author: BLAIR, Justice.

text:
    CITY OF EL PASO v. STATE.
    No. 8912.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1940.
    Rehearing Denied Jan. 17, 1940.
    Ernest Guinn, Coyne Milstead, and Frank B. Clayton, all of El Paso, for appellant.
    Gerald C. Mann, Atty. Gen., and George W. Barcus, Pat M. Neff, Jr., and Judge Ocie Speer, Asst. Attys. Gen., for appellee.
   BLAIR, Justice.

The State of Texas sued the City of El Paso to recover a tax of four cents per gallon on 70,579 gallons of gasoline imported from New Mexico and used by the City in its police cars, fire trucks, and other motor vehicles operated within the city limits, and used exclusively for governmental purposes; and recovered judgment as prayed; hence this appeal.

The portion of the tax statute (Art. 7065a — 1 et seq.) applicable imposes the tax upon every person in this State who imports any motor fuel into this State and makes the first sale or use of same in this State in operating motor vehicles on the public highways. It defines “first sale” and “person” as follows:

“ ‘First Sale’ shall mean and include the. first sale, distribution or use in this State of motor fuel refined, blended, imported into, or in any other manner produced in, acquired, possessed or brought into this State.”
“ ‘Person’ shall mean and include every individual, firm, association, joint stock company, syndicate, copartnership, corporation, trustee, agency or receiver.”

The City contended below and here contends: (1) That a municipal corporation does not come within the meaning of the term “person” as used in the general tax statute, nor within the scope and purview of it with respect to the gasoline used exclusively for governmental purposes; and (2) that if it be so construed, then it is in violation of the provisions of Art. 8, Sec. 1, and Art. 11, Sec. 9, of the Texas Constitution, Vernon’s Ann.St., which read as follows :

“All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value. * * *
“It may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal, * * *.
“It may also tax incomes of both natural persons and corporations other than municipal *• * Art. 8, Sec. 1.
“The property of counties, cities and towns, owned and held only for public purposes, such as public buildings and the sites therefor. Fire engines and the furniture thereof, and all property used, or intended for extinguishing fires, public grounds and all other property devoted exclusively to the use and benefit of the public shall be exempt * * * from taxation.” Art. 11, Sec. 9.

The statute declares the tax to be “an occupation or excise tax.” Article 7065a — 2. If the tax is an occupation tax, then it cannot be imposed upon municipal corporations, because the Constitution expressly exempts them from the payment of an occupation tax to the State. We regard the tax as being both an occupation tax and an excise tax, depending on the particular case. It is imposed upon the occupation of the distributor engaged in selling motor fuel as well as upon the privilege of using motor fuel in the operation of vehicles upon the public highways of this State. The tax upon the privilege of using motor fuel in the operation of motor vehicles on the public highways is manifestly an indirect or excise tax; and the question here presented is whether the legislature intended by the statute to impose this' excise tax upon municipal corporations.

We have reached the -conclusion that when the general tax statute. is construed in the light of the policy or principle of the above quoted fundamental law to generally exempt municipal corporations-from the payment of taxes to the State, and the rules of statutory construction applicable, it must be held that the legislature did not intend to impose the excise tax in question upon municipal corporations. The constitution expressly exempts municipal corporations from any sort of ad valorem or property tax on their physical property devoted to public use, and also exempts them from at least three forms or species of excise taxes, to-wit; poll, occupation, and income taxes. The excise tax in question is not different from the last two mentioned excise taxes which the constitution expressly exempts municipal corporations from paying. The State concedes that “an occupation tax is only a species of an excise tax.” Certainly a tax on income is an excise tax. f Likewise is the tax on the privilege of using gasoline in the operation of a motor vehicle on the highways an excise tax. No real distinction can be made between the tax on the privilege of using gasoline in the operation of motor vehicles upon the highways and the tax on the privilege of engaging in the business of selling and distributing gasoline, or engaging in any business whereby a taxable income is made. All such taxes are indirect and are levied on the privilege of doing certain things. In consequence, if the imposition of the excise tax in question is not expressly inhibited by the constitution, it is manifestly in violation of its general policy or principle not to impose the same sort of taxes upon municipal corporations. Nor is the question free from doubt as to whether by the general exemptions stated the framers of the constitution did not intend that no taxes of any sort should ever be imposed by the State upon its municipal corporations. This view is further sustained by Art. 8, Sec. 17, which immediately follows the above quoted provisions with reference to exemption of municipal cqrpo-rations, and which reads: “The specification of the objects and subjects of taxation shall not deprive the Legislature of the power to require other subjects or objects to be taxed'in such manner as may be/ consistent with the principles of taxation fixed in this Constitution.”

Having theretofore specifically exempted municipal corporations from all forms of property taxes, and at least three specific forms of excise taxes, it can be argued with sound reason that the framers of the constitution intended to establish a policy or principle that the State should never impose any sort of taxes upon its municipal corporations. A decision in the instant case, however, need not go that far, because under the rule of statutory construction applicable, it must be held that since the tax statute did not by clearest words include municipal corporations, or impose the tax upon them, the legislature did not intend to impose the tax upon them. This rule is-stated in Vol. 1, Chap. 2, Sec. 91, p. 217, Cooley on Taxation, ■ as follows: “General tax statutes of a state are never,' without the clearest words, construed to include its own property or that of its municipal corporations, although not in terms exempted from taxation. This rule is sometimes referred to as an implied restriction on the power to tax, although in reality it would seem that it is not a limitation at all but merely a rule of construction of tax statutes.”

As reason for the rule the same authority-further elaborates in Vol. 2, Chap. 12, Sec. 621, p. 1312, as follows: “Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in adopting them. Such is the case with property belonging to the state and its municipalities, and which is held by them for public purposes. All such property is taxable, if the state shall see fit to tax it; but to levy a tax upon it would render necessary new taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no one^ would be benefited but the officers employed, whose compensation would go to increase the useless levy. It cannot be supposed that the legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the state and by all its municipalities - for public purposes was intended to be excluded, and the law will be administered as excluding it in fact, unless it is unmistakably included in the taxable property by the constitution or a statute.”

The rule and reason for it are peculiarly applicable to the instant case. The general tax statute in question makes no mention of municipal corporations, and uses no language from which it could be reasonably inferred that the legislature intended to impose the excise tax upon them. Here the tax is imposed directly on the City and not indirectly on the seller of the gasoline, and in its final result constitutes a direct tax on the City in the exercise of its governmental functions, because the gasoline is used exclusively for governmental purposes. The only way the City can pay the tax is to levy an additional ad valorem tax on the property of its taxpayers. So, every fact or reason is present for invoking the rule that municipalities are not included within general tax statutes unless the legislative intent to that effect is expressed in “clearest words.”

The rule is also applicable because of the principle or policy of the constitution to exempt not only the physical property of municipalities from taxation, but to also exempt them from paying several species of excise taxes similar to the excise tax imposed by the statute in question. It is, therefore, manifest that the imposition of the tax would clearly contravene the principle or policy of the constitution to exempt municipalities from paying the same sort or species of excise tax, which the rule declares shall not be done unless the legislative intent to that effect is expressed in the tax statute by “clearest words.”

The State contends, however, that it cannot be presumed that the legislature did not intend to include municipal corporations in the term “corporation” as used in the statute, because it would have been an easy matter for the legislature to have excepted municipal corporations if it had intended to do so. This contention is diametrically opposed to the above quoted rule of statutory construction, which provides that before a municipality can be included in a general tax statute, the legislature must so declare by the “clearest words.” It is also contrary to the general rule of statutory construction, particularly where municipal corporations are involved, that “the ordinary meaning of the word ‘corporation’ is private corporation,” and the use by the legislature of the word “corporation” in another statute has been held to refer only to private corporations; because, generally, the legislature “has shown a disposition to treat private corporations and municipal corporations as separate things.” City of Tyler v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 288 S.W. 409, 410; McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679.

The State further contends that any construction different from that contended for by it would necessarily deprive dealers within this State “of their reasonable and legitimate profits on large quantities of gasoline required by such municipalities and giving of such business and profits to their competitors residing outside of the State.” A complete answer to this contention is that since the State and its municipalities are exempt from the payment of the tax in question, we see no good reason why dealers within the State may not sell them the gasoline used for governmental purposes less the tax; and thus the dealers within the State are placed upon equal footing with competitors everywhere. If the tax is added to the sales price, then both the State and .municipalities must levy some sort of tax to pay this excise tax, because it must be distributed to the several funds to which the statute appropriates it. The State must, therefore, appropriate out of its general fund enough to pay the tax on the gasoline used by its various departments for governmental purposes, and municipalities are compelled to levy an additional ad valorem tax on the property of its citizens to pay the tax on the gasoline used by them for governmental purposes. Thus the property of the citizens of both the State and its munic- ' ipalities are charged with an additional ad valorem tax to pay the excise tax on gasoline used by them for governmental purposes, and this is true notwithstanding the fact that the policy of the constitution is to exempt both the State and its municipalities from taxation; and particularly so unless the tax statute by clear and unmistakable language imposes the tax upon them. This the legislature has not done in the instant statute, but to the contrary has clearly and expressly recognized any constitutional inhibitions or exemptions from such taxation by specifically providing, in the tax statute in question as follows: “No tax shall be imposed on any motor fuel, the imposing of which would constitute an unlawful burden on interstate commerce and which is not subject to be taxed under the Constitution of the State of Texas and the United States; and provided, that the tax imposed herein shall be in lieu of any other 'excise or occupation tax imposed by the State or any political subdivision thereof, on motor fuel.” Vernon’s Ann.Civ.St. art. 7065a— 2(c).

By this language, the legislature necessarily recognized the policy or principle of the constitution to exempt the State and its municipalities from the payment of the tax in question, and expressly provided that “no tax shall be imposed on any motor fuel * * * which is not subject to be taxed under the Constitution of * * * Texas * * ¿irection 0f the statute is followed, and dealers in this State are not compelled to include in the sales price the four-cent tax on gasoline sold to the State or its municipalities 'for public use, then such dealers are on equal footing with competitors everywhere.

The City also invokes the rule of departmental construction of the tax statute in question, which as applied to the instant case is the same as the rule of statutory construction herein invoked by us, and therefore need not be discussed at length. Suffice it to say that on January 11, 1930, the Attorney General’s Department, by a conference opinion, interpreted the tax statute in question as imposing essentially an occupation tax, and held that municipal corporations were exempt from paying it under the above quoted provisions of the constitution. In accordance with this opinion, the authorities charged with the collection of the tax never attempted to impose it upon municipalities importing gasoline from other states. On September 28, 1937, the authorities charged with the duty of collecting the tax again called upon the Attorney General’s Department to rule on the matter, and by a conference opinion the statute was interpreted as imposing essentially an excise tax, and it was held that an excise tax, as distinguished from an occupation tax, could be legally imposed upon municipalities, and that the legislature so intended by the statute in question. This opinion is quoted as the State’s brief herein. The attempt to collect the tax under this opinion precipitated this suit. During the seven-year period between the two opinions of the Attorney General’s Department the legislature amended the tax statute several times, but did not amend it so as to specifically include municipal corporations within its provisions. That grave doubt existed as to the proper construction of the tax statute is. evidenced by the conflicting opinions and rulings of the governmental departments charged with the duty of enforcing the statute. This doubt existed both as to whether the municipalities were exempt under the policy or principle of the constitution to generally exempt them from taxation, and as to whether the legislature intended to include them within the tax statute. Thus every fact and condition is present upon which the courts will ordinarily adopt and uphold a construction of a statute by an executive officer or department charged with its enforcement. The rule with respect to both grounds of doubt here pointed out is discussed at length in 39 Tex. Jur., pp. 232-235, §§ 124-126, and cases there cited, which also sustain our construction of the statute as not imposing the tax in question upon municipalities.

The judgment of the trial court is reversed and judgment is here rendered for the City of El Paso.

Reversed and rendered.


source: Caselaw Access Project

author: WALTHALL, Justice. PRICE, Chief Justice

license: Public Domain

text:
    TAYLOR v. JONES.
    No. 3864.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 14, 1939.
    Rehearing Denied Jan. 4, 1940.
    Scott, Hall & Lindsay, of Marshall, for appellant.
    Huffman & Huffman, of Marshall, for appellee.
   WALTHALL, Justice.

This suit is brought to partition real estate. Appellee, Harrison Jones, is the adopted son of Leroy Taylor, deceased. Appellee filed this suit in the District Court of Harrison County, Texas, against appellant, Mariah Taylor, the surviving wife of Leroy Taylor, deceased, for the partition of a 150-acre tract of land located in Harrison County and fully described in the petition.

Appellee alleged that the 150-acre tract of land was the community property of Leroy Taylor, deceased, and appellant Mariah Taylor, and that appellee,, as the adopted child and sole heir of Leroy Taylor, deceased, was the owner of an undivided one-half of the land, and that Mariah Taylor as such surviving wife was the owner of the remaining one half of said land.

Appellant answered by general denial and by special answer to the effect that she was the sole owner of the equitable title to the whole of said 150-acre tract of land for the reason that said land was purchased and paid for with her separate funds, and that Leroy Taylor was simply a naked trustee in whose name said property was held for the benefit of her separate estate.

The record shows that appellant was married to Leroy Taylor, also known as Lee Taylor, on August 27, 1889, and lived together as husband and wife until the death of Leroy Taylor on March 4, 1920. No child was born to this marriage, and Leroy Taylor left appellee, his adopted son, as his sole and only heir.

On January 10, 1905, J. D. Hammond and wife, M. E. Hammond, for the expressed cash consideration of $600, conveyed by deed to Lee Taylor, he being the same person as Leroy Taylor, the said 150-acre tract of land.

Appellee relied upon the presumption that the land was community property from the fact that it was acquired during the marriage relation of Leroy and Mariah Taylor.

Appellant contended, in the trial court and contends here, that the purchase price of said land was paid with her separate funds which she had before she married Leroy Taylor.

The case was submitted to the jury on one special issue, to-wit: “Do you find from a preponderance of the evidence that the consideration recited in the deed from J. D. Hammond and wife, M. E. Hammond, to Lee' Taylor to the land in controversy was paid out of money then oh hand belonging to Mariah Taylor prior to her marriage, to Leroy Taylor?” The jury answered “Yes.”

Appellee filed a motion for judgment non obstante veredicto. Appellant filed a ■motion for judgment in accordance with the verdict of the jury.

The court granted appellee’s motion and rendered judgment for appellee.

Appellant submits that, she having paid the entire purchase price for the land oiit of money belonging to her separate estate, and the jury having so found, and the issue being a material issue, the court was without power to disregard the jury’s finding and render) judgment contrary thereto.

The evidence, in our opinion, fully sustains the jury’s finding. The issue submitted to and found by the jury was the only material issue of fact in the case. In our opinion the court was without authority to render judgment other than that based upon the verdict.

Appellee submitted and requested the giving of several special charges to the jury, among them a charge to the effect that the undisputed evidence shows that plaintiff is the only heir of Lee Taylor, deceased, and as such is entitled to one-half of the land involved in the suit, there being no competent or admissible evidence that said land was not community property of Lee Taylor and defendant. Other requested charges were to strike out the various statements of defendant that the money paid for the land was money she owned and had before her marriage to Lee Taylor. The court refused to submit any of such special charges.

After the jury had returned its verdict the court sustained appellee’s motion for judgment non obstante veredicto, evident-' ly on appellee’s contention that the admission in evidence of appellant’s testimony was error under Article 3716 of the Revised Civil Statutes.

As said by the Supreme Court in International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040, it is the policy of our Supreme Court to strictly construe the language contained in Article 3716, and the court is not inclined to extend its construction beyond the plain language and meaning contained therein.

In Wideman v. Coleman et al., 17 S.W.2d 786, 788, the Commission of Appeals, in interpreting Article 3716, said: “This statute does not disqualify a witness from testifying to facts such witness may know of her own knowledge.” The appellant, we think, could testify to the fact that she owned and had the $600 before her marriage with Lee Taylor, and that she paid that money as the consideration for the land. Such statements of the witness and similar ones are matters within her own knowledge, were not gained from impressions or information from the conduct, condition or language of her husband, and does not involve a transaction with her deceased husband within the in-' hibition of the statute.

We have concluded that the court was in error, both in sustaining appellee’s motion for judgment and in overruling the •motion of appellant for judgment based on ■the verdict of the jury.

The case is reversed and judgment is here rendered for appellant for the land in controversy in the suit.

PRICE, Chief Justice

(concurring).

While I agree with the disposition of the ■case as shown by the opinion of Justice WALTHALL, I am not in entire agreement with the reasons stated therefor. In my opinion the testimony of Mariah Taylor was sufficient to raise an issue for the jury.

The judgment appealed from was rendered on a motion non obstante veredicto. Authority to entertain such a motion is derived from Article 2211, R.S.192S as •amended by Acts 42nd Legislature, 1931, Vernon’s Ann.Civ.St. art. 2211. Before the amendment to the statute a court was without authority to enter judgment non obstante veredicto. Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S.W. 607; Oklhoma City & T. R. Co. v. Magee, 63 Tex.Civ.App. 124, 132 S.W. 901; Massie v. Hutcheson, Tex.Com.App., 270 S.W. 544.

The exercise of this power by the courts is conditioned upon the propriety of a directed verdict in the case. In this case ap-pellee moved for a directed verdict, which the court refused. Before the submission of the case appellee by special charge sought to have the jury instructed to disregard the testimony of appellant in substance and effect that she had paid for the land in controversy with her separate funds. These special charges were refused by the court.

Appellee, throughout the examination of appellant, by objection, sought to have the testimony of appellant excluded. The objections were overruled by the court. In any event, this testimony was in the record. Without this testimony in the record there could be little question but what it would have been the' duty of the trial court to have instructed a verdict in favor of plaintiff.

It cannot be said that her testimony lacked relevancy or probative force. The testimony was relevant and had probative value. Walker et al. v. Fields et al., Tex.Conn.App., 247 S.W. 272, 273, loc. cit. 275; Hunt v. Garrett, Tex.Civ.App., 275 S.W. 96, reversed on other grounds, Tex.Com.App., 283 S.W. 489; Hein v. DeBusk, Tex.Com.App., 277 S.W. 1053; Roberts v. Carlisle, Tex.Civ.App., 4 S.W.2d 144.

If objection had- been sustained to this testimony in limine appellant would have had an opportunity to have produced other evidence if same was available to her. Even if the court at the time the motion to instruct was made had sustained the motion to strike this testimony, it is probable that appellant would have been afforded a reasonable opportunity to produce other testimony if same was available.

In other words, in ruling upon the motion for judgment the court was without power to strike this evidence from the record. If the court deemed the former ruling on the admissibility of the testimony incorrect, on motion for new trial such error could have been remedied.

On the motion for judgment the court could either grant or refuse same. The granting of the same did not amount to setting aside the verdict — i't was ignoring same because without support in the evidence. If the motion was not sustained, the court might either render judgment in accordance with same, which in this case would have been for the defendant, or set same aside. In my opinion the court was in the same position as though the evidence of appellant Mariah Taylor had been admitted without objection. It was in the record, the jury had been discharged, and it could not then be stricken out. Reed v. Robertson, 106 Tex. 56, 156 S.W. 196.

While the testimony of Mariah Taylor might have been more clear and explicit, she did say that she paid out of her separate funds the $600 cash consideration expressed in the deed from Hammond and wife to her husband. Had she explained just to whom this money was paid, where, and who was present, it might have strengthened the testimony. This does not appear in the statement of facts. Counsel for the appellee had an opportunity to cross-examine her on these points. It may be they refrained from doing so for fear of waiving their objection to her competency under Article 3716, R.S. Giving her testimony the favorable construction which we are bound under the law on a motion to instruct or for judgment non obstante vere-dicto, in my opinion the question was for the jury. A verdict having been rendered supported by evidence in the record, the trial court should have rendered judgment thereon in favor of the defendant. It is our duty to render the judgment the trial court should have rendered.

Justice Higgins concurs in the foregoing.


author: HIGGINS, Justice

text:
    WARD v. VALAND et al.
    No. 3892.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1939.
    Rehearing Denied Jan. 4, 1940.
    M. V. Ward, of El Paso, for appellant.
    Theo. Andress, of El Paso, for appellee.
   HIGGINS, Justice

(after stating the case as above).

The petition was verified by the petitioners in Norway before a notary public of that Kingdom. It is objected that a notary public commissioned under the laws of Norway had no authority to take the affidavits of the petitioners. Article 26, Revised Statutes, provides:

“All oaths, affidavits or affirmations may be administered and a certificate of the fact given:
* ⅜ * * * *
“3. If without the United States, before any notary public, or any minister, commissioner or charge d'affaires of the United States, resident in and accredited to the country where the affidavit may be taken, or any consul general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States, resident in such country.”

As we understand appellant’s theory, the words “notary public” appearing in the third subsection of said Article are qualified by the phrases “resident in and accredited-to the country where the affidavit may be taken” and “resident in such country.” The words “notary public” are followed by the word “or,” and the qualifying phrases mentioned have ho relation to or qualifying effect upon the words “notary public.” The objection indicated is without merit.

The sufficiency of the citation to the unknown heirs of Spelling and service thereof are questioned. We express no opinion as to the merits of the sufficiency of such citation and service. Assuming they were defective, the unknown heirs have not appealed from the judgment rendered. The Court had complete jurisdiction over the Administrator, and the judgment rendered is conclusive upon such Administrator and will protect him in any action taken by him in obedience to the judgment. Article 3S9S, R.S. He is not in a position to complain of the defect, if any, in the citation to the unknown heirs and the service thereof. They have not seen fit to appeal from the judgment rendered.

This disposes of all questions presented by appellant.

The judgment is affirmed.


text:
    GOUGH et ux. v. HOME OWNERS’ LOAN CORPORATION.
    No. 3893.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1939.
    Rehearing Denied Jan. 4, 1940.
    John T. Hill, of El Paso, for appellants.
    Isaacks & Lattner, of El Paso- (S. J. Isaacks, of El Paso, of counsel), for appel-lee.
   HIGGINS, Justice

(after stating the case as above).

Jannie Gough acquired the legal .title to the lots. The appellee holds under her. The title of the defendant is an equitable one. Bona fide purchasers and lien-holders for value, acquiring the title to realty or a lien thereon from the owner of the legal title, are protected against equitable titles such as here asserted by John T. Gough. In order for a holder of such equitable title to prevail against such a purchaser or lienholder, it must be shown the latter acquired their rights with notice, actual or constructive, of the outstanding equitable title. The record here is wholly insufficient to show actual notice of the outstanding equitable title. Nor is the evidence sufficient to put either the City Mortgage or the Home Owners’ Loan Corporation upon inquiry which would charge either of them with constructive notice of the outstanding equitable title asserted by John T. Gough. The quotations from the trial court’s findings disclose the facts upon which appellants rely as sufficient to constitute constructive notice of the outstanding equitable title. We concur in the ruling of the trial court that such facts were insufficient for the purpose indicated. Johnson v. Bingham, Tex.Civ.App., 251 S.W. 529, affirmed, Tex.Com.App., 265 S. W. 130 and Tex.Com.App., 265 S.W. 884; Strong v. Strong, Tex.Civ.App., 66 S.W.2d 751, affirmed 128 Tex. 470, 98 S.W.2d 346, 109 A.L.R. 739. In this connection it should be further stated the evidence shows that at times the plaintiff and his wife lived in the house upon the property with Mrs. Jannie Gough, but. at the time the loan was made by the City Mortgage Company and the deed of trust executed securing the same, Gough was not living in the home, though he was there for three or four weeks at that time on a visit from Ranger, Texas, where he resided. Under the authorities cited above the casual residence at times upon the property with Mrs. Jannie Gough was not inconsistent with Mrs. Gough having complete legal and equitable title to the lots. In any event, it cannot be said that as a matter of law it charged the City Mortgage Company or the Home Owners’ Loan Corporation with constructive notice of the outstanding equitable title. Viewed in its aspect most favorable to the appellants, -it raised but an issue of fact as to whether or not, under all of the circumstances reflected by the record, it was sufficient to place the City Mortgage Company or the Home Owners’ Loan Corporation upon inquiry, and thus affect them with constructive notice.

This issue the trial court found against appellants and its findings upon the issue should not be set aside.

The judgment is affirmed.

PRICE, C. J., did not participate in the disposition of this appeal.


author: WALTHALL, Justice.

text:
    KINNEY v. JOHNSON et al.
    No. 3882.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1939.
    Rehearing Denied Jan. 11, 1940.
    Gossett, Gossett & King and J. Clyde King, all of Longview, and Gibson, Stewart & Garrett, of Des Moines, Iowa, for appellant.
    Wynne & Wynne and Clyde H. Hall, all of Longview, for appellee.'
   WALTHALL, Justice.

This case was tried on plaintiffs’ fifth amended original petition and supplements thereto and defendant W. D. Kinney’s first amended answer.

The suit is in trespass to try title to approximately 3½ acres of land in Gregg County, Texas.

The record 'shows substantially the following:

Cain Claiborne owned approximately 180 acres of land .of the Isiah Beaty Survey in Gregg County, Texas. Of the 180 acres he sold and conveyed the north 50 acres, and thereafter he conveyed to Henry King the west 20 acres, of which conveyances or their locations on the ground there is no controversy, and we make no further reference to them.

In 1903 Henry King sold and conveyed by warranty deed the 20 acres to Emanuel Johnson, describing the land conveyed by metes and bounds. Emanuel Johnson immediately on the conveyance went into possession of the 20 acres. The 3½ acres of land in controversy in this suit lies to the east and adjoins the 20-acre tract purchased by Emanuel Johnson from Henry King. A fence was built along the east side of the Emanuel Johnson 20-acre tract and enclosed the S^acre tract with the 20-acre tract.

Emanuel Johnson died intestate in 1930, leaving surviving him as his sole heirs, his widow, Lula Johnson (who afterwards married Arthur Jones), and two children, Emanuel Johnson, Jr., and Lucillous Johnson.

This suit was filed on March 31, 1936, by Lucillous Johnson, Emanuel Johnson, Lula Jones, joined by her husband, Arthur Jones, and S. H. Killingsworth, as plaintiffs, against W. D. Kinney and one hundred and twenty others, as defendants, to recover title and possession of the ‘¿Y2-s.cre tract and, damages.

All defendants duly answered and the case was set for trial on November 4, 1936. Thereafter a compromise was agreed upon by the attorneys, but was not approved by all the defendants, one of them being defendant W. D. Kinney.

By order of the trial court this cause was severed as to all the defendants except W. D. Kinney and eight other defendants. The severed cause was numbered 10949-C, and thereafter judgment was rendered that the plaintiffs take nothing as to the defendants remaining in the severed cause.

Thereafter all the defendants remaining in this suit except W. D. Kinney were severed from the main cause.

Amended pleadings were filed and this suit went to trial with Lucillous Johnson, Lula Jones and husband, Arthur Jones, L. F. Browley, Clyde H. Hall, and S. H. Kil-lingsworth, as plaintiffs, and W. D. Kinney as defendant.

The case was tried to the court without a jury, and on June 21,' 1938 judgment was rendered in favor of the plaintiffs and against the defendant W. D. Kinney for a money judgment in the sum of $1147.50 and a recovery of the title and possession of the 3½ acres of land sued for.

Kinney filed a motion for a new trial which the court overruled.. From the judgment rendered W. D. Kinney duly prosecutes this appeal.

The evidence in the case is quite voluminous and from it we make some statements' which we think might throw some light on the issues presented here.

It was agreed that Cain and Ann Claiborne were the common source of title to the land involved, in the suit.

There were some oil wells — apparently three .oil wells — on the strip of about 3½ acres of land in controversy, and the interests of all defendants in the original suit and in this suit were in the minerals in the land, or in the oil taken from the land.

Emanuel Johnson, Sr., owned, or was in possession of and cultivated, the 20 acres of land referred to in the above statement and had owned it as there stated. He cultivated and farmed the 20 acres. The 3½-acre tract involved here was not a part of the 20-acre tract, but lay along the side of it and was enclosed with it by a fence and Emanuel Johnson, Sr., cultivated it up to the fence. Witness Cunyus testified that in 1931 he surveyed the 3^acre tract and found the land enclosed with a good and substantial fence; the fence had been there for many years; was - cultivated up to the fence. Witness Crews testified: Had known the land since 1916; it was enclosed by a fence, was cultivated each and every year from 1916 to 1930 by Emanuel Johnson; that all of such period the land was claimed by said Johnson; that witness, as did other witnesses say, said: “He never heard any person claiming that land except Emanuel Johnson and Lula”; and that he had not heard of any one claiming the land adversely to Johnson. Witness Nichols testified: He had'known the land for twenty-four years, all of which time the land was under fence, cultivated, used and claimed by Emanuel Johnson. Witness Causey testified: He had known the land for thirty years, during all of which'time it was enclosed by a fence, was cultivated, occupied, used and claimed by Emanuel Johnson. Other witnesses testified to substantially the same facts as above. One witness was 48 years old, had known the land since he could first remember; that it was cultivated and claimed by Emanuel Johnson, and that he had never heard of any other claimant. Coleman Strong testified: Was 70 years of age; had owned the farm adjoining the Johnson 20 acres; knew when Johnson purchased the 20 acres; that the land had been enclosed by a fence for 40 years; that Johnson had cultivated and was claiming the land up to his fence since 1905.

Plaintiffs claimed the land under Emanuel Johnson, Sr., under the statute of twenty-five year limitation.

W. D. Kinney claimed by purchase of date December 29, 1933 %6oth part of the royalty interest in the mineral rights in the I. Beaty Survey, same 'being a portion of the Cain and Ann Claiborne estate, not embracing, however, the 20 acres owned by Johnson. Kinney also had a royalty interest in the same land as above, but not embracing any part of the 20 acres owned by plaintiffs. Kinney’s purchase of the royalty interests in each instance was subsequent to the maturity of plaintiff’s prescriptive title to the land.

The record apparently shows, as to the 3i¡4-acre tract in controversy, that Kinney, to the extent of his royalty interest in the 3½ acres, had the record title, and that plaintiffs’ rights rested in their claim of ownership of the 3½ acres under the statute of limitation of twenty-five years.

The trial court made and filed no findings of fact and conclusions of law, and in the absence of findings of fact and conclusions of law by the trial court every reasonable presumption will be indulged in favor of the judgment by the trial court, and the judgment of the court will not be disturbed on appeal where the facts necessary to sustain the judgment have support in the evidence. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070; Bradford v. Moseley, Tex.Com.App., 223 S.W. 171; 3 Tex.Jur. 1102.

The witnesses who testified to the occupation, possession and use made of the 3^acre tract of land involved in the suit by Emanuel" Johnson, Sr., are numerous. Each witness testified at length as to the opportunity for knowing the fact testified to. We have stated the evidence which we think sufficient to support the fact necessarily found by the trial court in rendering judgment that appellees, and those under whom they claim under the limitation statute of ten years, had acquired title to the land prior to the time any of the oil wells had been put down on the land in 1932. Emanuel Johnson, Sr., husband of Lula Johnson, who afterwards married Arthur Jones, and father of Emanuel Johnson, Jr., and Lucillous Johnson, died intestate in 1930. Appellant did not acquire his interest in the minerals in the land until 1933.

This case was filed by appellees on March 31, 1936, against appellant W. D. Kinney and 120 others as defendants. All parties answered and later the cause was severed as to all defendants except W. D. Kinney and the severed cause taking another and different number on the docket. So far as the record shows no objection was made by any party to such severance either before or after the order of severance was entered. Judgment was rendered and entered in the severed cause that plaintiffs “take nothing as against the above named defendants or any of them, except the oil payment as hereinafter described.” The judgment shows that the oil payment referred to was given to the plaintiffs in accordance with a compromise agreement in the severed cause.

The severed cause was a suit in trespass to try title and in which each defendant claimed a separate and undivided interest in the land involved.

In the present suit appellant pleaded in bar and in abatement and estoppel the above judgment rendered and entered in the severed cause for the reason, as we understand, though several reasons are cited, that the matters were all adjudicated in the severed cause; that by reason of the judgment plaintiffs have no title; that the title to the disputed land and the oil therein is quieted in appellant’s co-tenants; the judgment settled the rights of all parties, including appellant whether named in the judgment or not; and that appellees have been paid for their interest in the land and there has been full accord and satisfaction of appellees’ claim; and that by reason of which the court was in error in rendering judgment in this cause.

To sustain his position appellant refers to Article 7391 of the statutes and to many cases from our courts, including among them, Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490; Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 570; Houston Oil Co. v. Village Mills Co., Tex.Com.App., 241 S.W. 122; Stark v. Hardy, Tex.Com.App., 29 S.W.2d 967; Warren v. Plouston Oil Co., Tex.Com.App., 6 S.W. 2d 341; White v. Burch, Tex.Civ.App., 33 S.W.2d 512, and other cases we have reviewed.

The record shows that appellant neither held under nor was he in privity with any of the parties in the judgment.

The facts, we think, easily distinguish this case from the facts in the cases referred to above.

The facts before us show that in the original suit appellees had, before severance, pending a suit against appellant and also a suit pending against all the other defendants named. Appellees were entitled to a separate trial in both of said causes and a judgment in one of said causes would not be an adjudication of the issues in the other.

Appellant is not holding in privity with any of the parties in the severed cause. Only the parties bound by a judgment can avail themselves of its benefits. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 569, in which it is said: “The ‘title or right of possession established’ is limited to the parties bound by the judgment.” In Whiteman v. Whiteman, 232 S.W. 888, 889, Judge Hodges, speaking for the Tex-arkana Court of Civil Appeals said: “Estop-pels by judgment must be mutual, and one not bound by a judgment cannot urge it as an estoppel against another,” and referred to Lamar County v. Talley, Tex.Civ.App., 127 S.W. 272; Galveston Chamber of Commerce v. Railroad Commission, Tex.Civ.App., 137 S.W. 737 ; 2 Black on Judgments, sec. 548; 15 R.C.L., sec. 432. Kinney was not a party to the severed suit after its severance, nor does he hold his interest in privity with any party to the judgment. Article 7391, R.C.S.; Home Trading Co. v. Hicks, Tex.Civ.App., 296 S.W. 627, and Lamar County v. Talley, supra, defining “privity.”

It is not made to appear that the court abused its discretion in granting the order of severance. Clay County Land & Cattle Co. v. Wood, 71 Tex. 460, 9 S.W. 340; 41 Tex.Jur. 715, par. 12.

We have concluded the trial court was not in error in overruling appellant’s pleas.

Appellant claims to hold his record title to the royalty interest in the minerals under the heirs of Cain Claiborne purchased in 1933. Appellees claim under a separate chain of title (emanating from Emanuel Johnson, Sr., who acquired title by limitation. It seems to be. well established that one who acquires the record title cannot be an innocent purchaser of an outstanding title acquired by limitation. Houston Oil Co. v. Olive Sternenberg & Co., Tex.Com.App., 222 S.W. 534; Bowles v. Bryan, Tex.Com.App., 247 S.W. 276, in which the courts hold that the doctrine of bona fide purchaser has no application in a controversy between one who has acquired a title to property by adverse possession and a purchaser of the record title. 43 Tex.Jur. p. 683, par. 402.

Points not specifically discussed have been considered and are overruled.

Finding no reversible error, the case is affirmed.


author: ALEXANDER, Justice.

text:
    McMULLEN et al. v. COLEMAN et ux.
    No. 2237.
    Court of Civil Appeals of Texas. Waco.
    Jan. 11, 1940.

      Strasburger, Price, Holland, Kelton & Miller, of Dallas, M. E. Gates, of Huntsville, Bennett & Bennett, of Normangee, and Brownlee & Brownlee, of Madison-ville, for plaintiffs in error.
    ■ Collins, Pate, Hatchell & Garrison, of Lufkin, and Joe E. Webb, of Madisonville, for defendants in error.
   ALEXANDER, Justice.

W. N. Coleman and wife brought this suit against Morris McMullen and Elton Mc-Mullen, partners doing business under the trade-name of Mack’s Motor Coaches, and William M. Forrest, to recover damages for injuries resulting in the death of Floradelle Coleman, a minor daughter of the plaintiffs. The facts were substantially these: The McMullens owned a motor passenger bus and Forrest owned a motor truck. While the passenger bus was traveling eastward on a public highway from Madisonville toward Crockett, the truck, which was following the passenger bus, attempted to pass the bus, and, in doing so, collided head-on with an automobile occupied by three fifteen year old girls, Floradelle Coleman, Rachel Janice Scott and Bettie Ash. As a result of the collision, the driver of the truck and all three girls were killed. The plaintiffs sued both defendants — that is, the owners of the passenger bus and the owner of the truck— as joint tort-feasors for damages for the death of their daughter; Floradelle. The owners of the passenger bus, in addition to denying liability, filed a cross-action against the owner of the truck and alleged that their negligence, if any, was passive, whereas the negligence of the driver of the truck was active, and consequently the owners of the bus sought contribution from the owners of the truck. There was a dispute in the evidence as to how the accident occurred. Some of the witnesses testified that the driver of the truck attempted to pass the bus without first ascertaining the approach of the vehicle occupied by the girls,while others testified that the driver of the passenger bus slowed the bus down or stopped it suddenly and without warning and that the driver of the truck was compelled to cross the center of the road to his left in order to avoid colliding with the bus. The jury found that the driver of the passsenger bus was guilty of negligence which proximately caused the collision, and acquitted the driver of the truck of all charges of negligence, and acquitted the three girls of all charges of contributory negligence. The jury found that the sum of $5,500 would compensate plaintiffs for the damages which they had sustained by reason of the loss of their daughter. Based on the verdict, the court rendered judgment for plaintiffs for $5,500. The owners of the passenger bus have sued out this writ of error.

In addition to the allegations above referred to, including the plea for contribution by the owners of the passenger bus over against the owner of the truck, the owners of the passenger bus allege that the truck owner had settled with the plaintiffs by paying to them the sum of $1,000 in discharge of his liability and had thereby discharged both alleged joint tort-feasors. They further alleged that if the bus owners were not thereby wholly discharged, they were entitled to have the amount so received by the plaintiffs in said settlement applied as a credit on the plaintiffs’ claim, thereby reducing the amount to be recovered by the plaintiffs proportionately. Upon the trial of the case the court refused to allow the plaintiffs in error, the bus owners, to introduce before the jury any evidence with reference to such settlement. The court, however, did hear the evidence with reference thereto, out of the presence of the jury. The evidence showed without dispute that Forrest, the owner of the truck, approach- ■ ed the plaintiffs for the purpose of settling his liability. After some negotiations the plaintiffs disclosed the matter to their attorneys, who informed them that they could not settle with one of the defendants without releasing the other. It was then agreed that in consideration of $1,000 the plaintiffs would assign to William M. Forrest, Jr., a twenty-one year old son of the defendant Forrest, any judgment which plaintiffs might recover against the latter. The agreement was then embodied in a written contract and William M. Forrest paid the plaintiffs the sum of $1,000 for his son in consideration of said assignment. The said William M. Forrest testified that at the time the agreement was entered into he paid the sum of $1,000 to the plaintiffs for his son, and that he thought he would be able to work out some kind of settlement with his son in the event a judgment should be rendered against him. As above stated, the. plaintiffs in error were denied the privilege of disclosing the above transaction to the jury. With the record in this condition, the attorney for the plaintiffs, in his argument to the jury, stated that while he had originally sued William M. Forrest, the truck owner, for damages and had charged that the driver of the truck was negligent, he was convinced, after hearing the evidence, that said truck driver was not to blame, and for that reason he urged the jury to acquit said truck driver of all charges of negligence. The jury did so. While the jury found that the sum of $5,500 would fully compensate the plaintiffs for the injuries sustained by them on account of the death of their daughter, the trial court refused to allow a credit for the $1,000 which plaintiffs had received under said settlement, but rendered judgment against the owner of the passenger bus for the full sum of $5,500. All of this was assigned as error.

There are two reasons why we think the record presents reversible error. In the first place, we think the trial court should have credited the amount found by the jury as being adequate compensation to plaintiffs with the amount previously received by plaintiffs in the settlement with William M. Forrest. While in Texas a settlement with and release of one of two alleged joint tort-feasors does not release the other, Baylor University v. Bradshaw, Tex.Civ. App., 52 S.W.2d 1094, par. 9, and authorities there cited, the amount received from one of them must be credited on the loss suffered by the injured party, and the amount of the recovery against the other reduced proportionately. This rule prevails even though it be found that the one released was in fact not liable. The holding is based on the principle that the injured party is entitled to but one satisfaction for a single injury. 36 Tex.Jur. 822; Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703, par. 3 and authorities there cited; El Paso & S. R. Co. v. Darr, Tex.Civ.App., 93 S.W. 166; Atchison T. & S. F. R. Co. v. Classin, Tex.Civ.App., 134 S.W. 358. The fact that in the case at bar there was an assignment of the judgment to be recovered against one of the alleged joint tort-feasors instead of a release of his liability does not alter the case. The money was received by plaintiffs in satisfaction of their claim against William M. Forrest, one of the alleged joint tort-feasors, and must be credited accordingly. Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703; Baylor University v. Bradshaw, Tex.Civ.App., 52 S.W.2d 1094. The appellees assert that the sum paid by Forrest was intended as a mere gratuity and not in acknowledgment of any liability. The record shows, however, that the defendant Forrest was being sued for the loss and that the money was paid to plaintiffs in consideration of an assignment of the cause of action against said defendant. The payment therefore cannot be classed as a gratuity. El Paso & S. R. Co. v. Darr, Tex.Civ.App., 93 S.W. 166; Atchison T. & S. F. Ry. Co. v. Classin, Tex.Civ.App., 134 S.W. 358.

In the second place, we think the method of presenting the case to the jury was manifestly unfair. The plaintiffs entered upon the trial of the case apparently as adversaries of the defendant Forrest, seeking judgment against him, and when their attorney argued to the jury, he made; what appeared on its face to be,’ a confession or admission of his inability to make out a case against said defendant; but, in truth and in fact, his statement was a self-serving declaration, made for the purpose of augmenting his judgment against the other defendant. When the jury heard the attorney for the plaintiffs, an apparently interested party, admit that in his opinion the evidence was insufficient to show any negligence on the part of the truck driver, the jury doubtless weighed it accordingly and gave such credence thereto as would be justified by an admission against interest, whereas if it had been disclosed to the jury that the plaintiffs had already received the sum of $1,000 in full satisfaction of their claim against Forrest, and that it was to their interest to secure an acquittal of Forrest, so as to place the entire responsibility against the owners of the bus and thereby increase plaintiffs’ recovery, much less credence would have been given to such self-serving declarations. These errors require a reversal of the judgment of the trial court.

The plaintiffs in error charge, in effect, that through the influence of the attorney for plaintiffs the court was induced to number all of the defendants’ defensive issues by adding the letter “B” after the number of each issue so as to enable the jury to distinguish plaintiffs’ issues from defendants’ defensive issues, and that thereafter the attorney for plaintiffs took advantage of the situation by telling the jury to answer all of plaintiffs’ issues in the affirmative and all of defendants’ defensive issues in the negative. This procedure is assigned as error. Since the case must be reversed for other reasons and the error will not likely arise in the same manner upon another trial, we do not deem it advisable to discuss the assignment at length. It is sufficient to say that such practices are not to be encouraged, and if in the future such practice should be followed and it should appear that the jury was thereby, induced to so answer the issues for the purpose of giving the plaintiff judgment and without actually deciding the fact issue involved, we would not hesitate to reverse the judgment.

Because of the errors hereinabove pointed out, the judgment of the trial court is reversed and the cause is remanded for a new trial.


text:
    Morris McMULLEN et al., Plaintiffs in Error, v. Mrs. G. W. SCOTT et al., Defendants in Error.
    No. 2185.
    Court of Civil Appeals of Texas. Waco.
    Jan. 11, 1940.
    Strasburger, Price, Holland, Kelton & Miller, of Dallas, M. E. Gates, of Huntsville, Bennett & Bennett, of Normangee, and Brownlee & Brownlee, of Madison-ville, for plaintiffs in error.
    Collins, Pate, Hatch ell & Garrison, of Lufkin, and Joe E. Webb, of Madisonville, for defendants in error.
   ALEXANDER, Justice.

Mrs. G. W. Scott, a widow, brought this suit against Morris McMullen and Elto'n McMullen, partners doing business under the trade-name of Mack’s Motor Coaches, and William M. Forrest, to recover damages for injuries resulting in the death of Rachel Janice Scott, the minor daughter of the plaintiff. A trial before a jury resulted in verdict and judgment for the plaintiff against the defendants, Morris McMullen and Elton McMullen, for the sum of $5,000. Said defendants have appealed.

This is a companion case with the case of Morris McMullen et al. v. W. N. Coleman, et ux., 135 S.W.2d 776, this day decided. The facts in this case and the errors committed in the trial court are substantially the same as were involved in that case. For the reasons stated in the opinion in that case, the judgment of the trial court in this case is reversed and the cause is remanded for a new trial.


author: PRICE, Chief Justice.

text:
    YOUNGER BROS., Inc., v. MOORE.
    No. 3888.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 21, 1939.
    Rehearing Denied Jan. 18, 1940.

      Clifford Stone, of Henderson, Benbow, Saunders & Holliday, of Houston, and Touchstone, Wight, .Gormley •& Price, of Dallas, for plaintiff in error. ■
    Hill & Bath, of Henderson, and Wm. Madden Hill, of Dallas, for defendant in error.
   PRICE, Chief Justice.

This suit was instituted in one of the District Courts exercising jurisdiction in Rusk County by J. O. Moore, as plaintiff, herein so called, against Younger Brothers, Inc., a corporation, as defendant, and it will be hereinafter so called.

Plaintiff’s trial petition alleged that a truck owned and operated by defendant on a public highway in Rusk County collided with a truck operated by plaintiff, and thereby plaintiff suffered severe and permanent injury. Many grounds of negligence are charged against defendant in the manner of the operation of its truck on the occasion in question.

Defendant answered by .general denial and a very • detailed plea of contributory negligence. The trial was by a jury, the case being submitted on some sixty or more special issues. ■ . . •

Various issues of negligence-on the part of the defendant were submitted and all found against defendant. • The issues of contributory negligence submitted were all found in favor of the plaintiff. The verdict assessed .plaintiff’s damages at $30,-309.70. Judgment.was entered on the verdict in favor of'plaintiff. Defendant duly perfected this appeal.

The -findings of the jury find ample support in the evidence and we find the facts in accordance therewith.

Defendant took a,great number of exceptions to the court’s charge. These exceptions constitute 93 paragraphs with many subdivisions in each paragraph, a copy of the exceptions taken constitute about 70 pages'of the transcript. The trial court overruled each and all of these exceptions, and in our opinion the action was entirely proper. ' Defendant' -requested some 20 or rnore special issues many of which were subdivided. These requests were, we think, all refused by the trial court. The amended motion for a new trial took 183 pages, subdivided into 569 paragraphs/'

From, this welter of confusion and tautology defendant brings forward in its brief 71 assignments of error.

Defendant at all relevant times here was engaged' in the trucking business in the oil fields. Its operations seem to have been rather extensive, in that in the pursuit of this business it owned and maintained numerous trucks and employed drivers, helpers and executives. Its business was to transport goods for others for compensation. Sinclair Prairie Oil Company, for convenience hereinafter called Oil Company, 'is éngaged in Rusk County in the operation of oil wells. Defendant had some sort of arrangement or contract with the Oil Company with reference to doing its trucking. "■

On the morning of November 12, 1937, •W. F. Parker, construction foreman for the said Oil Company, communicated to Earl Robins, field superintendent of the defendant in its business in the eastern part of'this state, that he wanted a truck and helper to do some hauling for his Company.

On the occasion in question and at all relevant times A. D: Koen and W. W. Williams were employees of defendant and 'subject to the orders and directions of Robins, ■ as foreman. Koen was employed by defendant as a truck driver and paid daily wages by defendant twice each month.

At about 8 A. M. on the morning of November 12th Koen and Williams left the headquarters of defendant in pursuance of orders from Robins in one of defendant’s trucks to do hauling for the said Oil Company. They first proceeded to the town of Arp where the defendant’s truck was serviced with oil, gasoline, etc. This at the expense of defendant. Then they drove -to about two miles from there to the camp of the Oil Company. Koen reported to Parker, construction foreman of the Oil Company; Parker gave him instructions to get a load from the warehouse of the Oil Company and to take same to the Peter Tipps lease; Koen proceeded to get the load and started therewith south to said lease along the Arp-Henderson highway. As defendant’s truck proceeded along this highway south plaintiff was proceeding in a truck along the same highway north. The trucks, in an attempt to pass each other, collided. This collision, as established by the verdict of the jury, was due to the negligence in the operation of defendant’s truck on the occasion in question.

Plaintiff, a man of about 32 years of age, as a result of the collision, suffered terrible injuries. The seriousness and effect of these injuries are not seriously controverted' by defendant. His back was. broken. The treatment necessitated him to stay in a plaster cast for about four months, and at the date of the trial he was-wearing a brace. The evidence was sufficient to support a finding of a permanent destruction of earning capacity; also that plaintiff did and perhaps would suffer great pain. He was earning at the rate of something over $150 per month at the time of his injury, his employment relatively permanent. The Oil Company was to and did pay for the services performed for it by defendant on the occasion in question on an hourly basis.

Defendant contends that under the undisputed testimony it was not liable for the negligence of Koen in the operation of its truck on the occasion in question for the reason that as a matter of law Koen was then the'special employee of the Oil Company .and. not subject to defendant’s control.

The facts bearing on the relationship of the Oil - Company to defendant, Koen to defendant and to the Oil Company, as hereinbefore stated, have been recited from the testimony of defendant’s witnesses.

The* relationship of employer and employee is contractual in its nature. IS R.O.L. p. 493, sec. 3.

Beyond any question Koen was-in the general service of defendant. If he was in the special service of the Oil Company and at the time defendant was without right to control the manner of performance of the work, it is not liable for torts committed in the course 'of this special employment. Missouri Pac. R. Co. v. Jones, 75 Tex. 151, 12 S.W. 972, 16 Am.St.Rep. 879. If full credit be given to the testimony of defendant’s witnesses, the Oil Company was to direct what work was. to be done. The determination of what work is to be done does not imply the right of directing how it was to be done. Walker v. El Paso Electric R. Co., 103 Tex. 259, 126 S.W. 262; Fink v. Brown, Tex.Civ.App., 183 S.W. 46, modified on another point, Tex.Com.App., 215 S.W. 846.

In Fink v. Brown, supra, the employee was sent by his master to install flues in a boiler for a partnership. His employer received as compensation ninety cents per hour and furnished no materials. It is held a question of fact whether he was in the special employ of the partnership or remained subject to the control of his general employer. In this case the opinions fail to show the business in which the conceded general employer of Brown was engaged. Here the work of defendant was hauling goods for others. Koen was paid by defendant to help it do this work. The question here is, who, at the time of this accident, had the legal right to control the manner in which Koen drove defendant’s truck? Attached to this right of control is legal responsibility for his acts or omissions.

“The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct.” Higgins v. Western Union Tel. Co., 156 N.Y. 75, 50 N.E. 500, 501, 66 Am. St.Rep. 537.

“The business of the employer [the truck company] included the operation and driving of the car while engaged in the service for which leased.” Thatcher v. Pierce, 281 Pa. 16, 125 A. 302, 304.

We are of the opinion that a truck driver employed by a trucking company is subject to its control while driving its truck in the transportation of goods for ■one of its customers. Tilling v. Indemnity Co. of North America, Tex.Civ.App., 283 S.W. 565, writ denied; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; Texas Company v. Brice, 6 Cir., 26 F.2d 164; Craige v. Austin Powder Co., 4 Cir., 91 F.2d 664; Williams v. Gulf Refining Co., Tex.Civ.App., 229 S.W. 959; Traders & General Ins. Co. v. Jones, Tex.Civ.App., 95 S.W.2d 189; Dave Lehr, Inc. v. Brown, 127 Tex. 236, 91 S.W. 2d 693; Smith Bros. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145.

We do not mean to hold that the proposition above set forth is universal in its character and that there may not be exceptions. However, it has application to the situation in this case. The evidence shows without contradiction that at the time of the accident the driver Koen was subject to the control of defendant.

To our mind the case of Dave Lehr, Inc. v. Brown, supra [127 Tex. 236, 91 S.W.2d 694], by the Commission of Appeals, is conclusive of the matter. Judge German, in the course of the opinion, quotes with approval from the case of Peer v. Babcock, 230 N.Y. 106, 129 N.E. 224: “A truckman hauling coal for coal dealers and using his own team and wagon in making deliveries to their customers at his own pleasure at a certain rate per ton, the places being indicated on delivery slips given to him, held to be a carrier for hire, and not an employee, for whose negligence, causing a collision, the dealers would be liable.”

The ex parte acts of a master cannot make his servant the servant of another. The ex parte acts of the servant while performing the work of his master cannot shift responsibility therefor to another.

So far in this opinion we have considered the status of Koen to defendant from the standpoint of the testimony of defendant’s witnesses alone. Now Robins, Koen and Williams were interested witnesses. The jury in passing on their credibility might discredit or might disbelieve all or any part of their testimony. Eliminating parts of the testimony of Robins, Koen and Williams we have this situation: A truck on the highway by the election of defendant, driven by a servant of defendant. The presumption from this state of circumstances would be that it was being driven in the business of defendant. Magnolia Coco Cola Bottling Co. v. Jordan, Tex.Civ.App., 47 S.W.2d 901; Id., 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513; Brown v. City Service Co., Tex.Com.App., 245 S.W. 656.

If under the undisputed evidence Koen was the servant of defendant on the occasion in question it is perhaps unnecessary to discuss the error charged by defendant in the submission of this issue to the jury. Special issue No. 21 was as follows: “Do you find from a preponderance of the evidence that at the time and place of the collision the driver of defendant’s truck was performing acts which he had been employed by the defendant to do?”

The finding was in the affirmative.

We think this issue substantially submits the ultimate issue in the case. If at the very time of the collision Koen was performing the work he was employed to do by his master he was the servant of. his master and as such subject to his. control. The defendant here is not an employment agency. If it were so a different question might be presented. It is a truck company. The evidence fails to show anything out of the ordinary as to the contract between it and the Oil Company.

The defendant excepted to this charge on the ground that the court nowhere in its charge defined the meaning of the term “performing acts which they had been employed by the defendant to do.” Now those exact words were not used in the issue complained of. Ordinarily, one would think that what the defendant wanted was for the court to define or explain the words “was performing acts which he had • been employed by the defendant to do.” However, an examination of defendant’s exception to the court’s charge shows that the expression embodied in the exception “they were employed,” etc., was used four times. In the exceptions it appears that defendant took about fifteen separate exceptions to issue 21. These exceptions are most confusing and must have been so to the trial court. The conclusion on the part of the trial court would have perhaps been justified, the exceptions being so minute, that defendant demanded and required only a strict and a liberal conformity to the exceptions as made.

It is assigned as error here that the court failed to define the words “performing acts which he had been emplpyed by the defendant to do,” used in that issue, and we shall consider it as though defendant had made in his exceptions these exact words. It is contended the words “performing acts which he had-been'employed by the defendant to do” constitute a legal term, and, as such, under Article 2189, R.S., require definition. Now, the phrase does not seem to us to have any peculiar legal significance as such. The words are all words of common, everyday meaning. It is true that the inquiry was not exactly “was at said time Koen driving the trqck subject to the control of the defendant?” However, if he was driving the truck for the defendant at said time under the facts it is clear he was subject to the control of the defendant and the issue does substantially submit the question. Now the ultimate issue was, as argued, correctly we think, by defendant, “who had the right to and was controlling and supervising his. work and the details thereof at the particular time involved in this case?” The issue submitted was not a defensive issue,., but a submission of one theory of plaintiff’s case. Disregarding defendant’s defensive theory which, as we have pointed out, after all was only an hypothesis under the evidence, it submitted a theory tendered by the evidence on behalf of plaintiff. If Koen had been employed by defendant to drive the truck and at the very time was driving the truck as he had been employed to do he was acting in- the scope of his employment. If Koen was. acting within the scope of his employment for defendant at the time, defendant was liable for his acts.

Furthermore, the phrase sought to be-defined has no peculiar legal or technical significance. To define it, as defendant seems to contend, would take the words, out of their regular and ordináry meaning.. We dq not believe under- Article 2189, R. S., it was the duty of the court to define-this phrase. Guitar v. Wheeler, Tex.Civ.App., 36 S.W.2d 325; General Motors Acceptance Corp. v. Killingsworth, Tex.Civ.App., 54 S.W.2d 266; Trinity-Universal Ins. Co. v. Maxwell, Tex.Civ.App., 101 S.W.2d 606; Watchtower Mut. Life Ins. Co. v. Davis, Tex.Civ.App., 99 S.W.2d 693; Broaddus v. Long, Tex.Civ.App., 125 S.W.2d 340; Federal Underwriters Exchange v. Crow, Tex. Civ.App., 118 S.W.2d 1073.

Defendant advances this proposition: “It is improper, to instruct a jury to answer a special issue either ‘Yes’ or-‘No,’ since such instruction destroys the Judge’s Charge on the burden of proof' contained in the issue and deprives the-defendant of its right to a negative answer-where the answer does not preponderate either way but is evenly balanced, since-the jury will understand from such instruction how to answer the question, that, an answer either in the affirmative or negative must be supported by a preponderance of the evidence.”'.

It is asserted the proposition is germane-to assignments of error Nosl 37 to 70, inclusive. Special issue 21, heretofore copied, herein, is a fair sample of the issues at which these assignments are leveled. Same-are overruled.

By proposition it is asserted it was reversible error for counsel of plaintiff in his closing argument to the jury to repeatedly read to the jury from what purported to be a court reporter’s transcript of the testimony of the witnesses. Five assignments of error are briefed under this proposition. While deeming it immaterial, the premise of this proposition that counsel purported to read from the court reporter’s transcript of the testimony of the witnesses, does not appear from the statement to be strictly correct. It fairly appears that Senator Hill did read from something which purported to be some record or memorandum of the testimony of some of the witnesses. It is not charged that he misquoted or misrepresented a word of the testimony. An accurate reproduction of the testimony was his right. If he saw fit to rely on memorandum rather than his memory, in our opinion he had a perfect right to do so.

Questions of argument are involved herein. It appears that counsel for the plaintiff in the closing argument, after complimenting counsel for the defendant for the skill, zeal and fidelity with which they had represented their client, said further that “they lacked the ability to look on the sentimental side of things; that it can’t matter to them if by chance through misinterpretation of what actually occurred this man would be relegated to a position on the street corner with a tin cup and a bunch of pencils to eke out his existence.” On objection the court promptly admonished counsel for plaintiff to stay within the record. Defendant sought no further relief at the hands of the court. The argument was a mild reflection on counsel for defendant. They were zealous in the protection of the interest of their client. Properly they urged their defenses regardless of the effect it would have on the welfare of the plaintiff. The prompt admonition of the court cured any error there might have been in the argument.

Mr. Bath in the opening argument in discussing special issue No. 19a submitting the issue of compensation for pain and suffering, after discussing the evidence tending to show the serious and painful nature of plaintiff’s injuries, said: “It is hard to say: T will suffer this much for this much money, I will suffer the pain and torment of a broken back for Ten Thousand Dollars.’ Would you do it?” Upon objection by defendant’s counsel the court sustained the objection and forcefully instructed the jury to disregard the argument. The effectiveness of the instruction is reflected in the finding of the jury as to this issue. One thousand dollars was assessed for past and future suffering. This is indeed moderate considering the character and nature of plaintiff’s injury. The error in this argument was cured by the instruction to the jury.

In the opening argument Mr. Bath said that the truck driver was still in the employ of the defendant, and he believed he thought more of his job than he did of the truth. This argument was entirely legitimate. Only the facts were stated upon which the belief was founded. Counsel has a right to argue the credibility of witnesses.

Mr. Bath in his opening argument in discussing the compensation for loss of earning capacity said in substance that it was easy to arrive at the loss from (November) the date of the injury to the present time, $150 per month; that plaintiff had a life expectancy of 32.5 years; if he made $1,800 a year that would be more than $50,000; that that would be too much, but you must give him what amount of money, if paid now, would recompense him; that would perhaps bring him an income to equal that; that would give him some way of investing the money that he could earn $150 a month. Mr. Touchstone objected on the ground the argument was outside of the instruction of the court, highly inflammatory and prejudicial, and no evidence to support it. The court admonished counsel to stay within the evidence. Defendant sought no further instruction of the jury by the court. A legal measure of damages is not presented by the argument. It, however, is not susceptible of the construction premised in the proposition, “that if same were invested it would yield an amount equal to $150 per month.” The statement was “that would give him some way of investing the money that he could earn $150 per month.” Now the statement is at least susceptible of the construction that the money alone was not to bring in the income, but he was to earn the income in connection with the investment. This was in the opening argument. With the text of the court’s charge before the jury defendant had a right to reply thereto and probably did. We hold that reversible error is not shown by the assignment

Senator Hill in the closing argument for the plaintiff said in substance: “And you would put him in a position financially where he won't at least endure the pangs of hunger, though according to the testimony here he will forever endure the pain.” Just exactly what took place in respect to this argument does'not clearly appear. The matter complained of is embodied in defendant's bill of exception No. 18. The bill recites that the argument complained of was made over the objection of defendant. Whether defendant tendered objection at the time the argument was made does not appear. If he did tender such 'objection and the same was overruled — it does not appear from the bill he made exception thereto at said time. It is not such an argument that an instruction would not have cured same. In the state of the record we do not think that error is presented.

Senator Hill in closing made this argument: “Dr. Suehs and Dr. O’Bryne told you that so far as manual labor was concerned he was totally and permanently disabled. So far as manual labor is concerned, Mr. Wright, he is dead — .” Mr. Touchstone objected. Mr. Hill said “I am sorry.” The court instructed Mr. Hill not to speak to any juror and instructed the jury to disregard the remark. Reversible error is not shown.

Mr. Bath in the opening argument in discussing special issues 20 and 21 said, in substance, that defendants have attempted to dodge responsibility in every way conceivable. They have sought to do so by saying that the driver of the truck was not working for Younger Brothers, but was working for the Sinclair Prairie Oil Company. This argument we think entirely legitimate. It did not have the effect of informing the jury of the effect of their findings. It was. so obvious that if Koen was the'servant of the Oil Company at the time of the accident that defendant would not be liable for his acts that any sensible man could not fail to so understand. Appellant was striving throughout the case to avoid liability. The whole purpose of the trial was to determine this question. It was a legitimate inference that any and all of its purposes were to avoid the consequences of the collision.

Eighteen bills of exception were taken by the defendant to the argument of the two counsel for plaintiff. Seventeen times they were interrupted in the course of their argument by objections. Insofar as there was a legitimate ground of complaint in each instance the court seems to have carefully guarded and vindicated the rights of defendant. Many times these interruptions were as to matters, the right of plaintiff’s counsel to make the argument and pursue the course taken was absolutely clear. Under such circumstances hasty and unconsidered reactions are not surprising.

This case on the whole was tried with extreme care by the trial judge. The difficulties under which he labored are reflected by the record. Seventy pages of exceptions to a court’s charge in a damage suit involving no question of a special difficulty hardly seem to be required. A motion for a new trial containing 567 s'epa-rate and distinct grounds seems hardly to be called for. In spite of the difficulties presented, the trial judge seems to at all times maintain an absolutely impartial and tolerant attitude to counsel on either side. The record presents no substantial error.

It appears from the evidence and agreement of the parties herein that plaintiff's employer had a workman’s compensation policy with the Petroleum Casualty Company; that that Company had paid to plaintiff under this policy the sum of $840, and further paid the doctors’ bills in the sum of $250 for plaintiff. The law is clear under these conditions. Section 6a, Article 8307, as construed by our courts, precludes other compensation under the Workmen’s Compensation Law if the employee elects to proceed to final judgment against the third party alleged to be liable for his injury. Texas Employers Ins. Ass’n v. Brandon, 126 Tex. 636, 89 S.W.2d 982. Section 6 of Article 8307 gives the right of subrogation to the insurance carrier. In the case of El Paso Electric Co. v. Perkins, Tex.Civ.App., 292 S.W. 935, writ denied, a somewhat analogous situation arose. The point is not discussed in the opinion. However, an examination of the record in that case shows that the defendant contended that the employee whose death was involved in the action was covered by compensation insurance on behalf of Stone-Webster, his employer. It urged this as a defense, pleading that $720 had been paid as compensation and that the total compensation collectable was $7,200, and sought to off-set same, It appeared from the evidence that some $720 had been collected from the Insurance Company by the beneficiaries of the deceased’s employer. On motion for new trial the trial court modified the judgment providing that to the extent of $720 the recovery of plaintiff should inure to the benefit of the insurance carrier. It seems clear to us that plaintiff’s recovery here should inure to the benefit of the Petroleum Casualty Company to the extent o'f $840 at least, and that the judgment of the trial court should be modified so as to so provide. As to the $250 paid by the insurance carrier, we are not entirely clear. Plaintiff sought recovery for medical services reasonably necessitated by his injury. This suit covered, or should have covered, the value of all medical services. The defendant, as well as plaintiff, is entitled to have this litigation ended.

It is ordered that the trial court’s judgment be modified providing that $1,090 of the recovery awarded plaintiff be held in trust for the Petroleum Casualty Company. The said sum of $1,090 to bear interest at the rate of six per cent per an-num from the judgment of the trial court.

Modified and affirmed.


text:
    DUNCAN et al. v. MOORE.
    No. 8868.
    Court of Civil Appeals of Texas. Austin.
    Dec. 30, 1939.
    Rehearing Denied Jan. 24, 1940.
    Bill S. Watkins, Alfred . Mueller, and Carlos C. Ashley, all of Llano, J. V. Hammett, of Lampasas, and Thos. C. .Ferguson, of Burnet, for plaintiffs in error.
    Lawrence L. Bruhl, of Llano, for defendant in error.
   BLAIR, Justice.

. This suit was instituted for the partition of 320 acres of land, the adjustment of the equities, and the determination of the title, as between the heirs of L. A. Moore, deceased; and plaintiffs also' sought to invalidate and set aside a deed executed in 1918 by L. A. Moore and his second wife to defendant, Euel Moore, conveying to him an undivided one-half interest in the 320 acres of land for a recited consideration of $1,800, evidenced by six notes, four for $250 each, and two for $400 each; the deed expressly retaining a vendor’s lien ,to secure the payment of the notes. This deed was filed for .record on September 27, 1939, and plaintiffs allege that they knew nothing of it until a few days before they filed this suit, one month later, on October 27, 1937; and plaintiffs also allege that all or a greater part of the consideration recited in the deed had not been paid to L. A. Moore or to his heirs after his death, and asserted superior title to the land conveyed under the vendor’s lien retained in the deed, and thus plaintiffs sought to partition the whole 320 acres of land.

Defendant, Euel Moore, answered by a . general demurrer, which was overruled, a general denial, and a cross-action in trespass to try title.

L. A. Moore was twice married, first to Martha Ellen-Moore; and second to Nannie Moore. Martha Ellen Moore died in 1882, intestate, at which time the 320 acres of land were a part of the community estate of herself and her husband, L. A. Moore; and as her heirs she. left her husband. and ten children of this marriage. L. A. Moore remarried in 1886 to Nannie Moore; and of this marriage there were four children, including Euel Moore; and the children of the two marriages, or their heirs, are parties to this suit.

In 1887 and shortly thereafter, L. A. Moore made a parol partition and settlement with the children of his first marriage, some of them in full. In answer to special issues submitted, the jury found that the four named children of the first marriage had not been fully settled with by the parol partition, and found the amount due each of said four children, the total being $400. Upon these findings, the trial court decreed that L. A. Moore became the owner of the 320 acres of land, subject to the claims of the four children for $400. This portion of the judgment is not contested.

After the death of L. A. Moore in 1919, Mrs. Nannie Moore continued in possession through tenants of the 320 acres of land, which according to all the witnesses, several of the heirs both plaintiffs and defendants, was the wish of L. A. Moore; he expressing the desire that she have the rents and revenues of the land for her support. And as reason for not placing the 1918 deed.of L. A. Moore and wife to Euel Moore, conveying an undivided one-half interest in the 320 acres, on record, Euel Moore testified that it was upon agreement with his father at the time of executing the deed not to place it of record until the death of the second Mrs. Moore, in order that she might have all the rents and revenues of the 320 acres for her support during her lifetime. Euel Moore testified that he paid the first of the six vendor’s lien notes for $250 to his father prior- to his death in December, 1919; and there was apparently no dispute, as to this because the only other issue submitted to the jury was whether the “five” remaining vendor’s lien notes “were fully paid prior to the death of the second Mrs. L. A. Moore.” The jury found that they had been paid, and the trial court accordingly found that the. 1918 deed from L. A. Moor.e and wife to Euel Moore, was valid, and decreed that since the purchase money notes had been paid in full to Mrs. Nannie Moore during her lifetime, the judgment vested title to an undivided one-half interest in the 320 acres of land in Euel Moore. The judgment also recited that all of the parties had agreed that an undivided one-half interest in the 320 acres of land was not susceptible of partition in kind; and the court decreed that said one-half interest be sold and the proceeds be divided among the heirs of L. A. Moore, naming them, share and share alike, after paying the claims of the four children who had not been paid fully for their interest in the estate of the first Mrs. L. A. Moore, aggregating $400.

The attack upon the validity of the deed of 1918 to Euel Moore, because of alleged undue influence and mental incapacity of -L. A. Moore to execute it, was not supported by any legal evidence and no issue was submitted or requested to be submitted to the jury; and no' complaint is made here as to any question of the invalidity of said deed upon the grounds so alleged.

Appellants raise the question that the jury’s finding that the five vendor’s lien notes had been paid prior to the death of the second Mrs. L. A. Moore is not supported by any legal evidence, (1) because the evidence was insufficient to show a gift inter vivos of the notes to her by her husband, L. A. Moore; and (2) because she was at most only a co-tenant with the other heirs of L. A. Moore in the ownership of the notes, and entitled to collect only her share of the notes; and therefore payment to her of all the notes did not constitute payment of the interest or share of the other co-tenants in the notes.

As' stated herein there seems to be no question that the first vendor’s lien note for $250 was paid to L. A. Moore during his lifetime. As to the remaining five vendor’s lien notes, two questions of fact as to their payment were raised by the pleadings and evidence: (1) whether in fact the notes had been paid prior to the second Mrs. Moore’s death; and (2) whether L. A. Móore had made a delivery or gift inter vivos of the notes to her. The jury found that the notes had been paid prior to Mrs. Moore’s .death, which finding is supported by sufficient evidence, which will be set out in our discussion of the question of gift inter vivos .of the notes to Mrs. Moore. No issue was submitted, nor was any issue requested to be submitted to the jury on the question of delivery or gift inter vivos of the notes to Mrs. Moore. In consequence, if there is evidence to support the issue of delivery or gift inter' vivos, then the trial court must be held to have found that issue in support of the judgment rendered. Arts. 2189,. 2190 Vernon’s Ann.Civ.St.; 25 Tex.Jur., 492, § 108, and cases there cited. This appellants concede because they make only the contention that the evidence as a matter of law does not support a gift inter vivos of the notes to Mrs. Moore. This contention cannot be sustained.

Euel Moore testified that at the time the deed and notes in question were executed and delivered L. A. Moor a, Mrs. Nannie Moore, the notary public, a Mr. Hill, and himself were present. That his father told him that after the father’s death the notes remaining unpaid were to be paid to Mrs. Nannie Moore; that the first note for $250 was paid to L. A. Moore on or before maturity, and this is not contested; that after his father’s death in 1919 he paid each of the remaining five notes to his mother as directed by his father, on or before their respective maturity dates. The deed and notes were introduced in evidence. Each note had indorsed on its back the ■date it was paid. Some of these indorse-ments were made by Euel Moore at the request of his mother at the times the payments were made, and some of the indorse-ments of payment were made by Mrs. L. A. Moore herself at the time payments were made. These indorsements were each dated and showed that all the notes were paid on or before maturity. These notes were in the possession of Mrs. L. A. Moore after the death of L. A. Moore and at the time they were paid; and after the last one was paid in 1924, they were delivered to defendant, Euel Moore, who introduced them in evidence. Euel Moore testified that his mother received all the rents and revenues from the 320 acres during her lifetime; that she used them for her support, and that she used the money paid on the notes to pay taxes on the land, to repair the dwelling house thereon, but most ■of it for her support and maintenance during her lifetime. That in addition to paying the notes to her, he also contributed considerable sums of money from time to time for her support; and that none of the other children contributed anything of consequence to her support. She left no property when she died.

There was no formal transfer of the notes to Mrs. Moore by her husband, but delivery of them to her was circumstantially shown by the fact that they were continuously in her possession until they were paid. This evidence raised a fact issue of gift inter vivos of the notes to Mrs. Moore; and since no request was made to submit that issue to the jury, and being justified by these facts, the trial court, in connection with the jury’s finding that the notes had been paid prior to the death of Mrs. Moore, properly determined this supplemental or incidental issue in support of the fact found by the jury and of the judgment rendered.

In the case of Merchant v. Rogan, Tex.Civ.App., 150 S.W. 956, a much weaker state of facts of executed gift of notes was shown, but the court held the question of gift inter vivos to be one for the jury to determine.

As to proof of delivery of the gift, 21 Tex. Jur., 65, 66, § 46, states the rule to be as follows: “While the opinion has sometimes been expressed that a finding for the claimant should be set aside in the absence of positive evidence of completion of the gift by delivery, the weight of authority supports the view that the intention of the donor is the paramount consideration, and therefore, provided such intent has been satisfactorily shown, the courts favor the conclusion that the gift was completed by the acts of the donor. Nevertheless there are authorities which assert that delivery of the property must be specifically and clearly proven, although circumstantial evidence is sufficient. It has further been held that the jury may infer delivery from statements made by decedent in his lifetime implying that, he had given the property to the claimant; it is not necessary that even a decedent donor should have explicitly stated that he made a gift.” See also Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, 5 A.L.R. 1660; Lord v. New York Life Ins. Co., 95 Tex. 216, 66 S.W. 290, 56 L.R.A. 596, 93 Am.St.Rep. 827.

Since we hold that a gift inter vivos of the notes to Mrs. Moore was established, and since the jury found that the notes were paid prior to her death, the payment of the notes discharged the debt and lien, and the other question as to her authority as tenant in common to collect the notes need nat be discussed.

Appellants also raise as fundamental error the question that the trial court failed to partition the whole 320 acres of larid as prayed for in the pleadings. The judgment recites that the parties agreed that the one-half undivided interest belonging to all the heirs of L. A. Moore was not susceptible of partition; and the court ordered it sold at private sale for cash, and that report of the sale be made to the court for approval and confirmation. Appellee plead and prayed in his cross-action that this be done. Certainly the judgment does not present fundamental error in this respect..

The judgment of the trial court is affirmed.

Affirmed.