to recover $25,000 in damages, that the wrongdoer has a perfect defense to a suit for damages? Or suppose a man whose life was insured for $50,000 should be hunting on Sunday so as to subject himself to a $10 fine, and he were accidently killed, would the law give the insurance money back to the insurer, and in effect fine the deceased $50,000. The point we are making is, that violation of the law against working on Sunday could in no event release the insurer from his duty to compensate the insured for injuries received in the course of his employment on Sunday, unless the insurer could show that such injury was the direct result of violating the statute. In the instant case, unless the insurance carrier had shown that claimant was injured as a proximate result of working on Sunday, that is, because it was Sunday and not a week day, we fail to see that it could be any concern of plaintiff in error, or could relieve it from liability. The prohibition against working on Sunday, where it applies, seems to be absolute. It might well happen that one working on Sunday would think his labor a work of necessity, whereas a jury might reach a different conclusion. A man ought not to have his right of .compensation for injuries received on Sunday left thus to a difference of opinion unless the violation of such law did, in and of itself, as such, proximately cause the injuries. It was never intended or contemplated that the statute should deprive a man of the right to recover damages for injuries received while working on Sunday, unless they were caused as the direct result of violating the statute, and not simply suffered while violating the statute. The following cases are cited, not as supporting our reasoning, but as justifying our ruling. Federal Underwriters Exchange v. Coker, Tex.Civ.App., 116 S.W.2d 922; Maryland Casualty Co. v. Marshall, Tex.Civ.App., 14 S.W.2d 337.

It would unduly extend the length of this opinion to quote the substance of the evidence which sustains the finding of claimant’s total permanent disability. We have examined the evidence which bears on the issue, and believe that it is sufficient. The rule is that if an injury to a specific member does not stop with the,injury to or loss of that member, but for any reason continues as an injury affecting the body'to such an extent as to result in permanent or partial disability, a recovery may be had therefor, even exceeding the statutory compensation for the complete loss of that member. In such a case, the injury is general and not confined to tire specific member. Standard Accident Insurance Company v. Williams, Tex.Com.App., 14 S.W.2d 1015.

Plaintiff in error contends that the court forced it to trial on defendant’s cross-action, after it had filed suit as plaintiff, though it made no appearance subsequent to filing its original petition, and there was no service or waiver of process on the cross-action. The suit was filed by. plaintiff in error on July 19, 1938, and was an .appearance case for October 3, 1938. On September 17, 1938, defendant in error furnished its attorneys with a copy of their answer and cross-action, which was filed on September 21, 1938. The case was set down for trial on October 17, 1938, on appearance day, at which time plaintiff in error was present in court, but such attorney stated to the court that there had been no service on the cross-action, and objected to the court’s taking jurisdiction over the cross-action because no service had been had thereon, and no appearance had been made, and expressly stated that the sole purpose in making appearance was to call attention to the fact that no jurisdiction was in the court over plaintiff in error with respect to the cross-action. On October 17, the court called the case for trial, and plaintiff in error went to trial, apparently reserving its objection by bill of exception, but not otherwise.

There is no merit, we believe, in plaintiff in error’s assignment of error to the action of the court in thus putting it to trial on defendant in error’s cross-action, nor proposition thereunder. Much the same point was raised in Commercial Standard Ins. Co. v. City Memorial Hospital, Tex.Civ.App., 107 S.W.2d 724, and was there ruled without merit. As a part of its own case, plaintiff in error pleaded that an appeal from the award and determination of the board was prosecuted to “this”, the trial, court in this case. The appeal was filed in due time, and the petition filed by the insurance carrier (plaintiff in error) contained the necessary jurisdictional allegations, and defendant in error made his appearance in answer to the petition and filed his cross-action. Plaintiff in error, therefore, did what was necessary under the Workmen’s Compensation Act to vest the court with jurisdiction, and to vacate the award of the Board. Jasper v. Liberty Mutual Ins. Co., Tex.Civ.App., 119 S.W.2d 386, 387. “The statute gives the appealing carrier which has perfected its appeal and brought the claimant into court to the extent of filing an answer and cross-action an absolute right to have the issue determined by the court, with the burden upon the claimant to prove his case. * * When all parties were before the court, * * * the award was vacated, and, except for jurisdictional- purposes, was as though it had not been. Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677; Zurich General Accident & Liability Co., Ltd., v. Rodgers, 128 Tex. 313, 97 S.W.2d 674.” Id. In other words, in .compensation cases, the insurance carrier, in appealing from the Board’s award, is a nominal plaintiff, but in reality occupies the relation to the claimant of defendant, —Art. 8307, R.S.1925, section 5, Vernon’s Ann. Civ. St. art. 8307, § 5, provides that upon appeal the court shall determine the issues “upon trial de novo and the burden of proof shall be upon the party claiming compensation.” In the instant case, therefore, plaintiff in error, by appealing to the trial court, invoked its jurisdiction to try de novo the claimant’s claim against it for compensation. Having thus submitted itself to the trial court’s jurisdiction, it was subject to the exercise of the court’s jurisdiction on appearance day, October 3, 1938, at the time when it advanced its contention that its attorney was present for the sole purpose of challenging the court’s jurisdiction to pass upon the claimant’s claim against it for compensation — a jurisdiction which plaintiff in error had itself invoked. Plaintiff in error’s claim as to the court putting him to trial on October 17, and failure to pass upon his exceptions, are predicated upon its theory that the court had no jurisdiction, and no claim is advanced that the court abused its discretion. Without holding that plaintiff in error has properly reserved his exception to the court’s refusal to pass on its exceptions ■when presented on October 17, it is apparent that no question of abuse of discretion is in the case, or claimed by plaintiff in error to be.

Plaintiff in error has assigned as error various parts of defendant in error’s argument before the jury. Those parts of the argument which were not complained of at the time of being made, seem to us to have been waived, and therefore any inquiry as to their propriety would appear to be academic. Plaintiff in error objected to the following argument as being inflammatory, made with reference to special issues submitted to the jury with reference to whether defendant in error was working for the Texports Stevedore Company on the day of the injury:

“Certainly he wasn’t working for anybody else, because the evidence hasn’t shown he was working for anybody else. And to further substantiate that point, Mr. Peppers received 37 weeks compensation. From whom? From the Texas Employers’ Insurance Association, the company that carried on Texports Stevedore Company, Inc. Do you think for one minute that the Texas Employers’ Insurance Association was going to pay anybody one thin dime, let alone 37 weeks compensation, if he wasn’t injured in the course of his employment, upon which the company carried the policy of insurance.”

We would not feel justified in saying that it is not a reasonable deduction and inference from the fact of payment being made to a claimant for compensation by the carrier of insurance, that such insurer had sufficiently investigated the facts to find such claimant was insured by its policy of insurance, as claimed by the claimant. Whatever else might have been objected to, it cannot be said not to have been relevant to the point for which it was-urged. That such argument was inflammatory we are unable to see. No insurance carrier is obligated legally or morally to pay compensation to a complainant that was not an employee of some one holding a policy of insurance from such carrier. The assignments are overruled.

We have found it impossible to discuss-all of the assignments which plaintiff in error has urged. Such as have not been discussed have been considered, and are overruled.

Judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    DONALD et al. v. BANKERS LIFE CO.
    Nos. 12829, 12840, 12877.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1939.
    Rehearing Denied Nov. 4, 1939.

      Geo. M. Hopkins, of Denton, for appellants.
    Coker, Rhea & Vickrey, of Dallas, for ap-pellee.
   YOUNG, Justice.

Three appeals are here presented, viz.: Action of the trial court on plea of privilege ; in appointing receiver; and from final judgment on notes, foreclosing deed of trust lien as prayed. All assignments and propositions are set forth in one brief for each side, from which we evolve the following condensed statement of the case, the parties being named as in the trial court.

On August 6, 1938, plaintiff, Bankers Life Company, filed its original petition in a Dallas County District Court against D. S. Donald, a resident of Denton County, seeking judgment on notes, foreclosure of mortgage lien on real property in such County, and the immediate appointment of a receiver; and on the same day, the court set a hearing on the latter application for August 20, 1938, directing the issuance of a “show cause” notice as to why a receiver should not be appointed. D. S. Donald was also served with citation August 19, 1938, on which day he filed statutory plea of privilege to be sued in the county of his residence; the citation just mentioned being returnable on September 12, 1938— the appearance day for the cause in the Dallas County District Court. Mr. Donald died September 2, 1938, and no controverting affidavit was filed by plaintiff to the plea of privilege of the deceased then pending. On October 17, 1938, R. L. Donald and R. L. Donald, Jr., became executors under the will of D. S. Donald, deceased, in probate proceedings instituted in the County Court of Denton County, and forthwith entered into the discharge of their duties touching said estate. These parties, as executors, were made defendants to plaintiff’s original suit by verified amended ■pleading filed November 12, 1938, praying .again for the appointment of a receiver, which application was, by court fiat, set for hearing November 26, 1938, and notice issued to the executors, as defendants, to appear and show cause as to same.

On the latter date such defendants, though duly served, made no appearance, and the court, upon plaintiff’s sworn pleading, entered an order appointing Sam H. Thompson receiver of the property involved. Afterwards, on the same day, defendants R. L. Donald and R. L. Donald, Jr., executors of the estate of D. S. Donald, deceased, filed .plea of privilege in statutory form for a transfer of the cause to Denton County, also a plea in abatement, setting up the pendency of the aforesaid .administration proceedings in Denton County. This last plea of privilege was duly controverted, heard and overruled on January 12, 1939, and notice of appeal given; similar exception and order having been .previously entered as to the appointment of ,a receiver. The cause was tried by the court In March, 1939, defendants’ exceptions and plea in abatement overruled, and plaintiff given judgment for its debt, with foreclosure and sale of the real estate; •which action of the court here constitutes defendant executors’ third point of appeal.

Both plaintiff’s original and amended petition alleged the lien note in suit to be in the principal sum of $18,000, payable in Dallas County, Texas; that same was in default, the real property securing it being probably insufficient to discharge the debt; that all rentals from the land had also been assigned to plaintiff as additional security; and such rentals were in danger of being materially injured or lost to plaintiff. Other defendants in the cause were assignees of oil and gas leases on the land, under instruments originally executed by D. S. Donald, and as to which plaintiff had subordinated its deed of trust lien, subject to the terms and conditions of the leases; plaintiff claiming, as to such defendants, a termination of the leasehold interests by reason of various defaults; a failure'to surrender or release by the assignee defendants, all of whom, so far as plaintiff ¿new, were still claiming to be owners of mineral estates in said land. Mrs. John Garrett and Oscar D. Whitesides were also party defendants, as tenants on parts of the realty. The only final relief sought in plaintiff’s pleading against such other defendants was foreclosure of lien and sale of their interests in the property for payment of its debt. Plaintiff’s allegations in all material particulars are supported by the court’s findings of the facts adduced upon the trial.

The gravamen of appellants’ complaint to the trial court’s several orders herein, appealed from is, in effect: (1) The plea of privilege filed by D. S. Donald on August 19, 1938, not being controverted by plaintiff, should ipso facto have resulted in the transfer of the cause to Denton County, though the death of D. S. Donald occurred before appearance day and, therefore, prior to the statutory period within which to file controverting affidavit thereto; and, no hearing having been fixed or had on said first plea of privilege at the term of court to which defendant was cited to appear, the court lost jurisdiction and venue of the cause, except to transfer the same to the District Court of Denton County; (2) that, irrespective of the institution of the suit during the lifetime of- the debtor and the chronology of events before and after his death (September 2, 1938), the appointment and qualification of executors over the estate of said D. S. Donald, deceased, and their filing of plea of privilege to be sued in Denton County, precluded the Dallas County court from asserting any further venue or jurisdiction, said executors being entitled to the sole custody of the estate; claiming the County Court of Denton County alone had jurisdiction to establish claims and foreclose liens thereon, and hence, that plaintiff should have presented its claim to said executors for allowance and collection in the probate proceedings; (3) the judgment for debt and foreclosure in the district court should have been certified to the County Court of Denton County for observance, which court had sole jurisdiction of classification and payment of claims; and the district court erred in directing a sale of the mortgaged property by the sheriff or any constable of Denton County.

The facts of this case are, in the main, undisputed and appellants’ propositions of law predicated thereon can be disposed of briefly but explicitly by the application of well settled principles. The death of Mr. Donald, a necessary party, prior to appearance day, resulted in an immediate suspension of plaintiff’s right of action. It was useless, therefore, for plaintiff to contest the first venue plea at a time when the suit had been already suspended or abated as to D. S. Donald, subject to a revivor by recourse to the provisions of Art. 2080, R.S. After the appointment of appellants as executors, the terms of the statute became available to plaintiff, the substituted defendants having the right to assert their plea of privilege in the place and stead of the deceased.

The district court acquired primary jurisdiction of the mortgaged property by plaintiff's filing suit and taking steps toward a receivership thereof; long prior to the administration proceedings in Denton County, concerning the estate of D. S. Donald. The trial court did not err, therefore, in the appointment of a receiver upon findings of fact that such was necessary to prevent the mortgaged property and the rents and profits thereof from being lost to plaintiff. “ * * * It has been decided that the statute giving an administrator the right to possession of the estate of the deceased ‘as it existed at the time 6f death’ does not authorize him to assume possession of property which was not in the possession of the decedent at the time of the death and to the possession of which he was not then entitled”. 36 Tex.Jur., Receivers, p. 199; Sec. 97; Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, 196 S.W. 501; Lauraine v. Dickson Car Wheel Co., Tex.Civ.App,, 198 S.W. 1103. And, in the same text, Tex.Jur., Sec. 84, pp. 177, 178, the statement is made, supported generally by the decisions, that: “The correct rule seems to be that jurisdiction of property attaches when a receiver is appointed, or when the judge takes such action, with reference to an application for a receivership, as to indicate a determination to investigate the matter and to appoint a receiver, if the situation so warrants, at some future date. In such case the court has exclusive jurisdiction pending its investigation, when this is followed ‘in due time’ by the appointment of a receiver.”

The plea of privilege of the executors was not filed until after the court’s action on the receivership application. Even during the pendency of a plea to the venue, the court, under proper facts, is warranted in making orders for the preservation o'f the property and for maintenance of the status, quo, such as appointing a receiver. Rex Refining Co. v. Morris, Tex.Civ.App., Dallas, 72 S.W.2d 687. Said plea of privilege was ’in turn properly overruled under Subd. 4, Art. 1995, Vernon’s Ann.Civ.St., authorizing the joinder of nonresident defendants with resident defendants, where all are proper parties and a joint action, such as a foreclosure, is shown. First State Bank v. Hill, Tex.Civ.App., 2 S.W.2d 1023; Cantey v. City Nat. Bank, Tex.Civ.App., 95 S.W. 2d 475; Carey v. Sheets, Tex.Civ.App., 109 S.W.2d 782, 783; likewise Subd. 5 was available to plaintiff, the suit being based upon a contract performable in Dallas County and applying equally to the administrator or executor of the deceased. Quinn v. Home Owners’ Loan Corp., Tex.Civ.App. Dallas, 125 S.W.2d 1063. Subd. 29a was also controlling in plaintiff’s favor, all defendants in the instant case being necessary parties, as defined in Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284.

Lastly, appellants argue error in that the district court judgment provided for a sale of the mortgaged property through its own processes, the same not having been certified to the county court for observance under the terms of Art. 2222, R.S.; further, that the fact of other debts, last illness and funeral expenses, and costs of administration being assumed, the county court should have handled a sale of the property and directed the order of disbursement, as the probate tribunal alone had jurisdiction of classification and payment of claims. Here we must point out that neither the pleading of the executors nor does the proof disclose the existence of prior claims against the estate; or of any legal necessity for recourse upon plaintiff’s security in such connection. On the other hand, the district court having first obtained jurisdiction, and being authorized to adjudicate all issues raised by the pleadings, could have determined and classified any such claims. Fernandez v. Holland-Texas Hypoteek Bank, Tex.Civ.App., 221 S.W. 1004, writ refused.

As to the language of Art. 2222, R.S., providing for judgments against administrators to be certified to the probate court for observance, the same is subject to well recognized ' exceptions. Though' plaintiff’s suit was principally for debt and foreclosure against the executors of the D. S. Donald estate, yet others were parties defendant, i. e., living persons, either tenants of D. S. Donald, or holding mineral interests under instruments executed by said land owner during his lifetime. Plaintiff, being only a lien holder, had no right to cancel said leasehold interests, or to declare them terminated, the only relief sought against such other defendants being an establishment of plaintiff’s prior lien. Thus, is presented a situation in which plaintiff’s security is owned and held jointly by the estate of D. S. Donald and other living persons, and a right in the plaintiff to a foreclosure and sale of all the security, regardless of its joint ownership. It seems to be well established that under such circumstances, the mortgagee is entitled to have the whole of his security made the subject of one sale; and the processes of the probate court being inadequate for such purpose, the district court was empowered to execute its own decree. Controlling cases to this effect are: Jones v. Hunt, Tex.Civ.App., 60 S.W.2d 1106, writ refused; Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, as modified on rehearing in 109 Tex. 69, 196 S.W. 501; and Lauraine v. Masterson, Tex.Civ.App., 193 S.W. 708, 711, writ refused, where is said: “In many cases, and this is especially true in this case, the court could not give that adequate •and complete relief to which defendant in error is entitled unless that court directed the sale of the property. The debt and mortgage is joint and the mortgage is upon property owned in common by A. C. Allen and Mrs. Margaret Allen. Defendant in error is entitled to have the whole ■of the property sold to pay the entire indebtedness, and this right often is, and may be in this case, of great importance. The probate court is without power to make a sale of the whole of the property, and defendant in error cannot be required to divide his claim and security and have one portion of the judgment enforced by ,a sale made by the probate court and the other by sale directed by the district court. The rule which denies jurisdiction to the probate court to adjudicate the case, because of the inadequacy of the powers of such court to render a judgment adjusting the equities of the parties so as to grant full relief, necessarily denies to that court the right to enforce the judgment of the ■district court, by ordering and directing the mode and manner of the sale of the ■property, when the sale which the court has power to make would not give the defendant in error such enforcement of his judgment as is adequate and necessary to ihis full relief.”

All of appellants’ assignments and propositions have been considered and are overruled. We conclude the action of the trial court should be in all respects affirmed.

Affirmed.


author: LOONEY, Justice.

text:
    SCHROCK et al. v. HYLTON et al.
    No. 12868.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 14, 1939.
    Rehearing Denied Nov. 13, 1939.

      Geo. Clifton Edwards, of Dallas, for appellants.
    Taylor, Irwin & Irwin, Dean Gauldin, and Wallace B. Moore, all of Dallas, for appellees.
   LOONEY, Justice.

This suit is an election contest. T. M. Schrock, A. M. Irwin, W. W. Evers, and A. J. Smith contested the election of B. F. Hylton, R. E. Curtis, Ben Prevatil, and R. E. Prine, as supervisors, and H. C. McDonald contested the election of C. J. Traquair, as assessor and collector of taxes, in and for Dallas County Lakeland Terrace Fresh Water Supply District No. 12. The contestants were incumbents, seeking re-election at an election held January 3, 1939, for five supervisors and an assessor and collector of taxes for the district. The results declared were as follows: In favor of L. C. Brooks, as supervisor, the validity of whose election is not involved;, also, in favor of contestees, Hylton, Prine, Prevatil and Curtis, as supervisors, and Traquair, as assessor and collector of taxes.

In the. trial court, contestants were defeated and appealed to this Court. On original submission, we held the election void, because the same was conducted without a certified poll list of the qualified voters of the Water District, as required by general statute (Art. 2975), therefore, set aside the judgment of the trial court and rendered judgment for contestants, nullifying and holding the election for naught.

Our decision was largely based upon the case of Yett v. Cook, 115 Tex. 205, 281 S.W. 837, by the Supreme Court, on the assumption that the general statutes brought under construction in the Yett-Cook case, were applicable and controlled the election held in the Water District, but, after reconsidering the question, we have reached the conclusion that, we erred in holding the election void and in nullifying same, for the reasons stated.

An opinion by Mr. BOND, Chief Justice, presented to our conference, and concurred in by other members, sets forth our unanimous opinion on the decisive questions involved. His opinion reads:

“The statute creating the district expressly provides for the manner of its creation, the holding of elections (Art. 7889), the form of ballots (Art. 7890), and the necessary prerequisites for a person who offers to vote (Art. 7891, and Art. 7930—1, Vernon’s Ann.Civ.St.). Article 7891 provides: ‘Every person who offers to vote in any election held under the provisions of this chapter shall take the following oath before the presiding judge of the polling place where he offers to vote, and such judge is authorized to administer same: “I do solemnly swear that I am a qualified voter of -- County and that I am a resident property taxpayer of the proposed Fresh Water Supply District voted on at this election, and have not voted before in this election.” ’; and Art. 7930— 1, § 7, provides: ‘Every person offering to vote at any election held under the provisions of this Act shall take the following oath before the presiding judge at the polling place where he offers to vote, and such judge is authorized to administer the same: “I do solemnly swear that 1 am a qualified voter of the- County Fresh Water Supply District No. -■ (inserting the name and number of the District) and have' not voted before in this election.” ’ Thus it will be seen that the Legislature has provided effective means of preventing repeating at elections, qualifying every voter offering to vote at any election held under the provisions of the Act, in that, the voter must be qualified under Sec. 2, Art. 6 of the Constitution, Vernon’s Ann.St. (article on suffrage), that he is a resident taxpayer of the district, and that he had not voted before in the election in which he offers to vote. The right to vote is expressly granted by statute to any person possessing the qualifications prescribed, and who shall subscribe to the oath designed to insure a fair election in such district. There is no provision of the statute requiring a poll list of the qualified voters of the district, as is required in the General Election Statute; therefore, presiding officers of such elections are without authority to deprive a qualified voter, who has subscribed to the prescribed oath affecting elections in Fresh Water Supply Districts, of the right to vote, merely, because of the absence of a poll list at the place of voting.

“The election in question was held under and governed by the provisions of the special statute relating to Fresh Water Districts, and not under the General Election Statute. General election law does not apply to a special election held under a special law. Wallis v. Williams, 101 Tex. 395, 108 S.W. 153. Therefore, the requirements of the special statute, being in the interest of pure elections, should be complied with, and so far as this record discloses, same was done. No voter should be disfranchised, or a pure election declared null and the majority of the voters set aside, merely because of the failure of election officers to have a poll list at the place of voting, which is not required in such elections.

“The case of Yett v. Cook, 115 Tex. 205, 281 S.W. 837, quoted in the original opinion, and on which contestants rely for reversal, throws no light upon the propositions here involved: First, the facts of that case have no relation to an election-contest; second, that was a suit for mandamus, asking that an election be ordered in the City of Austin, where the city ordinance required all elections to be held under the General Election Law. The city council declined to order the election in that case because they did not have sufficient time to supply the election officers with the necessary supplies, including list of voters. The Supreme Court, in refusing the mandamus, held, in effect, that the list was a necessary prerequisite for a legal election under the city charter and the council was clearly within its rights in declining to call the election. Obviously, such is not the case at bar. The election in question having been held by virtue of a special statute, the provisions thereof take precedence over the General Election Law, which requires a list of the qualified voters to be exhibited at the polling place. Therefore, a poll tax list of taxpaying voters not being a necessary prerequisite to support a legal election held under the Fresh Water Supply District Statutes, the cited authority does not support the conclusion expressed.

“Furthermore, this being a contest of an election suit, same must be determined under the express provisions of the statute relating to the subject of election-contests (article 3041 et seq., R.S. 1925). Art. 3054, supra, provides: ‘If it appears on the trial of any contest provided for in article 3045 [county office] that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach, or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of votiñg as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void, and direct the proper officers to order another election to fill said office; which election shall be ordered and held and returns thereof made in all respects as required by «the general election laws of the State.’

“So, for the purpose of this opinion, assuming, that the election was held under and governed by the provisions of the general election laws of the State of Texas, which evidently was not the case, by virtue of the above statute, Art. 3054, supra, the burden of proof rested upon contestants to show that a poll list at the polling place would have materially changed the result of the election, or that the absence of such list did materially change the result; thus, in the absence of such showing, the failure of the election officers to have a certified list at the polling place at the time the election was held, becomes immaterial.

“In State ex rel. Paggi v. Fletcher, Tex.Civ.App., 50 S.W.2d 450, 452, in an election-contest, among other assignments of error, the contention was made, as here, to void the election, that a list of voters was not furnished the election officers in compliance with Art. 2975, R.S. The court said: ‘Because the voting lists furnished the election judges failed,to furnish all the information prescribed by article 2975, appellants insist that the election was absolutely void. * * * In support of their proposition appellants cite Yett v. Cook, 115 Tex. 205, 281 S.W. 837, and articles 2975, 3005, and 3012 of the Revised Statutes. While it is true that the Supreme Court, in Yett v. Cook, discussed the office of the list of voters provided for by article 2975 and in effect held that the provisions of this article were mandatory, the facts of that case have no relation to the facts of this case, and what was said there can throw but little light on the proposition before us. * * * To have relief because its provisions were not complied with, appellants rested under the burden of alleging and proving “injury,” which was not done. The right to vote is a constitutional right, and, while the Legislature has the power to establish rules regulating this right, such regulations should generally be .given a liberal construction to effectuate the constitutional right of suffrage. Regulations which, from their very nature, are deemed absolutely essential to accomplish the purposes of constitutional suffrage, are deemed mandatory; such as, that voting shall be by ballot, that it shall take place on a certain day within certain precincts, etc. But regulations that are nothing more than mere directions for holding the election are considered merely formal in character and should be construed as directory. This is the clear holding of the Supreme Court in McKinney v. O’Connor, 26 Tex. 5, and Fowler v. State, 68 Tex. 30, 3 S.W. 255; also of this court in State [ex rel. Pace] v. Logan (Tex.Civ.App.) 5 S.W.2d 247, and Scurlock v. Wingate (Tex.Civ.App.) 283 S.W. 307. See, also, Turner v. Teller (Tex.Civ.App.) 275 S.W. 115; Bass v. Lawrence (Tex.Civ.App.) 300 S.W. 207.'
“In Buchanan v. Graham, 36 Tex.Civ.App. 468, 81 S.W. 1237, 1239, in sustaining an election-contest, the court said: ‘It is universally held, we believe, that the prime object to be attained in an election is to ascertain the expressed will of the electors participating in such election; and that, where such election is fairly and honestly held, and the will of the electors is readily ascertained therefrom, mere irregularities will not render the election void.’ This' point was directly decided in Hill v. Smithville Independent School Dist., Tex.Com.App., 251 S.W. 209, 211. The Court, in denying the contest, said: ‘As to the claim of irregularity urged by the plaintiffs in error as invalidating the election authorizing the 60 cent tax, the rule is that statutes regulating the manner of holding an election are merely directory, and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure or such irregularity have affected or changed the result of the election. Dillon on Municipal Corporations (5th Ed.) vol. 1, p. 642; McCrary on Elections, § 200; Wilmarth v. Reagan (Tex.Civ.App.) 231 S.W. 445.’
“In Border et al. v. Abell, County Atty., Tex.Civ.App., 111 S.W.2d 1186, 1188, the contestants set up various grounds upon which they contended the election was illegal, therefore void. The court said: ‘ * * * in a statutory election contest within the purview of cited chapter 9, title 50, article 3041 et seq., of our Revised Statutes, such as this one was, the scope of the court’s inquiry is limited to matters pertaining strictly and directly to the election itself, together with happenings on the date thereof, such as the casting and counting of the ballots voted therein, as well as the action and conduct of the officers holding it. R.S. arts. 3053, 3054, 3069; Norman v. Thompson, 96 Tex. 250, 72 S.W. 62; Turner v. Allen, Tex.Civ.App., 254 S.W. 630; Ladd v. Yett, Tex.Civ.App., 273 S.W. 1006; Warren v. Robinson, Tex.Civ.App., 32 S.W.2d 871.’ And, in a very recent case, Marks v. Jackson, Tex.Civ.App., 130 S.W.2d 925, 927, the election officers did not have a properly certified list either of the qualified voters or the polls, and there was, as in this case, no evidence which would tend to show that any voter was denied the right to vote because of any condition about a poll list. There was no testimony that any voter was denied the privilege of voting because of the absence of a certified list of those who had rendered property; and there was no evidence that any person who had a right to vote was denied that privilege. The court, quoting with approval the foregoing holding in the Border-Abell case, further said:
“ ‘In an election-contest, the burden is on the contestants to allege and prove either that a different result should have been reached by counting or not counting certain specified votes; or that the irregularities in the conduct of it were such as to render it impossible to determine the true will of the majority of the voters participating in the election; and irregularities in the conduct of the election, which cannot be demonstrated to have materially affected the result, are immaterial. Hill v. Smithville, etc., (Tex.Com.App.), 251 S.W. 209; Kincannon v. Mills, (Tex.Civ.App.), 275 S.W. 1083, 1084; McCormick v. Jester, 53 Tex.Civ.App. 306, 115 S.W. 278; State [ex rel. Rea] v. Etheridge (Tex.Civ.App.), 20 S.W.(2d) 808; State [ex rel. Paggi] v. Fletcher (Tex.Civ.App.), 50 S.W.(2d) 450; Wilmarth v. Reagan (Tex.Civ.App.) 231 S.W. 445.’
“The decisions cited on the question of whether the provisions of the law, relative to election officers having a properly certified list of the qualified voters or of the polls, are mandatory or directory, are clearly in favor of the rule that, the failure of either the voters or election officers to perform their respective duties at the polls according to the letter of the statute, where such failure has not prevented a fair election, is immaterial and not ground to set aside an election otherwise fairly held. In McCrary on Elections, 4th Ed., § 724, the author says: ‘The justice of this rule is apparent, and it may be said to be the underlying principle to be applied in determining this question. The requirements of the law upon the electors are in thé interest of pure elections, and should be complied with at least in substance, but to disfranchise the voter because of the mistakes or omissions of election officers would be to put him entirely at the mercy of political manipulators. The performance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do.’

“An election-contest for office is not a civil action, but is a special proceeding prescribed by law. Courts are limited in ttheir investigation to such subjects as are specified in the statute. Ladd v. Yett, Tex.Civ.App., 273 S.W. 1006. Where the law provides a mode of deciding cases of election-contests, the contest must be based upon the grounds specified. Thus, the jurisdiction of the courts is limited to such matters as tend to impeach the fairness of the vote, and before an election will be set aside, it must clearly appear that the fairness and purity thereof was materially interfered with, and it must be made to appear that, by reason thereof, the true result cannot be ascertained with certainty. Garitty v. Halbert, Tex.Civ.App., 235 S.W. 231.”

For reasons stated in the opinion by Chief Justice BOND, we sustain contestees’ motion for rehearing, set aside our former judgment, and withdraw the original opinion filed in the case, thus presenting for consideration the other grounds alleged, not considered or discussed on original submission, because of the disposition made of the case.

It is contended that three of the candidates, that is, Hylton, Traquair, and Garrett (Hylton and Traquair declared elected) were ineligible, because, neither had resided in the water district six months next preceding the election, and that, if the votes cast for them are disregarded, the result would be different from that declared, in that, in such event, contestants, Schrock and McDonald, would have been declared elected, instead of Hylton and Traquair. This contention is based on the assumption that, to have been eligible candidates for supervisor or assessor and collector, of the water district, they should have had a residence in the water district for at least six months next preceding the election, as required by article 2927 of the general election statute. Although residents, it may be conceded that the persons named had not resided in the water district six months next preceding the election, yet we do not think that fact was a disqualification, because, in our opinion, the statute invoked is not applicable. The applicable statutes, we think, are found in the chapter providing for the establishment and government of “Fresh Water Supply Districts”. (Article 7881 et seq.) Article 7895 of that chapter makes provisions for the election of an assessor and collector of taxes and prescribes that “he shall be a resident of the district and a qualified voter in the district”. Article 7900, with reference to the qualifications of candidates for supervisor, reads: “No person shall be elected as supervisor for any district unless he is a resident thereof and owns land subject to taxation therein, and unless at the time of such election he shall be more than twenty-one years of age.” But it will be observed that in neither instance does the statute require, as an element of eligibility, that the candidate shall have' resided in the district any particular length of time next preceding the election. So, we conclude that, as the persons whose eligibility is questioned were eligible under the provisions of the controlling statute, contestants’ assignments and propositions relating to that subject should be overruled.

The further contention is made that three illegal votes were cast for the candidates declared elected, and that one legal vote intended for contestants was rejected, but for which, the result would have been different. The controlling statute provides that only resident property taxpayers of the water district are entitled to vote (see article 7891). It is undisputed that, two of the three persons whose votes are challenged, that is, Mr. Armstrong and Mr. Irwin, were not residents of the water district at the time of the election, therefore, being disqualified, should not have been permitted to vote; hence, their votes must be rejected. We also find from undisputed evidence that, J. Edwin Thomas, who offered but was not permitted to vote, was a qualified voter of Dallas County and a resident property taxpayer of the water district at the time, therefore, being qualified, should have been permitted to vote, and, if permitted, would have voted the “Smith” ticket (with one exception), which included Schrock and McDonald, but would also have voted for Curtis, a candidate for supervisor on the opposing ticket.

So, after deducting the two illegal votes and adding the legal vote, as should be done, we have the following results : Prine received 47 votes, Hylton, 47, and Prevatil 46, for supervisors, and were elected; but Curtis and Schrock each having received 42 votes, for supervisor, and Traquair and McDonald each having received 41 votes, for assessor and collector, there was no election.

It follows from these conclusions that, Prine, Hylton, and Prevatil were elected supervisors, and that, owing to the tie between Curtis and Schrock, Traquair and McDonald, no one was elected to these positions. However, Schrock and McDonald, being incumbents, are authorized to continue to perform the duties of their offices until their successors shall be duly elected and qualified, as provided by Section 17 of Article 16 of the Constitution, Vernon’s Ann.St. Accordingly, the judgment of the trial court will be and is hereby reformed and, as reformed, is affirmed. The costs incurred in this and in the court below will be taxed, apportioned and adjudged against the litigants, as follows: against A. M. Irwin, W. W. Evers, and A. J. Smith, one-fifth each; against T. M. Schrock, R. E. Curtis, C. J. Traquair, and H. C. McDonald, one-tenth each.

Reformed and, as reformed, affirmed.


author: BROWN, Justice.

text:
    CARPENTER v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 13973.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1939.
    R. Curtis McBroom and Lester C. Boone, both of Fort Worth, for appellant.
    Cantey, Hanger, McMahon, McKnight & Johnson and Frank F. Taylor, all of Fort Worth, for appellee.
   BROWN, Justice.

This is a Workman’s Compensation case, in which appellant, Mrs. Margaret Carpenter, the mother of the deceased employee, seeks to recover, under the provisions of the Workmen’s Compensation Laws of Texas, Arts. 8306 to 8309, R.C.S., Vernon’s Ann.Civ.St. arts. 8306 to 8309, for the death of her son, who was killed in an automobile accident, at a time when he was an employee of a compensation insurance carrier named J. A. Taylor, doing business as Taylor’s Home Made Ice Cream Company.

General allegations were made to meet the requirements of the Workmen’s Compensation Laws, but when the details of the employment, and of the acts of the employee, at the time of the accident, and ■ of the place and circumstances under which he was killed, are given, we find the following:

“That on and prior to April 5, 1937, John Carpenter, Jr., deceased, was regularly employed by J. A. Taylor D. B. A. Taylor’s Home Made Ice Cream Company, having been employed to serve ice cream, and to sell same, and to dish up ice cream for the car hoppers at the employer’s main store and to work elsewhere in the furtherance of his employer’s business and to perform such other services and duties as his employer and his agents might require during the course of his employment; that on the 4th day of April A. D. 1937, while an employee of J. A. Taylor D. B. A. Taylor’s Home Made Ice Cream Company as aforesaid, John Carpenter, Jr. was required, directed, and instructed by J. A. Taylor and deceased’s immediate superior, C. B. McWilliams, to attend the funeral of his employer’s father at Mineral Wells, Texas, to be held on April 5, 1937; that deceased with other employees whose names are unknown to plaintiff but well known to defendant were as aforesaid required, instructed, and directed to meet at the employer’s main store on the morning of April 5, 1937, and were instructed and directed by J. A. Taylor and C. B. McWilliams that transportation would be furnished for deceased and his fellow employees as aforesaid and that they would receive compensation for such day’s work; that deceased and his fellow employees as were likewise instructed and directed by J. A. Taylor and C. B. McWilliams to return to their respective places of employment immediately upon their return from said funeral; that on such April 3, 1937, in obedience to said requirements, instructions, and directions, deceased appeared at his employer’s main store and was there instructed and directed to ride with and was without cost furnished transportation in an automobile of Thomas Taylor, son of deceased’s employer ; that while traveling in said automobile during regular business hours 11 and 11:30 a. m., en route to said funeral said car became involved in a collision or wreck in Parker County, Texas, on the Fort Worth-Mineral Wells Highway, a short distance west of the city of Weather-ford ; that said wreck and collision was accidental and that as a result thereof deceased received injuries from the effects of which he died on April 12, 1937. That in traveling to said funeral in the manner and under the circumstances aforesaid deceased, as an employee, received an injury having to do with and originating in the work, business, trade, or profession of his employer and while engaged in of about the furtherance of the affairs or business of his employer.”

The trial court sustained a general demurrer to the petition and one special exception to a certain allegation, and, appellant having declined to amend, judgment was entered dismissing the cause and taxing the plaintiff with the costs. From this order plaintiff, Mrs. Margaret Carpenter, has appealed.

Whether or' not the trial court correctly sustained the special exception to a part of the quoted allegations is of no consequence in this case.

The allegations touching the employment, the services to be rendered and the business of the employer, make it self evident that the employee was not engaged in any character of work for his employer, contemplated by the provisions of the Workmen’s Compensation Laws.

Art. 8309, section 1, second subsection 4 thereof, stipulates: “But shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employé while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

In defining “employee”, the following language was used: “ ‘Employé’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, * * * except one whose employment is not in the usual course of trade, business, profession or occupation of his employer.” Art. 8309, sec. 1.

This was the law when the employee here was killed.

Since young Carpenter was killed, the 45th Legislature of the State of Texas amended Sec. 1 of Art. 8309, Vernon’s Ann. Civ.St. art. 8309, § 1, by adding the following: “Provided that an employee who is employed in the usual course of the trade, business, profession or occupation of an employer and who is directed or instructed by his employer to perform service outside of the usual course of trade, business, profession or occupation of his employer is also an employee while performing such services pursuant to such instructions or directions; and provided further that such persons, other than independent contractors and their employees, as may be engaged in the work of the employer of enlargement, construction, remodeling or repairing of the premises or buildings used or to be used in the conduct of the business of the employer shall be deemed employees.”

These amendments, which were effective May 5, 1937, were obviously enacted to meet the reasoning found in the following opinions: Wells v. Lumbermen’s Reciprocal Ass’n, Tex.Com.App., 6 S.W.2d 346; Texas Employers Ins. Ass’n v. Wright, 128 Tex. 242, 97 S.W.2d 171; Oilmen’s Reciprocal Ass’n v. Gilleland, Tex.Com.App., 291 S.W. 197, and such like cases. In fact, the emergency clause so declares and expressly mentions the decision in the case of Texas Employers Ins. Ass’n v. Wright, supra. But even the amendment, as evidenced by the emergency clause, contemplates that the employees be engaged in “work or acts unusual to their regular employment, but within the general scope and in furtherance, or in the interest, of the business, trade, profession or occupation of the employer.” Vernon’s Ann. Civ. St. art. 8309 note.

Attending the funeral of the employer’s father, however laudable and commendable, cannot be said to bring the employee within the scope of the Workmen’s Compensation Laws. The cases cited support our views.

The judgment is affirmed.


author: ALEXANDER, Justice.

text:
    BROTHERHOOD OF RAILROAD TRAINMEN et al. v. JOHNSON et al. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al. v. CONNELL et al. ORDER OF RAILWAY CONDUCTORS et al. v. HILDERBRAND et al.
    No. 2139.
    Court of Civil Appeals of Texas. Waco.
    Oct. 19, 1939.
    Rehearing Denied Nov. 23, 1939.

      Thompson, Knight, Baker, Harris & Wright and J. Hart Willis, all of Dallas, and Harold C. Heiss of Cleveland, Ohio, for appellants.
    McGown, McGown, Godfrey & Logan, of Fort Worth, and Davis, Jester & Tyson, of Corsicana, for appellees.
   ALEXANDER, Justice.

W. H. Hilderbrand and others brought suit against the Order of Railway Conductors and others to enjoin said Order from interfering with plaintiffs’ alleged seniority rights as conductors to man all passenger trains over the line of the Burlington-Rock-Island Railway Company as applied to certain through passenger trains being run over the lines of the Burlington-Rock-Island Railway Company from Fort Worth through Dallas to Teague. J. M. Connell and others filed a like suit against the Brotherhood of Locomotive Firemen & Enginemen and others to protect similar rights which they claimed to man said trains as firemen; and W. A. Johnson and -others filed a like suit against the Brotherhood of Railroad Trainmen and others to protect their rights as train and yardmen in the handling of said trains. The cases were all consolidated and tried together. At the ■ conclusion of the evidence the trial court granted permanent injunctions in favor of the plaintiffs as prayed. The defendants have appealed.

In the case of Grand International Brotherhood of Locomotive Engineers et al v. Walter Marshall et al., Tex.Civ.App., 119 S.W.2d 908, we had before us a companion suit brought by Marshall and others to protect their rights to operate the same trains as engineers. Upon appeal of that case we held that the evidence was insufficient to authorize a judgment for the plaintiffs therein. The judgment in that case was reversed and remanded for a new trial. The cases at bar were tried on the same theory as the Marshall case, and it is not contended that there is any material difference in the evidence in these cases from that considered by us in the Marshall case. For the reasons stated in the Marshall case, the judgments of the trial court in the cases at bar must be reversed. Since the cases must be retried, we do not deem it necessary to pass on the insufficiency of parties or other assignments made by appellants. Such issues will not likely arise again in the same manner on another trial.

The judgments of the trial court are reversed and the causes remanded for new trial.


text:
    JAMES v. SOUTHWESTERN INV. CO.
    No. 2168.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1939.

      Harold W. Allen, of Hamilton, for appellant.
    J. W. Spivey, and F. A. Craven,, both of Waco, for appellee.
   ALEXANDER, Justice.

This is an appeal from the .ruling of the trial court overruling plea of privilege. The appellee has filed a motion, accompanied by proper affidavits and certificates, showing that since the appeal of this case, final judgment has been entered in favor of plaintiff in the main cause and the time for appeal has expired without any appeal having been taken therefrom, and that the parties, by mutual agreement, have settled the controversy. The appellee has moved to dismiss the appeal on the ground that the question involved has become moot. While counsel for appellant has made a qualified denial of some of the representations contained in the motion, he has not denied the essentials thereof. We assume therefore that since this appeal, final judgment has been entered in the main cause and the parties have settled the controversy. It would serve no useful purpose for us to- now reverse the judgment appealed from. The question involved has become moot. 3 Tex.Jur. 72. The appeal is therefore dismissed at appellant’s cost.


author: FUNDERBURK, Justice.

text:
    STEPHENS et al. v. COFFEE, Co. Atty., et al.
    No. 1939.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 13, 1939.
    Rehearing Denied Nov. 10, 1939.

      T. L. Dyer, of Austin, and E. H. Foster, of Amarillo, for appellants.
    Harrell & Bowers, of Breckenridge, for appellees.
   FUNDERBURK, Justice.

The action here appealed is a statutory election contest. The election was held April 9, 1938, in the Ibex Independent School District in Shackelford County, as a part of the proceedings to determine whether that district should be consolidated with Albany Independent School District, also in Shackelford County.

The result of the election, as declared, was a tie in said Ibex Independent School District, and the appellants herein instituted a contest of the election whereby they endeavored to show that there were illegal votes cast which if excluded would result in a majority vote favorable to consolidation. The contésteos filed a plea denominated a “plea to the jurisdiction of the court” to try the contest. The trial court, upon hearing, sustained the plea to the jurisdiction and dismissed the action. The appeal is prosecuted from the judgment of dismissal.

Upon request the trial judge filed conclusions of fact and law designed to show the basis upon which the plea to the jurisdiction was sustained. According to the conclusions of fact the Ibex Independent School District was originally created by special act of the Legislature, effective October 13, 1926, comprising 6075.7 acres located wholly within Shackelford County. On March 23, 1927, the Board of Trustees of Ibex Independent School District in response to a petition of W. J. Boyett, and others, purported to annex contiguous territory in Stephens County, aggregating 9385. 1 acres of land. After said March 23, 1927, the Ibex Independent School District has remained “a county line school district” with 9385.1 acres in Stephens County, and 6075.7 acres in Shackelford County, embracing within its boundaries the same land in Stephens and Shackelford Counties, Texas, which formerly comprised the Center Hill Common County Line School District No. 2, prior to the passage of the Act creating the .Ibex Independent School District.

Administrative control of said Ibex Independent School District was assumed by Shackelford County by its duly elected, qualified and acting authorities since long before the election in contest. There was but one school house in the district and that was located in Shackelford County. On the same date as the election in contest, a similar election was held in Albany Independent School District, the result of which was duly declared to have been in favor of consolidation. The petition for the election in contest was presented by petitioners residing in Ibex Independent School District to the County Judge of Shackelford County who ordered said election without the joinder or consent of the Commissioners’ Court of Stephens County, or of the County Board of School Trustees of Stephens County; no consent in any manner being asked or obtained by the County Judge or other authority of Shackelford County, or by the persons petitioning for election, from the Commissioners’ Court of Stephens County, or from the County Board of School Trustees of said County, to the holding of said election, or to the administration of Stephens County lands proposed in the election and included in said Ibex Independent School District. The scholastic population of Ibex Independent School District at the time of election and for years preceding was less than 150, being, according to the 1937-1938 census, 46 scholastics. Based upon these findings, others being deemed immaterial, it was the conclusion of the trial judge, in substance, that consent of Stephens County authorities was by law made a condition upon which legislative authority was delegated to effect the proposed consolidation.

The action of the court in sustaining the plea to the jurisdiction and dismissing the proceeding was erroneous, we think, considered from any viewpoint. If it should be granted that the validity of the election was dependent upon the consent or upon some action of Stephens County school officials, it would by no means follow that the court was without jurisdiction to hear the election contest. In an election contest the determinative issue may involve a question of whether the election is void or valid. If the court is given jurisdiction to declare an election void or valid, certainly a plea to the jurisdiction grounded alone upon the contention that the election is void would present no jurisdictional question.

If the contestants should prevail in the action the effect of the court’s judgment would be to establish the validity of the election and that its result was in favor of consolidation with the Albany Independent School District; assuming, of course, that there was no successful contest of the election in the Albany district. If the election in the Ibex Independent School District was for any reason void the contestees could, perhaps, present that issue by way of defense. Should the contestants be able to show that illegal votes were counted, which, being excluded, a majority of the votes would be shown to have been for consolidation it may be that the effect would be obviated if the contestees were able to show that regardless of the number of votes for, or against, the proposition the election was void. We need not express a definite opinion upon this point.

We are of the opinion, however, that it was not shown that the election was void on the ground presented by the plea to the jurisdiction. The authority undoubtedly exists for the consolidation of two contiguous independent school districts. R.S. 1925, Art. 2806, Vernon’s Ann.Civ.St. art. 2806. Is such authority affected by the fact that one of the districts has territory lying in a different county? We think no good authority can be found to support that proposition. Shackelford County School authorities assumed, and had for a long time exercised, control and jurisdiction over the Ibex Independent School District, and that, if material, is as much as need appear. Jurisdiction in fact and right of administration, will be presumed.

Said Art. 2806 in authorizing consolidations of school districts expressly names “contiguous independent school districts.” A proviso in the article is “that when it is proposed to consolidate contiguous county line districts the petitions and election orders prescribed in this Act shall be addressed to and issued by the County Judge of the County having jurisdiction over the principal school of each district and the results of the election shall be canvassed by the Commissioners’ Court of the said county.” The proposed consolidation out of which this contest arises did not involve a proposition “to consolidate contiguous county line districts” as to which the law, as quoted above, provides that the “petitions and election orders * * * shall be addressed to and issued by the County Judge of the County having jurisdiction over the principal school of each district” etc. That proviso by its terms relates to the consolidation of county line districts with county line districts. But even if said proviso applied, it is nevertheless true that the County Judge who ordered the two elections involved in the proposed consolidation was “the County Judge of the county having jurisdiction over the principal school of each district”; since the Ibex Independent School District had but one school, and that located in Shackel-ford County, the same as the principal school of the other district. The Commissioners’ Court which declared the result of the elections so ordered and held was the Commissioners’ Court of the same county.

Revised Statutes 1925, Art. 2744, and the provision therein reading: “Such district shall not be changed or abolished except by the consent of the commissioners court of each county having territory contained therein” does not affect the question. For one reason, that statute by its terms applies only to “common county line school districts.” No such district is here involved. Another reason is that said provision of Art. 2744 was enacted in 1911, while even as late as the 1925 Revision of the statutes, Art. 2806 did not include authority, as it was subsequently amended to do, for the consolidation of two independent school districts. Such subsequent amendment must be given effect even if to do so requires us to hold that it repealed said provision of Art. 2744, as applied to the situation here presented.

Our conclusions require that the judgment of the court below dismissing the election contest on the ground of a want of jurisdiction should be reversed and said action directed to be reinstated for trial in due course, and it is accordingly so ordered.


author: SMITH, Chief Justice.

text:
    BAXTER et al. v. CROW et al.
    No. 10431.
    Court of Civil Appeals of Texas. San Antonio.
    May 24, 1939.
    On Rehearing Aug. 9, 1939.
    Rehearing Denied Nov. 22, 1939.
    E. B. Ward, of Corpus Christi, for appellants.
    Seale & Wood, of Corpus Christi, for appellees.
   SMITH, Chief Justice.

This action was brought in the District Court by Lula G. Crow and her six adult sons to set aside the sale and conveyance of certain real properties situated in San Patricio County, alleged to belong to them. The suit was brought by the Crows as sole heirs of G. D. Crow, who died intestate shortly prior to the institution of the suit. They alleged in their petition that there existed various and sundry debts against the estate of the intestate, and an urgent necessity for administration upon the estate, although, it was further alleged in the petition, no administration had yet been begun. Subsequently; the Crows, as plaintiffs, filed a supplemental petition, in which they reiterated the allegations of a necessity for administration upon said estate, and then proceeded to allege, further, that since the filing of their petition one of their number, E. F. Crow, had in fact been duly and regularly appointed, and had properly qualified, as administrator of said estate, and was now acting as such under the orders of the probate court of the county. Said administrator filed and presented his motion for leave to intervene in the suit, but such leave was denied. The result was, and is, that this suit, to recover property alleged to belong to the estate, was instituted and prosecuted to judgment below solely by the heirs at law of the intestate, in the face of their own allegations not only of necessity for administration, but of existing active administration, upon the estate.

The rule is now well established in this State that heirs cannot, within the administration period, institute and maintain a suit to recover property belonging to an estate and descending to them, without alleging and proving that there is no administration upon the estate, and no necessity therefor. A petition in such case is subject to general demurrer if it does not contain such allegations; and, especially is it subject to such demurrer where it affirmatively shows a pending administration upon necessity, as in this case. O’Neil v. Norton, Tex.Com.App., 29 S.W.2d 1060; Richardson v. Vaughn, 86 Tex. 93, 23 S.W. 640; Northcraft v. Oliver, 74 Tex. 162, 11 S.W. 1121; Youngs v. Youngs, Tex.Civ.App., 16 S.W.2d 426; Id., Tex.Com.App., 26 S.W.2d 191; Bluitt v. Pearson, 117 Tex. 467, 7 S.W.2d 524; Maxwell’s Heirs v. Bolding, Tex.Civ.App., 11 S.W.2d 814. There are certain exceptions which serve to take cases from under the rule, but no such exceptions are present in this case.

The error is fundamental. The judgment is reversed and the cause dismissed from this Court and the court below.

On Motion for Rehearing.

This action was brought by Lula G. Crow, surviving widow of G. D. Crow, deceased, and her children, to set aside a sale made by a trustee under power of deed of trust, of a parcel of approximately 2½ acres of land situated at the edge of the town of Taft, in San Patricio County, and Lot 12, Block 16, and Lots 4 and 5, Block 21, situated in the business section of said town. The sale was made in foreclosure of a deed of trust lien.to secure payment of a note given by the decedent, G. D. Crow, to secure the payment of the purchase price of said 2%-acre tract. It is conceded, in effect, in the absence of efficient attack thereon, that that tract constituted the family homestead of the Crows, and it is claimed by the Crows, but denied by appellants, that the three lots constituted the business homestead of the decedent at the time the note sued on, a renewal note, was executed. The jury found that Lot 12 was such business homestead, and 'as appellants did not move to set aside that finding by direct attack, it is conclusive of the issue. It appears that Lot 12 is on one side of a street, and Lots 4 and 5 are directly opposite, on the other side of the same street. Appellees claimed that the business homestead extended across the street to embrace all three lots, but the trial judge held that the intervention of the street, separating the properties, defeated that claim as a matter of. law, and therefore refused to permit the jury to consider those two lots along with Lot 12 in determining the issue of business homestead. Appellees assail this ruling in a cross assignment of error presented here.

Out of this statement arises two primary questions:

First: Can an existing valid lien upon the family homestead be extended by contract to include the existing business homestead as additional security for Jhe debt against the family homestead only?

Second: Can the business homestead on Lot 12 be spread across the intervening street to include Lots 4 and 5, as a part of that homestead, notwithstanding the intervention of a street between Lot 12 on one side and Lots 4 and 5 on the other?

The first question seems to have been settled in this State by a recent decision. Hayes v. First Trust Joint Stock Land Bank, Tex.Civ.App., 111 S.W.2d 1172. In that case the Fort Worth Court of Civil Appeals held, in effect, that an existing lien upon a part of the homestead may not be spread over another part not charged with the debt secured. In this case the debt was against only the 2½ acre tract, constituting the family homestead; it was not, in whole or in part, against any part of the business homestead. No subsequent lien could be put on the latter except for purchase money or improvements, as provided by our State Constitution. See authorities cited in Hayes v. First Trust Joint Stock Land Bank, supra.

With reference to the second question we are of the opinion, as a matter of first impression in the absence of analogous authority, that if the record had shown that appellees’ ancestor used and occupied Lots 4 and 5 “as a place to exercise his calling or business” at the time the same was encumbered to secure his debt to appellants, the exemption upon his business homestead on Lot 12 would be extended to include Lots 4 and 5, notwithstanding they were separated from Lot 12 by a public street. This should be so because the intervening easement is put there, not voluntarily by the homestead claimant, but through the exercise of the right of eminent domain by public authority.

But this holding is not deemed to be controlling here, for in our opinion from a study of the record Lots 4 and 5 were not used or occupied by the claimant “as1, a place to exercise his calling or business,” which was a blacksmith shop located on Lot 12, within the contemplation of the constitutional exemption. McDonald v. Campbell, 57 Tex. 614; Rock Island Plow Co. v. Alten, 102 Tex. 366, 116 S.W. 1144. The trial court therefore properly withheld from the jury the issue of whether Lots 4 and 5 constituted a part of the business, homestead. This question was raised in appellees’ cross assignment of error, which we overrule.

The trial court adjudged that the sale of the properties involved was void, and cancelled and set aside that sale, but ordered the lien asserted by appellants foreclosed on all the properties other than Lot 12, under an alternative pleading therefor by appellants. Appellants complain of that adjudication in forty-seven primary and subsidiary assignments of error grouped under nine propositions, which we have carefully considered notwithstanding their general and multifarious nature, rendering it difficult to identify the points sought to be raised. We need not indulge in a detailed discussion of those points, for we think the disposition of the questions already discussed control the appeal. The findings of the jury, if sustained by the evidence, support the judgment rendered, and we are of the opinion that appellants have not efficiently raised the question of the sufficiency of that evidence, to warrant this court in disturbing those findings.

In an earlier order we had dismissed this cause, but conclude on consideration of ap-pellees’ motion for rehearing, which appellants have not contested, to set aside that order and consider the case on its merits as best we can under the presentation of the case here, without prejudice to the continuing right to further consider the question of jurisdiction.

The judgment is affirmed.


author: BAUGH, Justice.

text:
    SEYDLER et al. v. KEUPER et al.
    No. 8820.
    Court of Civil Appeals of Texas. Austin.
    Oct. 27, 1939.
    Rehearing Denied Nov. 22, 1939.
    J. W. Ragsdale, of Victoria, for plaintiff in error.
    Schwartz & Schwartz, of Hallettsville, Fred Blundell, of Lockhart, and H. R. Clark, of Schulenburg, for defendants in error.
   BAUGH, Justice.

This is the second appeal of this case. Our opinion on the former appeal is reported in Tex.Civ.App., 92 S.W.2d 278. The only issue here involved is whether on the former appeal we reversed and remanded the case to the trial court with instructions to that court to render judgment ; or reversed and remanded the cause generally for a new trial.

The issue presented on this appeal arose in the following manner: After the mandate of this court was sent to the trial court, the plaintiffs filed an amended petition alleging substantially the same grounds as those alleged in their petition on the former hearing, except that they sought judgment only on the notes past due. The defendants thereupon filed general and special demurrers, general denial, and a plea of payment by Rudolph H. Seydler, during his lifetime, to Paul Stuercke, during his lifetime, of all of said notes. Such plea of payment was not made in' the first trial. The plaintiffs thereupon moved to strike such answer on the ground that the judgment and mandate of this court instructed the trial court to render judgment for plaintiffs against the defendants, and that the reversal was merely for the trial court to determine the amount of the judgment and carry out such instructions. In reply to this motion to strike, by sworn answer thereto, Mrs. Seydler set out the instruments relied upon to show payment of said notes; alleged that she did not know of their existence, nor that the notes had been paid when the case was tried before, because of the death of both her husband and of Stuercke, the payee in said notes; that she afterwards learned for the first time that said notes had been paid.

The plaintiffs’ motion to strike the plea of payment was by the trial court sustained and judgment rendered for plaintiffs as prayed for; hence this appeal.

The portion of opinion on the former appeal relied upon by the defendants in error herein as constituting instructions to the trial court to render judgment for the plaintiffs below reads as follows [92 S.W.2d 280]: “The plaintiff was entitled to judgment, therefore, only for the principal of such notes as were past due, for all interest past due, for attorney’s fees on such accrued indebtedness, and for foreclosure of the vendor’s lien to that extent only. This error requires a reversal of the case. As to the proper judgment to be rendered upon another trial, and without prolonging this opinion by setting out a rule of guidance for the trial court, attention is directed to Warren v. Harrold, 92 Tex. 417, 49 S.W. 364, wherein the Supreme Court, speaking through Judge Gaines, disposes of the exact question here raised, and charts the course for the proper-guidance of the trial court in the rendition of a proper judgment.”

This holding, however, was followed immediately by the following order: “For the reasons stated, the judgment of the trial court is reversed and the cause remanded for another trial.”

The statement that “the plaintiff was entitled to judgment, therefore, only for the principal of such notes as were past due,” etc., should not be construed as a rendition of, nor instruction to the trial court to render, judgment for the plaintiff for the amount of such notes. It clearly meant that under the record then presented that was the most that plaintiff would have been entitled to recover in any event, under the evidence presented upon that trial.

Nor can the statement in our opinion calling attention to the rule laid down in Warren v. Harrold, 92 Tex. 417, 49 S.W. 364, be construed as directing the trial court to render judgment in favor of plaintiff against the defendant. In its former judgment, involved in the former appeal, the trial court rendered judgment for the principal of all of said notes, though five of them were-not yet due, rebating only future unearned interest. This was complained of and held by us on the former appeal to be error requiring a reversal of the case. Since it was manifest that some of these five notes would necessarily have matured before another trial, though perhaps not all of them, attention of the trial court was called to the Warren case for guidance in rendering a proper judgment, in the event that, upon another trial, the plaintiffs should show themselves entitled to recover in such new trial of the case. Nowhere did we instruct the trial 'court to enter any specific judgment in favor of the plaintiffs against the defendants. On the other hand, our order was that “the judgment of the trial court be reversed and the cause remanded for another trial.” This was but a reversal and a remand generally-

The plaintiffs thereupon filed new pleadings asserting their cause of action. Consequently the defendant was entitled to assert any defenses she may have had against the cause of action alleged. 3 Tex. Jur., § 807, p. 1147; § 921, p. 1313; § 924, p. 1316.

It is well settled that where an appellate court reverses and remands a cause with specific instructions to the trial court as to the character of judgment to be rendered, and the parties against whom it should be rendered, the trial court is limited upon such trial to a compliance with such instructions, and cannot relitigate issues controverted upon the former trial. Wells v. Littlefield, 62 Tex. 28; Harris v. Hamilton, Tex.Civ.App., 234 S.W. 684, 685; and numerous cases therein cited; Wier v. Yates, Tex.Civ.App., 256 S.W. 636. But this rule does not apply where a case is reversed and remanded generally. In such case the parties may replead, and issues which have not been precluded on the appeal as the law of the case, may be retried as though no former trial had been had.

The trial court misconstrued our former opinion and order of reversal as instructing a verdict for the plaintiffs, and consequently erred in striking the defendants’ plea of payment. The judgment of the trial court is therefore set aside, and the cause is reversed and remanded.

Reversed and remanded.