text:
    COMMERCIAL CASUALTY INS. CO. v. GOODE.
    No. 10926.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 4, 1940.
    Rehearing Denied Jan. 25, 1940.
    Wood, Morrow, Gresham & McCorquo-dale, of Houston, for appellant.
    Lockhart, Hughes & Lockhart and H. C. Hughes, all of Galveston, for appellee.
   GRAVES, Justice.

Under the disposition determined upon for this appeal, no written opinion is required of this court; in deference, however, to counsel for both sides, who have so painstakingly briefed and argued it, this very general statement of the main grounds upon which an affirmance of the trial court’s judgment will be ordered is made:

The appeal is from an $810 judgment in Mrs. Goode’s favor against the Insurance Company rendered by the county court of Galveston County, sitting without a jury, as for the aggregate found to be due her as the beneficiary thereunder (inclusive of statutory penalties and attorney’s fees) upon two accident insurance policies on the life of her deceased husband for $250 each. Section C of both policies contained this provision:

“Against loss of life, $250.00 * * *
“At the hands of any burglar, highwayman, or robber when robbing the insured by force. * * *
“This is a limited policy and provides indemnity for loss of life, limb, limbs, sight, or time by accidental means, only to the extent herein limited and provided.”

From evidence presented by the appellee alone, appellant having offered none, the Court found on the facts that the husband had so lost his life, thereby maturing in the wife’s favor the legal obligation entailed by that part of the contracts.

The trial court supported its decree by findings of both fact and law, a resume of which — thought to be sufficient for the purpose — is this:

“Findings of. Fact.
* * *
“2. I find that on or about the 12th day of June, 1938, Ernest Earl Goode accidentally lost his life through pistol shots at the hands of Pete Calandra, Roland Tyler, and - Sutton, while the above named parties were robbing the aforesaid Ernest Earl Goode by force; that said robbery was accomplished with a pistol, and was for the purpose of robbing the said Ernest Earl Goode of the keys which he carried, of which he was the lawful bailee.
“3. I find that the aforesaid Pete Cal-andra, Roland Tyler, and - Sutton, took said keys for all * * * purposes for which they might have use for them in opening said jail and escaping therefrom,, * * * and at the time of such taking, they had no intention, bona fide or otherwise, of returning them.
“4. I further find that after the jail doors had been opened through the use of the keys so unlawfully and feloniously taken, that one of the prisoners who robbed Goode of said keys, dropped same close to. the outer door of said jail, * * * after they had violently assaulted another jailer, Lindgren.
“5. I further find that the intention to-rob was complete at the moment that said keys were taken from the deceased, Ernest Earl Goode, and that said Ernest Earl Goode lost his life while being robbed by said Pete Calandra, Roland Tyler, and -Sutton. * * *
“Conclusions of Law.
“1. I conclude as a matter of law, based on my Findings of Fact, and from all the evidence, that Ernest Earl Goode was killed while being robbed of the keys of the county jail of Galveston County, Texas, which he held as lawful bailee, and that the felonious and unlawful intention to rob was in the minds of Pete Calandra, Roland Tyler, and ■- Sutton at the time of taking said keys, and that there is nothing in the testimony which would remove such conclusion.”

Through a number of propositions appellant contends that judgment should have been rendered in its favor below upon these two grounds: ■

“(1) Even assuming, * * * that Tyler, Sutton and Calandra, acting together, killed the deceased, Goode, with the intention of taking from him his keys, reasonable minds cannot differ in the conclusion that they did not take them with the intention of permanently appropriating them to their own use and benefit and depriving the owner of the value of them, and, consequently, their act in taking them did not constitute robbery within the meaning of the provisions of the policies.
“(2) In the alternative, plaintiff failed to discharge the burden placed upon her to prove that the insured was killed at the hands of a robber, while the latter was robbing him by force.”

As will be noted, both its grounds rest alone upon its contention that there was no evidence supporting the quoted fact-findings upon which the decree adverse to it was rendered — not that any one of them was so against the great weight and preponderance of the evidence as to render it clearly wrong.

Further, its main dependence for authority is put upon the holding of this court in Home Insurance Company v. Brewton, 46 S.W.2d 359, and that of the Court of Criminal Appeals in Smith v. State, 66 Tex.Cr.R. 246, 146 S.W. 547; the rationale of those two decisions being, in its own language, “that reasonable minds could not differ in the conclusion that there was no intention to permanently appropriate the property involved and that consequently, as a matter of law, no theft was committed,” which it insists must also be the finding in this instance.

This court cannot see eye to eye with appellant in its very ably stated position; upon the contrary, it concludes the learned trial court was correct, that its findings, in so far as necessary to support the judgment rendered, did have sufficient support in the testimony, and that its conclusions of law based thereon are not erroneous.

While the direct proof was somewhat scanty, it is thought the very definitely established circumstantial chain enabled the court — by legitimate inference from what was shown — to properly find the corpus delicti of robbery within the meaning of Penal Code, Article 1408 to have been established; in other words, that the gist of that offence, so insured against by the policies in suit — that is, the intent at the very moment of the taking with which the keys of the dead jail-guard were appropriated by others from his possession — was a question of fact, and that this court is unable to say there was no evidence supporting the quoted findings thereon; indeed, that is concededly the applicable rule — if it fits this cause, as it is thought to do — as reflected in such holdings as these: Hartman v. State, 85 Tex.Cr.R. 582, 213 S.W. 936 at pages 938, 939; Barton v. State, 88 Tex.Cr.R. 368, 227 S.W. 317, 13 A.L.R. 147; Escobedo v. State, 88 Tex.Cr.R. 277, 225 S.W. 377; Schultz v. State, 30 Tex.App. 94, 16 S.W. 756; Wilson v. State, 18 Tex.App. 270, 274, 51 Am.Rep. 309; Harris v. State, 29 Tex.App. 101, 14 S.W. 390, 25 Am.St. Rep. 717; Galloway v. State, 126 Tex.Cr.R. 294, 71 S.W.2d 871; Cupit v. State, 130 Tex.Cr.R. 40, 92 S.W.2d 244; 16 C.J., 76.

It is thought the Brewton and Smith cases, upon which appellant so strongly relies, may be distinguished from this one, in that in both instances the courts determined the evidence to clearly show there was no purpose to permanently appropriate the things taken by those accused to their own use and benefit; whereas, in this instance it indisputably appears that these three named persons, if they took those keys at all, must reasonably have intended to completely appropriate them to the only permanent or individual use they reasonably could have had in mind at the moment —that is, to unlock that jail with.

Our courts of exclusive criminal jurisdiction have so authoritatively classified the differences'which this court thinks exist between the cause at bar and the two so relied upon by appellant, that it is only deemed necessary to cite them, those most directly apropos being Harris v. State, 29 Tex.App. 101, 14 S.W. 390, 25 Am.St.Rep. 717, and Wilson v. State, 18 Tex.App. 270, 274, 51 Am.Rep. 309; indeed, the Wilson case, in which a brace was taken from a nearby blacksmith-shop for the purpose of opening and robbing a store, and then abandoned in the near vicinity, is thought to present a closely analogous situation; there the court, after overruling the State’s insistence that the trial court’s failure to instruct the jury on the question of intent had been harmless, reiterated that it had been a matter of fact that should have been submitted on a proper inquiry; whereas, as already indicated, in both the stated causes upon which appellant grounds its defense, automobiles had been taken and returned prior to the arrest, under affirmative showings that the takers thereof had not intended to permanently appropriate them at all, but at the very moment of the taking had in mind only a transitory use thereof — hence, that there was a positive showing on the facts that the felonious intent required by the penal law was not present.

Here, on the other hand, there was nothing at all to the contrary of the facts and circumstances, together with the legitimate inferences therefrom, that were so set out in the trial court’s findings; those very circumstances themselves speak louder than words to the well-nigh inevitable effect that the taking of these jail-keys from the dead body of the appellee’s insured had been accompanied with the intent at that very moment to appropriate them to the uses of the takers — that is, as a means of escape from that jail; wherefore, under our penal ■ statute, and contrary to what would have been the rule at common law, the controlling principle is thus stated by the Court of Criminal Appeals in the Harris case, supra [29 Tex.App. 101, 14 S.W. 391, 25 Am.St.Rep. 717]: “ ‘The. doctrine is that any removal, however slight, of the entire article, which is not attached either to the soil or to any other thing not removed, is sufficient, while nothing short of this will do. Therefore, if the thief has the absolute control of the thing but for an instant, the larceny is complete.’ 2 Bish. Crim.Law, (7th Ed.) §§ 794, 795. * * * With us the essential element of theft is the fraudulent taking (P.en.Code, Art. 724), and it is expressly provided that ‘to constitute “taking” it is not necessary that the property be removed any distance from the place of taking. It is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof, — if but a moment elapse, the offense is complete.’ ”

Further discussion is deemed unnecessary, interesting as the subject is, since no extended opinion is herein undertaken.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    MASSACHUSETTS BONDING & INS. CO. v. PITTSBURG PIPE & SUPPLY CO. et al.
    No. 3883.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1939.
    Rehearing Denied Jan. 11, 1940.

      Chrestman, Brundige, Fountain, Elliott & Bateman, of Dallas, for appellant.
    H. P. Smead and Earl Roberts, both of Longview, for appellees.
   PRICE, Chief Justice.

Massachusetts Bonding & Insurance Company, hereinafter referred to as plaintiff, instituted this action in the District Court of Gregg County, Texas, against Pittsburg Pipe &' Supply Company, hereinafter called Supply Company, I. G. Futoransky, hereinafter called Futoransky, and Charles E. Wair. Plaintiff sued as the assignee of the First National Bank of Longview, Texas. It sought recovery of the sum of $2,020, alleging this amount was the amount paid by its assignor on two forged checks drawn against the account of Vivian Church and paid therefrom by its said assignor, and on ascertainment of the forgery credited back to the account of Miss Church. The forgery of the checks was alleged to have been committed by Wair; that in the case of the $2,000 check Wair forged the name of Vivian Church, leaving the name of the payee blank; that the defendant Supply Company, acting through its duly authorized agent, Futo-ransky, filled in the blank left' for the payee with the word “cash,” presented same to the assignor, and upon defendant Futoransky endorsing same, received cash therefor. It charged that Futoransky and the Supply Company owed a duty to the assignor bank • before presenting such checks for payment of inquiring of the purported drawer thereof as to what authority had been given to fill in the name of the payee; that had such inquiry been pursued with reasonable diligence it would have been discovered that the checks were forged; that by reason of the negligence of said Futoransky and the Supply Company. plaintiff’s assignor suffered a loss of $2,020; that the said Futoransky and the Supply Company were guilty of negligence in not inquiring how Wair came into possession of the checks, or either of them, or as to what authority he might have to fill in the blanks therein or negotiate same. Relief was also sought on the grounds of mutual mistake and on doctrine of unjust enrichment.

Futoransky answered by general denial and plea of negligence on the part of the assignor bank in cashing the check, and that he was a bona fide purchaser of the checks in good faith. ’

Defendant Supply Company answered by general denial, set up negligence on the part of the assignor bank; further, if Futoransky accepted, signed or altered the checks he did so on his own responsibility and not as its agent; further, that it was a bona fide purchaser for value of the said checks.

Wair did not answer and judgment by default was rendered against him. This part of the judgment has not been appealed from.

The trial was before the court and resulted in a judgment against the plaintiff as to the two answering defendants. Plaintiff duly perfected appeal and the case is here for review.

It is here without findings of fact or conclusions of law by the trial court, as none were requested. Under the law it is implied that all essential facts were found by the court in such a manner as to support the judgment. In other words, we are not warranted in disturbing same if under any theory there is evidence in support thereof.

There is little dispute as to, the facts. Prior to the cashing of the $2,000 check by ■the Bank, Wair had been negotiating with Futoransky, who was an agent and employee of the defendant Supply Company, for the purchase of machinery and supplies for drilling an oil well. It was finally agreed between Wair and Futoransky, acting on behalf of his principal in the scope of his authority, that upon Wair paying $1,500 in cash, the Supply Company would sell and furnish him at a price of $4,500 the material and machinery desired, the balance to be paid in the manner and to the extent in the contract agreed. There was a delay of several days, but thereafter Wair appeared at the office of Futoransky with the $2,000 check in question. This check purported to be drawn on plaintiff’s assignor by Vivian Church. Wair delivered this check to Futoransky. After the contracts were drawn up and completed Futoransky, accompanied by Wair and another, went to the bank, endorsed the check, received therefor $500 in cash which he delivered to Wair. Fifteen hundred dollars he received in the form of a cashier’s check payable to Supply Company. After receipt of the money and the check Futoransky delivered to Wair the contract in question and immediately thereafter the machinery and supplies mentioned in the contract were delivered by the Supply Company to Wair. Before paying the check the teller of the assignor Bank did not examine the signature card of Vivian Church to see how it compared with the signature on the check. The forgery of the signature was a rather skilful one.

The fact as to which there is a question as to its establishment is as to when and by whom the word “cash” was written in the $2,000 check. Plaintiff assumes that the evidence establishes to the extent that minds of reasonable men cannot differ as thereto that it was written by Futoransky after the check was delivered to him by Wair and before same was presented to the Bank. Defendants assert that it was an issuable fact as to when or by whom the blank was filled; that the evidence was sufficient to justify a finding by the court that the word had been written in before the check was delivered to Futo-ransky and without his knowledge. Further, that this Court should attribute such a finding to the trial court if it is necessary to support the judgment rendered.

The only solution of this controversy is to examine the evidence as shown by the record. Futoransky testified by deposition and in person at the trial. In substance he said he did not remember whether the space was blank at the time he received the check; he did not remember for sure whether he filled in the blank — he might have done so; he would not say under oath that he did not do it; that he did not know in whose handwriting the word “cash” was; he did not know whether it was his or not — it could be his handwriting — he would not say it was not. In regard to the $20 check he said he remembered writing in the word “cash.” Witness examined the $20 and the $2,000 check and said the word “cash” as it appeared in each check looked, as to handwriting, a good deal alike.

Witness Robbins said he saw Wair deliver to Futoransky the $2,000 check in question on the same afternoon it was cashed; did not see the face of the check; did not see Futoransky do anything but endorse the check.

Witness Lawrence Skipper, an agent for the plaintiff, said Mr. Lof.tis, President of the Bank, called him up about the forgery when same was discovered, and that that same day an investigation was made about the forgery. In the course of the investigation he was present at a conversation with Mr. Futoransky, Mr. Loftis, Mr. Taylor and Mr. Davis; that Futoransky said the $2,000 check was blank as to the payee when delivered; he further said he (Futoransky) had written the word “cash” in the $2,000 check. Mr. Loftis, the President of the Bank, testified as to this conversation. He said according to his best recollection he called Futoransky’s attention to a difference in the letter “C” as it appeared in the name Church signed to the $2,000 check and the letter “c” in the word “cash” therein; that as he remembered, Futoransky said he wrote the word “cash” in the $2,000 check. Witness Walter W. Davis, employed as an adjuster in this matter for plaintiff, said that he was present at the said conversation. Witness said Futoransky stated he wrote thq.word “cash” in the $2,000 check. Futoransky, called to the stand as a witness for defendant, did not deny the statement as to his declarations testified to by these three witnesses. He was not interrogated with reference thereto by his attorney. It was as to a matter in his knowledge unless, perchance, he again did not remember.

We believe that as to the defendant Futoransky, under the testimony as above narrated, the minds of reasonable men cannot differ as to the fact that he did write the word “cash” in the $2,000 check before the presentation thereof for payment. It is possible that shortly after the discovery of the forgery he might have said he did write the word in the check when he had not done so. This is possible, but hardly reasonably probable. It is likewise possible that the testimony of the three witnesses that he said he did so is incorrect. If it be incorrect, he did not challenge their statements that he did make this statement.

The $2,000 check is an ordinary bank check, dated December 7, 1937. To the left of the space for filling in the name of the payee are the words “Pay to the order of.” In this space the check as introduced in evidence had the word “cash.” The check was in the sum of $2,000, and purported to be signed by Vivian Church.

Plaintiff, in the very beginning of his argument, makes this statement: “To save time and avoid unnecessary argument, appellant admits that the general rule, under the decisions in this State, is that a bank is presumed to know the signatures of its depositors, and, if a forged check is accepted and paid, the bank, as a general rule, will not be heard to assert a mistake as to the signature. However, there is a clearly defined and well established exception to that general rule, which is that if the party receiving the money on the forged check has in any way contributed to the success of the fraud or to the mistake of fact under which the payment is made, or if the loss can be traced to the fault or negligence of the party receiving the money, then the loss should fall upon him, rather than upon the bank which paid out the money on the forged check in good faith and without actual negligence on its part.”

Plaintiff cites in support of this argument the case of Rouvant v. San Antonio National Bank, 63 Tex. 610. In our opinion the case supports plaintiff’s general proposition with the exceptions thereto. The case cites and recognizes the doctrine laid down in Price v. Neal, 3 Burr. 1354. In Rouvant v. San Antonio National Bank, supra, the payee of the check knew that another than the purported drawer signed the name of the purported drawer to the check. In view of these circumstances it was held that the payee was liable to the drawee for the amount paid out on the forged signature of the depositor. The Rouvant case has been frequently recognized as establishing the rule and the exceptions thereto. First Nat. Bank of Winnsboro v. First Nat. Bank of Quitman, Tex.Com.App., 299 S.W. 856; First Nat. Bank v. First Nat. Bank, Tex.Civ..App., 37 S.W.2d 802, writ refused; Citizens’ Nat. Bank v. San Angelo Nat. Bank, Tex.Civ.App., 19 S.W.2d 388; 12 A.L.R. 1114; 71 A.L.R. 343.

Now the gravamen of plaintiff’s complaint is that Futoransky wrote the word “cash” in the blank space in the check, then endorsed same and received the cash .therefor. It is asserted that before doing so it was his duty to have sought out the drawer and ascertained if she had given Wair this authority. If this contention is correct, such an investigation would have most certainly led to the discovery of the forgery.

Section 14 of Article 5932, R.S. 1925, is called to our attention. This section provides for the filling in of blanks in instruments. We believe it has-no direct application here. First, because it is not sought to enforce the check as such against any party thereto before or after completion; second, this check, on the theory of both parties, was never delivered by the purported drawer either before or after it was prima facie completed. It was a forgery.' The action of the parties could not and did not give legal vitality thereto as such. See sec. 23 of Article 5932, R.S. 1925. There is no question of ratification or estoppel in the case. Futoransky did not endorse same for the purpose of negotiation. The Bank, by virtue of paying out its depositor’s money thereon acquired no interest therein as a negotiable instrument. First Nat. Bank v. Talley, 115 Tex. 591, 285 S.W. 612.

The cases,' however, use the expression “holder in due course.” We have presumed that that refers to one who purchased, the instrument in good faith, paying value therefor. If the Supply Company and Futoransky sustained the relation of innocent purchasers to the forged check in question, the rule of Price v. Neal, supra, operates in their favor. However, the rule as to filling in blanks in instruments laid down by the Article referred to does have important bearing on the issue as to whether defendants were holders in due 'course or innocent holders within the rule of Price v. Neal and the qualifications thereof.

Eliminate the word “cash” from the check and it does not purport to be a complete negotiable instrument. There was no payee. See secs. 8 and 9 of Art. 5932, R.S. 1925; 10 C.J.S., Bills and Notes, p. 826, § 328b; Brannan’s Negotiable Instrument Law (Chafee), 4th Ed. p. 116, sec. 14; Geske v. State Bank, 273 Ill.App. 294; City Nat. Bank of Galveston v. American Express Co., Tex.Com.App., 16 S.W.2d 278.

One cannot be a holder in due course unless the instrument is complete and regular upon its face. Sec. 52, Art. 5935, R.S. 1925; Sec. 14, Art. 5932, R.S. 1925; 8 Am.Jur. p. 130, Sec. 396; Moore v. Vaughn, 167 Miss. 758, 150 So. 372; Columbia River Door Co. v. Timms, 127 Or. 227, 271 P. 607.

The above are also authorities for the proposition that one purchasing an incomplete instrument is put upon inquiry as to the authority of his transferrer to complete same.

With the check reading “Pay to the order of cash,” what did it purport to be? It was not payable to order as specified in Sec. 8 of Art. 5932. If it purported to be a negotiable instrument it must be such under subsection 4 of sec. 9 of Art. '5932. “Sec. 9. The instrument is payable to bearer; * * * 4. When the name of the payee does not purport to be the name of any person.” The check so written then purports to be payable to bearer.

When Futoransky wrote in the word “cash” in making the check appear to be payable to bearer he was put upon inquiry as to the authority delegated from Vivian Church to do so. It is not asserted that he made any such inquiry. The primary source of 'investigation would,, of course, have been Vivian Church, but nothing was done in that line. The conclusion is inevitable that Futoransky was guilty of negligence as to the drawee. This negligence was a positive act of negligence. It consisted in altering the instrument so as to make it purport to show that it authorized and required the Bank to pay to him the amount called for by the check. By his own voluntary act he made the instrument a purported completed negotiable instrument. Had he pursued the course of investigation suggested by the circumstance it would have almost certainly led to the discovery of the forgery or the .prevention of the consequences thereof to the Bank.

Let us consider briefly the status of defendant Futoransky with reference to this check upon the assumption that the word “cash” was written therein before same was delivered to him. Subsection 3 of Sec. 52 of Art. 5935 provides as to a holder in due course: “That he took it in good faith and for value.” Under the undisputed evidence up to the very moment this forged check was cashed, neither Futoransky, individually, nor on behalf of his principal, parted with anything. These defendants, from the inception of the transaction that gave rise to this controversy to this time, have taken the consistent position that they refused and did not do anything until the $1,500 in cash came into the hands of the Supply Company. Until this was done nothing was parted with. As to the balance of the check in the sum of $500, it cannot be disputed that at all times the real title was in Wair. His right was recognized by the delivery of $500 of the proceeds of the forged check to him by Futoransky. To this extent, although innocently, Futo-ransky acted as the agent of the forger. In 'truth and in fact we think that his relationship throughout was that of a collecting agent. In order to further the interest of his principal he personally extended aid to a customer in the matter of cashing the check. His action was taken in the presence of the customer. If he paid anything for the check it was out of the proceeds thereof. Until the contract of his principal was delivered, Wair was at all times the equitable owner of the check. Wair, to all intents and purposes, did pay him in money. Futoransky was merely the collecting agent. Lanier v. Nash, 121 U.S. 404, 7. S.Ct. 919, 30 L.Ed. 947. However, we think that a mere collecting agent'comes within the protection of the principle of Price v. Neal. With reference to collecting banks it has been so held. Citizens’ Nat. Bank of Odessa v. San Angelo Nat. Bank, Tex.Civ.App., 19 S.W.2d 388.

Under all the facts and circumstances surrounding the transaction, assuming that the word “cash” was written in the check at the time it was delivered to Futoransky, we can see absolutely no ground to hold him negligent in presenting for payment and receiving payment of same from the Bank.

Let us revert—though perhaps out of order—again, to the question of authority to fill in the blank. This was an uncompleted instrument, under the evidence, at the time Futoransky received same. In order to. bind Vivian Church thé payee must be specified strictly in accordance with the authority delegated from her. It is suggested that the instrument itself purports to give that authority. It occurs to us that this contention is not valid. If she desired it to be a “bearer” instrument, substitution of the word “bearer” for the word “order” in it would have made it such. Our construction of the instrument is that it would only give authority to fill in a personal, as distinguished from an impersonal, payee.

It is necessary to dispose of the $20 check. The principles heretofore announced herein are applicable to that check. There is no dispute that Futpransky wrote the word “cash” in that check. He knew and intended that the Bank should pay the check. It did pay the check. We hold Futoransky is liable to plaintiff in the amount of both checks. Under the undisputed facts the liability of the Supply Company as to the $20 check cannot be asserted. It did not receive the proceeds of same—it was not done in furtherance of its business.

Let us now consider as to the liability of the defendant Supply Company as to the $2,000 check. Futoransky was employed by the Supply Company to sell or rent oil well machinery and supplies. There is no evidence that it was contemplated that he should assist the customers of his employer in cashing checks. We think the transaction, that is, the filling in of the blank in the $2,000 check was out of the scope of his employment. Further, in so doing, he did not purport to act for his employer in the matter of the check transaction. In pur opinion the Company was not charged with notice of his acts with reference to the check.

But there aré other facts to be taken into consideration in determining the liability or non-liability of the Supply Company in this case. It received and retains $1,500 of the proceeds of the money wrongfully obtained from the Bank. However,, it seems beyond dispute that it has changed its position since the receipt of such sum. After the receipt of this money it furnished Wair the machinery and supplies covered by the contract. The evidence seems to indicate that this was done before it had any notice as to the wrongful acquisition of this money by Wair or Futoransky. If it is to be held, it must be held under the doctrine of ratification by retention of the $1,500.

Ordinarily, an act to be ratified must purport tp be done on account of the principal. Eardley Bros. v. Burt, Tex.Civ. App., 182 S.W. 721-.

If after the commission of an unlawful act by an agent from which the principal receives benefit, but before having notice thereof, the principal has so changed his position that it is inequitable to require him to return the proceeds, there is no ratification by the retention of the benefits. Arkansas Valley Bank v. Kelley, 176 Ark. 387, 3 S.W.2d 53, 58 A.L.R. 808; Guaranty Bank & Trust Co. v. Beaumont Cadillac Co., Tex.Civ.App., 218 S.W. 638; Case v. Hammond Packing Co., 105 Mo.App. 168, 79 S.W. 732.

We believe that the judgment of the trial court was correct as to the defendant Supply Company.

It is ordered that as to the defendant Pittsburg Pipe & Supply Company, the case be in all things affirmed; as to the defendant Futoransky, that the case be reversed and here rendered in favor of the plaintiff in the sum of $2,020.

135 S.W.gd 835


author: CRITZ, Justice.

text:
    FIDELITY & CASUALTY CO. OF NEW YORK v. McLAUGHLIN.
    No. 7313.
    Supreme Court of Texas.
    Jan. 31, 1940.
    Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for plaintiff'in error.
    Albert J. DeLange, of Houston, and Morris & Bennett, of Beaumont, for defendant in error.
   CRITZ, Justice.

This is a workman’s compensation case.It appears from the record that J. T." McLaughlin was injured in the course of his employment as an employee of Phoenix Engineering Corporation. The injury occurred on February 28, 1934, at New Iberia, in the State of Louisiana. The suit) is sought to be maintained in this State under the extraterritorial provisions of our Workmen’s Compensation Law. All preliminary steps necessary to invest the district court with jurisdiction were duly had. No good purpose would be served by detailing same here. Trial in the district court, where the case was tried with a jury, resulted in a judgment for McLaughlin, and against Fidelity & Casualty Company of New York, the employer’s Texas compensation insurance carrier. On appeal by the insurance carrier to the Court of Civil Appeals, the judgment of the district court was affirmed. 106 S.W.2d 815. The insurance carrier brings error.

We shall hereinafter refer to McLaughlin as plaintiff, and to Fidelity & Casualty Company of New York as Casualty Company.

By several assignments of error the Casualty Company contends that the judgments of the two lower courts should be reversed, and judgment here rendered for it, because the facts of this record show indisputably that, at the time of his injury, plaintiff did not occupy the status of a Texas employee of Phoenix Engineering Corporation, incidentally or temporarily sent to a foreign state, Louisiana, to perform labor. The statute involved in the above assignment is Section 19 of Article 8306, R.C.S.1925, as amended, Vernon’s Ann. Civ. St. art. 8306, § 19. Such statute is generally referred to as the extraterritorial part of our Workmen’s Compensation Statutes. So far as applicable here, such statute reads as follows:

“Sec. 19. (Sec. 1) If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas, except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the Association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either ⅜ ⅜ ⅜
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred.”

In the case of Texas Employers’ Insurance Association v. Volek, Tex.Com.App., 69 S.W.2d 33, 35, Section A of the Commission, speaking through this writer, construed the above statute, and held: “A careful reading of the above statute shows that it has effect to extend the provisions of our Workmen’s Compensation Law to any employee ‘who has been hired in this State,’ even ‘though injured out of the State of Texas,’ if such injury be received within one year from the date he leaves, the state. It will be noted that the statute only purports to cover ‘an employee who has been hired in this State.’ This clause certainly does not have reference to the place where the hiring was originally made. The primary purpose of our Compensation Law is to protect our own workmen. The purpose of the extraterritorial provision is. to protect, under our law, employees who •are such in this state under some contract of hiring, and who are incidentally or temporarily sent out of this state to perform labor or services.”

We will adhere to the construction of the above-quoted statute as announced in the Volek case, supra. Our compensation statutes were enacted primarily to protect Texas workmen and employees. The extraterritorial provisions thereof were enacted to protect Texas workmen or employees— that is, workmen or employees who occupy such status in Texas under some contract of,hiring, who are incidentally or temporarily sent out of this State by their employers to perform labor or services. Of course, under the plain terms of the statute, all extraterritorial protection thereunder ceases unless the employee is injured within one year from the date of his leaving the State.

This record shows that plaintiff was injured at New Iberia, in the State of Louisiana, while in the employment of Phoenix Engineering Company and working in its warehouse there located. Plaintiff contends that at the time of his injury he occupied the legal status of a Texas employee of the above-named employer, incidentally or temporarily sent to New Iberia, Louisiana, to perform labor or services for such employer. The Casualty Company, as above stated, contends that this record shows indisputably that at the time plaintiff was injured, he did not occupy such status. The district court determined this issue in favor of plaintiff. Such determination must stand, unless the evidence in this record shows the contrary as a matter of law. We shall now determine that question. In doing so we consider the evidence in its most favorable light for the plaintiff. This is because of the findings of the trial court in his favor.

Plaintiff was sworn as a witness in his own behalf, and on the question under consideration testified in substance as follows:

That he resided at the time of trial in Beaumont, Texas; that in the early part of February, 1934, he resided in New Iberia, Louisiana; that about the time just mentioned he went to Houston, Texas, to seek employment; that he went for such purpose to the Phoenix Engineering Corporation, in the Rusk Building, in Houston, Texas; that on such occasion he was given employment with the corporation just mentioned; that he was employed as a warehouseman, and that he started to work for such employer in Houston, Texas.

Plaintiff further testified that-when he arrived in Houston, Texas, he went to the office of the Phoenix Engineering Corporation and talked to Mr. Hamilton, its superintendent; that on such occasion he asked Mr. Hamilton for employment; that Hamilton sent plaintiff to the warehouse to see Mr. Sternberg; that plaintiff did go to such warehouse and did talk to Mr. Sternberg; that on such occasion Mr. Sternberg' gave plaintiff a job; that after he* was given such job, plaintiff worked about an hour and fifteen minutes at the warehouse in Houston, Texas; that this work took place on the day plaintiff was hired; that when Sternberg agreed to give plaintiff a job, it was agreed that his wages would be 5(⅝ an hour; that when plaintiff was hired in Houston no special hours were agreed on, except Sternberg said plaintiff would have to come to work early in the morning and stay late at night, until the crews came in, so as to take care of the equipment.

Without attempting to further detail the testimony regarding the matter under discussion, we will say that we think this record justifies the conclusion that, within a very short time after the above transaction had been had, plaintiff was sent by Phoenix Engineering Corporation to New Iberia, in Louisiana, to work in its warehouse there located. We think the record further shows that plaintiff was injured while working in such employment in Louisiana; that such injury occurred in the course of employment; and that plaintiff’s employment in Louisiana could be classed as temporary.

Under the above record, we think that the trial court was justified in finding, in effect, that plaintiff at the time of his injury was protected under the provisions of Section 19, Article 8306, of our Compensation Statutes, above quoted. In this connection, we are frank to say that there is testimony in this record, which we have not detailed, which might have justified a finding by the trial court that plaintiff at the time of his injury did not occupy the status of a Texas employee of the Phoenix Engineering Corporation; but since the evidence on that question is conflicting, we are without authority to disturb the findings of the trial court.

We now come to the most difficult question in this case, and the one on which this writ was granted. The question is whether the verdict regarding the question of incapacity is so conflicting that no judgment can be based thereon.

In response to certain questions propounded by the trial court, the jury found: (a) That plaintiff’s incapacity at the time of trial was total; (b) that such total incapacity was not permanent; (c) that plaintiff’s total incapacity had continued for 59 weeks prior to and up to the time of trial; and (d) that plaintiff’s total incapacity would continue in the future after the time of trial for 52 weeks.

In response to other questions propounded by the trial court, the jury found: (a) That plaintiff sustained partial incapacity prior to the time of the trial; (b) that plaintiff sustained partial incapacity to the extent of'75 per cent.; and (c) that such partial incapacity is permanent. ■

The record shows that the trial court entered judgment for the plaintiff only as for permanent incapacity to the extent of 75 per cent. No total incapacity was included in the judgment. ‘ The Casualty Company contends that the above findings are so conflicting that no judgment can be based thereon. The plaintiff contends that such findings demonstrate an intent on the part of the jury to find total incapacity for 59 weeks prior to the trial and' 52 weeks after the trial, and to then find partial incapacity thereafter to the extent of 75 per cent. Plaintiff contends, in the alternative, that if he is mistaken in the contention just made, then this verdict is not conflicting to the extent of 75 per cent, incapacity. We overrule the contention that the verdict can be construed as finding total incapacity for 111 weeks and thereafter partial incapacity to the extent of 75 per cent. It is too plain for argument that the jury has found that both total and partial incapacity existed at the same time for a certain period. We, however, sustain the pontention made by plaintiff that the verdict is not conflicting to the extent of 75 per cent, incapacity, the per cent, on which the trial court based its judgment.

There is a rule of law that conflicting findings destroy each other and leave no findings on the issues involved. This rule is too well established to require the citation of authorities. This rule is as self-evident as the axiom that two bodies of the same size cannot occupy the same space at the same time. In spite of this rule, We think that conflicting findings should not be held to destroy each other except to the extent of the conflict. Only to that extent could such findings possibly destroy each other.

When we come to consider as a whole the two sets of findings here involved, we find they do not totally conflict with each other. Incapacity is contained in both sets of findings. The findings first mentioned, supra, find incapacity to the extent of 100 per cent. The other set of findings, mentioned supra, find incapacity to the extent of 75 per cent, only. Incapacity to the extent of 75 per cent, is contained in and found by both sets of findings. To the extent of 75 per cent, there is, therefore, no conflict. Twenty-five per cent, of the incapacity found by the first set of findings is not in the other set, but is excluded therefrom. Therefore, to the extent of 25 per cent, the two sets of findings conflict. The conflict, however, is only to the extent of the per cent, just mentioned. The insurance carrier is certainly in no position to complain of a judgment based on the part of the verdict where no conflict exists.

Under the evidence in this record, the injured employee had a right to a finding on total or 100 per cent, incapacity; and if he were here complaining, we would have to reverse this judgment and remand the cause generally. This is because this case must be disposed of in one trial. Phoenix Assurance Co. v. Stobaugh, 127 Tex. 308, 94 S.W.2d 428. We simply hold that, since this record shows that the injured employee is willing to waive, and in effect has waived, his right to have a finding on 100 per cent, incapacity, and has signified his willingness to accept a judgment based on 75 per cent, incapacity, as to which per cent, there is an unconflict-ing verdict, he has the right to do so.

We have carefully examined all assignments contained in the application for the writ, and, in our opinion, they present no reversible error.'

The judgments of the Court of Civil Appeals and district court are both affirmed.


author: GERMAN, Commissioner.

text:
    ROYAL PETROLEUM CORPORATION et al. v. McCALLUM, Judge, et al. DEARING v. BROWN, Judge, et al.
    No. 7649.
    Supreme Court of Texas.
    Jan. 31, 1940.

      J. D. Williamson, Tom P. Scott, and W„ E. Cureton, all of Waco, Black, Graves & Stay ton and Chas. L. Black, all of Austin, for relators Royal Petroleum Corporation et al. and for respondents Brown et al.
    W. B. Harrell and Russell Allen, both of Dallas, Willard McLaughlin, of Waco, Dan Moody, of Austin, Leonard Gorin, of Waco, and Claude McCallum, pro se, of Dallas, for respondents McCallum and relator Effie Dearing.
   Preliminary Statement.

GERMAN, Commissioner.

In 1922 the partnership of R. H. Dearing & Sons was created by written contract. It consisted of R. H. Dearing, Willis R. Dearing and Roy E. Dearing, each owning a one-third interest in all of the properties and business of the partnership. The written articles provided that the partnership should be continued after the death of any partner by the successors or successor. This partnership accumulated properties of considerable value, including a part of the stock of Royal Petroleum Corporation.

Roy E. Dearing died January 20, 1932, leaving a will which was duly probated. By this will he bequeathed certain properties to his wife, Effie Reed Dearing, and bequeathed to his brother, Willis R. Dear-ing, as trustee, his entire interest in the partnership of R. H. Dearing & Sons, as well as all stock owned by him in Royal Petroleum Corporation, tie provided that Willis R. Dearing should hold all such properties in trust, and should pay annually to his wife, Effie Reed Dearing, during her lifetime the net profits to which he or his estate might be entitled as a partner in R. H. Dearing & Sons. At her death any unpaid income and his share in the partnership were bequeathed one half to Willis R. Dearing and the other one half to his sons, Herman A. Dearing and Robert Moffatt Dearing. The will provided that Effie Reed Dearing should make an election as between the rights given her under the will and any community rights that she might have in the same property.

Effie Reed Dearing elected to take under the will, and the partnership continued under its articles of creation as before.

On May 6, 1933, Effie Reed Dearing entered into a contract of conveyance of her interest in the partnership of R. H. Dear-ing & Sons, received by her under the will of her deceased husband, and of his interest in the Royal Petroleum Corporation. This took the form of a tripartite agree.ment. Three instruments were executed, all of the same date, and were as follows:

(1) Effie Reed Dearing executed conveyance to R. H. Dearing & Sons for a recited consideration of $10 and other considerations expressly set out in the conveyance. The principal consideration was the sum of $40,000, payable as evidenced by the instrument next hereinafter mentioned. Said conveyance conveyed the following interests:

“1. All my rights, titles, interests and claims in and to the partnership estate of R. H. Dearing & Sons, whether herein specifically set out or not, and this conveyance, transfer and assignment is to vest and hereby vests in the grantees herein all title to real estate, oil and gas leases, royalties, interest in oil runs and all payments to be made for oil runs and any payments to be made out of oil under' contracts or otherwise, and all contracts, equipment and assets of every kind, and all claims, accounts and choses in action, and everything of every kind, character and description and wherever situated or located which has •been acquired by R. H. Dearing & Sons from the date of the original partnership agreement dated as of August 1st, 1922, down to date, or which may be acquired in the future by R. H. Dearing & Sons.
“2. All my rights, titles, interests, claims, life estates and benefits and uses given and granted to me by and under the will of my deceased husband, Roy E. Dear-ing (and which will is probated in Dallas County, Texas) in Items 4 and 5 of such will.
“3. All my right, title, interest and claim in stock of the Royal Petroleum Corporation, except Two and one-half (2⅜) shares, for which there has been issued to me Certificate #-, in such Corporation, bearing this date.”

This instrument also contained a provision as follows: “As a part of the consideration for the execution of this instrument, said R. H. Dearing & Sons, and/or Royal Petroleum Corporation accepting this instrument agree to cancel and release any and all claims that they or each of them might have or assert against Mrs. Effie Reed Dearing, or her deceased husband, Roy E. Dearing, and/or the estate of Roy E. Dearing, deceased, and further, that said Royal Petroleum Corporation and R. H. Dearing & Sons shall hold harmless said Mrs. Effie Reed Dearing from any and all claims, demands or causes of action that might be asserted against her individually by any creditor, or other person, firm or- corporation in connection with either her interest or the interest of her deceased husband, or his estate, in and to said business herein named, it being the intention that Mrs. Effie Reed Dearing be released in full and held harmless from any and all liabilities of R. H. Dearing & Sons, and/or Royal Petroleum Corporation, and further, that any and all payments made by R. H. Dearing & Sons, and/or Royal Petroleum Corporation for her account or the account of Roy E. Dearing, or his estate shall be, and are in all things cancelled as of this date.”

(2) As above indicated, the major consideration for the conveyance was the sum of $40,000 to be paid in money received from oil production from a three-eighths interest in a certain lease on three acres of land. Apparently R. H. Dearing & Sons owned one-half interest in this three-eighths, while Royal Petroleum Corporation owned the other one-half. R. H. Dearing & Sons first conveyed to Royal Petroleum Corporation the one-half interest owned by it, and in turn Royal Petroleum Corporation, joined by R. H. Dearing & Sons, conveyed to Effie Reed Dearing the full three-eighth interest, the granting provision being as follows: “Do hearby bargain, sell, transfer, assign and convey unto the said Mrs. Effie Reed Dearing, her heirs and assigns, three-eighths (%ths) of all of the oil in to and under the above described property and that may be saved produced and marketed from said property (being three-eighths) (%ths) of the full eight-eighths (%ths) until the said Mrs. Effie Reed Dearing her heirs and assigns shall have received the total sum of $40,000.00 free and clear of all costs of drilling, equipping the well, cost of operation, taxes, including ad valorem, gross production and any and all taxes, standardization of the property, and in fact to be free and clear and net and delivered to the credit of the said Effie Reed Dearing, assignee, her heirs and assigns into the pipelines with which said well may be connected and this assignment being effective from and after May 1, 1933.”

This instrument contained a joint covenant on the part of Royal Petroleum Corporation and R. H. Dearing & Sons that the lease was to be kept in operation so long as commercially profitable, or until the $40,000 was fully paid, and after said payment the said three-eighth interest was to revert to or be reconveyed to Royal Petroleum Corporation.

(3) There was executed by Royal Petroleum Corporation and R. H. Dearing & Sons, and accepted by Effie Reed Dearing, an instrument in the form of a guaranty agreement. This instrument recited that Effie Reed Dearing in consideration of all of the oil, gas and minerals produced from the three-eighths interest in said lease, until the sum of $40,000 was paid, had sold and released all her right, title and interest in the partnership of R. H. Dearing & Sons and in the Royal Petroleum Corporation. Said instrument further -recited that Royal Petroleum Corporation and R. H. Dearing & Sons had that day conveyed to Effie Reed Dearing said mineral interest until said $40,000 was fully paid. It was also recited that it was the desire of Royal Petroleum Corporation and R. H. Dearing & Sons to guarantee to Effie Reed Dearing the full and complete payment of said $40,-000 in all events, if same was not paid out of the oil and gas produced from said mineral interest. The instrument then contained the joint and several guarantee by the parties to Effie Reed Dearing of the full, payment of said $40,000 in cash net to her out of the proceeds of the oil and gas produced from said , mineral interest assigned to her and further guaranteeing the payment of same in any and all events.

As stated above, all of these instruments were executed contemporaneously, and were each and all an essential and inseparable part of one contract. Farm & Home Savings & Loan Ass’n v. Martin, 126 Tex. 417, 88 S.W.2d 459. In November, 1932, R. H. Dearing died, and in proper manner his interest in the' partnership passed to Willis R. Dearing, who owned an interest in the partnership in his own right and also as trustee under the will of Roy E. Dear-ing. The partnership of R. H. Dearing & Sons continued, Willis R. Dearing individually and as trustee being the sole constituent and owner of same and its properties.

Proceedings in Suit in Dallas County.

On March 20, 1935, Effie Reed Dearing as plaintiff filed suit in the 101st District Court of Dallas County against Willis R. Dearing, as surviving partner of R. H. Dearing & Sons, and individually. Subsequently, new parties were made and various proceedings were had over a period of some three years. On December 20, 1938, Willis R. Dearing died. He left a will and his legal representatives were made parties to the suit. This was Cause 14898-E.

On March 28, 1939, Effie Reed Dearing, plaintiff, filed her fifth amended petition in said cause, and in that petition for the first time made Royal Petroleum Corporation a party. It becomes necessary to note with some particularity the allegations of that petition:

(1) After formal parts, it sets out the articles of partnership of date August 1, 1922, under which the partnership of R. H. Dearing & Sons came into existence.

(2) It sets out the facts of the death of Roy E. Dearing, the probating of his will, the acceptance thereunder, and the will is set out in haec verba.

(3) The pleader’s construction of the will is then set out, with allegations of superior knowledge on the part of Willis R. Dear-ing as to the nature of the business of R. H. Dearing & Sons, as well as the true value of its properties.

(4) Next is set out in full the instrument of conveyance of date May 6, 1933, by Effie Reed Dearing to R. H. Dearing & Sons, which is liberally quoted from above.

(5) This allegation is followed by one to the effect that as one of the considerations for the execution of said conveyance R. H. Dearing & Sons caused to be conveyed to Effie Reed Dearing the three-eighths mineral interest above described, from which plaintiff was to receive the proceeds of oil production up to the sum of $40,000. It is also alleged that Willis R. Dearing caused to be assigned to Effie Reed Dearing a note in the sum of' $4,970.80 payable at the rate of $500 per month.

(6) Plaintiff next alleges that the conveyance of May 6, 1933, was void for three specific reasons, and, if not wholly void, was voidable for three specific reasons.

(7) Plaintiff offered to refund all that she had received under the transaction of May 6, 1933.

(8) It is next alleged that Willis R. Dearing as trustee had failed to render proper accounts of his trusteeship, and this is followed by allegations that in the operation of the partnership business of R. H. Dearing & Sons large profits have been made, of which one-third rightfully belonged to plaintiff. It is further alleged in this connection that the trustee has converted and applied to his own use a large part of said profits and income, and that he has also mixed and commingled same with property and moneys of R. H. Dearing & Sons and Royal Petroleum Corporation. _ It is further alleged that commingled funds and funds in which plaintiff had an interest, by reason of the fact that the purported conveyance above mentioned was void, were used in the acquisition of numerous leases and other oil and mineral properties covering a large number of tracts of land.

(9) In Subdivision 25 of the petition plaintiff makes the following allegation: “Plaintiff is informed and believes and charges that Royal Petroleum Corporation unlawfully, knowingly and fraudulently participated with the said Willis R. Dear-ing in the breach of his trust, and unlawfully, knowingly and fraudulently appropriated to its own use and benefit moneys and properties belonging to the trust estate and co-mingled the same with its own moneys and properties, and with such co-mingled moneys and properties acquired and now has in its own name the following described properties(Here follows a long list of oil and gas leases, most of which affect lands in Rusk County.)

Subdivision 26 of the petition is as follows : “Plaintiff is informed and believes and charges that other properties, a description of which she is not able to give, have been acquired by the defendant, Royal Petroleum Corporation, with said mixed and comingled moneys and properties; and she further charges that said moneys and properties were so co-mingled that the trust funds or properties can not be segregated or the amount thereof ascertained; and she further charges that by reason of the wrongs and trespasses committed by said Royal Petroleum Corporation as aforesaid, it became and is a constructive trustee; and that all of the properties described in paragraph 25 above and standing in the name of Royal Petroleum Corporation, as well as any and all other properties standing in the name of Royal Petroleum Corporation which were purchased with such co-mingled moneys and properties, have become and are subject to and impressed with a trust in favor of this plaintiff. That the plaintiff did not learn of the wrongs and trespasses of Royal Petroleum Corporation, as herein alleged, until about March, 1938.”

There are other allegations concerning pipeline companies, which are made parties to the suit, and money in bank, but in our judgment it is not necessary to notice them in detail.

(10) In paragraph 30 plaintiff sets out several reasons showing necessity for appointment of receiver, and this paragraph concludes as follows : “Plaintiff would further show that this is a suit to set aside a fraudulent purchase of property, and a suit where the plaintiff is jointly interested in properties and funds with the defendants, and a suit for an accounting; plaintiff alleges that she has no adequate remedy at law and that unless a receiver is appointed, she will suffer irreparable loss and injury.”

(11) Plaintiff then sets out a long prayer, which among other things included the following :

(a) Appointment of a receiver to take charge of the partnership of R. H. Dear-ing & Sons and of all funds, moneys and properties standing in the name of R. H. Dearing & Sons, Willis R. Dearing and Royal Petroleum Corporation, and such funds, moneys, properties, etc., as may have been acquired with the commingled funds of R. H. Dearing & Sons, Willis R. Dear-ing and Royal Petroleum Corporation.

(b) That upon final hearing the will of Roy E. Dearing, deceased, be construed and that the trust therein created be determined to be an express active trust and a spendthrift trust for the benefit of plaintiff, and that the purported bill of sale and assignment made by plaintiff to R. H. Dearing & Sons, dated about May 6, 1933, be can-celled, set aside and decreed to be null and void.

(c) That one-third of the moneys, funds and properties of R. H. Dearing & Sons and all of the properties of whatever kind and character and wheresoever situated standing in the name of Willis R. Dearing, R. H. Dearing & Sons and Royal Petroleum Corporation, or either of them, whether herein described or not, which have been purchased and acquired with moneys and funds which were commingled with the funds, moneys and properties of this trust estate and of this plaintiff be decreed to be the properties of this trust estate.

(d) For all necessary orders making effective the judgment of the court to the extent of awarding plaintiff one-third of all moneys, funds, properties, etc., standing in the name of R. H. Dearing & Sons, or purchased with the commingled funds of R. H. Dearing & Sons, Willis R. Dearing and Royal Petroleum Corporation. All relief prayed for was against all defendants alike.

After service upon Royal Petroleum Corporation to answer the foregoing petition, said corporation filed in said district court its plea of. privilege to have said suit, as thus made, to be tried in Rusk County, Texas, its plea in this regard being as follows: “That this is a suit for the recovery of lands, and to remove the encumbrances on lands, and to quiet title to same, and to prevent and stay waste on lands, as shown by plaintiff’s Fifth Amended Petition herein, and that none of such lands embraced within said suit, are situated in Dallas County, Texas, and that the statutes of the State of Texas confer exclusive venue of this suit on the district court of one of the counties in which such land is situated; and this defendant says that Rusk County is a •county in which part of the land embraced in this suit is situated, and that the district court of Rusk County has jurisdiction to try this cause.”

Plaintiff filed no controverting affidavit, but two days after the filing of said plea of privilege the court entered the following order:

“On this, the 15th day of April, 1939, the plaintiff in the above entitled and numbered cause, through her attorneys, appeared and presented in open court plaintiff’s motion for nonsuit as to Royal Petroleum Corporation; and it appearing to the Court that at the time of the presentation of such motion for nonsuit the plea of privilege heretofore filed herein by Royal Petroleum Corporation had not been presented to the Court and the Court had not announced or entered any order or judgment upon said plea of privilege, and that said motion for non-suit should be in all things granted:
“It is, therefore ordered, adjudged and decreed by the Court that this cause be and the same is hereby 'dismissed without prejudice as to the said Royal Petroleum Corporation and at plaintiff’s cost.”

It should be added that in said case defendant Royal Petroleum Corporation, subject to its plea of privilege, but not waiv-' ing said plea, and expressly insisting on same, filed a plea in abatement, on the ground that from the face of plaintiff’s petition it was shown that there was a mis-joinder of causes of action. The defendant representing R. H. Dearing & Son? filed a like plea.

Proceeding in Suit in Rusk County.

On April 26, 1939,'which was some ten days after Royal Petroleum Corporation was dismissed from the Dallas County suit, “Effie Reed Dearing, a feme sole, widow of Roy E. Dearing, deceased,” filed original petition in the District Court of Rusk County, Texas. Royal Petroleum Corporation and the legal representatives of R. H. Dear-ing & Sons and Willis R. Dearing were parties defendant. This was Cause No. 14293. Briefly this petition, among other things, contained allegations as follows:

(1) That plaintiff was the widow of Roy E. Dearing, and legatee and.devisee under his will. The will was set out in full. It was also alleged that said will had been duly probated and plaintiff had elected under same.

(2) Next is set out in full the articles under which the partnership of R. H. Dear-ing & Sons came into existence.

(3) The petition then alleges the conveyance of May 6, 1933, by Effie Reed Dearing to R. H. Dearing & Sons, and sets out said conveyance in full.

(4) The petition then alleges the institution of the suit in Dallas County,' reciting some of the material allegations . made therein, and giving a resume of the relief sought in that suit.

(5) After other allegations, the facts with reference to the making of Royal Petroleum Corporation a party to the Dallas County suit, as well as its dismissal from said suit, are set forth in the following language:

“That thereafter this plaintiff by her fifth amended original petition, filed under leave of the District Court of Dallas County, Texas, substituted the said Nannie Clinton Dearing, Herman A. Dearing and Robert Mo.ffatt (Jack) Dearing, individually and as Independent Executors and Trustees of the Estate of Willis R. Dearing, deceased, in place of the said Willis R. Dearing, and also made the said Royal Petroleum Corporation a party to said suit, alleging, among other things, in said fifth amended original petition that the said Royal Petroleum Corporation had participated with the said Willis R. Dearing in the breach of his trust and had acted with and aided and abetted him in committing divers wrongs and injuries to the trust estate and to this plaintiff, and that the said Royal Petroleum Corporation had unlawfully and wrongfully appropriated to its own use and benefit certain moneys, funds and properties belonging to said trust estate and to said partnership and had mixed and co-mingled such moneys, funds and properties with its own, and with such mixed and co-mingled moneys, funds and properties had purchased and acquired the properties hereinafter mentioned and described, which said Royal Petroleum Corporation was claiming as its own; and prayed that, among other relief, the properties acquired by said Royal Petroleum Corporation with said mixed and co-mingled moneys, funds and properties be impressed with said trust and that said properties be decreed to belong to said trust estate.

“Thereafter the said Royal Petroleum Corporation filed its plea of privilege to be sued m Rusk County, Texas, under section 14 of the Venue Statute; that thereupon this plaintiff dismissed said cause as to said Royal Petroleum Corporation, without prejudice.”

(6) The petition then contains the following allegation: “This plaintiff now here alleges that the bill of sale and assignment hereinbefore mentioned is void and voidable and that the same did not convey out of this plaintiff her rights, titles arid interests as beneficiary in said trust, and that she is now entitled to all the rights, titles, interests and estates created for her by the last will and testament of her deceased husband, Roy E. Dearing. And she now here alleges that the defendant, Royal Petroleum Corporation, participated with the said Willis R. Dearing in the breach of his trust and acted with, aided and abetted him in the commission of divers wrongs, injuries and trespasses to said trust estate and to this plaintiff, and unlawfully and fraudulently appropriated to its own use and benefit moneys, funds and properties belonging to said trust estate and to said partnership of R. H. Dearing & Sons, and that therein and thereby said Royal Petroleum Corporation became a constructive trustee; that said Royal Petroleum Corporation co-mingled said misappropriated moneys, funds and properties of this trust estate and of R. H. Dearing & Sons with moneys, funds and properties of its own, and with such co-mingled moneys, funds and properties either acquired, improved or developed the following described properties.”

Here follows a list of a large number of leases, being similar to the list contained in the petition in the Dallas County suit.

(7) Paragraph 14 of the petition is as follows : “Plaintiff is informed and believes and charges that other properties, a description of which she is not able to give, have been acquired, improved or developed by the defendant, Royal Petroleum Corporation, with said mixed and co-mingled moneys, funds and properties; and she further charges that said moneys, funds and properties were so co-mingled that the trust funds or properties can not be segregated or the amount thereof ascertained; and she further charges that by reason of the wrongs and trespasses committed by the said Royal Petroleum Corporation as aforesaid, that all of the properties described in paragraph 13 above and standing in the name of said Royal Petroleum Corporation and as well any and all other properties standing in the name of Royal Petroleum Corporation which were acquired, improved or developed with such co-mingled moneys, funds and properties have become and are subject to and impressed with a trust in favor of this plaintiff.”

(8) The prayer to the petition was in part as follows: “Wherefore, plaintiff prays that the defendants be cited to appear and answer herein and that upon trial hereof, the Court find and decree that the properties described in this petition and as well all other properties standing in the name of Royal Petroleum Corporation acquired, developed or improved with the mixed and co-mingled moneys, funds and properties of said trust estate and said corporation and with the mixed and co-mingled moneys, funds and properties of R. H. Dearing & Sons and said corporation, or into the acquisition, development 'or improvement of which went any of the misappropriated moneys, funds or properties of the trust estate, belong to the trust estate created hy the will of Roy E. Dearing, and that this Court enter judgment divesting the title to and possession of all such properties, wherever situated, out of said Royal Petroleum Corporation and vesting the title to and possession of the same in the officer or person designated, appointed or selected by the District Court' of Dallas County, Texas, to administer said trust estate or to receive, assemble, preserve and distribute the properties and assets belonging thereto; and that, in the event at the time of the trial of this cause, there has been no such officer or person selected and appointed by the District Court of Dallas County, that then this Court vest the title to and possession of all such properties in some commissioner, conservator or officer appointed and designated by this Court to receive, hold and preserve such properties for the use and benefit of said trust estate and as the arm of this Court until such time as the District Court of Dallas County shall have selected and designated some officer or person to receive the same; and that this Court direct and instruct the Commissioner; conservator or other officer appointed by it to deliver said properties and the title thereto to the officer or person selected and designated by the District Court of Dallas County, when said Court shall have so designated and appointed such officer or person; and that the Court issue such other and further orders and decrees as may be necessary and proper to divest the title to and possession of all of said properties out of said corporation and vest the same into the officer or person authorized and empowered to receive the same for the use and benefit of said trust estate; and the plaintiff further prays that she recover all costs in this behalf expended, and that she have such other and further relief, legal and equitable, general and special, to which she may be justly entitled.”

On July 3, 1939, plaintiff, Effie Reed Dearing, filed in said Rusk county suit a plea in abatement addressed to the cross action of the defendants who were legal representatives of R. H. Dearing and Sons and Willis R. Dearing. She filed no plea in abatement as to the cross action of defendant, Royal Petroleum Corporation. In said plea she made the following allegation:

“1. That on June 21st, 1939, the defendants, Nannie Clinton Dearing, Herman A.. Dearing and Robert Moffatt (Jack) Dear-ing, individually and as Independent Executors and Trustees of the Estate of Willis R. Dearing, deceased, filed in this cause a certain cross-action against this plaintiff, wherein they alleged: ‘8. And now come said defendants, in the above entitled and numbered cause, and file this, their Cross Action herein, against plaintiff, and represent and show to the court that said conveyance sought to be set aside herein by plaintiff is in all things binding and of full force and effect and that same should be by this court decreed to be valid and binding on all parties, and these defendants pray that upon hearing hereof said transfers and assignment be declared to be valid and binding on plaintiff and all other parties to said transfer and assignment.’ Which appears as numbered paragraph 8 of the original answer and cross-action of said defendants ; and further prayed in connection with such cross-action that they have judgment decreeing that the transfer, sale and assignment from Effie Reed Dearing to R. H. Dearing & Sons be declared in all things valid and binding on the plaintiff.”

Plaintiff then alleged the pendency of the suit in the Dallas. County District Court, setting forth certain issues alleged to be involved therein, and further asserted as follows: “Plaintiff would show that because of the prior pendency in the District Court of Dallas County between this plaintiff and the defendants, Nannie Clinton Dearing, Herman A. Dearing and Robert Moffatt (Jack) Dearing, of the issues raised by the cross-action filed by said defendants in the instant case, the District Court of Dallas County has and ought to have and exercise complete and exclusive jurisdiction of said issues, and that this Court ought not to take jurisdiction thereof nor in any manner exercise the same, but that the cross-action filed by the defendants, as set out in numbered paragraphs 8 and 9 of their original answer and cross-action, ought in all things to abate.” ■

On October 2, 1939, plaintiff appeared by her counsel and presented to the court her plea in abatement. The action of the court thereon is reflected by the following portion of the decree then entered: “On this the 2nd day of October, A. D. 1939, came on to be called the above numbered and styled cause, and the defendants having been duly cited, appeared herein by their attorneys, Tom P. Scott, J. D. Williamson, H. H. Wellborn and J. W. McDavid, and the plaintiffs having been cited on defendants’ cross-action appeared herein, both on the plaintiffs’ petition and on said cross-action, by their attorneys, W. B. Harrell, Russell Allen and Willard McLaughlin, and thereupon counsel for plaintiff presented their plea in Abatement in this suit to,the cross-action of the defendants by virtue of a case by plaintiff against R. H. Dearing and Sons, et al., pending in the 101 District Court, Dallas County, Texas, and all parties announced ready on said plea in Abatement and the Court, after hearing said plea in Abatement, the evidence adduced thereon and the argument of counsel, is of the opinion that said plea should be overruled: It is therefore ordered, adjudged and decreed by the Court that said plea in Abatement be and the same is in all things overruled, to which action of the Court plaintiff excepted; and thereupon the Court called said cause for trial and a jury was waived by counsel fqr all parties and thereupon the Court asked for an announcement and counsel for the defendants announced ready for trial and W. B. Harrell,' counsel for the plaintiff, asked for time to prepare a supplemental petition in reply to the cross-action of the defendants asserted in their first amended answer and the Court granted such request and later announced that this cause would be taken up on October 3rd, 1939, at 9:00 o’clock A. M.”

It is necessary to here interpolate the statement that on th‘e same day this action was taken in the Rusk County case, plaintiff Effie Reed Dearing made application to the Judge of the District Court of Dallas County for an injunction against the defendants who were legal representatives of R. H. Dearing and Sons and Willis R. Dearing, and their attorneys, restraining them from prosecuting in the District Court of Rusk County the cross action of the Dearing defendants, as well as the cross action of the Royal Petroleum Corporation. On October 2, 1939, the Judge of the Dallas County District Court entered an order for an injunction restraining all of the defendants -and their attorneys from prosecuting either of said cross actions in the District Court of Rusk County. The formal injunction was not issued until the next day.

The attorneys for the defendants, as well as of Judge R. T. Brown of the Rusk County District Court, received notice of the injunction on the morning of October 3, 1939. That part of the judgment of the District Court of Rusk County immediately following the portion above quoted shows what took place, and it is as follows :

“On this the 3rd day of October, 1939, at 9:00 o’clock A. M., this cause came on to be called for trial and thereupon came counsel for plaintiff and filed plaintiff’s first amended supplemental petition and then announced to the Court that they would not dismiss their case but personally they would withdraw from the Court Room and not participate in the trial but that they we’re not withdrawing fropi the case as counsel and the Court thereupon was advised by counsel for the plaintiff that they had procured from Honorable Claude McCallum on this day an injunction restraining Tom P. Scott and J. D. Williamson, as attorneys, from prosecuting and trying defendants’ cross-action and this Court thereupon ordered the attorneys for the defendants to proceed with the trial of said cause and said cross-action; thereupon counsel for plaintiff walked out of the Court Room and counsel for the defendants then announced they would dismiss the cross-action of the defendant, Royal Petroleum Corporation for a money judgment for damages set up in Paragraph 29 of Defendants’ First Amended Answer and Cross-action filed in this case on the 26th day of September, 1939.
“It is accordingly ordered that said portion of said cross-action be dismissed without prejudice to said defendant. The Court thereupon overruled the defendants’ exceptions to plaintiff’s First Amended Petition and the plaintiff’s exceptions, not being presented, were waived. Thereupon said cause proceeded to trial and the Court, after hearing the pleadings of the parties and the evidence introduced and argument of counsel is of the opinion that the law and the facts are with the defendants and that defendants should recover on their cross-action to confirm and ratify the conveyance executed by Effie Reed Dear-ing on May 6th, 1933, and to quiet title to the property described in said conveyance or assignment and the cloud cast on the title to the property and oil leases and oil payments of the Royal Petroleum Corporation described in plaintiff’s First Amended Petition filed herein on July Sth, 1939, should be removed.
“It is therefore, ordered, adjudged and decreed by the Court that the plaintiff, Effie Reed Dearing’s suit be dismissed for want of prosecution and that the defendants, Royal Petroleum Corporation, a corporation, Nannie Clinton Dearing, Herman A. Dearing and Robert Moffatt (Jack) Dearing, individually, and as executors and trustees of the estate of Willis R. Dearing and under his will go hence without day and have and recover of and from the plaintiff, Effie Reed Dearing, a femq sole, all costs by them in this behalf expended for which let execution issue.”

The answer of Judge Brown herein shows that motion for new trial was filed by plaintiff, which was overruled, and that plaintiff gave notice of appeal to the Court of Civil Appeals.

The attorneys for defendants in the Rusk County suit have been cited to appear before the District Court of Dallas County to show cause why they should not be held in contempt.

Proceedings in the Supreme Court.

Two original proceedings have been filed in this court and are before us for disposition. One was brought by Effie Reed Dear-ing, plaintiff in the Dallas County suit, and asks the following relief: “Wherefore, the Petitioner prays that a rule to show cause forthwith issue to the Respondents and each of them and that, upon hearing, this Honorable Court direct a writ of mandamus to issue to the Honorable R. T. Brown, Judge of the District Court of Rusk County, in and for the 4th Judicial District of Texas, commanding and requiring him to vacate and set aside the judgment rendered on October 3rd, 1939, in cause No. 14293 in said court styled Effie Reed Dearing vs. Royal Petroleum Corporation et al., and that it also cause a writ of prohibition to issue to said Judge, requiring and commanding him to refrain from entertaining or taking any other or further action in said cause concerning the cross-action filed therein than to abate the same; and that she have such injunctive writs and decrees against the other Respondents as she may be entitled to; and that she have such other and further relief, legal and equitable, general and special, to which she may be justly entitled.”

The other proceeding was instituted by defendants in the Rusk County suit and seeks the following relief: “Petitioners pray for a writ of mandamus to be directed to Honorable Claude McCallum, Judge of the District Court of Dallas County, 101st Judicial District, commanding him to set aside the temporary restraining order issued by him on October 2, 1939, in cause No. 14898-E, Mrs. Roy E. Dearing vs. Willis R. Dearing, et al., and further commanding him to desist from taking any further steps, actions or proceedings in said cause No. 14898-E; and petitioners pray for the issuance of the writ of prohibition and of such other writs and process to be directed to the respondents as may be necessary or proper to restrain them from interfering in anywise with the District Court of Rusk County, Fourth Judicial District, and the Judge of said Court, in cause No. 14,293 in taking such further proceedings in said cause as may be proper for its final determination; and they further pray for a temporary restraining order or injunction or prohibition to be issued restraining the Honorable Claude McCallum from taking any further proceedings in the cause pending in the 101st District Court of Dallas County pending final determination of this cause in this Court, and restraining him from issuing an attachment for contempt against petitioners, or any of them, as for a violation of his temporary restraining order issued October 3, 1939, and from conducting a hearing in a contempt proceeding or entering any order in such a proceeding; and for such other writs and orders as may be proper in the premises.”

Opinion.

It appears to be definitely settled by our decisions that the action of plaintiff in the Dallas county suit in dismissing Royal Petroleum Corporation from that suit, after its' plea of privilege had been filed, even in the absence of a controverting affidavit, is to be taken as an admission that said plea was good, and had the effect of fixing the venue of any subsequent suit between the parties, involving the same subject matter, in the county where the plea of privilege alleged it rightfully to be. H. H. Watson Co. v. Cobb Grain Co., Tex. Com.App., 292 S.W. 174; First National Bank in Dallas v. Allan B. Hannay, District Judge et al., 123 Tex. 203, 67 S.W.2d 215.

One thing stands out predominately in this record. It is this: The first absolutely essential requisite to the relief prayed for by plaintiff in both the Dallas county suit and the Rusk county suit is to set aside the conveyance by her of May 6, 1933. If this conveyance be valid and binding on her it terminated the trust relationship between her and Willis R. Dear-ing, and also terminated her right or title to any and all interests in the business and properties of R. H. Dearing & Sons, as well as the income and profits therefrom. She would, therefore, in such event not be entitled to a receiver, or to impose a trust on any of the properties mentioned in her pleadings.

The foregoing proposition being true, and it appearing from the authorities above cited that she has irrevocably disabled herself from litigating that issue m the Dallas county suit, provided Royal Petroleum Corporation be a necessary party to its determination, the next question for decision is this: Is Royal Petroleum Corporation an essential and necessary party to an action to cancel and to set aside said conveyance?

In the recent case of Sharpe v. Landowners Oil Association, 127 Tex. 147, 92 S.W.2d 435, 436, it was said: “It is settled beyond all question in this state that in a suit to cancel a written instrument all persons whose rights, interests, or relations with or through the subject-matter of the suit will be affected by the cancellation are necessary parties. Business Men’s Oil Co. v. Priddy (Tex.Com.App.) 250 S.W. 156; McKay v. Phillips (Tex.Civ.App.) 220 S. W. ,176; State National Bank v. Lancaster (Tex.Civ.App.) 229 S.W. 883; Dial v. Martin (Tex.Civ.App.) 8 S.W.2d 241. The .absence of a necessary party in a suit for •cancellation is fundamental and jurisdictional to such extent that it must be considered by this court. It being apparent from the face of the record in this case that Stubblefield and wife are necessary parties to the suit, the trial court was not .authorized to enter any judgment, and this •court cannot render any judgment except to reverse and remand the case. Barmore v. Darragh (Tex.Civ.App.) 227 S.W. 522.”

The governing rule was more fully stated in the case of Runck v. Gates, Tex.Civ. App., 14 S.W.2d 885, in this language: ■“The action to cancel is in a court of equity, and, of course, governed by rules as old as the system of equity itself. Pomeroy states the governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in one suit the rights and duties of all parties, which really grow out of or are connected with the subject-matter of the suit. The fundamental principle concerning parties is that all persons in whose favor or against whom there might be a recovery, however insignificant, and also all persons who are interested, although indirectly in the subject-matter and relief granted, and whose rights might be affected by the decree, shall be made parties to the suit.”

The cancellation of the conveyance of May 6, 1933, was undoubtedly the dominant issue in the Dallas county suit, as disclosed by the fifth amended original petition which made Royal Petroleum Corporation a party to that suit. As stated above, it appears that the three instruments of date May 6, 1933, in one of which Royal Petroleum Corporation was a party by the clearest implication and in the other two was an active contracting party, constituted by one contract, of which the conveyance executed by plaintiff was but a party. Each of the instruments was an essential element of the contract. Neither one could be destroyed without destroying the others. By this unified agreement Royal Petroleum Corporation parted with title to a valuable mineral interest, which, after payment of the $40,000, was to be re-conveyed to it. It assumed payment of obligations against the interest of Roy E. Dearing in the partnership properties, and released obligations due the partnership by the said interest. Said corporation was therefore vitally and directly concerned with the validity of said contract, and would undoubtedly be affected by its cancellation. Under the rule above stated it was unquestionably a necessary party to any suit which sought to cancel or impair that contract.

In a suit for cancellation of a written contract affecting title to or an interest in land a district court does not acquire complete jurisdiction until all necessary parties are brought within the jurisdiction of the court. It has no jurisdiction to proceed to final judgment until that is done. State National Bank of San Antonio v. Lancaster, Tex.Civ.App., 229 S.W. 883, writ refused. This is of course subject to the qualification that the court may retain its potential jurisdiction without interference so long as it possesses the power to bring all necessary parties into court and subject them to its jurisdiction. Cleveland et al. v. Ward et al., 116 Tex. 1, 285 S.W. 1063. It necessarily follows, however, that in a suit to cancel such a contract, where necessary parties are not within the jurisdiction of the court, and the court no longer 'possesses power to bring them under its authority, the court is without jurisdiction to litigate the question of the invalidity of the contract, and decree its cancellation.

From the foregoing it necessarily follows that in so far as the validity and cancellation of the conveyance and agreement of May 6, 1933, are concerned, and so far as all other relief sought by plaintiff in the Dallas county suit, which depends upon the setting aside of that contract, is concerned, the district court of Dallas county was, on October 2, 1939, and is without jurisdiction to litigate same.

These conclusions lead to the further conclusion that the writ of injunction issued out of the district court of Dallas county, in so far as it sought to restrain prosecution of defendant’s cross action in the district court of Rusk county, as to the matters above mentioned, was void. Admittedly, as shown by the pleas in abatement filed by plaintiff in the Rusk county suit, the cross actions sought primarily to litigate the question of the validity of the contract of May 6, 1933, and to obtain the confirmation of same, which was but the reverse of the effort to set same aside.

It occurs to us that all questions concerning the merits of the Rusk county suit, and the proceedings resulting in judgment therein, should properly be determined by appeal in that cause.

It is perhaps appropriate to add that the filing of the plea in abatement in the Dallas county suit, subject to its plea of privilege, could not work an estoppel against Royal Petroleum Corporation so far as jurisdiction of the District Court of Dallas County was concerned. Benson v. Fulmore, Tex.Com.App., 269 S.W. 71.

The relief prayed for by petitioner, Effie Reed Dearing, is in all things denied. The prayer for relief on the part of Royal Petroleum Corporation and others is granted to the extent that a writ" of mandamus be issued requiring the Honorable Claude McCallum, District Judge of the 101st District Court of Dallas County, to set aside the order entered in Cause No. 14,898-E in said court on October 2, 1939, and to the extent that writ of injunction be issued against the said Honorable Claude McCal-lum restraining him from taking further action in any contempt proceeding, growing out of any alleged violation of said order, or the injunction issued by virtue thereof.

In light of this decision it is assumed that said court will take no further action in the cause pending therein which is inconsistent with this opinion, and for that reason no further writs will be issued herein at this time.

Adopted by the Supreme Court.