author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    RAMSEY v. STATE.
    No. 21222.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Rehearing Denied Jan. 8, 1941.
    Dave Watson and R. Tuck Chapin, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by complaint and information with operating an open saloon in Bexar County, and was by the jury sentenced to pay a fine of $500.

The only complaint we find in the record is to the effect that this verdict of a $500 fine was arrived at by lot, and therefore offends against Art. 753, subdiv. 3, C.C.P., in which is set 'forth as sufficient grounds for the granting of a new trial the following: “3. Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.”

On the hearing of the motion for a new trial there was but one witness used relative to this matter of a quotient verdict, and we set forth his testimony in full:

“My name is C’ H. Coates. I was one of the jurors in the trial of the case of The State of Texas vs. Earl Ramsey, tried in County Court at Law No. 1, of Bexar County, Texas.
“During the deliberations of the jury in fixing the amount of the penalty to be given the defendant the jurors agreed to set down the amount that each and every juror thought the assessment should be, that- the amount should be added up and divided by six, and that would be the verdict agreed upon by the jury. After that was done it amounted to $583.00, then we decided to cut off $83.00 and make it. even $500.00.
“We didn’t know how it was coming out, but we put the amounts down and added it up, then divided it and it came out $583.-00, then we made our verdict $500.00 after some little discussion.
“Cross Examination
“Under our agreement we put down the penalty that each juror thought the defendant should get, added it up and divided the amount, and the quotient, after dividing it, would be the penalty to be assessed in this case. We divided the amount and found it was $583.00. Under that agreement we would have rendered a verdict for $583.00. Then some one of the jury, I forget now who it was, said that there was no use having the amount $583.00, make it $500.00. That is after we had divided it up. After we found out that the quotient would be $583.00, somebody said, ‘Don’t make it $583.00, make it $500.00,’ and everybody agreed to that.
“We had already agreed as to the guilt or innocence of the defendant before this proposition of agreement had come up.
“Some of the jurors wanted to give the defendant the limit, $1,000.00, and some wanted to give him less. $500.00 was the amount of the verdict finally returned by all of the jurors.”

It is noted that the jurors agreed that they would each put down the amount they desired as a fine for appellant, and the total result be divided by the number of jurors, and they would abide by the quotient thus found as their verdict, which agreement resulted in the amount of $583, and upon a suggestion of some juror they dropped the fraction of $83, and allowed the amount of $500 to stand as their verdict. It is seen from juror Coates’ testimony that they agreed to abide by the quotient of their total amounts divided by the number of jurors, and substantially did so abide, and in our opinion this constituted a verdict by lot. See Sanders v. State, 45 Tex.Cr.R. 518, 78 S.W. 518, 108 Am.St.Rep. 973; Driver v. State, 37 Tex.Cr.R. 160, 38 S.W. 1020.

The agreement to abide by the quotient verdict having been entered into by the jurors, it was the duty of the State to show its abandonment. See Duncan v. State, 138 Tex.Cr.R. 172, 135 S.W.2d 111, 114, and cases there cited. Also see Driver v. State, 37 Tex.Cr.R. 160, 38 S.W. 1020. Instead of showing an abandonment thereof, we are impressed with the idea that there was a substantial compliance therewith as shown by the testimony. See Driver v. State, supra; also Spicer v. State, 120 Tex.Cr.R. 440, 46 S.W.2d 685. We also cite Branch’s Penal Code, p. 335, § 656, and authorities there cited.

In our opinion this is shown to be a verdict by lot, or a quotient verdict, and the trial court should have granted a new trial herein.

The judgment is reversed and the cause remanded.

Motion for Rehearing.

BEAUCHAMP, Judge.

The district attorney of Bexar County has filed a very insistent motion for rehearing in this cause in which there are set up two propositions of law based on the exceptions sustained in the original opinion.

First, it is contended ttat the evidence on the appellant’s motion for a new trial not having been filed before the term of court adjourned, the matter of jury misconduct was not properly before this court and that, therefore, this court should have affirmed the judgment of the trial court. This contention was followed by a discussion of a long line of authorities, including Hart v. State, 86 Tex.Cr.R. 653, 218 S.W. 1054; Salazar v. State, 88 Tex.Cr.R. 209, 225 S.W. 528; Crowley v. State, 92 Tex.Cr.R. 103, 242 S.W. 472; Ash v. State, 93 Tex.Cr.R. 189, 245 S.W. 927; Anderson v. State, 93 Tex.Cr.R. 181, 246 S.W. 376; Mathews v. State, 93 Tex.Cr.R. 650, 249 S.W. 1072; Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563; and Navarro v. State, 96 Tex.Cr.R. 463, 257 S.W. 883.

These cases did so hold, but subsequently thereto the Thirty-ninth Legislature at its first called session enacted into law House Bill Number 360, Chapter 8, page 12, approved on October 14, 1926, which specifically changes the statute on which the foregoing authorities rest. See Articles 760a and 760b, Vernon’s Code of Crim. Proc. Also McBride v. State, 110 Tex.Cr.R. 308, 7 S.W.2d 1091. Therefore, they are no longer authority for the contention made by the district attorney.

The second proposition asserted challenges the conclusions reached in the opinion reversing this case and asserts that where a quotient verdict has been taken and the jury fails to accept or agree upon the quotient arrived at, but thereafter changes same and agrees upon a different penalty, that the trial court did not abuse its discretion in holding -that the verdict was not decided by lot.

It must be admitted that the question here raised is one upon which this court has at times had varied opinions; however, the last expression seems to be found in Spicer v. State, 120 Tex.Cr.R. 440, 46 S.W.2d 685, in which Judge Morrow holds contrary to some of the prior opinions cited by the district attorney in his motion. To the extent that such opinions are contrary they must be held to have been modified by the Spicer opinion. Mr. Branch in his appreciated work, at page 335, section 656, considers the subject, citing a number of authorities, in the following language: “If the jurors agree beforehand to be bound by and do abide by the result of striking an average of their respective opinions as to the amount of the punishment, a new trial should be granted although a slight change was made in such result, such as dropping a fraction. Hunter v. State, 8 Tex.App. [75], 79; Wood v. State, 13 Tex.App. [135], 138 [44 Am.Rep. 701]; Driver v. State, 37 Tex.Cr.R. [160] 164, 38 S.W. 1020; White v. State, 37 Tex.Cr.R. 651, 40 S.W. 789; Good v. State [Tex.Cr.App.] 67 S.W. 102; Sanders v. State, 45 Tex.Cr.R. 518, 78 S.W. 518 [108 Am.St.Rep. 973]; Brookman v. State, 50 Tex.Cr.R. 277, 96 S.W. 928 [123 Am.St.Rep. 838].”

An unerring statement is made by this court in Leverett v. State, 3 Tex.App. 213, saying, a “verdict * * * should be the result of reason, deliberation, and honest conviction, and not the offspring of chance or accident.” Whatever ill-advised action a jury may take in considering a verdict it must be admitted that they have the power to lay aside mechanical methods and fairly express the judgment of all the jurors. When and if this is done, a legal verdict may be returned. On the other hand if those methods denounced' by statute are employed, the jury cannot say that we will accept this as a basis, cling to it as a verdict and by any modification polish it up so as to make it appear to be a fair expression of the free and untrammeled judgment of the jurors. If such is done the verdict cannot stand.

As said by Presiding Judge Hawkins in Duncan v. State, 138 Tex.Cr.R. 172, 135 S.W.2d 111, at page 114 (concurring opinion), “If the majority vote had been taken for the purpose of reaching some basis for further discussion by the jury we would have a different question.”

The vice in the case before us lies in the fact that the jury, according to the only witness called, agreed to abide by the quotient which resulted in the fine of five hundred eighty-three ($583) dollars. They did not set this aside and use that as a basis for further discussion, but “decided to cut off $83.00 and make it even $500.00.” The amount taken off is immaterial. The remainder is not, “the result of reason, deliberation, and honest conviction,” but is the “offspring of chance”, as denounced in Leverett v. State, supra. The statute forbidding a quotient verdict was overlooked and it is our duty to give it effect.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HAWKINS, Presiding Judge. GRAVES, Judge.

license: Public Domain

text:
    HANKINS v. STATE.
    No. 21155.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Rehearing Denied Jan. 8, 1941.
    Vickers & Campbell, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault with intent to rape, punishment assessed being two years in the penitentiary.

Mrs. Eleanor Graves was the injured party. She had been married seven or eight years, but was not living with her husband at the time of the incidents related. She lived with her mother, Mrs. Moon. Mrs. Graves worked at the Hilton Hotel Coffee Shop in Lubbock. Miss Britton also worked there. On the night of November 9, 1939 the two girls got off from work about 10 o’clock and went to a taxicab station for the purpose of getting a cab to take them home. At the station the girls met John Laney and appellant. They were in appellant’s car, a coupe. Mrs. Graves was not acquainted with the boys, but was introduced to them by Miss Britton. The boys suggested that they would take the girls home and save them the cab fare. The girls accepted the invitation and got in the coupe. Mrs. Graves sat between Laney and appellant, who was driving, and Miss Britton sat in Laney’s lap. The boys either had a pint bottle of whisky when they met the girls, or which they got soon thereafter. Appellant drove to a place called the Calf Stand. They sat out in front, all of the parties drinking cokes and the whisky. When the whisky was gone the boys secured another pint which was also partly consumed before the party broke up. The evidence would indicate that Laney and Mrs. Graves were drinking more whisky than appellant and Miss Britton. Somewhere in the neighborhood of midnight Miss Brit-ton was taken to her home. She saw none of the parties again that night. After letting Miss Britton out at her home appellant took Laney home. The latter was so drunk that after he got out of the car he sat on the curb and vomited. There is little, if any, conflict in the evidence up to the time appellant and Mrs. Graves were left alone in appellant’s car. We state the substance of her testimony from that time as follows:

After Laney got out of the car prosecu-trix told appellant that she lived just around the corner and asked him to take her home. He declined to do this, saying, “Let’s go have some fun.” Prosecutrix insisted on being taken home, telling appellant that she was tired and sleepy. Appellant drove his car to some point on College Avenue and stopped it off the pavement. He then requested sexual favors of prosecutrix, which she refused. He asserted that she was going to yield to his demand. She continued to refuse, and finally told appellant that she was menstruating. He continued his advances after being thus informed; putting his hand up under her clothes and was trying to pull her down into the seat. She resisted with all her strength, and finally appellant hit her on the jaw and rendered her unconscious. When she regained consciousness she was lying by the side of the road in a ditch. She saw some lights down the road and made her way to a tourist camp and had someone call a cab to take her home. She was taken from her home to the hospital. Her jaw was broken in three places and had to be wired together, a rib was fractured, and there was a wound on her leg below the knee, which required one stitch. The doctor who treated prose-cutrix at the hospital said the leg wound “had definitely the appearance of her having slid, an abrasion as one would receive from a slide.” As a part of prosecutrix’ evidence we quote as follows: “ * * * at the time I got in the car with these two men and at the time I started out with Jack Hankins after John Laney got out of the car and this other girl got out of the car I had on a sanitary belt and kotex. I also had on a pair of step-ins. After this occurrence I did not have such garments on my person. At the time I was out in this car I had a purse, it was a grey suede purse, or I believe it was a brown purse. I also had on a grey snap-brim hat that night. When I got to the tourist camp that night I did not have either the hat or the purse. I have seen the bag since then. The next time I saw it was when Jack Hankins brought it to the hospital. I think it was Jack that brought it to the hospital while I was there. I don’t know whether or not at that time Jack Hankins had sexual intercourse with me or not. He did not as long as I was conscious. Part of the time I was unconscious and I don’t know what happened. * * * ”

The witness who was called to the tourist camp and took Mrs. Graves home testified that she was covered with blood from the top of her head to her dress, her stockings wet and muddy, and her hands were bloody, and she was spitting up blood. In response to a question from the witness as to what had happened prosecutrix told him someone had broken her jaw, but that she was not talking. When they arrived at her home prosecutrix was not able to get in the house unassisted, and witness carried her in the house. Her mother, Mrs. Moon, described the condition of prosecutrix when she arrived at home in the following words : “From her appearance and from her talk she was not normal and conscious of everything. Everything wasn’t just clear to her because she was suffering so. She was holding her jaw and blood was running from her mouth. I had some conversation with her in regard to what happened. She made the complaint to me at that time as to an attack made upon her by Jack Hankins. * * * I asked her if she had been in a car accident and she told me that it was not a car accident but she didn’t go into details. She could hardly talk then on account of her jaw. She said that she had been attacked but she said that she didn’t know the name of the boy but that she knew the boy and she could find out from Elizabeth who he was. She could hardly talk then. She told me that he had hit her and knocked her unconscious, he had hit her with his fist. She said that he had hit her on the j aw and it knocked her unconscious. She said that she tried to get away from him and to fight him off and that the last she knew was when he hit her. The last that she knew was when he hit her in the jaw and knocked her unconscious. * * * ”

It is shown from the record that after the occurrence related appellant’s car ran out of gas and a taxi driven by one Bryant pushed appellant's car into a service station. Bryant testified in substance that he observed in appellant’s car a lady’s hat and purse, and that appellant requested witness to “destroy” them, giving as his reason that he had some trouble with a woman, and said, “he had hit a woman and that he had raped her.” Appellant in his testimony denied making such statement to Bryant. The next day appellant, Laney and Miss Britton went to the hospital to see prosecutrix and appellant then returned to prosecutrix her purse. So far as the record shows the hat, sanitary belt and step-ins remain unaccounted for except that appellant claimed that prosecutrix thought the hat had blown out of the car window.

Up to this point we have condensed the evidence for the State, it being appellant’s contention that same is insufficient to support the conviction. In determining such question we must look at the evidence in the strongest light for the state, and we entertain no doubt that the state’s evidence, if accepted by the jury as true, supports the verdict.

Appellant testified in substance as follows : The reason he did not take prosecu-trix home immediately after Laney got out of the car was because she was very drunk and he thought if they drove around awhile she would sober up; she became sick and started to vomit; she opened the car door •and fell out head first. Appellant looked back and saw prosecutrix lying in the ditch beside the road. She was perfectly still, and appellant had been drinking and became frightened. He did not stop the car, but thought he had better get some assistance. He drove to Laney’s house. Laney had gone to bed, but dressed and went with appellant to look for prosecutrix, but they failed to find her. He took Laney home again, after which the' car ran out of' gas and Bryant pushed appellant’s car to the service station. Appellant testified specifically as follows: “I did not strike Mrs. Graves with my fist at any time. I did not strike her with my hand or in any other way. I did not have a fight with her. I did not try to take anything away from her. I did not ever suggest such a thing to her. I did not attempt to whip or rape her.”

He further testified in substance that after he learned that prosecutrix had been injured and was at the hospital he went there to see her; that she did not appear to be angry with him and made no accusations against him, and told him she had fallen off a railroad track or bridge. Laney supported appellant regarding the search for prosecutrix. Miss Britton and Laney both supported appellant’s testimony regarding the attitude of prosecutrix towards appellant at the hospital. On cross-examination appellant admitted that he had first told that the last time he had seen prosecutrix on the night in question she was in Halsey’s Drug Store. He also admitted this story was false and he told it because he was scared and “figured that the further I could keep away from this thing the better off I would be.”

We have set out in a general way both the evidence for the State and for appellant, in order to demonstrate the two theories and their support by the evidence. It was the province of the jury to settle’the disputed issues. Having accepted the State’s theory and the evidence in support thereof as true we are without power to disturb the jury’s finding.

The evidence would have supported a finding by the jury that prosecutrix sustained some or all of the injuries described as a result of falling out of the car, but such a finding would not have explained the disappearance of the sanitary belt and step-ins.

Bills of exception 1 and 2 relate to the same subject and reflect the following : Afer Mrs. Moon, the mother of pros-ecutrix, had testified substantially as heretofore set out in this opinion, appellant on cross-examination sought to prove by her that on the day after the occurrence under investigation witness ,made a complaint before the County Attorney charging appellant with aggravated assault upon prose-cutrix by striking her with his hand and fist, and inflicting serious bodily injury upon her. It is further certified in said bills that no complaint was filed against appellant charging him with rape until prosecu-trix made such complaint on December 1st, and that the indictment was returned on January 10; 1940. When appellant tendered the proof as to Mrs. Moon making said complaint the State through the District Attorney objected for the following reasons: “That has no bearing on the case. If the defendant is permitted to go into all of the details of this filing, it would call for a lot of extraneous testimony. The witness, Mrs. Graves, should not be charged up with any delay in the filing of this complaint because under the law this case could be presented and an indictment returned whether or not any complaint was filed. If the testimony goes in, then it would involve the question as to why it was not filed, the details of Mrs. Graves’ condition being such that we could not get the details of the transaction from her and it would involve what was reported to the officers. If they made a mistake in the filing, then it should not be charged to Mrs. Graves or to this witness.”

The Court sustained the objection, to which ruling appellant brings forward exception. It occurs to us that the court ruled correctly. If at the time Mrs. Moon signed the affidavit she made any statement inconsistent with her evidence given on the trial same might have been shown to impeach the witness. She knew nothing of the facts of the occurrence save as she was advised by others, and whether the acts of appellant as so related to her constituted an offense, and if so, the grade thereof, was only the opinion of the witness or of the officer taking the complaint based on his or her information. We think it not a proper method of impeachment. See Sec. 175, p. 107, Branch’s Ann.Tex.P.C., for the following text with supporting authorities: r * * * it is not competent to impeach /a witness by proof of a contradictory state- / ment which is a mere statement of an opin- / ion when such opinion is not legitimate, / such as an opinion as to who committed the offense or as to whether it was an offense.” See also 45 Tex.Jur. page 62, Sec. 215, with . supporting authorities.

The argument complained of in bill of exception No. 3 is not regarded as obnoxious to the extent of demanding a reversal. '

The judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant has filed and argued a motion herein in which he agrees with the opinion of Presiding Judge HAWKINS, except in one particular only, and that is relative to the phrase: “Up to this point we have condensed the evidence for the State, it being appellant’s contention that same is insufficient to support the conviction. In determining such question we must look at the evidence in the strongest light for the state, and we entertain no doubt that the state’s evidence, if accepted by the jury as true, supports the verdict.”

His argument is that such rule is a dangerous one to apply in a rape case because of the fact that the minds of the jurors are easily inflamed in such cases, more so than in any other character of alleged crime, and further argument is presented that the State’s case should not be taken in its strongest light, unless the same “comports with human experience,” and there are therein cited instances that are claimed not to comport with human experience in the facts that are presented to us in this case. Many of these instances have been dealt with in our original opinion and disposed of satisfactorily to us, — such as the filing of a complaint against appellant by prosecutrix’ mother on the day after the alleged assault. The further fact that prosecutrix was calm and at times joked with the doctor during a three-hour operation in which he wired together her jaw, broken as it was said to be in three places, may not comport with human experience, but doubtless showed a remarkable amount of self-control, and we are unwilling to say that such self-control could be utilized to contradict the fairly satisfactory evidence upon which the jury evidently relied, and we do not think it is sufficient to show that this lady was fabricating her story that she told on the witness stand in the trial hereof.

It will be noticed that this man was convicted of an assault with intent to rape. Evidently some one assaulted this woman; physical injuries were present in abundance. Either she did it, or some one else did, and it seems to us that the method that she described before the jury might as well comport with human experience as any other that might have been given under such circumstances as these. Soon after the occurrence the lady told the first person aiding her that some one had broken her jaw; she told her mother the same thing. It also appears that appellant made a statement to one Bryant of a similar import, although appellant afterwards denied the whole thing, but failed to enlighten the jury as to any of the particulars of the transaction. These facts again confirm us in the correctness of the original opinion in this case, and under the peculiar facts in this case testified to by witnesses before the jury we see no reason to say that such un-controverted facts do not comport with human experience. While it may be true that facts such as these, showing a brutal assault upon a woman, might be calculated to inflame the minds of the jurors, we do not think any such results are evidenced by the amount of punishment meted out to appellant by the jury’s verdict in this cause, he having received the lowest penalty for the offense charged. We think the reasoning in the original opinion is correct and properly disposes of the cause.

The motion is overruled.


author: MONTEITH, Chief Justice.

text:
    ARCOLA SUGAR MILLS CO. et al. v. HOUSTON LIGHTING & POWER CO. et al.
    No. 11203.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 19, 1940.
    Walter F. Brown and C. I. McFarlane, both of Houston, for relators.
    Baker, Botts, Andrews & Wharton and Tom M. Davis, all of Houston, for respondents.
   MONTEITH, Chief Justice.

This is an original proceeding brought by Areola Sugar Mills Company and Lillian and Stella Scanlan, individually and as trustees, as relators; against C. L. Dutton, Judge of the County Court of Fort Bend County, Texas, and Houston Lighting & Power Company, as respondents, in which relators pray that a writ of mandamus issue requiring the respondent, C. L. Dutton, as County Judge of Fort Bend County, to prepare and file a statement of facts among the papers of a certain condemnation suit now pending on appeal in this court, entitled Houston Lighting & Power Company v. Areola Sugar Mills Company et al.

Relators alleged in their petition for mandamus that a judgment had been rendered in their favor in above numbered and entitled cause, and that they had requested the reporters, who had apparently acted as court reporters in the trial of said cause, to prepare and file therein a transcript of the evidence given on the trial, but that said reporters declined to do so, on the ground .that they had not been appointed the official reporters in the trial of said cause but that they were the private employees therein of the Houston Lighting & Power Company; that this court has refused to grant them a writ of mandamus requiring said reporters to file a transcript of the evidence in said cause; that by agreement of the parties the time for the preparing and filing of said statement of facts was, by two orders entered in said cause, extended to October 29, 1940, and that, within the time so extended, the relators have prepared a statement of facts and had submitted it to the attorneys for the Houston Lighting & Power Company, who refused to agree to said statement of facts; that relators had requested the respondent, C. L. Dutton, as Judge of the County Court of Fort Bend Cot y, Texas, to prepare and file a full and complete statement of facts in said condemnation suit and that he had declined to do so.

■ Respondent, C. L. Dutton, in his answer to relators’ petition for mandamus denied that he had declined to approve a full and complete statement of facts in said cause. He stated that, although judgment was rendered in said cause on June IS,'1940, re-lators did not request him to prepare and file a statement of facts therein until .late in the afternoon of October 29, 1940, the last day for the filing thereof in the trial court; that relators had prepared and submitted to him at that time an abbreviated and incomplete statement of facts to which attorneys for respondent had refused to agree for the claimed reason that it was not full and complete and that it would have been a physical impossibility for him to have complied with appellants’ request to prepare and file said statement of fact at that time. Respondent denied that relators are without remedy unless the mandamus prayed for is issued and states that if this Court will extend the time for the preparation of said statement of facts relators can have the testimony in said cause transcribed and that he can and will prepare therefrom and file a full and complete statement of facts in the event the attorneys for respondent, Houston Lighting & Power Company refuse, to agree thereto.

Respondent, Houston Lighting & Power Company, attached to its answer filed herein, as exhibits thereto affidavits of A. T. Fridge and A. J. Rosenthal, the reporters who reported said cause in the trial court, in which they stated under oath that they had been willing and ready at all times since judgment was renderd in said cause to prepare for relators a statement of the facts adduced in the trial thereof for the usual and customary price changed for that class of work in Houston, with an additional charge to cover a refund which they were obligated to make to respondent, Houston Lighting & Power Company, in reimbursement for expenditures made by it in having the case reported, but that relators had never placed an order with them for a statement of facts other than for a part of said testimony. They stated they were prepared and ready at this time to write up, for their usual and customary charges, the balance of said testimony which had not been transcribed.

Respondent Houston Lighting & Power Company, in its answer, stated that it had offered to agree to a further extension of time within which relators might file said statement of facts, subject to the approval of the court, so that relators might complete a narrative statement of facts, but that re-lators had refused to accept said offer and had filed this proceeding with the view of compelling the trial Judge to prepare and file said statement of facts.

The record shows that the cause entitled Houston Lighting & Power Company v. Arcola Sugar Mills Company, No. 2443 on the docket of the 'county court of Fort Bend County, Texas, was tried before a jury in said court, with respondent, C. L. Dutton, presiding as trial Judge, from May 27, 1940, through June 13, 1940, during which time numerous witnesses testified and a great deal of documentary evidence was introduced. A. T. Fridge and A. J. Rosen-thal, who were employed and paid by Houston Lighting & Power Company, reported the entire proceedings in the case, although they were not-sworn or stipulated in the record as official reporters, and were held by this court in Arcola Sugar Mills et al., Petitioners, v. Houston Lighting & Power Co. et al., Respondents, reported in 142 S.W.2d 626, not to have been official court reporters in the trial of said cause. By orders entered in said cause, the time for filing statement of facts was extended by agreement of counsel to October 29, 1940. On the afternoon of 'October 29, 1940, counsel for re-lators for the first time made demand on respondent C. L. Dutton to prepare a statement of facts after he had refused to approve what he designated as “an incomplete abbreviated statement of the evidence”, which had been delivered to him for approval the day before. At no time was a full question and answer statement of facts or stenographic notes of the evidence furnished respondent Dutton, from which to prepáre a statement of facts.

It is the established law in this state that a mandamus will not issue to compel a public officer to perform an official act unless the relator has shown a clear legal right to its performance at the hands of such officer. The object of the writ is to enforce the performance of the duty when the relator has no other adequate means of redress, and it is further shown that the officer has clearly violated his duty in not performing the act sought to be required of him. It-has been uniformly held that the writ will not issue if the right is doubtful or contingent upon further acts of relator or others. City of Galveston v. Mann, Tex.Sup., 143 S.W.2d 1028; Common School District No. 16, Lampasas County, v. Keeling, Attorney General, 113 Tex. 523, 261 S.W. 364.

It is agreed by relators that the statement of facts submitted to respondent Judge Dut-ton was not a complete and full statement of facts.

It was held in the recent case of Davis v. Moore, Tex.Civ.App., 126 S.W.2d 1005, that an abbreviated or incomplete statement of facts may be filed only by agreement of the parties.

Our courts have uniformly held that an appealing party is entitled to a statement of facts if, through no fault of his own, after the exercise of due diligence, he is unable to procure it, and that he is entitled to a reversal of the judgment from which he had appealed in the event he has been deprived thereof without fault or negligence of himself or counsel. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; Pacific Greyhound Lines, Inc. v. Burgess, Tex.Civ.App., 118 S.W.2d 1100; 3 Tex.Jur., 638.

This rule, however, does not apply if the party or his attorney have been negligent or at fault in the matter. 3 Tex.Jur., 638; Pruitt v. Blesi, Tex.Civ.App., 204 S.W. 714.

It is apparent from the facts stated in the affidavits filed herein, which must be relied upon by this court in determining the issues involved, that respondent C. L. Dut-ton has not only not violated his official duty in not-preparing and filing said statement of facts at'the time and under the circumstances alleged by relators, but that re-lators could have secured said statement of facts, and that they have at this time a clear and adequate means whereby they may procure a statement of facts by having prepared and submitted to Judge Dutton a full and complete narrative statement of facts which he may either approve as such or from which one may be prepared. Judge Dutton has stated in his answer that, if this court will extend the time for the filing of a statement of facts in this court, he will assist • relators in the preparation and filing thereof within the time so extended.

It is therefore ordered that relators’ application for mandamus be and the same is hereby refused.

For the purpose of facilitating the preparation and filing of said statement of facts and in response to a motion, which this court deems meritorious, to extend the time to fiie statement of facts, it is hereby ordered that the time for filing a statement of facts in this court in cause No. 11,194 entitled Arcola Sugar Mills Company et al. v. Houston Lighting & Power Company, be and the 'same is hereby extended until February 19, 1941.

Application refused; motion to extena time for filing statement of facts granted.


author: BAUGH, Justice.

text:
    FIRST NAT. BANK OF SCHULENBURG, TEX., v. WINKLER et al.
    No. 8941.
    Court of Civil Appeals of Texas. Austin.
    Nov. 20, 1940.
    Rehearing Denied Dee. 31, 1940.

      Edward S. Boyles and Willard L. Russell, both of Houston, and Fred L. Blundell, of Lockhart, for appellant.
    J. W. Ragsdale, of Victoria, for appel-lees.
   BAUGH, Justice.

Appellees, Joe Winkler and Charles Ul-rich, for themselves, and for the use and benefit of 33 farmers of Fayette County, brought this suit against appellant bank to recover $2,752 alleged to be a trust fund belonging to them, deposited in Winkler’s name with said bank; and which the bank had applied to the payment of Winkler’s debt to it. Trial was to a jury on special issues. The jury was unable to agree upon answers to such issues and were discharged. Thereupon both plaintiffs and the defendant filed motions for judgment. That of the defendant was -overruled; that of plaintiffs granted; and judgment rendered for the plaintiffs for $2,273, from which the bank has appealed.

The case arose as follows: Winkler had owned and operated a cotton gin in a rural area in Fayette County for a number of years, and had bought cotton from his patrons, under an agreement with E. H, Prat-ka at Schulenburg. Winkler paid for it with checks drawn on his own account with appellant bank. This cotton was then taken off Winkler’s hands by Pratlca, who deposited the purchase price therefor, according to their agreement, made known to the bank, to the credit of Winkler in said bank. It is not’ controverted that Winkler’s account with the bank was carried as a general deposit, and was so treated by the bank. Credited to it were all moneys deposited by Winkler, from whatever source received; and against it were charged all checks drawn by Winkler to whomsoever payable. The deposits made included all of Winkler’s income from his farm, ginning charges, receipts from sale of cotton seed to an oil mill, which seed were also purchased from patrons and paid for by his personal checks on the same account. Checks were drawn by Winkler on this account for all purposes, including operating expenses of his gin, his farm, his family living expenses, labor hire, materials purchased, etc. In brief, the evidence showed that Winkler had carried this same account with said bank for a period of 20 years, had deposited all moneys received by him in said account, and had drawn all checks written by him for all purposes against it.

Under these circumstances, it was clearly incumbent upon the plaintiffs to show that, contrary to the manner in which the account was carried by the bank, and treated by Winkler, the moneys here involved became a trust fund in the bank’s hands, belonging to the farmers to whom Winkler had given checks, and that the bank knew, or should have known, this at the time it applied such funds to the payment of Winkler’s debt to it, on August 28, 1937.

There is no contention, and can be none under now settled law, that the bank had the right to apply the funds on deposit with it belonging to Winkler to the payment of his past-due indebtedness to it (6 Tex.Jur. § 100, p. 232, and cases cited in support of the text) ; unless such funds constituted a special deposit, or were impressed with a trust, of which the bank had, or should have had, knowledge, for the benefit of some party or parties other than Winkler.

The contention of appellees is that under the agreement between Pratka and Winkler, made known to, and consented to by the bank, the deposits made by Pratka in the bank to the credit of Winkler, made such funds the property or moneys of the farmers themselves, to whom Winkler'had given checks, and as such the bank became merely the trustee thereof for such farmers and could not legally divert such funds in its hands to the payment of Winkler’s debt.

The case was tried on this theory and the following special issue, obviously requested by plaintiffs, appellees here, submitted to the jury: “Do you find from a preponderance of evidence that the deposits made in the First National Bank of Schulenburg, Texas, in the ginning season of 1937, by E. H. Pratka, to be credited to the account of Joe Winkler, were accepted by the bank with the understanding on its part that said funds were to be held for the particular purpose of paying checks issued by Joe Winkler in payment for cotton purchased from his gin patrons? Answer yes or no.”

The jury failed to agree upon an answer to this question. Unless, therefore, the evidence showed as a matter of law, that it should have been answered Yes, the trial court erred in rendering judgment for plaintiffs.

Only two witnesses, Winkler and Pratka, testified on this question. Winkler’s testimony, covering the particular point, as to his agreement with Pratka, and the bank’s connection with it, .was (quoting only pertinent excerpts) as follows:

“I got the market price from him as to what I was to pay for the cotton; I bought the cotton, and Mr. Pratka came over and got it himself in his truck, and I would give him an invoice for the cotton at the price I bought it, and he deposited the money in the First National Bank to cover it.”
“Q. Did you tell the officers of the bank about this agreement? A. Yes sir, we told the officials at the First National Bank that I was buying this cotton ginned at my gin and that Pratka was going to pay for it.”

On cross-examination he testified:

“Q. I wish you would tell me again what it was that you told Crumsek, what words did you use in telling him of this agreement ? A. That I was going to- buy cotton for Pratka, and that he was going to put the money in the bank, and that it belonged to the farmers.
“Q. You were going to buy cotton for Pratka, and Pratka was going to put the money in the bank to pay the checks, is that it? A. Yes sir.
* * * ⅝ ' * ⅛
“Q. You don’t mean to say by your testimony that each time a bale was bought that Mr. Pratka made a deposit for that particular bale? A. No sir.
“Q. Sometimes it would accumulate until you had several bales on hand ? A. Yes sir.
"Q. Isn’t it true that as to each deposit that Mr. Pratka made that you personally made out the deposit slips for Mr. Pratka to deposit to your account? A. Yes sir.
“Q. And lie gave the deposit slips to the bank together with his check for the amount of the deposit? A. Yes, sir.”

Pratka’s pertinent testimony with regard to the issue in question was as follows:

“We went to the First National Bank every year, and as I recall Mr. Winkler went with me a couple of times at least— I went to the bank and-told the officials of the bank, the entire crew generally, Mr. Steinman and Mr. Crumsek, being among them as I recall, that Joe Winkler had agreed to buy cotton within my limits at the market price, and that afterwards I was to take it off his hands at his cost-regardless of the market. We.did that every year.
“Q. How was it paid? A. With his check.
“Q. That was discussed with the bank? A. Yes sir.
“Q. How were these checks to be drawn? A. Joe Winkler paid for the cotton with his own check, and in turn I was. to take the cotton off his hands, and pay for it with my check deposited in the bank in his account after I received the invoice for it or the cotton.
“Q. What did the bank officials say when you told them of this arrangement? A. They just nodded their heads.
“Q. That agreement was satisfactory with the bank? A. Yes sir.”

On cross-examination he further testified:

“Q. Isn’t it a fact that boiled down the agreement was that you would buy the cotton- from Joe Winkler that he had bought from the people ginning at his gin? A. Yes sir.
“Q. And that if and when he had delivered you this cotton or sent you an invoice you made out check for the cotton to Joe Winkler? A. Yes sir, after I had checked the invoice and saw that the cotton was there, then I made a check in favor of Joe Winkler.
“Q. And the only other connection you had with the transaction was seeing that the money you owed him for the cotton got into liis account at the bank? A. Yes sir.
“Q. He wasn’t your agent ? A. No sir.
“Q. Who he bought the cotton from was his business? A. Yes sir.
“Q. Your only concern was that if he bought the cotton and delivered it to you, you were to pay him for it? A. Yes sir.-
“Q. Did it make any difference to you how he ran the account? A. No sir.
“Q. It mattered not to you if he paid - his living expenses out of it? A. No sir.
“Q. Your transaction or connection with the matter ended when you deposited the money in the bank for Joe Winkler’s account for the cotton he sold to you? A. Yes sir.
“Q. If there was any variance in classing or weighing the cotton you made a deduction from your check or had an adjustment with him later? A. Yes sir.
“Q. You say you don’t remember the date, but assuming that his account was closed on the 28th of August, 1937, after some of these checks were turned down, did some of these parties come to you ? A. Yes sir, they came to me to ask what were they going to do about it.
“Q. And you told them that Joe Wink-ler bought the cotton and whatever redress they had to get it from him? A. Yes sir.
“Q. It was none of your concern? A. No sir.

On redirect examination he further testified :

“Q. You did not send or give Joe Wink-ler individually the money for this cotton, but deposited in his name in the bank? A. Yes sir.
“Q. Why were you depositing that in the bank? A. Because of the. verbal agreement we had between Joe Winkler and myself and the bank naturally, because he had issued checks against this account.
“Q. And the bank knew that ? A. Yes, sir, I told them I was going to buy Joe Winkler’s cotton.”

It is the contention of appellees that the foregoing testimony, which was not denied nor controverted by any of the officers of the bank, though they were present at the trial and could have contradicted it if untrue, shows, under the holding of the Supreme Court in Steere v. Stockyards National Bank, 113 Tex. 387, 256 S.W. 586, 258 S.W. 1042, as a matter of law that the funds deposited by Pratka to the credit of Winkler in said bank, were deposited for the express prtrposes of paying the farmers from whom Winkler had bought cotton and to whom he had theretofore given his checks in payment; and that the bank knew and had agreed to such an arrangement. Consequently, that to the extent of Pratka’s deposits, the funds carried to Winkler’s credit in the bank, were trust funds, regardless of how the bank carried the account, what other funds were commingled with it, and what other checks Winkler may have drawn against it. If they were, then the 'bank wrongfully misappropriated such funds to that extent when it applied same to the payment of Winkler’s personal indebtedness to it.

Most of appellant’s propositions relating to deposits, the relation of the bank thereto, and to the depositor, undoubtedly state correct principles of law. Such for example, that a general deposit merely creates the relation of debtor and creditor between the bank and the depositor; that a bank may apply such deposit to the discharge of a past-due debt by the depositor to the bank; that checks on such account are not an assignment pro tanto of the moneys on deposit and are not binding on the bank until accepted by it; that a bank, to be bound, must have notice of and accept a trust deposit with it; that generally the bank is trustee only of a special deposit; and that where the depositor has an unlimited checking privilege, even as against a special or .trust deposit, the bank is not liable for his conversion or misappropriation of it.

Under the undisputed testimony it is undoubtedly true that Winkler could have checked out to others than those from whom he bought cotton the entire fund carried in his name without the bank becoming liable to the farmers, unless such misapplication by Winkler were known, or should have been known, to the bank. In such case the misapplication of the fund would have been by Winkler, not participated in by the bank. See Interstate National Bank v. Claxton, 97 Tex. 569, 80 S.W. 604, 65 L.R.A. 820, 104 Am.St.Rep. 885. But where a bank has on deposit with it a fund, all or a part of which is known by it to be impressed with a trust character, and with such knowledge undertakes to apply the whole of such fund to the discharge of the depositor’s debt to it, it thereby becomes a party to the misapplication thereof as against the fiduciaries, and can no longer assert immunity from liability for its wrongful act. Steere v. Stockyards National Bank, supra; Wichita Royalty Co. v. City National Bank, 127 Tex. 158, 89 S.W.2d 394, 399, 93 S.W.2d 143. Such, we think, is the situation here presented.

Neither the manner in which Winkler’s account with the bank was carried by it, nor the fact that other funds of his were commingled with those deposited by Prat-ka, relieves the bank from liability for its misapplication of such trust funds. It knew of, and agreed to, the arrangement between Pratka and Winkler; and undoubtedly knew that the funds deposited by Pratka were necessary and intended for the payment of the checks issued by Wink-ler to the farmers in payment of their cotton. Otherwise there would have been no occasion for Pratka and Winkler to go to the bank, apprise them of their arrangement, and obtain the bank’s consent to it.

Not having contradicted the testimony of the agreement, when the officers of the bank, present at the trial, could have readily done so, but did'not, we must as< sume that such agreement was made, even if it be deemed to have been proven only by interested witnesses, which was clear!} not true as to the witness Pratka. See Luling Oil & Gas Co. v. Edwards, Tex.Civ.App., 32 S.W.2d 921; 17 Tex.Jur. § 418, p. 926.

A portion of the fund at least having been thus impressed with a trust, it became the duty of the bank before it could apply any of such fund or deposit toward the distharge of the depositor’s debt to it, to segregate the portion not so impressed with a trust from that which was. But in the instant case the recovery awarded was' confined to the deposits shown to have been made by Pratka for payment only of cotton checks to the farmers, so the bank is-in no position to complain.

While there are some distinctions between the facts in the -instant case and those in the Steere case, in that, in the Steere case, Graves, the depositor, and not the bank, was held to be the trustee; whereas, here, 'it is asserted that the bank, rather than Winkler, was the trustee; we think the principles announced in the Steere case are controlling here. Both in that case and here, the bank with knowledge of the facts was undertaking to discharge a debt owing to it by a depositor with funds deposited with it in the debtor’s name, but which in equity belonged to someone else. The controlling principles are therefore the same. Having concluded that this case is conclusively ruled by Steere v. Stockyards National Bank, supra, regardless of decisions from other jurisdictions cited and urged by appellant as holding otherwise; we have not undertaken to discuss the several contentions made by appellant, nor the authorities relied upon by it in support thereof.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: McClendon, justice.

text:
    DANIEL et al. v. RICHCREEK et al.
    No. 8943.
    Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1940.
    Rehearing Denied Dec. 31, 1940.
    Gerald C. Mann, Atty. Gen., and A. S. Rollins, Asst. Atty. Gen., for plaintiff in error.
    F. L. Kuykendall and R. J. Long, both of Austin, for F. O. Richcreek, and others.
    Harry S. Pollard, of Austin, for Bob J. Lyles, Receiver.
   McClendon, justice.

This case was formerly before us in an appeal from an ex parte interlocutory order appointing a receiver. 118 S.W.2d 935. The instant appeal (by writ of error) is by the State Comptroller and Treasurer (other defendants having been dismissed) from a final judgment decreeing the fund in suit (the unexpended balance, $10,408.49, of the “Texas Racing Commission Jockey Fund” on deposit in the State Treasury “suspense cash account” under Vernon’s Ann.Civ.St. Art. 4388) to belong to appel-lees and others contributing to that fund; appointing a receiver of the fund; and ordering its transfer by appellants to the receiver. Some days after entry of the judgment,. apparently under advice of the Attorney General’s Department, the Comptroller drew a warrant upon the Treasurer in favor of the receiver covering the fund; the warrant was cashed; and the fund deposited by the receiver to his credit as such in an Austin bank. This occurred in the last few days of the administration of the then Attorney General. When his successor took office he promptly filed a motion for rehearing, which was disallowed; whereupon this appeal was instituted.

Appellees have moved to dismiss the appeal upon the ground, among others, that appellants who are parties to the litigation only in their official capacities, have no Justiciable interest therein, because the fund in suit is not a public one and does not belong to the state. Since we are sustaining this ground of the motion, the others need not be noted.

The following statement of the salient facts will suffice for our present purposes: In 1933 the legislature legalized horse racing under what is commonly known as the pari-mutuel plan, and created a board denominated “Texas Racing Commission” to administer the legislation. The act provided for license fees, consisting of stated amounts plus certain percentages of receipts, to be paid by those conducting races under the act, which fees were required to be paid into the State Treasury and there deposited to a special account. These fees were “in lieu of all other or further excise or occupation taxes to the State of Texas, or any county, city, town, or political subdivision thereof.” Expenses of the Commission were to be paid from this fund and were in no event to become a charge against the general revenue; the fund to be “prorated” if it proved insufficient to meet these charges. Any remaining balance was allocated to other purposes. The fund in suit was derived from license fees collected from jockeys and other participants in races prescribed by Rule No. 152 of the Commission, promulgated under the assumed authority of the following provision of the act:

“The Racing Commission shall have the power, and it shall be its duty, to prescribe and enforce reasonable rules and regulations, reasonable restrictions and conditions under which all horse races and exhibitions of riding horses are held under this Act; likewise prescribe and enforce rules governing the conduct of all persons who engage in or carry on the racing or such exhibitions of horses. The Commission shall have power to exclude from participation in such races or exhibitions any person or persons who omit, fail or refuse to comply with the reasonable rules, regulations, restrictions and conditions prescribed by said Commission, and to impose as a penalty for such omission, failure or refusal, the denial of the right of such persons to conduct or participate in such races or exhibitions.”

This rule (152) required payment of license fees ranging from one to ten dollars as prerequisite to engaging in various activities on the licensed tracks. Subdivisions (4), (5) and (6) provided:

“(4) Money received from these license fees is to be held and regarded as a voluntary subscription or contribution by applicant to be a fund created by the Texas Racing Commission for the purpose, among other things, of caring for jockeys injured while in the discharge of their duties, upon tracks under the jurisdiction of this Commission. Distribution and expenditures of the funds thus created to be wholly within the direction of the Texas Racing Commission, part of which may be used for the purpose of defraying any expense incident to its administration or ■ for such other purpose as the Commission may deem expedient.
“(5) The right of any licensee to participate in said fund shall cease upon expiration or revocation of his license, except for injury received prior to such expiration or revocation.
“(6) The Commission may, in its discretion, without assignment of any reason for its action, deny to any applicant the right of participation in said fund, and in no event, shall it be required to render an accounting to contributors to said fund nor to any other person or agency.”

The act creating the Commission and legalizing racing under the pari-mutuel plan was repealed effective September 24, 1937. S.B. No. 1, Chap. 1, p. 1737, Laws 1st C.S. 45th Leg. Vernon’s Ann.P.C. arts. 645, 648—1, 648—2, 655a. The fund in suit was then deposited in the Treasury by the Commission as already stated.

It is quite manifest, we think, that if the fund is not public in character and if the state has no interest therein, the appellants in their official capacity have now no duty to perform in relation to it since they have voluntarily surrendered its custody to the receiver under decree of a court of competent jurisdiction. Under this view it will not be necessary to consider what would be the effect of such voluntary surrender of possession, if the fund were a public one. It may be of interest to note that in 1934 an assistant attorney general gave to an inquiring county attorney an opinion to the effect that the Commission had the power under the above quoted provision of the act to pass Rule 152 requiring jockeys and other participants in racing to pay the prescribed fees. This holding was rested upon the asserted fact that similar rules had been promulgated in some other states by boards acting under like authority, and the legislature must have had before it these statutes and rales thereunder. March 3, 1936, this opinion was overruled by the department in an opinion signed by the Attorney General after “having been considered in conference.” In substance, this opinion held that the powers conferred in the above quoted provision of the act, while very broad and general in character, did not include that of assessing a tax or fee as a condition precedent to issuing a license to those participating in racing, and that the state had no interest whatever in the fund. We have no doubt of the correctness of this view. Conceding, arguendo, the power of the legislature to delegate to the Commission legal authority to prescribe license fees, it is perfectly clear that no such authority was attempted to be delegated. The authority of the Commission to make rules and regulations was expressly limited to “reasonable restrictions and conditions” with reference to holding races under the act and the conduct of participants in such races. There is no intimation of any delegation of authority to collect any license or other fees from anyone except those specifically prescribed in the act itself and required to be paid into the State Treasury for the primary purpose of defraying the expenses of administration of the act. Subdivision (4) of Rule 1S2 clearly shows that the purpose of the Commission in prescribing these fees was one wholly outside the purview of the act, — namely, to raise an insurance or benefit fund in the interest of jockeys, trainers, and others paying the fees; It is true the rule provided that the Commission might devote the fund to such other purposes as it might choose, and was not required to account to anyone in regard to its disposition. This, however, did not change the character of the fund so long as it was not diverted to other purposes; and when the act was repealed and the Commission abolished, the unexpended balance in the fund retained its original character defined in Sub. (4), as money received from voluntary contributions to a fund created primarily, at least, for the benefit of the contributors; it was expressly to be so “held and regarded.” Under no reasonable theory can the state be considered as having any interest in the unexpended balance of this fund.

If the Commission, acting under a presumed authority, had attempted to levy an excise tax or privilege fee for some public purpose connected with the act or otherwise, the question then would arise whether such taxes or fees might thereafter be recovered by those voluntarily paying them. It is at least plausible that recovery would be denied under the provisions of Art. 4388, since the payments were not (by those making them) deposited in the treasury suspense account under protest as provided in that article. See Rainey v. Malone, Tex.Civ.App., 141 S.W.2d 713. The case at bar, however, presents no analogous situation. The fees were collected solely as voluntary contributions to a fund in which the contributors had an interest and in which the state or public had none. The district court had the general power to appoint a receiver to distribute the unexpended balance of the fund among those whom it might judicially determine to be its rightful owners; and appellants having surrendered possession of the fund to the receiver in obedience to the decree, their respective duties and responsibilities in regard to it, of whatever character they might have been up to that time, ceased altogether and their interest in the subject matter of the suit was at an end. Phillips v. Perue, 111 Tex. 112, 229 S.W. 849.

The motion is granted and the appeal dismissed.


text:
    JOSLIN et al. v. STATE et al.
    No. 8628.
    Court of Civil Appeals of Texas. Austin.
    Nov. 13, 1940.
    Rehearings Denied Dec. 31, 1940.

      Hornsby & Hornsby, of Austin, and Fred H. Woodard and Kleberg, Eckhardt & Lowe, all of .Corpus Christi, for appellant A. F. Joslin.
    Wm. K. Hall, of Fort Worth, Whitaker, Perkins & Turpin, of Midland, Samuels, Foster, Brown & McGee, of Fort Worth, and John W. Stayton and Black & Graves, all of Austin, for appellants Skelley Oil' Co., California Co., Empire Gas & Fuel Co., Tide Water Oil Co., Texas Co., Phillips Petroleum Co., W. E. Connell’s estate, John Scharbauer, and Millard Eidson.
    Wm. McCraw, Former Atty. Gen., and H. Grady Chandler, Asst. Atty. Gen., for appel-lee State of Texas.
    Gerald C. Mann, Atty. Gen., James Noel, Asst. Atty. Gen., and Robert E. Kepke, Asst. Atty. Gen., Wm. Kay Miller and Henry H. Brooks, both of Austin, for ap-pellees Elden B. Busby and Grisham-Hunter Corporation.
   BAUGH, Justice.

The controlling question involved in this case is the ownership of the title to a portion of the T. & P. Ry. Co.’s right of way in Ector county. When this case was submitted in this court, there was pending in the Supreme Court, on writ granted from the Amarillo Court of Civil Appeals (80 S.W.2d 1000), the case of Cox v. Campbell, involving ownership of a portion of the right of way of the same Railway Company in Gregg County; the question involved being whether the owners of lands adjoining the Railway Company’s right of way acquired title to the center of the right of way, or whether the side lines of the right of way marked the boundary of their respective lands. On the assumption that the decision in the Cox v. Campbell case, Tex.Sup., 143 S.W.2d 361, would control the disposition of this case, we have withheld decision herein until that case was determined by the Supreme Court.

The lands involved in the instant case are the same as those involved in Texas & P. Ry. Co. v. State, Tex.Civ.App., 52 S.W.2d 957, affirmed by the Supreme Court in 124 Tex. 482, 78 S.W.2d 580. Other than a controversy over who has a prior right to an oil lease on said lands, which depends on whether the State has title thereto, the paramount question presented is whether the sale by the State of its lands, under field notes of surveys calling to go only to marked corners on the edge of the right of way, gave the purchasers of adjoining lands title extending to the center of the right of way.

It has long been settled that private grants of lands bordering upon streets, highways, and non-navigable streams, even though the corners be marked, the lines definitely located, and quantity of land exactly ascertained, convey title to the center of the street, highway or streams, “unless such deed contains a clause which expressly declares the contrary intention or contains some other declaration equivalent to such express declaration.” Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160, 164; Mitchell v. Bass, 26 Tex. 372; Dutton v. Vierling, Tex.Civ.App., 152 S.W. 450, 453. This, under the rule of construction of such grants, is now well settled by decision in this State.

And it is now settled by decisions of the Supreme Court that this rule of construction applies with equal force to grants bordering upon railroad rights of way. Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Cox v. Campbell, Tex.Sup., 143 S.W2d 361. This is true notwithstanding the former decision of the Supreme Court in Couch v. Texas & P. Ry. Co., 99 Tex. 464, 467, 90 S.W. 860, which case was specifically considered in the Rio Bravo and Cox v. Campbell cases. And as applied to conveyances bordering upon railroad rights of way, the Supreme Court in Cox v. Campbell [143 S.W.2d 366], referring to such rule of construction, say: “and such rule is not overcome even though the field notes describing the land stop at the side line of the street, public highway, or railroad right of way, unless a contrary intention is expressed in plain and unequivocal terms.”

No such express reservation of title in the State to the railroad right of way here involved, was made in the grants to the individual purchasers of the adjoining lands from the State, It is not controverted, however, that the footsteps of the survey- or, the calls for course and distance, and the identification of marked corners on the ground of the lands here involved, extended only to the side lines of the right of way; nor is it controverted that the exact quantity of land stated in the purchases from the State was contained within the field notes of such surveys. Nor have the owners of the abutting lands paid the State anything for the lands included within the right of way which they now claim as a part of their adjoining tracts. But most of the same facts were presented in the Rio Bravo and Cox v. Campbell cases, supra, to which the Supreme Court applied the rule nevertheless.

In the Rio Bravo and Cox v. Campbell cases the portions of the railroad rights of way involved had been acquired by the Railway Company from private owners, and not through grants from the State, as was true in the instant case. In those cases the State had theretofore parted with its title to all of the lands involved, the controversies were between private parties, and a construction of the original grants from the State was not involved. It is the contention of the appellees that the liberal rules of construction in favor of the grantee as between private parties do not apply to public grants made by the State; but that in such cases a strict rule of construction in favor of the State and against the grantee must be applied; citing particularly, among other cases, Schutze v. Dabney, Tex.Civ.App., 204 S.W. 342; City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563; Magnolia Pet. Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929.

Two cardinal rules of construction of the extent of a grant are, (1) the footsteps of the surveyor, where they can be located on the ground; and (2) the intention of the parties, where that can be definitely ascertained. And appellees urge that upon resurveys of the lands adjoining the right of way, the footsteps of the surveyor upon which the patents were issued were definitely established as going only to the side lines of the right of way; and that the facts and circumstances, and the findings of the trial court, show that it was the intention both of the State and of the grantees, that only the lands to the edge of the right of way be included. But it was held by Judge Key in Dutton v. Vierling, supra, notwithstanding the footsteps of the surveyor, which were there found; and the exact acreage included within the field notes, in the absence of a clear reservation in the grant showing a contrary intention, the conveyance went to the center of a non-navigable stream. The same rule has been applied to streets and highways in Texas Bitulithic Co. v. Warwick, supra. While the intention of the parties to a grant, where ascertainable, generally controls, the following significant language is used in the Rio Bravo case [121 Tex. 427, 50 S.W.2d 1087, 85 A.L.R. 391]: “The prime object and purpose of such rules [of construction] is to enable them to ascertain and give effect to the true intention of the parties unless such intention is inconsistent with some settled rule of law.” (Italics ours.) And the settled rule of law therein announced and followed in Cox v. Campbell, supra, is that, absent an express reservation, the grant is conclusively presumed to go to the center of the non-navigable stream, highway or railroad right of way. There being no such reservation in the grant, under such rule of construction, other evidence as to what was the intention of the parties becomes unimportant.

Now as to the application of this rule of construction to public grants. The case of City of Austin v. Hall, supra, involved a grant bordering upon a navigable stream. It is now settled by the decisions herein-above cited, and others, that such rule does not apply to lands bordering upon navigable streams and tide waters. However, highways, railroad rights of way and non-navigable streams constitute a distinct classification from navigable streams, and such rule of construction as to lands bordering on the former does apply to the latter.

The general rule is that a grant by the State of lands bordering upon a street or highway, which contains no express reservation, is to be construed in the same manner as grants between individuals. Mitchell v. Bass, 26 Tex. 372; Fristoe v. Blum, 92 Tex. 76, 80, 45 S.W. 998; Willoughby v. Long, 96 Tex. 194, 71 S.W. 545; Anderson v. Robison, 111 Tex. 402, 229 S.W. 459, 238 S.W. 883; 8 Am.Jur., § 47, p. 780. The only Texas case, applicable to the precise question here involved, is Schutze v. Dabney, supra, principally relied upon by appellees. On appeal to the Supreme Court (see 228 S.W. 176) the decision of this court, written by Judge Jenkins, was reversed on other grounds, and the exact question here presented not decided by the Supreme Court.

Two matters in connection with Judge Jenkins’s decision in Tex.Civ.App., 204 S.W. 342, are to be noticed:

1. He predicated his opinion largely upon the case of Graham v. Stern, 168 N.Y. 517, 523, 61 N.E. 891, 85 Am.St.Rep. 694. In subsequent cases decided by that same court, however, Graham v. Stern, supra, was distinguished on its own facts, and the general rule that a grant by the State is governed by the same rules applicable to private grants, was announced and followed. See 2 A.L.R., p. 35, and cases there annotated.

2. In Schutze v. Dabney, supra, Judge Jenkins clearly recognizes that his holding is contrary to that of the Supreme Court in Mitchell v. Bass, supra, but held the Bass case inapplicable because decided under the civil law. However that may have been, the Supreme Court itself, on the issue here involved, has cited with approval and followed the Bass case in Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160, 162; Cox v. Campbell, Tex.Sup., 143 S.W.2d 361. The necessary result of these decisions by the Supreme'Court is to overrule, if same were necessary, the views expressed by Judge Jenkins in Schutze v. Dabney. And since the Supreme Court in the Rio Bravo and Cox v. Campbell cases made expressly applicable to grants adjoining railroad rights of way the rule applicable to non-navigable streams, streets and highways, in which latter cases public grants are construed in the same manner as private grants, it follows that such construction applies with equal force in the grants here involved.

The remaining question presented is whether the former suit by the State against the Texas & P. Ry. Co., involving the same land as here, in which the State recovered its judgment, but to which suit the adjacent owners were not parties, is stare decisis as against them in the instant suit. In that suit (see Tex.Civ.App., 52 S.W.2d 957 and 124 Tex. 482, 78 S.W.2d 580) the State sued the T. & P. Ry. Co, in trespass to try title to that portion of the right of way here involved. The T. & P. Ry. Co. by cross action pleaded specially its asserted chain of title from the State. It was also stipulated in that case that the State had, prior to the filing of that suit, patented to individuals all of the adjoining lands, in which patents the field notes specifically called to run to marked corners on the edge of the right of way, and thence with its side lines parallel with, and 36 varas from, the center of the railroad track. The trial court sustained in that case the State’s exceptions, to the special pleas of title made by the T. & P. Ry. Co., and rendered judgment that the .State recover said land subject to the easement thereon in favor of the railroad company.

It is true that the judgment in that case did award these lands to the State; but none of the owners of the adjoining lands were parties to that suit; nor was the construction of their patents in any manner brought in question. In reality, as the opinions of this court and of the Supreme Court readily disclose, the only issue there presented and determined was that the T. & P. Ry. Co., when it obtained its right of way across that section of the State, acquired only an easement over this land; and did not acquire a fee simple title thereto. Whether the State had subsequently parted with its title to this land to others was not involved nor adjudicated in any manner.

Nor is the judgment in that case, in our opinion, stare decisis of the question of law presented in the instant case. The doctrine of stare decisis is now a settled part of our jurisprudence. It applies “only to questions of law; it involves no element of estoppel, and it operates on all persons, and not merely the parties to the particular proceeding and their privies.” 26 Tex.Jur., § 368, p. 46, and cases there cited. Such, for example, as the construction by the court of last resort, of a written instrument, or of a judgment, or the adjudication of the boundaries of a particular survey. The latter instance is one which most frequently occurs. See Porter v. State, Tex.Civ.App., 15 S.W.2d 191; Blaffer v. State, Tex.Civ.App., 31 S.W.2d 172; Cockrell v. Work, Tex.Civ.App., 94 S.W.2d 784, 795; Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993, 996; all cited and relied upon by appellees. But the question of law decided on appeal in the, former suit by the State against the Texas & P. Ry. Co. was whether the • T. & P. Ry. Co. obtained the title to, or merely an easement over, the lands included in its right of way. That was the controlling question presented and decided on that appeal; manifestly an entirely different question of law from that here presented — that is,.whether patents by the State to individual purchasers of adjacent lands, convey title to the center of the right of way or merely to its side lines. Clearly, we think, the decision of the former “question of law” could not and should not apply to, control, or determine the latter “question of law”, a separate and distinct question, determinable under entirely different principles and decisions.

It would establish a strange doctrine to hold that under the proper construction of the field notes in their patents, and by virtue thereof, the purchasers of adjacent lands had acquired from the State title to the center of the railroad right of way; but that they are now deprived of any right to assert that title by a judgment obtained by the State against someone else in a suit to which they were not a party, and in which the issue of their title was not adjudicated.

Under the conclusions reached it becomes unnecessary for us to determine the issues between A. F. Joslin and Elden B. Busby as to which one of them had a prior right to a mineral lease on said lands. The right of either to such lease depended up-‘ on title in the State to the lands involved.

For the reasons stated, the judgment of the trial court is reversed and judgment here rendered that the, State of Texas, as plaintiff below, and the defendants Joslin and Busby, lease applicants, take nothing as against the other defendants named.

Reversed and rendered.


author: WALKER, Chief Justice.

text:
    ROSE v. BAKER et al.
    No. 3746.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 27, 1940.
    Rehearing Denied Dec. 11, 1940.

      C. A. Lord, of Beaumont, for appellant.
    Hanson & Hart and B. C. Johnson, all of Houston, for appellees.
   WALKER, Chief Justice.

On May 24, 1939, James B. Baker filed this suit in district court of Jefferson county against J.- D. Wharton, operating under the name of Texas Furniture & Storage Company, praying for judgment for $1,500; for cause of action he alleged that he had delivered certain household goods to Wharton for transportation from Houston, Texas to Baton Rouge, Louisiana, and that Wharton had “wholly failed” to deliver him his goods in Baton Rouge. On the same day, Wharton filed his answer admitting that he had received the goods from Baker for .transportation. He plead specially that, while transporting the goods on highway No. 90 in Jefferson County, Texas, his truck was struck by a truck owned and operated by J. H. Rose, operating under the name of J. H. Rose Truck Lines, and that through the negligence of Rose his truck was greatly injured and Baker’s goods destroyed. He impleaded Rose as a cross-defendant, and prayed for judgment against him for his damages, and over against him for all damages that Baker might recover against him. On the 7th day of June, 1939, Rose answered by plea in abatement “that there is a mis-joinder of causes of action and also1 a mis-joinder of parties.” Subject to his plea in abatement, Rose answered to the merits of Wharton’s cross-action by general demurrer and general denial. On June 29, 1939, Baker filed his first amended original petition, complaining of both Wharton and Rose, and for cause of action plead the contract of transportation as in his original petition, that Wharton took possession of his goods, and that he had “wholly failed” to deliver him the goods, “claiming” that they had been destroyed while in his possession “as a direct result of the negligence of J. H. Rose.” He alleged further that the negligent conduct of Wharton and Rose, “jointly and severally,” was “the direct and proximate result of the loss and destruction of his property.” As in his original petition, he plead that his property was worth $1,500. On the 11th day of August, 1939, Wharton as cross-plaintiff filed his first amended original petition against Rose, but plead no new issues. 0'n the 22nd day of August, 1939, Baker filed his second amended original petition against Wharton and Rose, but plead no new issues. On November 7th, 1939, Wharton as cross-plaintiff filed his second amended original petition against Rose, but plead no new issues. On December 21, 1939, Rose answered Baker’s second amended original petition by pleading the general demurrer .and the general denial.

On December 15, 1939, the court overruled Rose’s plea in abatement; on the same day his general demurrer to Wharton’s cross-action against him; on the 7th day of February, 1940, his general demurrer to Baker’s second amended original petition — to all of which he reserved his exceptions.

On the 9th day of February, 1940, the case came on for trial to a jury, and on conclusion of the evidence, before the charge had been submitted to the jury, Rose presented to the court his motion for a peremptory instruction against both Baker and Wharton, which was overruled, and to which ruling he duly excepted.

On or about the date plead by Wharton, there was a collision between his truck and Rose’s truck on highway No. 90 in Jefferson county. Answering special issues, the jury found the following facts: Just prior to tíre collision, Rose’s truck was being operated at a rate of speed in excess of 25 miles per hour, which was a proximate cause of the collision and of the damages sustained by Baker; “the fair, actual value” of Baker’s property lost to him as the result of the collision was $1,500. “Upon the occasion of the collision” Rose’s truck was being operated “with a portion thereof upon its left hand side of the center line of the highway,” which was negligence and a proximate cause of the collision. “Upon the occasion of the collision” Rose’s truck “was being operated at a dangerous rate of speed under the existing conditions shown by the evidence,” which was negligence and a proximate cause of the collision. “Just prior to the time of the collision” the driver of Rose’s truck “failed to keep a proper lookout,” which was negligence and a proximate cause of the collision. Wharton was acquitted of all acts of negligence charged against him. The jury assessed the damages to Wharton’s truck at $400.

After overruling Rose’s motion for judgment non obstante veredicto, to which ruling he excepted,, judgment was entered on the verdict of the jury in favor of Baker against Rose for the sum of $1,500, and for Wharton against Rose for $400, and that Baker “take nothing” against Wharton, from which judgment Rose has duly prosecuted his appeal to this court. The record is before us without a statement of facts.

Opinion.

Since, on the allegations of Baker’s petition, Wharton was Baker’s bailee, appellant Rose’s first point is that Baker’s second amended original petition was insufficient to state a cause of action, in that in charging negligence against his bailee, Baker charged negligence “on the part of himself,” ryhich “allegations are binding upon him and he cannot question the truth of the same,” and which allegations of negligence are “conclusive” against Baker, and cannot “be questioned by him”; and for the same reason, the petition was insufficient to support the judgment; and for the same reason, the court erred in refusing to instruct a verdict in his favor. This point is overruled.

Baker’s petition against Rose, wherein he alleged Rose’s several liability, was not subject to the general demurrer, and was sufficient to support the judgment. Though a bailment was disclosed by the allegations of the petition, Baker did not pray for relief on that theory but on the theory of a joint and several tort. Rose cannot complain of this election of remedies by Baker. The allegation of joint and several liability was in the nature of an alternative plea— an allegation for relief against Rose if it should be found that Wharton, the bailee, was not guilty of negligence. The jury acquitted Wharton, the bailee, of all acts-of negligence charged against him, and1 convicted appellant of negligence proximately causing the damages suffered by Baker. The judgment was rendered on the theory of tort and not on the theory of bailment. Robicheaux v. Gulf Production Co., Tex.Civ.App., 68 S.W.2d 221, affirmed 128 Tex. 441, 99 S.W.2d 880.

But the judgment also has support on appellant’s theory of bailment. While the bailee may maintain an action for injury to the property held by him under the bailment during the existence of his rights as bailee, the bailor “has also a general property in the thing, and unless he has, by virtue of his agreement, parted' with it for a definite time, he may maintain a like suit against a stranger.” Masterson v. International & G. N. R. Co., Tex.Civ.App., 55 S.W. 577, 578. Baker, by his agreement with Wharton, did not part with his “general property” in his household goods. On this point we cite Bailments,. par. 88, 6 Am.Jur. 211: “On the creation of the ordinary bailment, the general property remains in the bailor, and the bailee has only a special interest for the express or implied objects of the bailment. Where one with the legal title to property becomes the bailor thereof, the contract of bailment does not contemplate any change in such title, and it remains in the bailor. The respective interests of the parties in the subject-matter are such, however, that both the bailor and the bailee have certain rights with respect to the property which they may assert against each other and against third persons, the degree to which they may do so depending, of course, upon the class of bailment entered into and upon special provisions of the contract, if there are such.”

Therefore, he had the right to maintain a suit against Rose "a stranger”, for the damages suffered by him. So, same authority, Bailments, par. 303, since Baker' retained his general property in his household goods he had the right “to maintain an action against * * * one causing injury thereto” — that is, against Rose.

The second point is that the court erred in refusing to sustain the plea in abatement to Wharton’s cross-action “wherein and whereby” Wharton alleged “a misjoinder of parties and a misjoinder of causes of action” in his cross-action against Rose, and wherein he attempted to make Rose a party to this cause. This point is overruled.

In support of the judgment overruling the plea in abatement, Wharton advances the following counter propositions: (a) The plea in abatement “was not presented and urged at the term at which it was filed”; (b) The plea in abatement “was directed at Wharton’s original cross-action, which was thereafter superseded by his first amended cross-aqtion”; (c) The plea in abatement was properly overruled since Baker amended his petition, suing both Wharton and Rose “after appearance by Rose in answer to Wharton’s cross-action.”

Pretermitting a discussion of the first three counter propositions, we rest our judgment on the fourth counter proposition. Baker by his amended pleadings prayed for judgment against Wharton and Rose jointly and severally. The damages suffered by Baker and the damages suffered by Wharton, all resulted from the same collision, and the same acts of negligence committed by appellant Rose. It was therefore in the sound discretion of the trial court, in order to avoid a multiplicity of suits, to hear and determine all claims for damages in one suit. Commercial Standard Ins. Co. v. Freeman, Tex.Civ.App., 100 S.W.2d 145.

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

Affirmed.