author: KRUEGER, Juclge.

text:
    MAXEY v. STATE.
    No. 20623.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Willis & Via, of Pampa, for appellant.
    Clifford Braly, Dist. Atty., and Sturgeon & Sturgeon, Sp. Prosecutors, all of Pampa, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Juclge.

The offense is murder; the punishment is confinement in the state penitentiary for a term of 20 years.

It is shown by the state’s testimony that the offense charged was committed on December 11, 1938 at a negro dance hall, one mile south of the town of Pampa. Appellant and the deceased, who was a small woman, weighing about 100 to 115 pounds, met on the floor of the dance hall. She petted him on the cheek and then turned and walked away. Appellant followed her. She told him not to follow her and he stopped. She walked off again and he again followed her. She stopped, turned around, and remarked:

“Junior, I told you not to follow me, I don’t want you to follow me.”

One of the state’s witnesses testified that appellant seemed mad at this time. The deceased shoved him and when she did so, appellant stabbed her with a pocket knife in the chest, inflicting a wound from which ■she died in a short while. We are unable to find any description of the knife in the record and the testimony as to the nature .of the wound is somewhat unsatisfactory.

Appellant’s version of the affair was that he had had previous trouble with the deceased, and that on the previous Friday night, the deceased, himself and a woman with whom he had been keeping company had had some trouble. That the deceased had made some serious threats against him. On the night in question the deceased hit him with her fist and then took an open ¡knife from her purse and raised it in a position to stab him. That he then stabbed her in self defense.

By bill of exception number two, appellant complains of misconduct of the jury. In support of his motion he offered .evidence that various jurors talked over the telephone to outside parties. Mrs. Rainou-ard testified for the defendant that she attended a bridge party a short time before the verdict was returned and during the •course of the game there was some discussion among the participants as to the probable outcome of the case and the probable sentence appellant would receive. She testified that Mrs. Alford made the statement that she believed appellant would get 20 years; that she had heard so indirectly from one of the men who worked for the Humble Company and who was on the jury. Mrs. Alford denied making any such statement. Mr. Ward, the only juror who 'worked for the Humble, admitted that Mr. Alford also worked for the Humble Company, but denied any conversation with anyone outside the jury about the case. He admitted that he called a PBX operator at his office to tell her he was on the jury. This occurred before any evidence was heard. He also admitted that he called the laundry at one time for shirts. Mr. Sha-did, one of the other jurors, testified that he had called his wife on the first day of his empanelment to tell her to send him his grip. That he had no conversation with her about the case. There is also testimony to indicate that the sheriff allowed Mr. Shipley, one of the jurors, to talk to his wife and another woman at the door of the jury room for some two minutes about various things, but it is shown that the sheriff and bailiff were present at this conversation and that the parties did not discuss the case. The other jurors were some 15 or 16 feet away at the time of this conversation. It is not shown by the record that appellant consented to these conversations; nor is it shown that the parties to whom these jurors talked over the telephone were not available as witnesses.

Art. 673, C.C.P., imposes upon the officer in charge of the jury the duty of keeping them together and preventing intercourse with other persons. The rule in such cases is well stated by Judge Lattimore in Mauney v. State, 85 Tex.Cr.R. 184, 210 S.W. 959, 963, as follows:

“We think the rule in cases of a violation of the provisions of article 748 ought to be that injury in such case is presumed unless the contrary is made to appear to the satisfaction of the court; the trial court primarily, and ultimately this court. Any presumption can be overcome by evidence, and in such case of presumptive injury the burden ought to be bn the state to satisfy the court that no injury has resulted from such violation of the statute.

Other decisions applying the same rule are Goode v. State, 123 Tex.Cr.R. 293, 58 S.W.2d 1015; McNeill v. State, 128 Tex.Cr.R. 250, 80 S.W.2d 995; Lewis v. State, 123 Tex.Cr.R. 311, 58 S.W.2d 827; Chappell v. State, 121 Tex.Cr.R. 293, 50 S.W.2d 327, where a collation of the authorities is.made; Toussaint v. State, 92 Tex.Cr.R. 374, 375, 379, 244 S.W. 514; Early v. State, 51 Tex.Cr.R. 382, 391, 103 S.W. 868, 123 Am.St Rep. 889; Logan v. State, 66 Tex.Cr.R. 506, 512, 148 S.W. 713; Wood v. State, 84 Tex.Cr.R. 187, 191, 206 S.W. 349.

The case of Avirett v. State, 128 Tex.Cr. R. 647, 84 S.W.2d 482, 483, is almost like the present case. In that case, Art. 671, C.C.P., was held to require both parties to the conversation to be in the presence of the court, and it was held not to have been complied with when jurors carried on telephone conversations in the presence of the court, but the state did not call the party with whom said jurors conversed to rebut the presumption of injury to the defendant. In that case, Judge Christian, speaking for the court, used the following language:

“ ‘We would not be disposed to give the term “in the presence of the court” such interpretation or effect as might, in all cases, sanction a conversation which was not in the hearing of the court.’ It is obvious that by the use of the telephone a juror while in the presence of the court might be tampered with; the court being unable to hear the entire conversation. * * * We think article 671, supra, manifestly requires that the party who converses with the juror be in the presence of the court, as well as the juror himself. * * * Davis v. State, 123 Tex.Cr.R, 616, 60 S.W.2d 783, and authorities cited.”

See, also, Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495.

Under the decisions the burden clearly rested upon the state to rebut the presumption of injury, and in order to do so, it was incumbent upon them to produce sufficient witnesses to rebut every indication of injury that arose from the evidence adduced upon the hearing of the defendant’s motion.

This the state did not do in the instant case.

While it is true that Mr. Ward talked to the PBX operator but denied mentioning the case to her, yet it is not shown by the introduction of said operator as a witness that she did not discuss the case with Mr. Ward. Nor were the employes of the laundry to whom Mr. Ward talked introduced to show that no conversation was had on their part with him relative to the case. The wife of Mr. Shadid was not called to the stand or accounted for. Nor were the two people with whom the juror, Shipley, conversed for some two minutes at the door of the jury room called. It might be however that the presumption of injury in the case of these two witnesses was sufficiently rebutted by an officer who took the stand and testified that they did not converse about the case. On the whole, however, it is our opinion that the state has failed to rebut the presumption of injury, and for this reason the judgment must be reversed. While we recognize the hardship and inconvenience which matters of this nature often put trial courts to, yet as stated by Judge Morrow in his concurring opinion in Goode v. State, supra [123 Tex.Cr.R. 293, 58 S.W.2d 1019],

“The burden that rests upon the state demands diligence which is not met when, as in the present case, the offending persons, that is, the persons communicating with the jurors, are not called to give testimony and no sufficient reason is given for the failure to call them. The maintenance of this principle, bottomed on the duty of the courts to be diligent in the maintenance of the purity of the verdict of the jury, far outweighs the inconvenience incident to a retrial of the appellant in this appeal.”

There is also some testimony complaining that the jury were allowed to attend a movie. While no injury may have resulted to appellant from the proceedings as they appear in this record, it might be noted that we do not regard the practice as commendable.

Appellant also complains of the court’s charge in failing to give the jury an instruction with reference to Art. 1223, P.C. We note that the court did submit appellant’s requested instruction relative thereto, but failed to make an application thereof to the facts. Upon another trial, this should be done on proper request.

In view of another trial we also suggest that if the state desires that the embalmer express an opinion as to the nature and result of the wound, it should more accurately reflect his qualifications. See McLaughlin v. State, 127 Tex.Cr.R. 390, 76 S.W.2d 768, 770, in this connection.

Appellant has many other complaints in the record. In view of the disposition we are making of the case, however, and the fact that they will probably not arise again on another trial, we do not deem it necessary to discuss them.

For the error pointed out, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


source: Caselaw Access Project

author: BEAUCHAMP, Judge.

license: Public Domain

text:
    JACKSON v. STATE.
    No. 20617.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    A. E. Shepherd, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted for assault with intent to murder; penalty assessed at confinement in the penitentiary for two years.

The only question presented is the sufficiency of the evidence to support the conviction.

The actors in this drama were colored people who lived in a densely populated area of Harrison County. G. B. Attaway, the alleged injured party, was the stepfather of the appellant’s wife. There appears to have been a feud in the family which culminated in the shooting upon which the prosecution is based.

The issues in the case are sharply drawn. As might be expected, circumstanced as the incidents were with partial witnesses for each side, the appellant had a perfect self-defense case, while, from- the State’s viewpoint, he had none. No bills of exception appear in the record, and no brief has been filed in behalf of the appellant. If the evidence of the State’s witnesses, considered alone, should be sufficient to sustain the conviction for assault to murder, the case must be affirmed.

G. B. Attaway had gone to the city of Marshall in a wagon with a load of wood. Upon returning about three o’clock in the afternoon, he met his wife on the road who brought him a .30-30 rifle loaded with about six cartridges. The only explanation appearing for her act was that she had heard that he was going to be killed. She detailed how she took the gun, made her escape from her home through circuitous roadways to the public highway and waited for the return of her husband. It is not in evidence whether or not her daughter, Ethel Jackson, and her husband, Josh Jackson, knew what she had done. In due time, her husband returned and she joined him in his wagon. The two were perched on the front part of the wagon, using a board or plank for a seat. In order to reach their home, they were compelled to pass through a gate and some ten or fifteen feet of the Josh Jackson cottage. Just before reaching the Jackson home, they met two of the neighbors who became important witnesses for the appellant in the case. The facts so far are without dispute. Henceforth, the events took place so rapidly that it is quite natural that friends of each side might place a different interpretation on the things which occurred. According to the defense, Attaway and his wife approached the house while the appellant’s wife was attending to her washing in the yard. Attaway’s wife took the reins from his hands as he raised his rifle and leveled it on the appellant’s wife. It is not in dispute here that the appellant’s wife grabbed a stick or iron and struck at Attaway, breaking a finger on his left hand. At the same time she fell under the wagon and the rear wheel passed over her body. Some little time was required for these things to take place. The appellant and his witnesses claimed that she was actually fired upon by Attaway and the gun again leveled on her when appellant appeared on the porch with his shotgun loaded with bird shot and fired at Attaway, his claimed purpose being to shoot Attaway’s hands to prevent him from killing his wife. The appellant detailed his service in the Army and claimed to be a good shot, able to place his load •wherever desired, and maintained that he at no time attempted to kill Attaway but only to wound him so as to prevent him from being able to accomplish his apparent purpose to take the life of the appellant’s wife.

The State’s witnesses detailed transactions quite as extremely in favor of the prosecution. Attaway and his wife, being under the impression that he was going to be killed, placed his rifle on the bottom of the wagon bed with the muzzle of the gun pointing to the 'front. As they approached the appellant’s house, they saw Ethel in the yard picking up sticks. She arose with a stick or iron in her hand and struck at her stepfather, breaking his finger, and at the same instant, a shot from the appellant’s gun shattered Atta-way’s arm. The incidents are detailed in Attaway’s testimony as follows:

“That shot he fired hit me and tore this Rand (left hand) up. I then saw Josh Jackson. At that time he was standing on the end of the porch. At that time Josh Jackson was in 10 or 12 feet of me. When I saw him then he did have a weapon, he had a gun. He had a shot gun but I couldn’t tell you whether a double barrel or not. He then shot me again. He shot me in the hand and when I got up he shot me through the right arm. The mules made a jump and he shot me beside the head and up there (indicating) and knocked out this eye, and that knocked me out of the wagon. It was my right eye he shot out. I cannot see out of that eye now; I am blind in that right eye as a result of that shot. I got up and my wife said, ‘Josh, don’t shoot Mr. Attaway any more.’ She told me to run. I run towards the gate and it was fastened and I opened it and Josh ran up close and shot me in there in the leg (indicating) with a pistol. The ball came out here. I went down the road and got down to the spring and my wife said ‘Look out he is going to shoot you again.’ I shot back at him then. I had a gun. I had a rifle. That was the first shot I fired at Josh Jackson. Previous to that he had fired four shots at me. I went down the road and he come running on down and got over the fence and called his girl to bring him two more cartridges. PTe said he ‘was going to kill the God damn son-of-a-bitch while he had the law on him.’ I run towards the branch and he shot from beside a tree. I went down the branch and waited for my wife and got in the wagon. I run about 200 yards from Josh Jackson while he was following me. lie shot at me twice while following me.”

The cross-examination of the witness served to emphasize the foregoing testimony, and there is nothing in his statement to modify it favorably to the defense.

Pertinent excerpts from the testimony of Amanda Attaway are as follows:

“I met my husband and I carried him the gun; he didn’t have a gun with him before then. I had the gun with me when I stopped him.”
“Ethel Jackson was stooping down and got a stick, stooping this far (indicating) over, she got a stick or piece of iron and when she did that I started screaming and asking what she was fixing to do. The mules were rearing and we were trying to hold them and she crashed his hand and the gun shot. When we drove up to Josh’s house Mr. Attaway was driving the wagon. I did try to help hold the mules when they started rearing. My husband did not say a word when he was hit by Ethel Jackson or shot by Josh Jackson then; if he did say anything I was hollering so I didn’t hear him. When she crashed him and the gun shot he fell back in the wagon, and before he could do anything it, the gun, crashed twice. He was bleeding and I says to him, ‘Take this gun, are you going to stand there and let Josh kill you?’ I handed him the gun after he was shot twice. My husband started then trying to run; I jumped out of the wagon. The gate was fastened, something we don’t do, because the crops were gotten out. He was trying to open the gate and the mules ran up close and I opened the gate and let him through and shut it and the mules stood out. I ran trying to get between them and Josh shot the shot gun one more time. I know he shot the shot gun four times. Before he got to the gate there was a pistol shot. I don’t know who shot that pistol.
“The first time I saw Josh when we drove up in front of Josh’s house was just the minute I started to screaming at Ethel not to hit him; Josh walked out with his gun already and he walked out and said, ‘Hold up there.’ That was my first seeing him when he walked out on the porch; he wasn’t on the porch when we first drove up. When I commenced screaming at Ethel he walked out and then he said, ‘Hold up there’ and he shot him. After he shot three times he said, ‘I am going to kill this God damn black son-of-a-bitch while I got the law on my side.’ ”

Regardless of the conflict in the testimony, the jury was confronted with the fact that Attaway emerged from the encounter with the following wounds as described by Dr. A. J. Phillips, the county physician:

“He had numerous bird shot wounds. They were bird shot; I picked two or three out of the skin when not penetrated too deep; his left hand, left index fore finger, shot all to pieces and left arm. He had shots scattered all over him; his right eye was penetrated- and that produced blindness in his right eye. He was shot in the hand and finger torn up so bad (it) would be impossible to say whether anything hit it besides bird shot, but numerous shot in it too. I thought I would have to take it off a while. I examined his leg; he had one or two places on his left thigh, the lateral aspect, the middle portion of the left thigh, made with something larger than a bird shot, but was a gun shot wound of some kind, possibly could have been a large size buck shot or .32 caliber pistol bullet.”

The doctor further testified that the wounds inflicted might, under some conditions, have produced death if not properly cared for; and furthermore, that if the wounds had been inflicted at a vital spot death could have resulted; that if the penetrations had gone between the ribs and into the heart this would have been the case.

The jury also had before them the fact that neither the appellant nor his wife had any wounds upon them which had been inflicted by Attaway or his wife. Under a proper charge, the jury found the appellant guilty of assault to murder and assessed his punishment as above stated.

From the testimony quoted, it is perfectly clear that the jury had a right to do so.

There being no other matter before this court for consideration, the judgment is affirmed.


author: GRAVES, Judge.

text:
    WARD v. STATE.
    No. 20627.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ■
   GRAVES, Judge.

Appellant was convicted of the offense of sodomy, and, because of repetition of offenses, his punishment was assessed at confinement in the penitentiary for life.

The record is before us without a statement of facts or bills of exceptions, hence no question is presented for review. The indictment seems to be in proper form.

All matters of procedure appearing regular, the judgment will be in all things affirmed.


author: BAUGH, Justice.

text:
    SHELL OIL CO., Inc., v. RAILROAD COMMISSION et al.
    No. 8932.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1939.
    Rehearing Denied Nov. 22, 1939.
    A. E. Groff and R. H. Whilden, both of Houston, and Greenwood, Moody & Robertson, of Austin, for appellant.
    Gerald C. Mann, Atty. Gen., and Ed Roy Simmons, Asst. Atty. Gen., for appellee Railroad Commission.
    A. D. Cochran, of Okmulgee, Okl., and Willis E. Gresham, of Austin, for appellee Kingwood Oil Co.
    H. P. Smead and Earl Roberts, both of Longview, for appellee Ketal Oil Co.
   BAUGH, Justice.

This is a Rule 37 case. The Shell sued to set aside a permit granted by the Railroad Commission to the Kingwood Oil Company on May 4, 1937, to drill well No. 11 on its 30-acre lease in the fairway of the East Texas field in Gregg County, as an exception to Rule 37 to prevent confiscation of property. Trial was to the court and at the close of plaintiff’s evidence, upon motion made, judgment rendered for the defendants; hence this appeal.

The issue of waste is not involved. While other contentions are made by appellant which will be hereinafter discussed, the controlling question presented is whether there was substantial evidence before the Railroad Commission to sustain its order on the ground that such well was needed to prevent confiscation of permittee’s (Kingwood Oil Company) property. We have reached the conclusion that there was, and that the trial court’s judgment should be affirmed.

The attached map, introduced by the Shell, discloses the general situation presented to the Railroad Commission at the time the permit was granted. The well involved is near the N. E. corner of the Kingwood 30-acre tract. The eight times area, or 240 acres, surrounding this tract is delineated both by a circle and a polygon. It is not controverted that this area is one of the best producing parts of the field; that the potentials, underground conditions, bottom hole pressure, sand thickness, and daily allowable per well are practically the same over the area shown on the attached map. It is the contention of the Shell that if all the wells on the eight times area, excluding the Kingwood 30-acre tract, be considered, as shown by the circle (probably the most accurate method of testing drainage), there are 61 wells, or an average density on the 240 acres of 3.94 acres per well; that the King-wood tract with 11 wells, not including the well in question, has a density of 2.73 acres per well, thus giving the Kingwood tract a density advantage over the surrounding eight times area without the additional well. And further, that any drainage from the Kingwood tract by wells to the west, northwest, north, and northeast was compensated by drainage to it by its own wells to the east and south.

Consideration of the eight times area surrounding a given tract has frequently been resorted to in determining the issue of drainage, or confiscation, and in determining whether a leaseholder has been given a fair opportunity to recover his fair share of oil originally in place beneath his tract. But it manifestly cannot be taken as a conclusive criterion. Where the tract involved is small, and the surrounding eight times area is developed by reasonably uniform spacing of wells over the entire area, such a criterion may be reasonably accurate. But where the tract taken as- a basis of comparison is of such size and dimensions that the outer boundaries of such eight times area are so far removed from the boundaries of the tract involved that the outlying wells in the eight times area exert no drainage influence on such tract, then the average density of the whole may have little bearing on the question of drainage of the particular tract. That issue may then best be determined, not by the average density of the whole, but by the number and proximity of wells immediately surrounding the tract in question. This, we think, is clearly demonstrated in the instant case.

Taking the circular eight times area and excluding the Kingwood 30-acre tract, a diameter drawn east and west shows the south half of such circle to contain 23 wells; and the north half to contain 38 wells. And, as above stated, drainage from the Kingwood, the underground conditions conceded to be uniform in the area, was necessarily affected by the number and proximity of wells to the King-wood's boundaries. The 330-660-foot spacing^ provided in Rule 37 manifestly imply that a well will drain oil at least 330 feet. In the Stanolind Oil & Gas Company v. Midas Oil Co., Tex.Civ.App., 123 S.W.2d 911, cited by appellant in support of its drainage compensation contention, it was shown that in an area in the field very similar to the one here involved, tests disclosed that a key well at open flow, with surrounding wells closed, affected bottom hole pressure of surrounding wells from 1,000 to 1,500 feet away from it. It is not controverted, and the proof, as the map demonstrates, clearly shows that northeast, north, and northwest of the King-wood, and within drainage distance of it, there is a much greater density of wells than on the Kingwood tract. On the west, not only were the three Kingwood wells offset by 3 wells on the adjacent narrow 7-acre tract; but those 3 offset wells were in turn also offset by 3 other wells, making 6 wells on the west of the Kingwood within 330 feet of its boundary.

On the question of compensatory drainage to the Kingwood on the south and east, while a petroleum engineer for the Shell did testify that there was drainage to the Kingwood on these sides, the record shows, and the attached map demonstrates, that every Kingwood well on these sides of its tract was definitely offset by wells on the adjacent leases, its well No. 4 in the southeast corner being offset by 2 wells, 1 on the Shell lease and 1 on the Gulf. Under these circumstances and conditions the Railroad Commission could manifestly conclude either that there was no drainage to the Kingwood on the south and east, or that if so it was negligible; and not sufficient to compensate the Kingwood for the drainage from its tract on the north and west; and that it was therefore entitled to an additional well in the area being drained to protect it. Consequently, there was substantial evidence before the Commission to sustain its order on this ground. See Humble Oil & Ref. Co. v. Railroad Commission, Tex.Civ.App., 99 S.W.2d 401; Gulf Land Co. v. Atlantic Ref. Co., Tex.Sup., 131 S.W.2d 73.

Appellant next asserts error of the trial court in sustaining said permit on the ground that pleadings of the appellee Kingwood Oil Company, and the evidence upon the trial, presented a different fact situation from that presented to the Commission. This on the ground that in its application the Kingwood represented to the Commission that the Ketal Oil Company’s well No. 2 was located 75 feet and the Kingwood No. 2 well 225 feet from the common boundary line between these two tracts; whereas on the trial a dispute was presented as to the true location of such boundary line, or that in any event it was shown to be 117 feet south of the Ketal well, or 42 feet farther than represented to the Commission, thus materially affecting the relative distances of wells to the north from the Kingwood’s tract, and consequently the issue of drainage in that direction. This contention is not sustained. The Railroad Commission had no authority to determine a boundary dispute, if such there was, and the district court of Travis County did not have venue of such issue. In any event, in its second motion for a rehearing filed with the Commission, the Shell alleged that the distances shown in the Kingwood’s application were erroneous, and that the common boundary line was in fact located 117 feet, instead of 75 feet, south of Ketal’s well No. 2. The order granting the permit did not fix its location at 75 feet south of the Kingwood north line, but authorized it as an equidistant offset to Ketal’s No. 2. In passing upon Shell’s second motion for rehearing, the Railroad Commission consequently had before them the facts as to the true location of this boundary line, that is, that it was in fact located 42 feet south of where Kingwood’s application for its additional well No. 11 showed it to be, and in denying such motion manifestly concluded that this fact did not materially affect the issue of drainage in that area, and that King-wood was entitled to the additional well as a direct offset to Ketal’s No. 2 in either case. The fact that making it an equidistant offset to the Ketal No. 2 would re-quire it thus to be moved a little farther south and closer to the Kingwood No. 2 than would have been required had such boundary line been only 75 feet instead of 117 feet south of the Ketal No. 2, does not materially change the general picture. Nor did locating said well 117 feet south of such boundary constitute any violation of the Commission’s order as to location, but rather a compliance with it under the facts presented to the Commission by the Shell itself. In overruling the Shell’s second motion showing that the boundary line was in fact 117 feet from the Ketal’s well, the Commission, notwithstanding this fact, permitted its order to stand. Consequently the location of the well 117 feet from the common boundary line was required by the order of the Commission.

Appellant also contends that the court erred in sustaining the Ketal Oil Company’s plea in abatement and dismissing it from the suit. There was no error in this. The Ketal, owner of a 1.87-acre tract adjoining the Kingwood on the north, appeared before the Commission and, along with the Shell and others, protested the granting of the permit here attacked; but declined to join the Shell, at its request, in the suit to set it aside. The Shell thereupon made it a party defendant, alleging collusion between-it and the Kingwood, and in effect a fraud upon the Commission on the boundary issue in that after the King-wood had obtained its permit for well No. 11, the Ketal would then seek a second well on its 1.87-acre lease.

It is now settled that the only necessary defendant to a suit to set aside an order of the Railroad Commission is the Commission itself. Magnolia Pet. Co. v. Edgar, Tex.Civ.App., 62 S.W.2d 359, writ refused. Others whose interests are directly affected may be proper parties, but their joinder usually rests in the sound discretion of the trial court and unless palpable abuse is shown, its action thereon will not be revised. 32 Tex.Jur., § 21, p. 34.

It is clear, we think, that the Ketal had no direct interest in the instant suit, if any interest at all. It was not a party to the permit, no relief was sought against it in this suit, and none could have been decreed in the judgment. While it could have intervened, it was not required, nor did it choose, to do so. The sole issue here involved was the validity of the permit granted to the Kingwood. If such permit were procured through collusion by the King-wood with others, this was but an evi-dentiary issue, and the Shell was entitled to show these facts upon the trial, whether others charged with such collusion were parties to the suit or not. Any application for a permit for an additional well which the Ketal had made, or might make, would be a separate and distinct controversy, and subject to being resisted or defeated as against the Ketal on the grounds sought to be urged in the instant case. The Shell had no cause of action against the Ketal Oil Company by virtue of the facts alleged, and neither sought nor could have been granted any relief against it in the instant suit. Consequently the Ketal should not be required to remain a party to, and defend against, a suit between other parties in which it had no justiciable interest, and no judgment could have been rendered against it. United States Fidelity & Guaranty Co. v. Fossati, 97 Tex. 497, 80 S.W. 74; 32 Tex.Jur., § 58, p. 92. The trial court did not err, therefore, in dismissing the Ketal Oil Company from the suit.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

       See page- 794.


author: SMITH, Chief Justice.

text:
    CENTRAL POWER & LIGHT CO. v. HEDER.
    No. 10617.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Petsch & Usener, of Fredericksburg, for appellant.
    Tynan, Davis & Scherlen, of San Antonio, and W. S. Ethridge, of Bandera, for appellee.
   SMITH, Chief Justice.

In this case Louis Heder recovered judgment for $250 against Central Power & Light Company, for damages alleged to have been sustained by him as a result of the acts of the corporation’s agents in cutting down or mutilating trees growing in Heder’s pasture in Bandera County. The corporation has appealed.

Appellant’s original briefs filed in this Court do not include any character of assignments of error, and its propositions consist only of abstract statements of what appellant conceives to be the law applicable to the case. In his reply brief appellee points out2 the absence of assignments of error from appellant’s brief, and objects to consideration of the points sought to be raised by appellant in its propositions of law.

It is well settled that in the absence of assignments of error from an appellant’s brief, Courts of Civil Appeals are without authority to consider any errors in the record except those which are fundamental and require consideration on appeal even though not assigned by the party appealing. Art. 1757, R.S.1925, as amended by the Acts of 1931, 42 Leg. p. 68, Ch. 45, § 1, Vernon’s Ann.Civ.St. art. 1757; Art. 1844, R.S.1925, as amended by the Acts of 1931, 42 Leg. p. 117, Ch. 75, § 1, Vernon’s Ann.Civ.St. art. 1844 ; 3 Tex.Jur. p. 835, § 588; Lamar-Delta Dist. v. Dunn, Tex.Com.App., 61 S.W.2d 816; Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270; Blackmon v. Trail, Tex.Com.App., 12 S.W.2d 967; Natkin Engineering Co. v. Aetna Co., Tex.Com.App., 37 S.W.2d 740; Western Union Life Co. v. Ensminger, Tex.Civ.App., 103 S.W.2d 162; Bartlett v. Gulf Production Co., Tex.Civ.App., 64 S.W .2d 816; National Life & Accident Ins. Co. v. Patterson, Tex.Civ.App., 94 S.W.2d 189; Sweatt v. Tarrant Co., Tex.Civ.App., 108 S.W.2d 700; Commercial Credit Co. v. Williams, Tex.Civ.App., 87 S.W.2d 499; Miller v. Fenner, Tex.Civ.App., 89 S.W.2d 506; Guaranty Mtg. & Realty Co. v. L. E. Whitham, Tex.Civ.App., 93 S.W.2d 512; Adams v. Jones, Tex.Civ.App., 107 S.W.2d 450, 454; Gavin v. Webb, Tex.Civ.App.; 99 S.W.2d 372, 373; Texas & P. Ry. v. Leach, Tex.Civ.App., 106 S.W.2d 836; Peck v. Morgan, Tex.Civ.App., 156 S.W. 917; Pure Oil Co. v. Pope, Tex.Civ.App., 75 S.W.2d 175; St. Louis, S. W. Ry. v. Packing Co., Tex.Civ.App., 253 S.W. 864; Glover v. Houston Belt & T. R. Co., Tex.Civ.App., 163 S.W. 1063, Id., Tex.Com.App., 213 S.W. 597; Greene Gold-Silver Co. v. Silbert, Tex.Civ.App., 158 S.W. 803; Rutt v. Cravens, Tex.Civ.App., 72 S.W.2d 312; Gelfand v. Heath, Tex.Civ.App., 124 S.W.2d 1017.

Under the authorities cited it seems that in the absence of assignments of error from appellant’s brief, the appellate court is “without authority” or discretion to revise the action of the trial court, except upon fundamental error, or, quoting from an opinion by Judge Speer in Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844, 846, quoted and reaffirmed in an opinion by Judge Critz in a subsequent case: “Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) drtly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power.” Natkin Engineering Co. v. Aetna Casualty & Surety Co., Tex.Com.App., 37 S.W.2d 740.

As stated, no assignments of error, nor anything purporting to be such, were included in appellant’s brief. It is true, appellant briefed its case on certain propositions, but in those propositions it does not purport to complain of any specific rulings of the court such as might be construed in our discretion as assignments of error, but simply pronounced in general terms certain abstract statements of what appellant conceived to be the law applicable to the case. Such propositions cannot be given effect as assignments of error as contemplated by the statute and the decisions thereunder. It is so held in many of the authorities cited above. As was said by Judge Speer for the Commission of Appeals in Clonts v. Johnson, supra, and quoted with approval in Natkin v. Aetna, supra [37 S.W.2d 741] : “There is a substantial difference between an assignment of error and a proposition submitted thereunder. The one complains of some action of the court, and the other merely sets forth the reasons why such action is erroneous. It takes the tassignment to reach the ruling, and it is the ruling that is to be reviewed by the appellate court. [Citing authorities.]

“It follows from the above holding that the Court of Civil Appeals was without authority to pass on anything in this case except fundamental error.”

Appellant, without citing authorities, contends that the foregoing rules and the statutes and decisions supporting them were superseded by the enactment of Art. 1844, as amended by the Acts of 1931, and that, therefore, it was not necessary to set up any assignments of error in its brief. There is no merit in this contention, for it has been repeatedly held by the Supreme Court and Courts of Civil Appeals, that the passage of the amendment to Art. 1844 had no other effect than to repeal the then existing requirement that an appellant’s assignments of error be filed in the trial court, and did not affect the statute (Art. 1757, R.S.1925, as amended, Vernon’s Ann.Civ.St. art. 1757), providing that an appellant incorporate his assignments of error in his brief, which, as uniformly held in the authorities, is still mandatory. Lamar-Delta Dist. v. Dunn, supra; Gavin v. Webb, Tex.Civ.App., 99 S.W.2d 372; Perry v. Venable, Tex.Civ.App., 112 S.W. 2d 1069; Western Union Life Co. v. Ensminger, Tex.Civ.App., 103 S.W.2d 162; Miller v. Fenner, Tex.Civ.App., 89 S.W.2d 506.

After appellant filed its briefs, in which no assignments of error were included, appellee timely filed his reply brief, calling attention to the omission from appellant’s brief, and insisted upon his right, vouchsafed him by the statute, to have appellant’s appeal decided solely upon fundamental error, if any, and urging that the judgment be affirmed, because of the fatal defect in appellant’s briefs, and because no fundamental error appears in the record. Thereafter, however, on the day the cause was submitted in this court, appellant filed what it terms its “supplemental brief,” in which it listed what it terms its assignments of error, and insisting that they be considered as if incorporated in its original brief. It seems obvious that such belated action cannot be given effect to cure the fatal defect in the original briefs. The wise purpose of the statutory requirement that an appellant incorporate his assignments of error in his briefs, is to put the appellate court and appellee upon notice of the errors relied upon by appellant as cause for reversal, so as to give appellee an opportunity to intelligently combat appellant’s contentions, and, if he can, show why the errors so assigned are without merit. It is obvious that the whole object of the statute would be defeated, and the orderly procedure of the appellate court disrupted, if an appellant may properly present his assignments of error in the appellate court, through supplemental briefs filed on the day the cause is submitted. We hold that the assignments of error belatedly presented by appellant in this case cannot be considered for any purpose. Pure Oil Co. v. Pope, Tex.Civ.App., supra; Glover v. Houston Belt & T. Ry., supra; Greene Gold-Silver Co. v. Silbert, supra; Peck v. Morgan, Tex.Civ.App., 156 S.W. 917, 919. In the case last cited, Peck v. Morgan, it was characteristically and therefore forcefully said by Chief Justice Fly: “A typewritten paper, styled ‘Supplemental Brief of Appellant F. M. Peck,’ was filed in this court on the day before the cause was submitted, and after the brief had been assailed by appellee on the ground of its failure to comply with the rules. We know of no authority for filing any such document, and, if such procedure is tolerated, amendments to cover disregard of the rules would cure every delinquency in briefing a case, and the appellee be deprived of any benefit derived from such delinquency. However, this court was aware of the presence among the papers of the ‘Supplemental Brief,’ but was of the opinion that it did not cure defects in assignments of error, which have never been held open to amendments in appellate courts.”

The result of these several holdings is that appellant has submitted its case in this Court without presenting any assignments of error upon which to base its appeal. We are therefore relegated to the record to ascertain if it discloses fundamental error, and none being apparent, the judgment is affirmed.


author: LOONEY, Justice.

text:
    ORMSBY v. STATE LIFE INS. CO.
    No. 12789.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1939.
    Rehearing Denied Nov. 25, 1939.

      Shelby S. Cox, of Dallas, for plaintiff in error.
    Goggans & Ritchie, of Dallas, for defendant in error.
   LOONEY, Justice.

On April 1, 1934, plaintiff in error, who will be referred to herein as plaintiff, borrowed from Realty Trust Company $3,000, to bear 8% interest per annum, evidenced by a principal note for $3,000, bearing 6% interest, payable in ten (10) semi-annual installments, nine (9) of which were for $100 each, and the last was for $2,100; also, ten 2% interest notes having the same maturity dates as the installments due upon the principal note, ranging in amounts- from $30 to $21. Each series was secured by a separate deed of trust on the same lot or parcel of land, situated in the City of Dallas — the first ór prior lien secured the principal note and interest — the second or inferior secured the series of 2% interest notes. The principal note and the deed of trust securing same were sold and. transferred by the Realty Trust Company to The State Life Insurance Company, of Indianapolis, Indiana, defendant herein, but the Realty Trust Company, in the transactions herein involved, acted for and on behalf of the defendant company. The principal note contains an option privilege, reading: “Payment of one hundred dollars or any multiple thereof may be made on the principal amount of this note on its fourth or any succeeding interest due date, provided sixty days’ written notice is given of intention to so pay”.

Plaintiff having previously paid defendant seven (7) installments, and interest, of the principal note, also having paid the Realty Trust Company seven (7) of the 2% interest notes, gave the defendant timely notice in writing that he would avail himself of the option to pay balance due on the principal note and interest, and, accordingly, on April 1, 1938, same being the next succeeding interest due date, tendered to the defendant the sum of $2,369, being the amount of unpaid principal and interest of the principal note, also, at the same time, tendered to the Realty Trust Company $23, being the amount of note No. 8 of the series of 2% interest notes that fell due on that date. Both tenders were refused. At the time the tenders were made, note No. 9 for $22, and note No. 10 for $21 (the last of the series of 2% interest notes) represented unearned interest, and by their terms would not have matured until on October 1, 1938, and April 1, 1939, respectively.

Plaintiff’s tender, as just stated, being refused, he instituted this suit, alleging the material facts as herein detailed, followed up the tender to defendant previously made, by paying into the registry of court the sum of $2,369, and prayed for the cancellation of the $3,000 note, its interest coupons, and the trust deed securing payment of same.

The defendant answered, in substance, that plaintiff should take nothing, because, at the time of the execution of the $3,000 note and the deed of trust securing'same, he also executed ten additional notes that represented 2% interest on the loan, that notes 9 and 10 heretofore described, owned by the Realty Trust Company, were unpaid; that said notes 9 and 10 were secured by the second deed of trust and that, under one of its provisions, plaintiff was not entitled to exercise the option to pay the principal note, unless and until he had fully paid off and discharged notes 9 and 10.

The provision of the second deed of trust, under which the defendant sought to justify its refusal to accept the tender offered by plaintiff, reads as follows: “It is understood that the above described indebtedness is a part of the consideration for a loan made to the Grantor herein by the Realty Trust Company, as evidenced by a First Deed of Trust, of even date herewith for the principal amount as below referred to, and that any option placed on the note or notes secured by said First Deed of Trust is in consideration of the payment on the indebtedness secured herein of an amount reducing the indebtedness herein in proportion to the reduction of the principal of the First Lien loan, and failure to do so annuls the option privilege granted on said First Deed of Trust loan.” It is also pertinent to state that, neither the principal note transferred to the defendant, nor the deed of trust securing same made any reference whatever to the second series of notes, or to the second deed of trust.

The trial resulted in a judgment in favor of the defendant, ordering the clerk to return to the plaintiff the money deposited in court, and declared that the loan contract was in full force and effect; to all of which plaintiff excepted, gave notice of and perfected appeal by writ of error.

The substance of plaintiff’s contention is that, the Realty Trust Company having transferred the first series of lien notes to the defendant, retaining the second series, a severance resulted, and that the provision of the second trust deed relied upon by the defendant as a justification for refusing plaintiff’s tender, and denying him the right to pay off the loan, was not applicable and could not be invoked by the defendant, in that, defendant was, in no sense, a party to the instrument, but derived its rights under, and was controlled exclusively by, the provisions of the principal note and the trust deed securing same. The defendant says that, “The sole question involved in this cause is the right of the plaintiff in error to prepay the principal note and secure a release of the deed of trust lien supporting the same without tendering payment of the unpaid interest or commission notes.”

If the provision of the second deed of trust has the meaning attributed to it by the defendant, doubtless it could plausibly be argued that, so long- as the two series of notes and liens remained in the ownership of the Realty Trust Company, together, they would evidence the contractual rela-' tionship of the parties, and that, the right to prepay the first series would be limited and conditioned by the provision of the second trust deed. However that may be, as the Realty Trust Company transferred the first series containing no reference to the second deed of trust, the defendant cannot invoke any of its provisions, and, in our opinion, cannot be heard to assert as a defense, the alleged right of the Realty Trust Company to collect unearned interest, evidenced by the second series. If the Realty Trust Company, as holder of the second series, had the legal right to accelerate maturities and compel payment of the two immature second lien notes, an action may be brought by it for that purpose.

Plaintiff, having complied literally with the option clause of the principal note, defining the contractual relations between him and the defendant, was entitled to pay off the loan, stop the further accrual of interest, and obtain a release of his real property from the provisions of the trust deed. Hence, we are of opinion that, the court erred in rendering judgment for the defendant.

However, we are of opinion that, for another reason apparent of record, the court erred in rendering judgment for the defendant. We do not think the provision of the second deed of trust has the meaning imputed to it by the defendant. If the intention of the parties had been to require payment of all immature 2% interest notes representing unearned interest, as a condition precedent to the right to exercise the option to pay off the loan in full, we think apt language would have been employed, definitely and indisputably expressing that idea, but no such language was used. The provision invoked reads: “ * * * that any option placed on the note or notes secured by said First Deed of Trust is in consideration of the payment on the indebtedness secured herein of an amount reducing the indebtedness herein in proportion to the reduction of the principal of the First Lien loan, and failure to do so annuls the option privilege granted on said First Deed of Trust loan.”

This provision seems to require the debt- or, before exercising the option to pay the principal note, either in part or in full, to reduce the! indebtedness secured by the second deed of trust (representing 2% interest) in the same proportion. We think, in view of the undisputed facts and the principles of law controlling, that plaintiff substantially complied with the provision, lie tendered payment in full of the balance due on the principal note and all interest that had accrued on the loan (including note No. 8 of the second series, representing part of the 2% interest) ; that is, he tendered a sufficient amount of money to pay in full both series, hence, offered to pay each in the same proportion. The two immature notes, Nos. 9 and 10, of the second series (in regard to the payment of which this controversy arose), represented unearned interest on a debt that, in legal contemplation, ceased to bear interest after the tender of payment was madfe. The doctrine is fundamental that, payment extinguishes the debt. (See 32 Tex.Jur. 646, Sec. 10; Tooke v. Bonds, 29 Tex. 419, 420, and Stringer v. Morris, 82 Tex. 39, 41, 17 S.W. 926). And, as a consequence, the extinguished debt bears no interest. See 32 Tex.Jur. pp. 689, 690, See. 31. It follows, therefore, that the two 2% interest notes, Nos. 9 and 10, representing unearned interest on a debt that, in legal contemplation, ceased to bear interest, became of no legal effect, hence evidenced no legal right.

For the reasons hereinbefore stated, we are of opinion that, the trial court erred in rendering judgment for the defendant; therefore, the same is reversed and judgment is here rendered in favor of the plaintiff, granting the relief sought.

Reversed and rendered.


author: ALEXANDER, Justice.

text:
    LEHMAN et al. v. HOWARD et al.
    No. 2169.
    Court of Civil Appeals of Texas. Waco.
    Nov. 23, 1939.

      E. M. Dodson, of Marlin, for appellants.
    Cecil R. Glass, of Marlin, and George Clark and Jos. W. Hale, both of Waco, for appellees.
   ALEXANDER, Justice.

Charles Parcus, G. W. Howard, G. W. Lehman, Pete Machacek, and Frank Baca executed a promissory note to one Mrs. M. O. Britt. Lehman died and claim for the amount of the note was duly presented to his administrators and paid in the course of administration. Thereafter, Lehman’s administrators brought this suit against G. W. Howard for contribution, it being alleged that Parcus was principal on the note and that the other four obligors were co-sureties. It was alleged that Par-cus, Machacek and Baca were insolvent, and consequently they were not joined as defendants in the original petition. However, Parcus was later joined as- a defendant. Howard defended on the ground that Lehman was a co-principal on the note along with Parcus, and, as a consequence, he, Howard, was under no obligation to make contribution to Lehman’s estate for the amount paid by said estate on said note. A trial before a jury resulted in verdict and judgment in favor of Floward. The plaintiffs have appealed.

The main issue in the case was whether Lehman was a principal on the note or merely a surety thereon. As above stated, Baca, one of- the sureties on the note, was not joined herein as a defendant for the reason that he was alleged to be notoriously insolvent. The defendant Howard called Baca as a witness and was permitted to prove by him that Lehman had stated to him at the time the note was signed that he, Lehman, was one of the principal obligors on the note. Appellants contend that this evidence was inadmissible under the provisions of R.S. art. 3716, known as the “Dead Man’s Statute,” which, under certain circumstances, prohibits a party to the suit from testifying to any statement by or transaction with a deceased person whose estate is a party to the suit unless called to testify thereto by the opposite party. Appellants concede that Baca was not a party to the suit but contend that a judgment in this case, either granting or denying contribution from Howard, would be res judicata in a similar suit brought by Lehman’s estate against Baca, and that by reason thereof, he sustained such relation to the suit as to render his evidence inadmissible under the above statute. We overrule this contention. We recognize that the above statute applies to all who would be bound by the judgment even though they may not be actual parties thereto. 14 Tex.Jur. 323. However, the general rule is that a judgment in personam is binding only on the parties thereto and their privies. 26 Tex. Jur. 209. By a privy is meant one whose rights are derived from or through a party to the judgment. 26 Tex.Jur. 235. A surety does not derive any rights by, through or under his co-surety and cannot be classified as a privy to him. In our opinion, a judgment in this suit granting or denying contribution from Howard would not be res judicata of a subsequent suit by Lehman’s estate against Baca for contribution. 50 C.J. 302, sec. 506, p. 308, sec. 516; Comstock v. Keating, 115 Mo.App. 372, 91 S.W. 416.

Howard was permitted to prove by his co-defendant Parcus that Lehman was a principal on the note sued on. Appellants contend that Parcus was prohibited by the “Dead Man’s Statute”, above referred to, from testixying to any transaction with the deceased Lehman. Lehman’s administrators originally brought the suit against Howard alone, it being alleged that Parcus was insolvent. When Pfoward answered, he denied that Parcus was insolvent and prayed that Parcus be made a party to the suit. While the record was in this status the plaintiffs took Parcus’ deposition and developed the facts concerning the transaction that occurred between Lehman and Parcus at the time the note was executed. Afterwards, the plaintiffs joined Parcus as party defendant, and he was a party thereto at the time of the trial. The rule seems to be that when a party takes the deposition of a witness concerning a transaction with a deceased person, he thereby “calls” the witness within the meaning of the statute above referred to and waives his right to object to his evidence concerning a transaction with the deceased. Allen v. Pollard, 109 Tex. 536, 212 S.W. 468; Wyatt v. Chambers, Tex.Civ.App., 182 S.W. 16; Hadley v. Upshaw, 27 Tex. 547, 86 Am.Dec. 654; Ivy v. Ivy, 51 Tex.Civ.App. 397, 112 S.W. 110, par. 4. Appellants concede the correctness of the rule above announced but contend that since Parcus had not been cited to answer as a defendant in the cause at the time the deposition was taken, the rule is inapplicable. We do not agree with this contention. The defendant Howard had filed his answer praying that Parcus be made a party to the suit at the time the deposition was taken and the plaintiffs then knew that Parcus had been named a party thereto. Plaintiffs were fully aware of Parcus’ connection with the transaction. There was no change in his relation to the transaction between the time the deposition was taken and the trial of the case. By taking the deposition of the witness concerning the transaction in question, the plaintiffs thereby vouched for his credibility and signified their willingness to have the witness testify to the transaction in question. Having thus compelled Par-cus to disclose the facts, they had no right to object to the introduction of the evidence upon the trial of the case. The fact that the deposition was taken on agreement, saving the right to make all legal objections upon the trial the same as if the witness were present and testifying in person, does not alter the case. Having caused the witness to disclose the facts, they thereby called him within the meaning of the statute, and the evidence was not subject to any legal objection.

The court submitted the issue of suretyship to the jury, and in that connection defined a surety as follows: “A surety is a person who becomes liable for another’s debt in which such person has not a direct personal interest and from which he does not receive any value.” Plaintiffs objected to this definition on the ground that it would lead the jury to believe that in the event Parcus had paid any of the money received on the note to Lehman in payment of a debt to Lehman, this would constitute Lehman a principal on the note rather than a surety. It appears, however, that plaintiffs requested the court to define the term surety as follows: “A surety is a person who becomes liable for the debt of another and does not receive any part of the consideration for which the obligation is given.” We do not see any material difference between the definition given by‘ the court and that requested by plaintiffs. Moreover, we think the evidence conclusively established that Lehman was a co-principal on the note and not a surety thereon. Therefore, no reversible error is presented.

We have examined all other assignments and find no reversible error.

The judgment of the trial court is affirmed.


author: BOND, Chief Justice.

text:
    STATE et al. v. LINDLEY et al.
    No. 12783.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 4, 1939.
    Rehearing Denied Dec. 2, 1939.

      Gerald C. Mann, Atty. Gen., and Bruce W. Bryant, A. S. Rollins, and Geo. W. Bar-cus, Asst. Attys. Gen., for appellants.
    Webb & Webb, of Sherman, for appel-lees.
   BOND, Chief Justice.

Appellees, J. W. Lindley and wife, brought this suit against The State of Texas and the State Highway Department of the State of Texas, pursuant to a Concurrent Resolution of the Legislature, for damages claimed to have been sustained by reason of the construction of a ditch by the Department, so as to cause water, on occasions of heavy rains, to flood their lands and buildings located adjacent to a state highway. The suit is grounded on alleged negligence of appellants, acting separately and concurrently, which directly and proximately brought about and produced the items of damage claimed to have been sustained. Appellees were designated as plaintiffs in the court below, and appellants as defendants; we will so consider them in this opinion.

The cause was submitted to a jury on special issues and, on findings that a permanent “structural change” had been made in the ditch and watercourse by defendants, and that such “structural change” caused plaintiffs to suffer damage to their real estate and personal property, the trial court accordingly entered judgment in favor of plaintiffs.

The primary contention in this appeal and, we think, the ultimate and all-important question is, that plaintiffs are estopped by their deed conveying an easement over their land to the State of Texas, for the establishment and construction of the highway in question. In 1928, Lindley and wife were the owners of a small tract of land in Grayson County, located about one-half mile north of the City of Sherman. The State Highway Department, in conjunction with Grayson County, caused to be prepared by the county engineer an official plat, diagram and blue print of State Highway No. 6, designated to go through the Lind-ley property. On February 17, 1928, Lind-ley and wife executed and delivered to the State of Texas and County of Grayson, of said State, an easement right-of-way to establish and construct the public highway on a strip of land 100 feet in width across their land. The deed recites — material here: “ * * * the strip of land 100 feet in width across the said tract of land be used to complete and carry out the general public road program of the County and State and to properly construct said Lligh-way No. 6. Therefore, the undersigned, the owners of said above mentioned one acre in the said original survey granted to J. B. McAnair, and located as aforesaid in Grayson County, Texas, about ½ mile North from the town or city of Sherman, hereby for and in consideration of the advantages to said land and the enhancement of its value by reason of the construction of said Highway No. 6, across same and $250.00 to us in hand paid, the receipt whereof is hereby acknowledged, have this day granted, bargained and sold, and do by these presents grant, bargain and sell to the State of Texas, and the County of Gray-son,- of said State, the easement' and right to construct said public highway on the said certain strip of land 100 feet in width across said one acre tract and being the strip of land fully described in and as a part of the official plat, diagram and blue print of said State Highway No. 6 as prepared and compiled by J. G. Rollins, County Engineer of Grayson County, Texas, and here now exhibited to the undersigned and fully understood by the undersigned as a part of State Highway. No. 6 and to be used for public road purposes. And it is further understood and agreed that the undersigned hereby waive all their claims, rights, and interest in and to any claim for damages and compensation by reason of the establishing and construction of the said Highway No. 6 over and across the said tract of one acre of land, as confined within said 100 foot strip of land.”

It is admitted in plaintiffs’ pleadings and evidence that the above deed, a copy of which was attached to the defendants’ answer, was executed by the grantors for the considerations stated therein, and that the highway followed the course designated across plaintiffs’ land; and was being used to complete and carry out the general road program of the State and County. The purport of the deed is nowise challenged, and it is obvious from the record and the findings of the jury that the damages which plaintiffs claim to have sustained, are the result of the establishment and construction of the highway by the County and State. Clearly, if the State and County had not established and constructed the highway, plaintiffs would have no cause against the State for any damages which they might otherwise have sustained. The establishment and construction of the highway over and across plaintiffs’ land, according to the deed, to carry out the general road program of the State, necessarily caused “structural changes” in grade and drainage. Plaintiffs, by their solemn deed, waived, in express terms, “all their claims, rights, and ’interest in and to any claim for damages and compensation by reason of the establishing and construction of the said Highway No. 6 over and across” their land; therefore, in the absence of some legal defense to void the effect of their deed, which is not present either in pleadings or proof, the grantors are estopped to claim damages resulting from “structural changes” in the establishment and construction of the highway across their land. The conclusion is inescapable that, the force and effect of plaintiffs’ deed foreclosed recovery for damages against the State for “structural changes”. The deed, unassailed, justifies this court in reversing the judgment of the court below, and rendering judgment for defendants.

Plaintiffs present numerous assignments of error, attacking the action of the trial court on purely procedural matters, some of which, we think, in all events, justify a reversal of the case; and, if we be in error in rendering judgment for defendants perforce of the deed, the cause should be remanded to the court below for another trial. Plaintiffs alleged that, because of changes in the grade and drainage of the highway, the real estate involved in the suit had been damaged in the sum of $6,000, and the personal property in the sum of $511.60 — a total of $6,511.60. Special Issues Nos. 4 and 5, submitted to the jury, read: “Issue Number 4: What do you find from a preponderance of the testimony to have been the reasonable cash market value of plaintiffs’ property in question immediately prior to the change in the structural course of the water in question?”; to which the jury answered $5,000; “Issue 'Number 5: What do you find from a preponderance of the testimony to have been the reasonable cash market value of plaintiffs’ property in question (emphasis ours) immediately after said change, or within a reasonable time after said change was made, if it was made?”; to which the jury answered $2,250. Special Issues Nos. 6 and 7 were then submitted, making specific inr quiry as to the amount of damage plaintiffs suffered to their personal property; to which the jury answered $500. Obviously, Issues 4 and 5, making inquiry affecting damage to plaintiffs’ “property”, and Issues 6 and 7, affecting damage to their “personal property”; and, the jury having answered 4 and 5, in effect, that plaintiffs suffered $2,750 to their “property”; and, 6 and 7, that plaintiffs suffered $500 to their “personal property”, are submissions and findings of double recovery. The term “property” employed in Issues 4 and 5 is broad enough to embrace both real and personal property. Therefore, Issues 4 and 5, as well as 6 and 7, involved findings of damage to plaintiffs’ personal property. The judgment of the court followed the findings of the jury, assessed plaintiffs’ damages in the total sum of $3,250, which clearly includes a double recovery for the personal property.; no other conclusion can be reached from the verdict of the jury. Therefore, we sustain defendants’ assignment.

The court having submitted all the issues to the jury on the theory that a “structural change” had been made in the roadbed and water-course, which caused the damage to plaintiffs’ property, we think that, if damages could be sustained on the theory of structural change, the words or phrase “structural change” should have been defined. Especially is this true, since plaintiffs do not plead, in terms, a “structural change”, but- do plead in general terms that defendants changed the drainage ditch by making it narrower, damming same and otherwise altering it; and, the Resolution of the Legislature also authorizes suit for damages arising from negligence attributable to the defendants. A “structural change”, within the contemplation of plaintiffs’ pleadings and the Resolution of the Legislature, means, as defined in Volume 5, Words and Phrases, 5th Ser., p. 534: “ * * * such a change as to affect a vital and substantial portion of the premises, as would change its characteristic appearance, the fundamental purpose of its erection, or the uses contemplated, or a change of such nature as would affect the very realty itself — extraordinary in scope and effect, or unusual in expenditure.” It must be such a vital and material change in the ditch and water-shed as to cause damage by reason of such change, extraordinary in scope and effect; not immaterial or trivial changes, but such as will render the State liable in damages for its construction, or for making the change. As the term “structural change” appeared in the court’s charge without proper definition, it devolved upon the jury to determine its meaning, whether that character of change had been made, and, if so, whether it was a direct and proximate cause of plaintiff’s damages. We think “structural change” is a legal term and should have been defined.

It is evident from the record that plaintiffs’ pleadings base the suit on negligence of the defendants, and the Resolution authorizing the suit, in effect, directs that it be brought on negligence; whilst the suit, as presented by proof and the charge of the court, was based on “structural changes” in the ditch and drainage, causing the damages to plaintiffs’ property. Defendants, in appropriately submitted issues, requested findings of the jury on the question of negligence in the construction of the ditch, and whether such negligence directly or proximately caused or contributed to cause the damages claimed by plaintiffs. The court refused to submit the cause to the jury on the issue of negligence. In this, we think the court erred. The cause was tried on an entirely different theory from that disclosed in plaintiffs’ petition. Plaintiffs alleged that, narrowing the ditch, damming and otherwise altering it, caused the flood waters to back up and overflow on plaintiffs’ property; and, specially alleged: “That the acts of the defendants above complained of in changing the drainage structure and permitting it to remain in its changed condition are negligent acts, and said negligent acts, acting separately and concurrently, directly and proximately brought about and produced each and very item of damage set up herein.” We think the issue on negligence and the attendant issue of proximate cause are important inquiries, as reflected in the pleadings of the parties, and the only theory on which the Legislature authorized the suit. A suit cannot be brought against the State, unless clearly authorized by resolution of the Legislature, and the suit must follow the clear intent of the Legislature expressed in the resolution. However, had the suit been tried on the theory of negligence in the construction of the highway, another vital question would have arisen- — - whether or not the State would be liable for negligence of its' employes. That question, however, is not here presented; we express no opinion.

As stated above, it is our opinion the judgment of the court below must be reversed and here rendered for appellants; accordingly, it is so ordered.

Reversed and rendered.


text:
    FERGUSON v. SANDERS et al.
    No. 12784.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1939.
    Rehearing Denied Nov. 25, 1939.
    Jot Horton, of Sherman, for appellant.
    C. O. Boothman, of Austin, and James & Conner, Calhoun Anderson, and Earnest Sanders, all of Fort Worth, for ap-pellees.
   LOONEY, Justice.

A. M. Ferguson, individually and as trustee for all the stockholders of Ferguson Seed Farms, Inc. (in process of liquidation), sued F. T. Sanders and J. M. Crawford (composing the firm of Sanders and Crawford), resident citizens of Has-kell County, Texas, for an accounting and to recover certain sums of money alleged to have accrued under a consignment of a carload of cotton-seed.

The defendants filed pleas of privilege to be sued in Haskell County, where they resided, that were controverted by the plaintiff, on the alleged ground that, defendants contracted in writing to perform the obligation sued upon in Grayson County, Texas, where the suit was instituted. On hearing, the trial court sustained defendants’ pleas and changed the venue of the cause to the District Court of Haskell County, from which plaintiff appealed. Plaintiff does not contend that the defendants, or either of them, signed a written agreement to perform the contract sued upon in Grayson County, but does contend that, under the doctrine of acquiescence (announced in certain cases cited), defendants constructively, contracted in writing, to perform in Grayson County.

The facts sustaining the judgment below, are these: The Ferguson Seed Farms, Inp., was engaged in the business of growing, breeding, and selling bred-up field seeds, among others, cotton-seeds; the defendants being engaged in the business of ginning in the town of Haskell, Haskell County, Texas, also handled cotton-seed, that is, bought cotton-seed for sale to planters. Early in April, 1930, defendants were solicited by A. M. Ferguson, who represented the corporation, to purchase, some of its bred-up cotton-seed, but as defendants declined to purchase, the parties entered into a parol agreement, substantially as follows, that is to say, the corporation agreed to consign defendants (when notified) a carload of cotton-seed, defendants agreeing to advance freight charges, receive and store the seed and endeavor to sell same for the account of plaintiff, at not less than $2 per bushel, nor for a smaller cash payment than 75‡ per bushel, taking purchaser’s note for balance, payable to the corporation on forms furnished by it, defendants agreeing to account to the corporation for the entire proceeds arising from the sales of seed, that is to say, would pay all cash collected and forward notes of purchasers, less the amount of freight charges advanced, to be retained by defendants out of the first cash received from sales. No understanding was had that the agreement would be reduced to or confirmed in writing, or that, defendants would pay the corporation any amount accruing under the contract in Grayson County or perform any of its obligations there.

Plaintiff’s contentions are to the effect that, the parol agreement was later confirmed by an instrument enclosed with a letter written to the defendants, dated April 14, 1930, containing among other things, a statement that, all differences between the parties were payable in Sherman (Grayson County), Texas; also, that, on May 3, 1930, the corporation mailed defendants an invoice of the car of seed, stating among other things that, payment therefor was to be made in Sherman, Texas; also that the corporation sent defendants certain catalogues for distribution, containing among other things, a statement to the effect that, all payments for cotton-seed sold were to be made in Sherman; that the defendants accepted, acted upon, and acquiesced in the language of the confirmation, the invoice, and the cata-logues, thereby, within the meaning of subdivision 5, article 1995 of the Venue Statute, Vernon’s Ann.Civ.St. art. 1995, subd. 5, agreed in writing, to perform the obligations of the contract in Grayson County.

Answering the several contentions of plaintiff, defendants say that, the oral agreement entered into between the parties was complete and was not thereafter, in any manner, changed or modified by mutual consent; that the alleged confirmation was never received by the defendants, but if received, was never acquiesced in or agreed to; that, upon receiving the invoice, defendants refused to acquiesce in or comply with its terms, because at variance with the prior parol agreement, and further that, the catalogue formed no part of the agreement.

Plaintiff introduced evidence tending to show that, on April 14, 1930, a letter was mailed to the defendants, stating, in effect, that a confirmation and shipping advice in regard to the order for 1500 bushels of cotton-seed were enclosed. The alleged copy of the confirmation introduced in evidence, seemingly, was on a blank form used when either a sale or consignment, such as the one under consideration, was entered into, containing among other language applicable to a consignment, the following: “Reports and remittances on sales and collections: The first collections on sales and collections are to be applied to reimburse you for the freight paid, after which all receipts on sales or collections, or an initial cash payment on the note-agreement, both principal and interest, are to be remitted to the Ferguson Seed Farms on May 1st, 1930, May 15th, 1930, June 1st, 1930, and on the 1st and 15th of each month during the ginning season, with the further special agreement: * * * ” The confirmation contained a number of onerous provisions not a part of nor included in the parol agreement; among others, the provisions just quoted.

Mr. Sanders, who represented his firm in all the transactions involved here, testified that, while he may have received the letter of April 14, in regard to which he could not be positive, testified positively that he did not receive the confirmation; that the confirmation contained provisions, not mentioned in the verbal negotiations, that would not have been agreed to by him.

The court having resolved all controverted issues of fact in favor of the defendants, necessarily found that the written confirmation of the verbal agreement was not received by the defendants, hence was not acquiesced in by them. However, if it be assumed that, the confirmation in fact was received; as contended by plaintiff, yet, as it contained a venue provision not previously agreed upon, ex parte in nature, the same was not binding upon defendants, because not assented .to by them in writing. As will hereafter be shown, plaintiff could not, in that manner, impose upon the defendants a provision compelling performance in Grayson County.

A good rain having previously fallen over the region, on April 28, the defendants wrote the corporation to ship the seed “whenever you get ready”; and on May 3rd, the corporation wrote defendants, enclosing an invoice covering the shipment, stating among other things, that “bill of lading with draft attached has gone forward to the Haskell National Bank for 75⅜ per bushel less the freight, as noted in the invoice”; also contained the following: “Cash with order seed f. o. b. our station (Howe, Grayson County), all accounts and claims payable in Sherman, Texas. Draft 75⅜ per bu. less frt. $134.40, balance to be carried by special note-agreement” (referring to purchaser’s notes); also the following: “All orders are accepted subject to the conditions that all accounts, or claims, arising therefrom are payable and performable in Sherman, Texas, under the terms of “Ferguson’s Stringless Guarantee of ‘Satisfactory Seeds or Money Back,’ just as given in our Catalog.” The catalogue referred to contained, among other printed matter, the following: “Terms: All seeds are cash with order, seeds F. O. B. our stations. Remit by check or money order. We do not send seeds C. O. D. or S/O, unless satisfactory reference is given, or one-fourth the amount sent with the order. All accounts or claims resulting from sales are payable in cash or equivalent, in Sherman, Texas.”

On receipt of the invoice and notice that draft had been drawn on them for 75¡é per bushel less freight, defendants wired the corporation, as follows: “We are not willing to pay your draft, will pay freight and deduct from cash payments we get when we sell seed”. Answering, same day, the corporation wired defendants, as follows: “Haskell National Bank has been authorized to release bill of lading to you”; also, on same day, through its sales manager, Mr. Maloney, wrote defendants, among other things, the following: “I handled this matter with Mr. Ferguson and he decided that we would make an exception in this case and release the Bill of Lading to you, authorizing the bank to hold the draft and as you sell this seed daily at the end of each day you will turn in to the Haskell National Bank your collections to be applied on this draft. This method of handling will not make it necessary that we change our records or that the bank change their records. It is our intention to have Sam Johnston go to Haskell and assist you in disposing of this car of seed.”

If the terms stated in the invoice could be considered applicable to a consignment, which we think doubtful, yet being in excess of the parol agreement, were expressly rejected by the defendants, who wired the terms on which they were willing to accept the shipment, that is, would pay freight and reimburse themselves from cash received when sales were made; these terms being in accordance with the original agreement, as testified to by Mr. Sanders, and in our opinion, were assented to by both Mr. Ferguson and Mr. Maloney, sales manager, who stated in his letter to the defendants, that the bank had been authorized to release the bill of lading, that it would hold the draft and, as defendants sold seed, they should turn into the bank the collections to be credited upon the draft. With reference to the cata-logue or pamphlets, containing the language heretofore set out, Mr. Sanders testified that he regarded it simply as advertising matter sent to aid in selling the seed, and had no recollection that he had read it through.

Plaintiff insists that, a contract in writing, binding defendants to perform the obligations of the verbal ' agreement, in Grayson County, resulted from the disconnected, fragmentary ex parte language of invoice and catalogue. A number of decisions are cited in support of that contention, substantially all were cases adjudicated before the statute involved was amended in 1935. As stated in the emergency clause, the amendment was brought about because of “the unsettled state of the law as to the contract clause of the Venue Statute”. As amended, the statute reads: “If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” See Chap. 213, Regular Session 44th Leg., p. 503, Vernon’s Ann.Civ.St. art. 1995, subd. 5.

It is obvious, we think, that, the uncertainty in regard to the state of the law as to the contract clause of the venue statute (subdivision 5), mentioned in the emergency clause of the amending act, resulted from court decisions in cases arising under the statute before being amended. The strong language employed in the caption and in the body of the Act, in our opinion, means that, before it can be said that one has bartered away his venue privilege, the writing, relied upon to show such fact, must distinctly specify the particular county of performance. The parol agreement having been consummated, without mentioning the place of its performance, we do not think the Corporation could add a venue provision, by language incorporated in the invoice, aft-erwards mailed to the defendants, or by language appearing in catalogues, after-wards supplied defendants as advertising matter.

In Smith Grain Co. v. H. H. Watson Co., Tex.Civ.App, 285 S.W. 868, 869, the San Antonio Court had under consideration a contract consummated by an exchange of telegrams; and, as in the instant case, nothing was said as to venue or place of performance. However, after closing the trade, plaintiff wrote a letter to the defendant, confirming the trade and stating “Any differences arising under this contract are made due and payable at Dallas, Texas”. Disposing of the question of venue involved, the court said: “None of the messages by wire contained anything about fixing the venue in Dallas county. The contract was made by the wires and could not be changed by any letter written afterwards by either party. Nothing was said in the telegrams as to the destination of the grain.” And again: “When the contract was closed through the telegrams, no place of destination was mentioned, and appellee could not change the contract by writing a letter to which appellant did not subscribe or agree.” In Watson v. Howe Grain & Mercantile Co., Tex.Civ.App, 214 S.W. 843, 844, the Texarkana Court of Civil Appeals had under consideration a trade closed in a telephone conversation, after which plaintiff mailed to the defendant a letter of confirmation, setting forth the terms upon which the commodity was purchased. With reference to the venue question involved, the court said: “The principal ground relied on by.the appellee to sustain the ruling of the court is that the contract in this instance was in writing and comes under the provisions of exception 5 to article 1830 of the Revised Civil Statutes. The testimony does not sustain that construction. It appears from the evidence quoted that the contract was completed in the conversation over the phone, and that the letter added nothing to its provisions. The cases referred to by the appellee as sustaining the ruling of the court are, we think, inapplicable.” In H. H. Watson Co. v. Alfalfa Growers’ Exchange, Tex.Civ.App., 300 S.W. 199, 201, the Eastland Court of Civil Appeals had under consideration a contract consummated by an exchange of telegrams, defendant agreeing to ship plaintiff hay to certain points in Texas that might be designated and, after a part of the hay had been shipped, plaintiff wired defendant to ship the remainder to Dallas, and contended that this telegram was a part of the contract requiring performance in Dallas County hence that, venue of the suit was maintainable in Dallas County, with reference to which the court said: “The contract was completed by the exchange of the telegrams noted, and, although while unperformed it could have been modified without a new consideration arising, still there is nothing in the original agreement stipulating that the designation by appellant of the destination of the hay should be in writing.” The recent case of Maudr v. Ansley, Tex.Civ.App, 109 S.W.2d 501, 503, was by the Eastland Court, in which, after noting that the original negotiations between the parties did not contemplate that the contract or contracts should later be reduced to writing, with stipulations for performance in Taylor County, it was said: “The contract for the sale and delivery of the cotton was by parol entered into in Taylor county, Tex, between plaintiff and defendant through his agent, Dal-rymple. * * * The fact that appellant acknowledged the justice of the obligations, paid the drafts, and received the cotton to which he was entitled under the original understanding, should not, under the facts of this case, be held to create the alleged written contracts in this suit. If a term or condition of a contract can thus be added or taken therefrom, without the mutual assent of the parties, other provisions of the contract may be so altered by an act of ex parte or unilateral nature. In such situation a debtor by paying in fact what he owes would be bound by the terms of another contract inserted in a draft without his knowledge or consent. Evidently the drafts, and especially the clause relating to venue, formed no part of such sales contracts, and payment of the drafts under the circumstances created no written contract (by acceptance or acquiescence) binding the defendant to pay in Taylor county such other sums as might become due plaintiff on the final determination of cotton prices.”

We are of opinion, therefore, that, it was not competent for the plaintiff, after the consummation of the parol agreement, to add a provision fixing the place of its performance, not expressly agreed to in writing by the defendants.

We do not think the court erred in changing the venue of the cause to Has-kell County, therefore affirm the judgment.

Affirmed