author: STOKES, Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N v. PIERSON.
    No. 5097.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1940.

      Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    L. B. Godwin and Wm. Q. Boyce, both of Amarillo, for appellee.
   STOKES, Justice.

Appellee, Woodrow R. Pierson, an employee of American Smelting & Refining Company, which company carried compensation insurance with appellant Texas Employers Insurance Association, instituted this suit to recover compensation under the provisions of the Workmen’s Compensation Law. Art. 8306 et seq., R.C.S.192S. The record shows that, while employed by the smelting company, on December 27, 1937, appellee received an injury to his left eye which resulted from the heated contents of what is termed a “retort” being blown into his face, and for which he filed his claim for compensation with the Industrial Accident Board. It is also shown by allegation and proof that on January 24, 1938, little less thah a month after the injury to his eye, and while still working for the smelting company, he received a violent lick upon his chest occasioned by the slipping of his hands upon a tool being used by him known as a chisel with which he was attempting to release heated material from the inside of the retort, which seems to have been a vessel or vat being used in the smelting process. For this latter injury appellee also filed a claim with the Industrial Accident Board and on April 18, 1938, the Board rendered two separate awards in which appellee was denied any recovery for the alleged injury to his chest and permitted recovery for the injury to his eye on the basis of permanent partial incapacity of 50%, the award amounting to ■ $9.66 per week for 300 weeks. Appellee, not being satisfied with these awards, instituted this suit and combined his claims for the two separate and distinct alleged injuries alleging a general, total and permanent incapacity arising from the injury to his eye and alleging that if his incapacity did not result from the injury to his eye, then it resulted from the injury to his' chest or, if not from one or the other of them separately, then incapacity resulted from the two injuries combined.

The case was submitted to the jury upon the theory alleged by appellee and in response to the special issues submitted to them the jury found in substance that ap-pellee sustained an injury to his eye on December 27, 1937, and that he was at the time an employee of the smelting company. They found also that he sustained a personal injury to his chest on January 24, 1938, and that he was at that time also working for the smelting company. They found these injuries did not result in his total incapacity. The question of partial incapacity was submitted under special issue No. 4, consisting of several subdivisions, which will later be set out and discussed: The jury found, in substance, that the partial incapacity was permanent to the extent of 50%. Under special issue No. 6 the jury found that causes, entirely disconnected and independent of the injuries, were not the sole caitse of the incapacity. Under special issue No. 7 they found that the injury to appellee’s eye on December 27, 1937, resulted in the loss of the sight of appellee’s eye to the extent of 60% and that it was permanent. Under special issue Ño. 8 they found that causes disconnected from and independent of the injury to the eye were not the sole cause of the loss of vision and under special issue No. 9 they found, in effect, that appellee suffered incapacity other than the loss of vision in his left eye, as the result of some of the injuries alleged to have been received by him and that he was at the time of the trial suffering incapacity other than impairment of vision in his left eye as the result of some of such injuries.

Based upon the verdict of the jury the court rendered judgment in favor of appel-lee against appellant in the sum of $2,595, being compensation of 50% of 60% of the average weekly wages of appellee for 300 consecutive weeks from the 1st day of February, 1938, the date upon which the jury found the incapacity began, $371.95 of which- having matured, execution was awarded for that amount and the balance to be paid in weekly installments of $8.65 each, beginning December 6, 1938, and continuing for 257 consecutive weeks.

Appellant filed a motion for a new trial which was amended and presented to the court on the 15th of December, 1938, and overruled. Appellant duly excepted, gave notice of appeal, and presents the case in this court for review upon appropriate assignments of error and propositions of law.

It is contended under the first three propositions that the court committed reversible error by submitting the case to the jury under the several subdivisions of special issue No. 4 in which he combined the injury of December 27, 1937, which was the injury to appellee’s left eye and therefore specific in its nature, with the inquiry concerning the alleged injury of January 24, 1938, being the injury to appellee’s chest and, therefore, of a general nature.

Special issue No. 4 was subdivided into separate questions propounded to the jury, the material questions and the jury’s answers thereto being as follows:

“(a) Do you find from a preponderance of the evidence that the injuries, if any, or one of the injuries, if any, resulted in partial incapacity?” Answer: “Yes”.
“(b) Do you find from a preponderance of the evidence that the injuries, if any, or one of them, if any, will in the future, re-suit in partial incapacity?” Answer “Yes”.
“(c) What do you find from the preponderance of the evidence to be the time of beginning, if any, of the partial incapacity, if any?” Answer: “February 1, 1938.”
“(d) Do you find from a preponderance of the evidence that such partial incapacity, if any, is permanent?” Answer: “Yes”.
“(f) What do you find from a preponderance of the evidence to be the percentage, if any, of the partial incapacity, if any?” Answer: “50%”.

Under special issue No. 7, as we have; stated, the jury found that the injuries sustained on December 27, 1937, resulted in some loss of sight to appellee’s left eye and that the extent of such loss- was 60%, which was permanent.

From the foregoing analysis of the applicable portion of the jury’s verdict, it will be seen that under the forms of the questions submitted to the jury, the substance of their finding was that appellee received the two injuries as alleged by him, one occurring almost a month prior to the other, and that the two injuries were distinct and separate injuries resulting from separate and distinct causes. It will be noted also that one of the injuries, that to his eye, was specific in its nature, and the other, that to his chest, was general in its nature. The question here presented, therefore, is whether or not it is permissible under our practice to submit two injuries, one specific and the other general, as a unit in a joint incapacity and permit a single recovery thereon.

Sec. 12 of Art. 8306 provides that where an employee sustains concurrent injuries which result in concurrent incapacities he shall receive compensation only, for the injury which produces the longest period of incapacity. It is provided in that section, however, that it shall not affect liability for concurrent loss or impairment of more than one specific member of the body for which compensation is provided in the schedule and that compensation for such specific injuries shall be cumulative as to time and not concurrent. If the injuries shown by the record in this case had been concurrent and had resulted in concurrent incapacities, they still would not have been controlled by that provision of the statute because, obviously, the statutory provision does not refer to a specific injury and a general injury although they may have been concurrent. Texas Employers’ Insurance Ass’n v. Maledon, Tex.Com.App., 27 S.W.2d 151.

Under the provisions of Sec. 12, the injuries, as well as the incapacities, must be concurrent. The common acceptation of the word “concurrent” requires the construction of that word as used in the statute to mean that the injuries were in conjunction with each other; that they were joint and simultaneous. Under the finding of the jury the incapacity, although a portion of it may have been caused by one of the injuries and a portion caused by the other, was concurrent and began on February 1, 1938, but the statute provides that the injuries, as well as the incapacities, must be concurrent and, since one of appel-lee’s injuries occurred almost a month prior to the subsequent injury, it cannot be said they were concurrent injuries. They are, therefore, not controlled by Sec; 12 of Art. 8306, and cannot be decreed to be cumulative as to time as provided by that section.

It is suggested by appellant in its brief that the case is controlled by Sec. 12c of the article mentioned. That section provides that if an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury. In our opinion the case as made by appel-lee and shown by the record is not governed by the provisions of this section. It is true that, according to the record, appellee suffered a previous injury and he also suffered a subsequent injury, but the record does not show, and it is not contended, that the two injuries contributed to the incapacity alleged by appellee. In order to bring the case under the provisions of Sec. 12c it must be shown that the employee suffered a previous injury and also a subsequent injury and that the two injuries resulted in a condition of incapacity to which both of them contributed. Where such a case is made, the plain provisions of the statute are to the effect that the association shall be liable only for the compensation to which the subsequent injury would have entitled him had there been no previous injury. The-case, therefore, cannot be adjudicated under the provisions of either Sec. 12 or Sec. 12c of Art. 8306, as suggested by appellant, and we are not warranted in holding that it should have been submitted to the jury under either of them.

In the schedule enunciated by Sec. 12 of the article mentioned it is provided that the employee shall receive, in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere provided, for the total and permanent loss of the sight of one eye, 60% of the average weekly wages during 100 weeks. It is true the record in this case shows that appellee did not lose the total and permanent sight of his eye but only 60% thereof. It is the rule in such cases that where it is shown the injury was to a specific member of the body and that it is partial and permanent and the percentage of incapacity is shown, the injured employee is entitled to receive a sum equal to the percentage so found, multiplied by 60% of his average weekly wages for the period provided by the statute. Petroleum Casualty Co. v. Seale, Tex.Com.App., 13 S.W.2d 364. Under the provisions of the statute and the holdings of our courts, the injured employee is entitled to recover for the loss of the sight of his eye regardless of whether or not such loss contributes to his incapacity to perform labor. Fidelity Union Casualty Co. v. Munday et al., Tex.Com.App., 44 S.W.2d 926; Great American Indemnity Co. v. Stultz, Tex.Civ.App., 56 S.W.2d 200. The only provision of the statute which in any way modifies this absolute right of recovery is the provision of Sec. 12 which we • have already discussed and which makes provision for cumulative recoveries in cases of concurrent injuries to specific members of the body. This case not coming under this provision of Sec. 12 and the injury to appellee’s eye not being concurrent with the injury to his chest as provided in Sec. 12c, the court should have submitted to the jury the question of the alleged injury to appellee’s eye on December 27, 1937, under such separate issues as may have been necessary to ascertain the fact of the injury and the percentage and duration thereof. This question of the injury to the specific member of the body, the eye, should have been submitted separately and distinctly and, if the findings of the jury warranted recovery thereunder, appellee should have been awarded such compensation for the injury to his eye as is provided by the statute, that is, if the injury did not result in total loss, then such percentage of loss as is provided by the statute.

The alleged injury to appellee’s chest which resulted from the slipping of his hands on the chisel, and which occurred January 24, 1938, was a general injury. It did not result in the loss, destruction or impairment of any specific member of the body as provided in Sec. 12 of Art. 8306. For such an injury the statute makes provision for compensation which is entirely separate and distinct from those provided for specific injuries. As we have shown, this injury occurred subsequently to the specific injury to appellee’s eye. It is true that only a month elapsed between the two injuries but in the absence of specific statutory provisions covering such a situation, there can .be no difference between a situation thus presented and that which would be presented if the injury had occurred many months or even years later. The first injury did not totally incapacitate appellee to perform labor. The record shows he continued to labor until several days after the second injury. He was, therefore, still an employee of the smelting company, and covered by the policy of compensation insurance issued by appellant the same as he would have been if he had not received the injury to his eye. In this state of affairs, he received the subsequent injury and it being general in its nature and one which appellee alleged resulted in his incapacity to labor, it should have been submitted separately and under special issues separate and distinct from those special issues which concerned the injury to appellee’s eye. If under the findings of the jury appellee received the chest injury and it resulted in some degree of incapacity to perform labor, he was entitled to recover as provided by the statute for such general injury in the proportion in which the same incapacitated him to perform labor. Slago Coal Co. v. Industrial Commission et al., 293 Ill. 271, 127 N.E. 751.

Instead of submitting the two injuries and their effect in separate and distinct special issues, the court submitted the questions of the result and -effect of the two injuries combined. He joined them together as the source of a general single incapacity and the jury haying found that, as a result of one or the other, or a combination of both of the injuries, appellee suffered an incapacity to perform labor to the extent of 50%, judgment was entered accordingly. The error in this method of submission consists in the fact that no method is provided for the jury to determine what part, if any, the general injury of January 24, 1938, played, nor is any basis made for determining what part, if any, the specific injury to appellee’s eye played in producing the incapacity which forms the basis of the judgment.

The Workmen’s Compensation Act was designed to provide compensation' for employees who are injured in the course of their employment by subscribing members to the act. Where specific provisions are made by the statute for recovery under enumerated conditions, the compensation must be awarded under those provisions to the exclusion of the general provisions of the law. Where, however, the injuries received by the employee are such as not to be'the subject of specific provi-' sions of the statute, such as the schedule provided in Sec. 12 and the special condition provided for in Sec. 12c, recovery must be had under the general provisions of the law. This case reveals an injury covered by a specific provision of the statute, that is, an injury to appellee’s eye, the compensation for the total loss of which is 60% of his average weekly wages during 100 weeks. The other is a general injury and comes under other provisions of the act. There is no provision of the law under which such injuries as those which appel-lee alleges he received may be combined in the manner in which the court sought to combine them in this case and in attempting to do so the court, in our opinion, committed error for which the judgment will have to be reversed.

Appellee suggests in his brief that appellant should not be heard to complain of the manner in which the case was submitted to the jury because the method adopted by the court in doing so was more favorable to appellant than the method contended for by it would have been. If judgment had been rendered against appellee in-the trial court and he had brought the case-' to this court under the same contentions here made by appellant, there is no doubt they would have been sustained and it may be that the method adopted by the court in submitting.the case to the jury was, in its result, more favorable to appellant than the correct method would have been. That,, however, is a matter of no consequence. It is by no means certain that judgment for a greater amount would have been rendered! against appellant under a proper submission. However that may be, and whatever may have been the result of a correct sub-:' mission of the case to the jury, appellant-had the right to have the case submitted according to the law and, the case not having been so submitted, it has the right to complain.

Appellant complains of the action of the court in overruling its special exceptions to some of the special issues submitted to the jury, contending that they were too general and allowed the jury to consider, and return a verdict against it for injuries that were alleged by appellee but which were not supported by evidence. One of these special issues was as follows: “Do you find from a preponderance of the evidence that Woodrow R. Pierson sustained personal injury on the 24th of January, 1938?”

Appellee alleged that, as a result of his hand slipping on the chisel, he fell forward, violently striking the right side of his chest against the metal end of the chisel and as a 'result thereof, the fibres of his lungs were torn, the muscles, ligaments, tendons, nerves and blood vessels of the right side of his chest or diaphragm were stráined, stretched and torn, and. the ribs fractured, dislocated and deranged. A number of these allegations were not supported by the testimony. In order that an accurate verdict may be obtained, it is the rule that the'issues submitted to the jury should embrace only the case as made by the pleadings and the evidence. A matter pleaded, but not having support in the evidence, passes out of the-, case and the jury should be confined in. their deliberations to those matters only that have support in the proof. The nature of the injury described jn the testimony should be incorporated in the issue-in at least a general way so that the jury may not become confused as to the specific matter which constitutes the basis of their proper deliberations and incorporate in their verdict a recovery for an item of injury or damage eloquently pleaded, perhaps, hut having no foundation in the testimony.

In our opinion, some of these assignments contain merit and, in view of another trial, we suggest that the issues be so framed as to conform more closely to these rules of submission. Security Mut. Casualty Co. v. Bolton et al., Tex.Civ.App., 84 S.W.2d 552; Petroleum Casualty Co. v. Schooley, Tex.Civ.App., 131 S.W.2d 291; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972; Texas Employers Ins. Ass’n v. Phelan, Tex.Civ.App., 103 S.W.2d 863.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    REYNOLDS et al. v. FARMERS & MERCHANTS NAT. BANK OF NOCONA et al.
    No. 13990.
    Court of Civil Appeals of Texas. Port Worth.
    Dec. 1, 1939.
    Rehearing Denied Jan. 19, 1940.
    H. M. Muse, of Wichita Falls, for plaintiffs in error.
    Benson & Benson, of Bowie, for defendant in error.
   BROWN, Justice.

Plaintiffs in error, A. O. Reynolds and Mary Wade Battles, a feme sole, brought suit in the District Court of Montague County against Farmers & Merchants National Bank of Nocona and C. McCall, defendants in error, in trespass to try title to recover certain lands in said county, and alleged that the deed, executed by the sheriff of Montague County, by virtue of an order of sale issued on a judgment obtained against Reynolds, was and is void, because the order of sale was issued February 28, 1933, in which the said sheriff was directed to make due return thereon within 30 days, but that said sheriff made his return showing that such writ came into his hands on February 28, 1933, that he advertised the property for sale to take place on May 2, 1933, that such advertisements were published on April 5, 1933, and the required -subsequent dates, and thát the land was sold on May 2, 1933, to said Bank, 63 days .after the order of sale was issued, and that the sheriff’s return was actually made 81 -days after such writ was issued and placed -in his hands.

It was further alleged that said Bank ■conveyed the lands on August 10, 1934, to said McCall, who was and is the president of the Bank, and that by reason of such facts and the knowledge had on the part •of C. McCall, he was not an innocent purchaser of the property for value.

Plaintiffs prayed for a cancellation of the two deeds and to thereby remove the ■cloud cast upon their title by such deeds.

The defendants duly answered and spe•cially excepted to the petition, as a collateral attack upon the sheriff’s sale, and be- ■ cause the petition shows that plaintiffs’ ■ cause of action is barred by the 4 year statute of limitations (Art. 5529, R.C.S.), and specially pleaded the said 4 year statute of limitations and the 3 year statute (Art. 5507, R.C.S.) in bar of plaintiffs’ right to recover, and also plead laches and stale • demand.

The cause was tried to the court and judgment rendered that plaintiffs take •nothing as against both defendants.

The plaintiffs have appealed and the parties will be designated as in the trial court.

The facts with reference to the issuance, service, sale thereunder and return of the - order of sale, as alleged by the plaintiffs, .are undisputed.

Art. 3784, R.C.S. of Texas provides that "the execution shall be returnable to the first day of the next term of the court, or in thirty, sixty or ninety days, if so directed by the plaintiff, his agent or attorney.”

It has been uniformly held that a : sale of real estate made under an execution after the return day on the .writ is void, and the purchaser acquires no title thereby.

In Mitchell v. Ireland, 54 Tex. 301, the Supreme Court said: “If the defendants below have no other title than that derived through sale made under execution after return day thereof, then such title, as has been expressly decided by this court, is a nullity, and would confer no right. Hester v. Duprey, 46 Tex. 625; Young v. Smith, 23 Tex. [598], 600 [76 Am.Dec. 81].”

Thus it appears that the plaintiffs are entitled to recover unless they are precluded by some statute of limitations pleaded in défense of such right.

Defendants cannot rely upon Art. 5507, R.C.S., which provides; “Suits to recover real estate, as against a person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action accrued, and not afterward.”

This is sound because of .such holdings and pronouncements as are found in Savage v. Rhea, Tex.Com.App., 33 S.W.2d 429, 433: “The deed from Mrs. Ohler, for the reasons above stated, was void and properly attackable by the defendant in error; it is therefore not such color of title as will support limitation by possession for three years. Garner v. Black, 95 Tex. 125, 65 S.W. 876; Burnham v. Hardy Oil Co. 108 Tex. 555, 195 S.W. 1139; Spikes-Nash Co. v. Manning (Tex.Civ.App.), 204 S.W. 374.”

The Supreme Court expressly approved and adopted the holdings quoted.

In the last case cited—Spikes-Nash Co. v. Manning—this expression appears [204 S.W. 375]: “A void .deed is neither.title nor color of title”; and the opinion cites three Supreme Court decisions and one from a Court of Civil Appeals.

Defendants cannot rely upon Art. 5529, R.C.S., which provides: “Every’-action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

This is sound because the instant suit was brought to recover the real estate, and the cancellation of the void - deed, under which defendants hold and claim title, and the removal of the cloud, upon plaintiffs’ title, caused by- the execution and recording of such deed, is a mere incident to plaintiffs’ suit.

We quote from the Supreme Court, in the case of Rutherford et al. v. Carr, 99 Tex. 101, 87 SW. 815, 816:

“In this case the creditor recovered a judgment for his debt against Teliaferro, and thereafter levied execution upon the land, sold it, and the plaintiffs in error purchased it at the sale. By that purchase they acquired the title, and are entitled to recover the land unless the action is barred by the statute of limitations. Plaintiffs’ suit was brought in an action of trespass to try title, to which the defendant pleaded not guilty, and at the same time pleaded specially his title, including the deed charged to be fraudulent. Thereupon plaintiffs, by supplemental petition, replied to the defendant’s answer, setting up facts that showed the deed to be fraudulent, and claiming that title had never passed out of the debtor. The filing of the special plea of title made it necessary for the plaintiffs to file their supplemental petition that the testimony might be admitted to show the deed to be void. Paul v. Perez, 7 Tex. 338. If the defendant had not pleaded his title' specially, the plaintiffs could have introduced the same evidence. McSween v. Yett, 60 Tex. 183. Therefore the supplemental petition was a matter of pleading, giving notice of the attack to be made upon a muniment of defendant’s title, and did not change the character of the suit. The purpose of the action was to recover the land — a cause of action which determines the character of the suit to be for the recovery of real estate.
“It is claimed that the plaintiffs’ action is barred by the time prescribed in the following article of the Revised Statutes of 1895: ‘Art. 3358. Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.’ The application of the statute depends upon the character of the action, and, this being an action for the recovery of real estate, it is excepted in express terms, the statute does not apply, and the plaintiffs’ right to recover the land was not barred.
“There is much conflict among the authorities as to the time when the statute of limitations will begin to run against a suit to set aside a fraudulent deed, but we have found no case in which the period of time that would bar an action to set aside a deed' would defeat a suit for the recovery of land. In all cases where the suit was to-recover land, the statutes applicable to such actions have been applied. They differ as to when the statute begins to run, but are uniform as to the time and possession required. Bobb v. Woodward, 50 Mo. 95; Ramsey v. Quillen, 5 Lea. 184; Blantin v. Whitaker, 11 Humph. 313; Amaker v. New (S.C.) [33 S.C. 28], 11 S.E. 386, 8 L.R.A. 687. The last case cited is directly in point, and holds that the period of limitation is that which would apply to an action for the recovery of the land, and not the period which would bar a suit to set aside a fraudulent deed.”

We do not find in this record where the doctrine of laches and stale demand should be applied.

The suit was filed August 12, 1937. The sheriff’s deed is dated May 19, 1933, but was not filed for record until October 18, 1933, and this is a suit for the recovery of land.

In Vol. 27 Tex.Juri., para. 4, page 19, in discussing the defense of laches and stale demand, it is - said: “It is settled, however, that-the defense may not be invoked to resist the enforcement of a purely legal right, however asserted; in such cases the defendant must rely on the statute of limitations.” The text is supported by such authorities as: House v. Brent, 69 Tex. 27, 7 S.W. 65, and Williams v. Conger, 49 Tex. 582.

The judgment of the trial court is reversed and judgment here rendered for the plaintiffs in error.

On Motion for Rehearing.

After duly considering the judgment rendered by us heretofore in this cause, on December 1, 1939, we deem it necessary to add one paragraph to the judgment, as follows:

While the judgment of the trial court is reversed and rendered in favor of the appellants here, such judgment of this court is without prejudice to the right of the Farmers & Merchants National Bank of Nocona, or its assigns, to cause to be issued another order of sale or execution out of the judgment heretofore obtained by it against A. O. Reynolds.

With this change and amendment to the judgment heretofore rendered by us, the motion for a rehearing is overruled.


author: ! JOHNSTONE, Chief Justice.

text:
    PEARLSTONE-ASH GROCERY CO. v. REMBERT NAT. BANK OF LONGVIEW et al.
    No. 5395.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 28, 1939.
    Rehearing Denied Jan. 18, 1940.
    Coke & Coke and Irving Goldbergs all of Dallas, ánd Taylor & Storey, of Long-view, for appellant.
    W. H. Sanford, of Dallas, Hurst, Ceak & Burke, of Longview, and Conan Cant-well, of Dallas, for appellees.
   ! JOHNSTONE, Chief Justice.

, Pearlstone-Ash ; Grocery Company brought this suit against W. R. Wickham, Carrcjl,.Wickham, Ivenneth'Wickham a.nd Roy Wickham (called “the Wickham defendants), against the Rembert National Bank of Longview, and against Dublin Grocery Company. Plaintiff alleged against Wickham defendants that it had sold said defendants, on open account over a period of some thirty-two months, goods of an aggregate value, and at an aggregate agreed price, of $281,721.77, less discounts totaling $5,235.56, that the Wickham defendants had paid on said account only $266,597.02, leaving a balance due of $9,-889.19, for which judgment was sought. Against the Dublin Grocery Company plaintiff alleged that the Dublin Grocery Company had purchased the stock of merchandise and fixtures of the Wickham defendants’ stores without compliance with the Bulk Sales Law of ,Texas (R.S.1925, Article 4001) and by reason thereof was accountable to plaintiff for such merchandise and fixtures and the proceeds thereof, to the amount of plaintiff’s claim against the Wickhams. Against the bank, in the alternative, it was alleged that plaintiff’s salesman, A. C. Numsen, Jr., had received from the Wickham defendants from time to time during the period in question, checks drawn by said defendants and payable to the plaintiff aggregating $14,566.65 (fifty-one of which, aggregating $11,027.18, were drawn on the Rembert National Bank itself, and twelve of which, aggregating $3,539.47, were drawn on Everett Banking Company) ; that said salesman without authority endorsed said checks, which were the property of plaintiff, and the proceeds were paid to him by the defendant bank upon such unauthorized endorsement, and were misappropriated by him. It was further alleged, as against the bank,» that said salesman, A. C. Numsen, Jr., had received •from the Wickham defendants eighteen other checks, payable to himself individually, aggregating $4,654.27, the proceeds of which were paid to said Numsen by the bank with knowledge that they belonged to plaintiff. Plaintiff sought judgment against the bank for the total amount of all of the above-mentioned checks “or such sum as the evidence shows its loss to be.’’

The Wickham defendants denied plaintiff’s allegation generally and specifically; alleged that they had not only paid plaintiff in full for all goods purchased but had overpaid. By way of cross action these defendants alleged that during the period in question they had operated several grocery stores in Longview, Gladewater and Greggton, Texas, and purchased from plaintiff through two salesmen, A. C. Num-sen, Jr., and another, groceries and merchandise in the total amount of $281,721.-77; and had paid plaintiff in checks and cash $285,710.69, for which they had received . credit on plaintiff’s books for only $266,597.02, the difference of $19,113.67 having been paid by the checks above referred to, for which they had not received credit; that taking into account said checks and the discounts of $5,235.56 allowed by plaintiff, they had overpaid their account $9,224.48. The Wickham defendants further alleged that plaintiff's salesman Num-sen, within.the scope of his authority, had allowed them discounts totaling $12,496.03 in addition to the $5,235.56 allowed as discounts by the plaintiff; and that plaintiff had falsely notified the Dublin Grocery Company (to whom said defendants had made a sale of one of their stores) that defendants were indebted to plaintiff in the sum of $9,889.19, and thereby induced it to withhold said amount from them, whereby they were entitled to legal interest from the date of such notice. The Wickham defendants sought judgment against the plaintiff for the alleged overpayment and unallowed discounts, totaling $21,720.51, with interest; and for said item of interest on the $9,889.19 which plaintiff caused the Dublin Grocery Company to withhold from the Wickhams.

The defendant Rembert National Bank answered by general denial and alleged specially that A. C. Numsen, Jr., was actually or impliedly authorized to endorse the checks which he did endorse, and to receive the proceeds thereof, or if not, that he-was apparently so authorized, and was held out by plaintiff as having such authority; that he was given wide latitude and plenary authority in handling plaintiff’s business, and his acts, including those here in question, were ratified and adopted by the plaintiff; that plaintiff knew of the course of conduct whereby Numsen endorsed the checks and received the proceeds, or, if it did not, its ignorance was the result of its own negligence.

By supplemental petitions plaintiff alleged (as to the defendant bank) that the bank was negligent in not determining that Numsen had no authority to endorse checks and receive the proceeds thereof, and in not making inquiry as to the extent of his authority; and (as to the Wickham defendants) that the discounts allowed said defendants, aggregating $5,235.56, were usual and customary; denied the authority of their salesman to allow any other or additional discounts; alleged that said defendants had paid only $266,597.02; and that the additional amount claimed by said defendants to have been paid was represented by the checks endorsed and cashed by Numsen without authority, which checks did not constitute any payment to plaintiff; and that if said defendants suffered loss thereby, it was occasioned by their own negligence in not determining the amount of merchandise which they had received, and the correct amount owed therefor.

The case was tried to a jury. After all parties announced ready for trial, the Dublin Grocery Company was dismissed from the case on motion of plaintiff. The evidence for the most part was undisputed. It appears without controversy that during the period from March 26, 1932, to December 1, 1934, plaintiff delivered groceries to the Wickham defendants, to the amount (before discounts) of $281,721.77, allowed usual and customary discounts aggregating $5,235.56, and charged said defendants the net total of $276,486.21. It further appears that the dealings between plaintiff and said defendants were handled, on behalf of plaintiff, by its salesman A. C. Numsen, Jr., who was authorized to, and did sell groceries to said defendants, deliver to them invoices or “settlement statements,” and make all collections from them for the groceries so sold; that in making these collections he had authority to accept cash or checks; that during said time said defendants had made payments to plaintiff totaling $279,545.01, thereby overpaying plaintiff in the sum of $3,058.-80; that all payments made by said defendants were by checks delivered to said salesman; that all the checks except $4,654.27 were payable to the order of Pearlstone-Ash Grocery Company, the last-mentioned amount being the aggregate of eighteen checks issued on and after July 7, 1934, and which were made payable to the salesman, A. C. Numsen, Jr.; that sixty-three of the checks made payable to the plaintiff, over a period beginning February 10, 1933, and ending June 23, 1934, aggregating $14,566.65 in amount, were endorsed in plaintiff’s name by A. C. Numsen, Jr., and the proceeds received by him from the defendant bank; that he also endorsed and cashed at said bank the eighteen checks made payable to him individually; that he accounted to the plaintiff for a part, but not all, of the proceeds of the checks cashed by him; that the amount actually received by plaintiff from its said salesman and credited to the Wickham defendants, being the aggregate of all the Wickham checks turned over to it in kind, together with that part of the proceeds of the checks cashed by the salesman for which he accounted to his employer, was $266,120.03; that said defendants were also given credit for $476.99 for merchandise returned, leaving a net unpaid balance (according to plaintiff’s books) of $9,889.19; that the salesman, Numsen, was expressly authorized by the plaintiff to collect either checks or cash on its behalf, but that he was never expressly authorized to endorse on its behalf checks made payable to it, and that plaintiff’s managing officers had no actual knowledge that he did so, until after June 23, 1934. It further appears without controversy that the aggregate of the invoices or “settlement statements” delivered to the Wickham defendants over the entire period of their dealings with plaintiff were not in accordance with the aggregate charges actually made by plaintiff, representing the amount of groceries actually delivered; that during the part of the period when the salesman Numsen was handling the transactions, the “settlement statements” were in some instances “padded,” duplicated or fictitious, and in other instances incorrectly totaled; that the aggregate amount of, the charges to the Wickham defendants as shown by the “settlement statements” over the entire period in question (not taking account of discounts allowed and noted thereon) was $304,119.01, or $22,397.24 more than the actual gross, amount of groceries sold and charged for by the plaintiff; of which difference some $6,000 was due to errors in addition on the face of the ■ statements themselves, the balance representing unidentified duplications, padding, or fictitious charges; and that the aggregate of discounts allowed the Wickham defendants by the salesman Numsen, as noted on said settlement statements, each signed, by him, amounted to $17,731.69. It further appears that payment.to the Wickhams of the sum of $9,889.19, due as a part of the purchase price of a sale of goods, wares and merchandise by the Wickham defendants to Dublin Grocery Company, was held in suspense by the latter company by reason of plaintiff’s claim that the Wickhams were indebted to plaintiff in that amount.

Forty-two special issues were submitted to the jury, in answer to which the jury found: That the Wickham defendants had overpaid their- account; that ’their loss was proximately caused by their own negligence in failing to determine the amount of merchandise received, and in failing to determine the correct amount owed plaintiff; that the salesman Numsen was authorized to make such discounts as he saw fit and proper; that he was not authorized to endorse the checks payable to the plaintiff; that plaintiff has not suffered any loss by reason of his doing so; that the defendant bank did not know that he was not so authorized and was not negligent in failing to determine his want of authority; that Numsen misappropriated and misapplied a part of the proceeds of the checks but the bank had no knowledge thereof, nor of any facts putting it on inquiry; that the plaintiff did not fail “to keep such books and records of the sale of groceries, and collections of moneys by A. C. Numsen, Jr., as would have kept it advised in the premises” nor to “verify the status of accounts as between it and the Wickham defendants from time to time”; that the plaintiff permitted Numsen to represent it in all its business dealings with the Wickham defendants, and from time to time received and accepted from him proceeds of checks cashed by him, without inquiry, but was not negligent in either of those respects; that Numsen was not authorized to receive the proceeds of the checks cashed by him, payable to the plaintiff, but had apparent authority so to do; and that plaintiff did not give its salesman Numsen authority to receive checks payable to himself for merchandise it had sold.

The trial court rendered judgment (1) that plaintiff take nothing by reason of its claim against the Wickham defendants; (2) that the Wickham defendants recover against the plaintiff $3,048.80 overpaid, with interest, and $1,058.10, being interest on the $9,889.19 withheld from them by Dublin Grocery Company on account of plaintiff’s claim; (3) denying the Wickham defendants recovery on their claim for additional discounts; (4) .denying the plaintiff any recovery against the defendant Rembert National Bank, except to the extent of that part of the proceeds of the checks drawn on the Everett Banking Company, payable to the plaintiff and endorsed by the salesman Numsen, which were not accounted for by him to the plaintiff, the amount thereof being $2,893.33, for which, with interest, judgment was in favor of the plaintiff against the bank.

All parties appealed. The three appeals were properly incorporated in one transcript which, together with the statement of facts, was duly filed in this court and given docket No. 5395.

The matter first to be determined consists of motions to strike from the record the briefs filed in this court by appellant Pearlstone-Ash Grocery Company, and by the Wickham appellants. The Wickhams, appellees in the appeal of appellant Pearl-stone-Ash Grocery Company, filed a motion to strike said appellant’s brief (in so far as relates to matters between said appellant and said appellees, being all the brief except that part which relates to matters between Pearlstone-Ash Grocery Company and the Rembert National Bank) because said brief was not filed within the tithe provided by law, and not filed until after the cause had been submitted and that ap-pellees had no time and not sufficient time to answer same. And Pearlstone-Ash Grocery Company, appellee in the appeal of the Wickham appellants, filed its motion to strike said appellants’ brief (all the same relates to matters between said appellants and said appellees) because said brief was not filed within the time provided by law. The facts relating to the motions show that on October 28, 1938, the attorneys of record for all parties were duly notified that the case had been set for submission for March 16, 1939. The Wickham appellants filed their brief March 1st. The appellant Pearlstone-Ash Grocery Company filed its brief March 17th. The motion of the Wick-hams to strike the brief of appellant Pearl-stone-Ash Grocery Company was filed March 18th. The motion of Pearlstone-Ash Grocery Company to strike the brief of the Wickham appellants was filed on March 20, 1939.

Revised Statutes of 1925, Article 1848, as amended by Acts 1935, 44th Legislature, page 225, Chapter 90, Section 1, Vernon’s Ann.Tex.Civ.Statutes, art. 1848, governs the time in which to file briefs in the Courts of Civil Appeals. It provides: “Cases upon the_ trial docket of said Court which have not been advanced as provided by law, shall be set for submission eight weeks ahead of the date of submission. and the parties or their attorneys of record notified of the date for submission, as provided in Section 1 of this Act. The appellant, or plaintiff in error, shall have thirty days from the date of such notice in which to file his brief in the Court of Civil Appeals and the appellee’s brief shall be so filed at least five days before the date set for submission. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for the filing of their respective briefs, and may extend the time for the submission of the case.”

We think the statute as amended purposes to require that the case shall be set for submission and notice thereof given to the parties or their attorneys of record at least eight weeks (fifty-six days) prior to the date of submission, and that the appellant shall have thirty days from the first day of the eight week period immediately preceding the date of submission within which to file his brief; that where the case has been set for submission and notice thereof given more than eight weeks prior to the date of submission, the appellant shall not be limited to thirty days from date of such notice, but shall have thirty days from the first day of the eight week period immediately preceding the date of submission within which to file his brief. Gulf Production Co. v. Kishi, Tex.Civ.App., 105 S.W.2d 733. The present case was set for submission and notice thereof given October 28, 1938, 139 days prior to the date of submission, March 16, 1939. Neither party contends that the other party as appellant was required to file his brief within thirty days from October 28, 1938. Each motion is based upon the fact that .the briefs attacked were not filed within thirty days from the first day of the eight week period immediately preceding the date of submission. The first day of said eight week period was January 19, 1939. The thirty days from that date within which appellants were required to file their brief expired February 18, 1939. The Wickham appellants did not file their brief until March 1st, being forty-one days after the first day of said eight week period, or eleven days after the expiration of the time required by statute. The appellant Pearlstone-Ash Grocery Company did not file its brief until March 17th, being fifty-seven days after the first day of said eight week period, or twenty-seven days after the expiration of the time required by statute,-and one day after the case had been submitted. No motion was made by either of said appellants asking for postponement of submission and extension of time within which to file briefs, nor has there been shown “good cause”, as that term is shown in the statute, upon which to predicate such a motion, had one been made. Graves v. Conn. Gen. Life Ins. Co., Tex.Civ.App., 104 S.W.2d 121. Therefore it becomes our duty to grant each of the motions to strike briefs. The briefs of appellant Pearlstone-Ash Grocery Company and of the Wickham appellants are accordingly stricken from the record.

We have examined the record for fundamental error and find none, hence the judgment of the trial court in so far as it relates to matters between said parties is affirmed. Slama v. Mills, Tex.Civ.App., 116 S.W.2d 426. This leaves for determination only the matters between the appellant Rembert National Bank and its ap-pellee Pearlstone-Ash Grocery Company.

The Rembert National Bank paid over to the salesman Numsen over a period beginning February 10, 1933, and ending June 23, 1934, the proceeds of sixty-three checks drawn by the Wickham defendants payable to the order of Pearlstone-Ash Grocery Company and endorsed “Pearl-stone-Ash' Grocery Company by A. C. Num-sen, Jr.” As above stated, Rembert National Bank itself was the drawee in fifty-one of these checks. As to those checks the bank was relieved from liability to plaintiff under the principles announced in Fidelity & Deposit Co. of Maryland v. Fort Worth National Bank, Tex.Com.App., 65 S.W.2d 276, and no complaint is made by the plaintiff on this appeal of the judgment in respect of those checks.

Twelve of said checks, aggregating $3,-539.47 over a period beginning December 6, 1933, and ending June 23, 1934, were drawn on Everett Banking Company of Glade-water, Texas. As to those checks the trial court, under the authority of the above cited case, held that the appellant bank was liable to the plaintiff, except as to the amount of the proceeds thereof paid over to said salesman which could be and were traced into the hands of plaintiff itself. The portion of the proceeds of said checks which was unaccounted for by the salesman to the plaintiff amounted to $2,893.33, for which amount with interest the trial court rendered judgment in favor of the plaintiff against the appellant bank. The jury found, and its finding was supported by testimony, that said salesman was not expressly authorized by the plaintiff to endorse checks payable to its order. The jury also found that said salesman did not have actual authority to receive the proceeds of said checks but did have apparent authority to do so. In rendering judgment against the bank the trial court disregarded the finding of the jury as to apparent authority.

We think the evidence amply sustains the finding of the jury as to such apparent authority, and, therefore, that the trial court was in error in disregarding it; also that the jury finding that said salesman did not have actual authority to receive the proceeds of said checks was contrary to the undisputed evidence and should have been disregarded by the trial court, the bank having duly moved in that behalf under Article 2211, Vernon’s Ann.Civ.St. art. 2211, and that the trial court should have rendered judgment in favor of the bank based upon both the undisputed evidence of actual authority and the jury finding as to apparent authority. The 'facts of this case with respect to the agent differentiate it from the Fidelity & Deposit Company case.

As to actual authority, plaintiff's managing officer, W. M. Ash, testified that “It was satisfactory with Pearlstone-Ash Grocery Company that persons who were indebted to them could pay Mr. Numsen in cash on behalf of the corporation.” As to apparent authority, it appears without controversy that over the ten months’ period from February 10, 1933, to -December 6, 1933 (on which last-mentioned date the first of the checks here mentioned was cashed drawn on the Everett Banking Company), said salesman had presented to the bank and been paid the proceeds of thirty-eight checks drawn on the Rembert National Bank payable to plaintiff’s order and endorsed by said salesman. Whether or not the evidence is sufficient to sustain a finding of apparent authority to receive proceeds of, for example, the first check endorsed and cashed by said salesman on February 10, 1933, we think the long continued course of conduct, over a period of ten months, during which time a large number of checks so endorsed had been cashed by the bank without cómplaint by the plaintiff, clothed the salesman with apparent authority to continue such course of conduct. The finding of the jury that the salesman was not authorized to endorse checks was immaterial. Plaintiff is not sought to be charged with liability on a contract of endorsement. Conceding that the checks in question were the property of the plaintiff, and that it was the duty of the bank to pay the proceeds thereof to the plaintiff, the bank performed that duty when it paid the proceeds to an agent of the plaintiff having actual and apparent authority to receive the same on its behalf. Therefore the judgment in favor of the Pearlstone-Ash Grocery Company against the Rembert National Bank should be reversed and judgment rendered that the plaintiff take nothing against the bank.

The judgment of the trial court is affirmed in part and reversed and rendered in part.


author: LOONEY, Justice. YOUNG, Justice

text:
    OLDHAM v. OLDHAM.
    No. 12905.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1939.
    Rehearing Denied Jan. 13, 1940.

      C. W. & Chas. P. Atkinson, of Fort Worth, for appellant.

      Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, for appellee.
   LOONEY, Justice.

This is a habeas corpus proceeding, instituted by Nannie Brittain Oldham, appellant, against her former husband, John C. Oldham, appellee, for the custody of Richard Grey Oldham, their son, about five and a half years of age; and from an adverse judgment, she prosecutes this appeal.

Appellant alleged, in substance, that she and appellee were divorced by the Circuit Court in and for Lee County, the State of Florida, on December -7, 1937, and that, as a part of the decree, the court disposed of the custody of the three children of the parties, all small boys, according to the terms of an agreement by the parents, as follows: “Nannie Brittain Oldham shall have the custody of said children during the following periods, to-wit: John Brit-tain Oldham and Richard Grey Oldham for the periods of Sept. 1 through May 31, or until the week before the beginning and until the week after the ending of each school term. During'the remainder of said year other than during the school term and for the week before and the week following the same, John C. Oldham shall have the custody of said two children. The custody of Thomas Henry Oldham shall remain with Nannie Brittain Oldham until said child becomes six years of age. Then and thereafter the custody of Thomas Henry Oldham shall be divided between the parties hereto in the same manner and for the same term as above provided for John Brittain Oldham and Richard Grey Old-ham.”, alleging that the agreement was approved and incorporated into and became a part of the decree, in the following language : “And the court hereby approves, adopts and incorporates this agreement as a part of this decree, and retains jurisdiction of this cause and of the parties hereto in so far as relates to enforcement of said agreement and for the purpose of making such other and further orders concerning the custody and support of said children as the best interest and welfare of said children may require.” A copy of the decree was attached to and became a part of appellant’s petition, alleging that, since about May 31, 1938, appellee had held custody of the minor, Richard Grey Oldhám, but failed to return him to the custody of appellant, as required by the terms of the decree, and still fails and refuses so to do. Appellee’s answer contained general and special exceptions, a general denial and special pleas, to the effect that, on September 10, 1938, appellee and appellant entered into a written agreement, under the terms of which she voluntarily relinquished to appellee custody of said minor, and that, in pursuance of such agreement, appellee’s custody has since continued. And by way of further answer and cross action, referring to the divorce decree, copy of which was attached to and formed a part of ap-pellee’s petition, appellant alleged that, since December 7, 1937, the date of the decree disposing of the custody of the minor, conditions had materially changed (alleging specifically certain pertinent facts), justifying and requiring the court, in the exercise of its equity powers and judicial discretion, for the best interest of the minor, to grant appellee the exclusive custody and control of the minor; also alleged that, under the agreement of September 10, 1938, heretofore mentioned, appellant voluntarily relinquished her right to the custody of Richard Grey- — praying that she take nothing by her action, that she be required “to specifically perform her agreement of Sept. 10, 1938”, to. the end that, appellee be awarded the exclusive custody and control of the minor, and for general relief.

At the conclusion of the evidence, the court announced its decision of the issues of fact and law in the following language: “Whereupon the case came on -for trial upon its merits, and no jury having been demanded, all issues of facts, as well as of law, were submitted to the court for its determination, and the court' after hearing the pleadings, the evidence and argument of counsel, is of the opinion that defendant’s motion for judgment at the close of plaintiff’s testimony, should be sustained, and that the plaintiff should take nothing and that the defendant should recover on his cross action.” In a colloquy between counsel for appellant and the court, it was indicated that the action of the court was predicated on the agreement of September 10, 1938, the court saying: “* * my opinion is that the agreement takes precedence over the foreign judgment. Up to the date of the agreement, I will give the judgment full faith and credit, but after Mr. Ford (attorney for appellee) introduces the agreement you will have to do something about it”.

At the outset, we are confronted with a. cross' assignment of error urged by appel-lee, based upon the action of the court in admitting in evidence, over his objection, a certified copy of the divorce decree rendered by the Circuit Court of Lee County, Florida; the ground of the objection being that, the attestation of the clerk to the copy of the judgment was not certified to by the presiding magistrate as being in due form. Following the attestation, signed by Esther Draughon as clerk, the presiding magistrate, Honorable George W. White-hurst, certified “that Esther Draughon, is the duly elected and qualified clerk of the Circuit Court, in and for Lee County” etc., but failed to certify that her attestation was in due form.

We do not deem it necessary to decide whether or not the authentication of the judgment was in substantial compliance with the Act of Congress, because we think it may be conceded that it was not, but that was only one method of proving a judgment in the courts of a sister state—proof may have been made by a witness, as at common law, and, furthermore, we know no reason why the judgment of another state may not be admitted as a fact, as we think was done in the instant case.

As before stated, appellant predicated her right to have the custody of the minor restored to her, exclusively on the provisions of the Florida judgment, a copy of which was attached to and formed a part of her petition, the material portions of which have heretofore been set out. In his cross action, seeking permanent custody and control of the minor, we think that, to all intents and purposes, appellee admitted the existence of the judgment; among other things, he alleged that “since the judgment of divorce and the decree providing for the custody of the said Richard Grey Oldham on Dec. 7, 1937, conditions have so changed as to require the court in the exercise of its judicial discretion to grant defendant herein the exclusive control and custody of said Richard Grey Old-ham. In this respect, defendant (appellee here) would show to the court that the judgment of divorce and decree providing for the custody of said Richard Grey Old-ham was rendered on Dec. 7, 1937. That pursuant to the terms of said decree defendant herein was entitled to the custody of Richard Grey Oldham and John Brittain Oldham, beginning one week after the close of the spring term of school and continuing until one week before the opening of the fall term. That pursuant to .such decree plaintiff (appellant here) surrendered the custody of said Richard Grey Old-ham and John Brittain Oldham to defendant (appellee) herein on June 4, 1938"’, which was followed by allegations in regard to changed conditions since the original decree was rendered; also alleged that, on September 10, 1938, “plaintiff (appellant) entered into a written contract with defendant herein (appellee), by which she voluntarily relinquished her right to the custody of the said Richard Grey Oldham”, by reason of which, appellee sought to have the original decree modified, and that he be given permanent custody of the minor. Throughout, in his cross action seeking exclusive control and custody of the minor, appellee referred to the original decree, quoting therefrom, and, in effect, conceded that such a judgment was rendered as the copy attached to plaintiff’s petition purported to show. Therefore, we think that, on .appellee’s admissions, the judgment was properly before the court and entitled to full faith and credit, as provided by Sec. 1, Art. 4, of the Federal Constitution, U.S.C. A.

As appears from the excerpts quoted, custody of the three young boys was given the mother for nine months covering the school period of each year, and was given the father for the remaining three months, the vacation period. It is obvious, we think, that the chancellor thought it for the best interest of the children, whether in the custody of mother or father, that they should be kept together, grow up together, that they might learn to regard and love each other as brothers, and not simply regard each other as sons of common parents, which would likely result if they are permanently separated. We think it also obvious that the chancellor deemed it for their best interest, that the continuity of their school work should not be broken; and that, the periodic change of custody was to prevent, if possible, the natural affection of parent for child, and child for parent, from waning, growing cold, or becoming extinct. These provisions are parts of the Florida Court decree and are entitled to full faith and credit in the courts of this State, until it is shown, by allegation and proof, that the situation and character of the respective parties have so changed since the rendition of the decree, as to make, it to -the best in-:. terest of the children, or either one of them, to set aside or modify the former decree.

The rules of law controlling in such cases have been very clearly and succinctly stated by our courts. In the case of Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 168, 116 A.L.R. 1293, Judge Martin, speaking for- the Supreme Court, said: “It is no longer an open question in American jurisprudence that a child custody judgment is res judicata only of what was then before the court, and that far only is protected by the ‘full faith and credit’ clause of the Federal Constitution, article 4, § 1. A subsequent material change of conditions brings into being a new and independent cause of action. The original custody judgment may be absolute and final in form. In reality, it is temporary and conditional. Whether .expressed or not, the law writes into each of such judgments, in substance, that its finality ends when and if conditions affecting the welfare of the child have materially changed. So that it may be said that a petition alleging such facts is in no sense an attack upon such former judgment, but is an independent suit, having to do with a present status, and challenging the jurisdiction of a proper court to declare such status upon the basis of the then welfare of the child. That welfare is the concern of sovereignty, as the guardian of persons under disability, and in a very real sense the state is interested in the result, though not a nominal party. That concern does not end with a judgment, but is a continuing one until such child becomes sui juris.” And, in the more recent case of Evans v. Taylor, Tex.Civ.App., 128 S.W. 2d 77-79, Judge Folley announced rules to the same effect; he said: “We think it is well settled in our jurisdiction that the two judgments of the Kansas court are res adjudicata of all questions concerning the right to the custody of the child which were or could have been raised at the time of the respective adjudications, are binding upon all the parties and the decrees are protected by the full faith and credit clause of the Federal Constitution. U.S.C.A. Const, art. 4, § 1. Goldsmith et al. v. Salkey [131 Tex. 139], 112 S.W.2d 165, 116 A.L.R. 1293; Id., Tex.Civ.App., 115 S.W.2d 778, 116 A.L.R. 1293. It is also well settled that the finality of such judgments obtains so long as the circumstances remain the same. Such rule, however, does not bar a subsequent proceeding to modify or change the former award provided conditions have changed so materially since such decree as would warrant an adjudication upon the question in the light of the changed conditions. In order to warrant a change or modification of the order the true test seems to be that the proof must show the ‘situation and character of the respective parties have so changed as to-render it to the (best) interest of the infant’ that the former order be set aside or modified. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 947, 97 Am.St.Rep. 928”.

Jn order, therefore, for appellee to disturb the judgment rendered by the Circuit Court of Lee County, Florida, it was incumbent upon him to both allege and prove that the conditions had so materially changed since the rendition of the decree as to render it for the best interest of the minor, whose custody is here involved, to set aside or modify the decree. In his answer and cross action, appellee alleged that, since the rendition of the Florida judgment, conditions had materially changed, warranting an adjudication-modifying or changing the same, to the extent of awarding to appellee the permanent custody and control of the minor Richard Grey, but this is as far as appellant went in his effort to change the decree, as no proof was offered in support of his allegations. We can but conclude, therefore, that, as appellee failed to discharge the burden incumbent upon him, the trial court erred in rendering judgment disturbing the Florida decree, by awarding to him the permanent custody of the minor in question.

Appellee contends, however, that the letter-agreement of September 10, 1938, wherein appellant consented for their minor son Dick (Richard Grey) to remain with appellee indefinitely, was, within itself, such a material change in conditions as to warrant an inquiry into, and change of, the original decree, by awarding the permanent custody of the minor to appel-lee. The letter seems to have been written under these circumstances: After the decree of December 7, 1937, appellant retained custody of the children until the end of the school term in 1938, at which time the two older boys went with their father, ap-pellee (who, in the meantime, had married again and was residing in Dallas, Texas), and at the expiration of the period of his custody, he returned the boys to their mother, and, while in Florida, it seems that he and appellant entered into the agreement evidenced by the following letter: “Fort Myers, Florida, September 10, 1938. Mrs. Nan B. Oldham, Fort Myers, Florida. Dear Nan: This confirms our arrangement made today, whereby you are agreeable for our son Dick, to remain with me indefinitely without reference to the arrangement as to the other children. I have given you this letter in duplicate. Please keep one copy and let me have the other duly signed by you, so that there will be no misunderstanding between us as to the children. Sincerely, (signed) John C. Old-ham (signed) Nan Oldham.”

Appellee contends that the agreement, of itself, wrought such a material change in the conditions as to authorize the court, in the interest of the minor, to set aside the feature of the former decree relating to the custody of the minor involved, and to award his permanent custody to appellee. We do not think so; in fact, we fail to discover, in the subject matter of the letter-agreement, a tendency to change the conditions, in any way adverse to, or affecting, appellant’s qualification or fitness as custodian of the minors, or that, in the least, tends to show that, by reason of the agreement, the best interest of the minor required a modification of the original decree. As before stated, appellee failed to introduce any evidence in support of his allegations as to changed conditions, except the letter just méntioned; on the other hand, appellant testified that she had a home, was amply able financially to support, properly care for and educate the children. As stated in Evans v. Taylor, Tex.Civ.App., 128 S.W.2d 77—79, the proof must show that the situation and character of the respective parties have so changed as to render it to the (best) interest of the infant that the former order be set aside ■or modified. We do not think the subject matter of the letter-agreement in question bears any relevancy to such an issue.

It is further contended that, because appellant voluntarily relinquished custody of the minor, subsequent to the original decree, the burden was upon her to show that the best interest of the minor would he served by returning him to her custody. We do not think the letter-agreement was of any contractual value whatever; therefore, was incapable of specific performance. In Legate v. Legate, 87 Tex. 248, 253, 28 S.W. 281, 283, our Supreme Cofirt said that, “The attempted transfer (referring to a transfer of the custody of a child) is not a contract, and cannot be enforced as such, because neither the child nor its custody was a subject-matter of contract.”

Besides, we do not think the letter shows that Mrs. Oldham intended to permanently resign and turn the boy' over to appel-. lee-, even if she had the legal right to take such action, which, absent a modification of the original decree, we do not think she possessed. At best, the letter indicates merely a temporary arrangement; consent by the mother for the father to have custody of the boy for an indefinite period, terminable by either at any time.

We therefore think the trial court erred, and that its judgment should be reversed and judgment here rendered in favor of appellant, affirming her right under the decree of the Circuit Court of Lee County, Florida, to have the custody and control of Richard Grey, to be exercised in accordance with the provisions of said decree.

Reversed, and rendered for appellant.

On Motion for Rehearing.

Rehearing denied.

YOUNG, Justice

(dissenting).

Under the Florida decree, dated December 7, 1937, the agreement of Mr. and Mrs. Oldham, relative to their son Richard, provided that he should be with his mother (appellant) during the school term of each year, and with his father (appel-lee) for the summer months; such arrangement as to custody being approved by the Circuit Court. Mr. Oldham thereby received custody of Richard during the summer of 1938; and, pursuant to said agreed judgment, appeared with the boy at appellant’s home in Fort Myers, Fla., on September 10, 1938, where, in lieu of further performance of the decree, the letter agreement was entered into, whereby indefinite custody of the .minor was to remain in the father. The latter’s status as custodian continued until the habeas corpus proceedings of May, 1939. This suit by the mother was based solely on her alleged right to renewed possession, by virtue of the Florida judgment, claiming the letter-relinquishment of custody to be a nullity; the application containing no basic facts of the father’s incompetency, or that the child’s best interests would be subserv-ed, except a bare legal conclusion in her supplemental petition, insufficient to raise an issue. 32 Tex.Jur., Pleading, Sec. 65, pp. 489, 491. The dominant factors in this case are, that the dispute is between parents and not between a parent and a third person to whom custody had been previously relinquished; also, that the undisturbed and continued possession of the boy by his father for almost a year was. occasioned by the mother’s waiver of her rights, as fixed in the previous judgment. This act, evidenced by the letter, in conferring upon the natural father a perferen-tial right to said custody, was, in no sense, invalid; Sykes v. Speer, Tex.Civ.App., 112 S.W. 422, affirmed by the Supreme Court, 102 Tex. 451, 119 S.W. 86, 132 Am.St.Rep. 896; and the subsequent possession by ap-pellee was likewise rendered lawful. Legate v. Legate, 87 Tex. 248, 28 S.W. 281.

To my mind, a situation is here presented where the rights of the separated parents to the child in question are equal; R.S. art. 4118; that appellant cannot regain custody by simply pleading the provision of a judgment which she has waived; and that her own voluntary act in releasing the child to appellee, cast upon her, in the present action in habeas corpus, the burden of proof as to appellee’s incompetency, together with facts favorable to the issue that the boy’s welfare demanded a recognition of the former status. The terms of the Florida judgment as to custody were not fipal, but “temporary and conditional”; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 168, 116 A.L.R. 1293, and an entirely insufficient basis for a restoration to .the mother of a child voluntarily released to its father, with consequent and rightful possession by the latter over a considerable period of time. It was therefore incumbent upon .the mother, in a plea to a court of equity for repossession, to show that the child’s best interest required its return to her. The majority has held that evidence of the Florida decree placed upon appellee the burden of proving change of conditions; whereas, the true rule is (the parents being contestants) that the voluntary relinquishment of custody appearing in the record is prima facie evidence of changed conditions, imposing upon the petitioner in habeas corpus to at least go forward with testimony in support of the relief sought. See 31 Tex.Jur., Parent and Child, Sec. 21, p. 1297, where the statement is made: “But where a parent has voluntarily parted with and seeks to regain the child, he has the burden of proving his fitness and that the best interest of the child will be subserved by commitment to his care.” Also, in the following cases, the introduction of relinquishment agreement, in absence of further testimony, established the best interests of the minor, and the right of habeas corpus was in each instance denied ; Peese v. Gellerman, 51 Tex.Civ.App. 39, 110 S.W. 196, writ refused; Legate v. Legate, supra; Davis v. Sears, Tex.Com. App., 35 S.W.2d 99. The majority action, in its reversal and rendition under this record, is in direct conflict with the decisions just cited; and the letter-agreement, far from being a “nudum pactum”, or of no probative force, as the majority holds, is always to be given its proper effect by a court of equity “in arriving at a conclusion as to where the custody of the child should be placed”. Peese v. Geller-man, supra [51 Tex.Civ.App. 39, 110 S.W. 197]. Judge Denman, in Legate v. Legate, supra, and pertinent to a similar release of custody, says: “Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief unless, upon a hearing of all the fads, it is of opinion that the best interest of the child would be promoted thereby. It is sometimes said that such a voluntary transfer is ‘void,’ or that it is ‘contrary to public policy’; but the cases using such language show that it is not used in an absolute sense, but in the sense that such transfer is no impediment to the action of the court in determining what is best for the interest of the child. The law does not prohibit such a transfer, but, on the contrary, allows the child to reap the benefit thereof when it is to its interest so to do. The attempted transfer is not a contract, and cannot be enforced as such, because •neither the child nor its custody was a subject-matter of contract. The fact that in pursuance of this attempted contract the parents delivered the child to appellee, and appellee received the same for a lawful purpose, new domestic relations thereby being formed for the child, renders the possession by appellee of the child prima facie lawful.” (Italics mine.)

The original opinion erred in placing the burden of proof upon appellee in this case, whereas same was upon appellant, as the trial court correctly held.

But, aside from the above considerations, the district court was in position to view the conduct and demeanor of the parties under their testimony, and draw first-hand conclusions therefrom. Such courts are vested with very broad, discretion in matters of this kind, and it is only a very clear case of abuse of discretion that justifies the Appellate Court to interfere with its exercise. Moore v. Moore, Tex.Civ.App., 213 S.W. 949. I •conclude that the judgment of the lower •court should be affirmed.


author: WALKER, Chief Justice.

text:
    HAMSHIRE v. DE VILLENEUVE et al.
    No. 3591.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 30, 1939.
    H.' P. Barry and W. H. Davidson, both of Beaumont, for appellant.
    LeRoy McCall, of Beaumont, for appel-lees.
   WALKER, Chief Justice.

This was an action by Asa Hamshire, appellant, against Andrew H. De Villeneuve on a promissory note and, by the eighth paragraph of his petition, to foreclose the: mortgage lien executed by Andrew H. De Villeneuve to secure the payment of the note, on the following described property: “A part of the David Brown League and more particularly described as follows: Beginning at the intersection of the north line of De Villineuve St., with the east line of Irving Avenue for S. W. corner; thence east 112 feet, more or less to the H. M. Harvey Southwest corner; thence north 66⅜0 feet parallel with Irving Avenue; thence west 112 feet, more or less, parallel with the north line of De Villeneuve Street, a stake for corner; thence south 66½o feet along the west line of Irving Avenue to the place of beginning.”

Andrew H. De Villeneuve answered, claiming the mortgaged property as his homestead; he also joined his wife in her intervention whereby she claimed the property as her homestead. The trial was to a jury. On the undisputed evidence, judgment was entered in favor of appellant against A. H. De Villeneuve for the amount of the note, but judgment was in favor of Andrew H. De Villeneuve and his wife, holding the mortgage void as against the property described in the eighth paragraph of appellant’s petition, on the jury’s affirmative answer to the following question: “Do you find from a preponderance of the evidence that A. H. De Villeneuve and family were using’ and actually residing upon the property involved in this law suit as a home exclusive of all other property, on June 3, 1930?”

Appellant has duly prosecuted his appeal to this court. He makes no point that the jury’s answer to the special issue submitted was without support in the evidence or against the great weight and preponderance of the evidence. He presents his appeal upon the refusal of the court to submit the following special issues, duly requested by him:

(a) “Do you find from the preponderance of the evidence that A. H. De Vil-leneuve and family were living or camping at 142 De Villeneuve Street at the time this loan was made on June 3, 1930? Answer 'Yes’ or ‘No’.”

(b) “Do you find from the preponderance of the evidence that H. P. Barry, as attorney and representative for plaintiff herein, inspected the property at 142 De Vil-leneuve Street, Beaumont, Texas, before this loan was concluded? Answer ‘Yes’ or ‘No’.”

(c) “Do you find from the preponderance of the evidence that the defendant A. H. De Villeneuve told or directed H. P. Barry as representative of the plaintiff herein, that the said A. H. De Villeneuve and family had moved to 142 De Villeneuve Street prior to the making of this loan? Answer ‘Yes’ or ‘No’.”

(d) “Do you find from the preponderance of the evidence that H. P. Barry when he inspected the property at 142 De Villeneuve Street, if he did, found evidence that the same was occupied and used as a home? Answer ‘Yes’ or ‘No’.”

(e) “Do you find from the preponderance of the evidence that what Mr. Barry found by his inspection of 142 De Villeneuve Street was consistent with whatever A. H. De Villeneuve had previously told him about the same? Answer ‘Yes’ or ‘No’.”

The deed of trust covered the property described in the eighth paragraph of appellant’s petition, and designated the property at 142'De Villeneuve Street as the homestead of appellees. The special issues (b), (c), (d), and (e), requested by appellant, were raised by the evidence, but the court did not err in refusing to submit them. The evidence raised the issue that at the time the deed of trust was executed appel-lees were in possession of the property described in the deed of trust, claiming it as their homestead, and that issue was-found in their favor by the jury. Appellant could not shut his eyes against the actual occupancy of appellees. Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12. Issues Nos. (b), (c), (d), and (e) were-merely evidentiary, and had they been submitted they would not have been controlling in appellant’s favor.

’Under the undisputed evidence, the property covered by the deed of trust had been the homestead of appellees for at least seven years prior to the execution of the deed of trust, and under the undisputed', evidence it was their homestead at the time this case was tried. De Villeneuve and his. wife testified that the property was continuously their homestead from the date it was first occupied by them, more than seven years before the execution of the deed of trust. Special issue No. (a) was requested on the theory that, at the time the deed of trust was executed, appellees were-living in or camping at 142 De Villeneuve Street. Under the evidence, if appellees-were camping at 142 De Villeneuve Street,, it was only a temporary camping; the evidence was that at one time they slept in that house for a few nights to save their insurance. There was no testimony that ap-pellees ever abandoned as their homestead the property described in the deed of trust. There was no evidence that Mrs. De Vil-leneuve was a party to the representation-made by her husband that 142 De Villeneuve-Street was their home, and appellant requested no issue that she was a party to any such representation. So, had special issue No. (a) been submitted to the jury and had it been answered in appellant’s favor, it would not have controlled the judgment.

It follows that the court did not err in-refusing to submit the five issues requested by appellant, and, therefore, the judgment of the lower court should in all things be afiirmed, and it is so ordered.

Affirmed.