author: SPEER, Justice.

text:
    MONTGOMERY WARD & CO., Inc., v. LEVY.
    No. 14010.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 19, 1940.
    Rehearing Denied Feb. 16, 1940.

      C. B. Fullerton and L. E. Oliphant, both of Chicago, Ill., and Gaylord H. Chizum, Dillard Estes, Kenneth H. Wasson, James N. Ludlum, and Chizum, Estes & Ludlum, all of Fort Worth, for appellant.
    Max K. Mayer, Milton J. Mehl, and Ernest May, all of Fort Worth, for appellee.
   SPEER, Justice.

Appellee, Mrs. E. A. Levy, sued appellant Montgomery Ward & Company, a corporation for damages sustained in an automobile accident. Appellee’s husband died subsequent to the accident (from causes not connected with the subject matter of this suit), leaving a will, in which appellee was the sole beneficiary.

In the summer of 1937 appellee and her husband, in preparation for a vacation trip with their family, purchased of appellant a small trailer to be attached to their car, in which to haul certain desired equipment. The trailer had only a single wheel under the center of the frame and body. It was' attached to the arms of the car, which extended from the rear end to the bumper, by means of two metal bars extending from the right and left sides of the trailer. These arms curved downward and each had a hinged joint just above the metal clamps which bolted onto the automobile arms. The clamps or fastenings were so constructed as to require three bolts in each; the bolts were to be fastened and held tight by means of nuts screwed on one end and equipped with retaining or lock washers, to prevent the nuts from coming loose and backing off the bolts. It is alleged that1 the consideration paid for the trailer included the expense of attaching it to the automobile; that appellant’s employees did attach the trailer to the car, as it had contracted to do; that appellant warranted the trailer and the manner of its attachment to be adequate and safe for use by appellee and her family, for the purposes and manner intended by them, of which purposes and manner appellant had full knowledge.

It is alleged that when the trailer was attached by appellant, the husband of ap-pellee drove the car to his home, a distance of about two miles, and upon a careful inspection, found that the coupling on the right hand side was loose; that the lock washers were left off of two bolts and the nut was gone from the third on that side; he took the car and trailer back to appellant’s place of business to have the coupling made tight; an employee of appellant at the shop where the trailer was attached, inspected the connection and told appellee’s husband that it was all right and safe for the uses intended by him. That the next morning they started on their trip and had traveled to a point near Breckenridge, Texas.

The negligence of appellant,. which is charged to have been the proximate cause of appellee’s injuries, is alleged to be that ■ the coupling connections between the trailer and the car were constructed of defective material, such as cast iron or some other metal inadequate for the purpose, when the car to which it is attached, is driven over the public highways at an average and lawful rate of speed; and further, that a connection bolt on one of the couplings lacked lock washers and a nut, arid two other bolts on the same coupling lacked lock washers.

Allegations were made of appellee’s severe and permanent injuries, requiring hospitalization and medical attention. She prayed for $10,000 actual and $7,500 exemplary damages.

Appellant answered by general demurrer and many special exceptions. The general demurrer and all special exceptions except oné (not material in this appeal) were overruled by the court. There was further answer of general denial; and specially that it was a retail dealer of the trailer in question and not a manufacturer; that it exercised care in the selection of the trailer when it was purchased for sale; that its employees exercised ordinary care in attaching it to the automobile, with all the equipment furnished by the manufacturer for that purpose, placing lock washers and nuts on all bolts, tightening each thoroughly, as they should have been. That appellant nor any of its employees had any knowledge of defects in the construction of the arms or attachments. In the answer were allegations of contributory negligence by appellee’s husband, in driving the car with the trailer attached with full knowledge that the trailer arm was loose and improperly fastened (if it was loose and improperly fastened, as claimed by appellee). There were eighteen other alleged acts of contributory negligence set out, but as we view this appeal, they need not be stated.

Trial was to a jury on special issues. The verdict as returned under the issues submitted, was substantially: (1) Appellant failed to equip the couplings of the trailer with sufficient washers and nuts when it was attached to the automobile; (2) such failure was negligence; (3) it was the proximate cause of the overturning of appellee’s car; (4) the husband of appellee was not guilty of contributory negligence in operating the car and trailer with knowledge that the couplings of the trailer were not equipped with sufficient lock washers and nuts; (6) the husband was not negligent in operating the car and trailer over a rough and uneven place in the road, in such manner as to cause him to lose control of the automobile; (9) the husband did not attempt to pass a car going in the same direction, in such manner as to cause him to drive the car off the paved surface of the roád on to the dirt shoulders on the side; (12) it was not an unavoidable accident; (13) the amount of damages sustained by appellee was $5,000. Immediately following the issue inquiring as to the. amount of damages sustained by appellee, the following explanation was given: “In connection with the foregoing issue you are instructed that you will take into consideration only the following: such pain and suffering as you may believe from the evidence plaintiff has sustained and will sustain in the future, if any, and which were proximately caused by the accident in question.”

Judgment was -entered for appellee against appellant for $5,000, and from that judgment this appeal has been perfected.

Appellant’s first proposition is that the court erred in overruling its special exception to the sufficiency of appellee’s allegations of gross negligence as a basis for exemplary damages. The assignment is well taken. The most that can be said of an attempt to allege grounds for exemplary damages, grew out of those allegations wherein it was stated that after Mr. Levy •drove his car and trailer to his home, about two miles away, and discovered that the trailer arm was loose at the fastening, he took it back to appellant’s shop, where the employee in charge looked at it and “assured the plaintiff’s husband (Mr. Levy) that nothing was wrong, that the trailer would follow the car as true as an arrow, and that Mr. Levy would never have any trouble with that coupling connection. Such acts, done through its managing agent aforesaid, were in reckless disregard of the safety of Mr. Levy and his family, who it was known contemplated making an immediate automobile trip with said trailer attached to their car, and constituted gross negligence.”

There was no • allegation made which could be said to state any facts, which, if true, showed a total lack of diligence on the part of the agent in the inspection of the coupling. It is alleged that he inspected it and gave his opinion upon its sufficiency. There is nothing to indicate that he really believed otherwise than what he expressed to the owner about the safety of the coupling. The conclusion of the pleader that such acts as were enumerated constituted gross negligence added nothing to the allegation, and was insufficient to constitute a pleading as a basis for a claim of exemplary damages.

Gross negligence is summarized as stated in 30 Tex.Jur., page 654, sect. 10, in this language: “Gross negligence • is the want of slight care and diligence. In approved language of the Supreme Court, gross negligence is an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others. Where the evidence shows that he exercised some care, a finding that he was guilty of gross negligence is not warranted.” The allegations in this case were not such as would have warranted the introduction of such testimony as would have shown gross negligence. The rule is fully discussed by our Supreme Court in Texas Pacific Coal & Oil Co. v. Robertson, et al., 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262.

However, unless some other element entered into the case affecting the ruling of the court on the exception, no harm came to appellant, for the reason the questions of gross negligence and exemplary damages were not submitted to the jury. The appellant complains of the ruling upon the ground that the allegation as made was permitted to be read to the jury, and that the verdict reflects that it influenced the jury in reaching their verdict. Yet no complaint is made that the verdict is excessive. We see nothing in the record to support the contention. Moreover, it is said in 3 Tex.Jur., page 1254, sect. 878: “ * * * But the overruling of a special exception may or may not be prejudicial, and the burden of showing prejudice is cast by the rule upon the appellant.” Among other cases there cited is Golden v. Odiorne, 112 Tex. 544, 550, 249 S.W. 822. Since the case must be reversed upon other grounds hereinafter to be mentioned, the offending allegation will either be amended or, if not, will be stricken out by the court, there is no necessity for further discussion.

Propositions from two to twelve, both inclusive, and the assignments to which they refer, complain of the ruling of the court in permitting the witness Akey to testify as an expert, in response to a hypothetical guestion as to what probably caused the accident. In this group of propositions, it is complained that the court declined appellant’s motion to strike out the testimony, that the hypothetical question was based upon highly'controverted issues, the court abused its discretion in holding that Akey was a competent witness, that his testimony being incompetent, there was no evidence to support the verdict rendered, that it was error to refuse to set aside the verdict rendered on that testimony, that it was error to refuse to enter judgment for appellant on its motion non obstante vere-dicto, and error was committed in refusing to grant a new trial, when all these questions were presented in a timely motion therefor.

Whether or not the controversy was subject to expert testimony, and whether Akey qualified as an expert, will determine all these questions.

It was the contention of appellee that appellant was negligent in the manner its agents had attached the trailer to the car, that because it was defectively connected, one of the connecting arms worked loose and the play given at the loose side caused the other side to bear the strain incident to its use on the road; that the left arm or coupling was defective and the excessive strain caused it to break, resulting in the wrecking of the automobile in which ap-pellee and her family were riding.

Mr. Dugger testified that late in the afternoon of the day before appellee started on the trip, the right hand coupling was not tight; that he went to the appellant's place of business with Mr. Levy, where it was pointed out to the agent that lock washers and a nut were missing from the coupling, and Levy was assured by the agent that it was all right and safe, and that Levy returned to his home with the trailer attached to his automobile. Ap-pellee testified that they left on their trip the next morning at three o’clock' and had driven over the paved roads to a point six miles west of Breckenridge (which from other testimony is about 112 miles), the rate of speed was 35 miles per hour; the road was perfectly smooth and about six o’clock that morning they were driving along at the rate of speed mentioned, she felt in the motion of the car that something had given away — the sensation she felt was similar to that when your car has been hooked onto a bumper of another car, and then you get loose and you feel that motion. Immediately the trailer went over, and as it did, it felt like it raised the car up, and the trailer. would frail around; she could see the broken arm of the trailer as it swayed from side to side; she said it was on a pivot; when the trailer would swing one way the car would go the other; her husband was trying to guide the car; she turned off the switch in contemplation of fire; the car left the pavement and went toward a tree on the right of way; the trailer arm swung out to the side and struck the tree and immediately the'automobile turned over.

The witness, Akey, testified touching his qualifications substantially as follows: That he was in the employ of a trailer and truck manufacturing company in Fort Worth; he was in charge of the design and construction of trailers; that he worked as a mechanic for the same concern five years and after that time had been superintending the construction of trailers; he was fairly familiar with the type of one wheel trailer involved in this case; that one was used at the shop for about a year; he had attached similar trailers to cars; the connection was made with two arms which are attached to the bumper or some other part, with clamps or bolts. Upon having exhibited to the witness the clamps used in the Levy trailer, he examined them and said .that unless each contained three bolts, lock washers and nuts he would not consider that they were securely fastened. The opinion of the witness here expressed is not complained of by appellant.

The trial court had heard enough of the testimony in the case to understand the respective theories of the parties. It is essential to the qualification of a witness who proposes to testify as an expert upon matters involved, that he must show himself to be specially acquainted with the subject matter under immediate inquiry, yet it is not required that he have a complete and definite scientific knowledge of all the intricacies, and minute details which may enter into the point at issue. A gen- ■ eral knowledge of the department to which the specialty belongs would seem to be sufficient. United States Fidelity & Guaranty Co. v. Rochester, Tex.Civ.App., 281 S.W. 306, affirmed by the Supreme Court, 115 Tex. 404, 283 S.W. 135. The trial court must determine if the proposed witness has had sufficient opportunity for observation and experience in line with the subject under inquiry to entitle him to give his opinion based upon evidence adduced. When the trial court has determined this matter, it being within "his sound discretion, the appellate courts will not disturb his decision unless it appears that he has abused that discretion. 19 Tex. Jur., page 136, sect. 92. We think, as did the trial court, that the witness showed himself competent to testify, and there was no abuse of his discretion in permitting it.

The hypothetical question and answer of the witness are as follows:

“Q. Now, Mr. Akey, assuming that this trailer, the trailer to which these arms were attached, was purchased from Montgomery Ward & Company on August 14th, 1937, attached to a Chevrolet automobile, Chevrolet sedan, 1396 deluxe sedan, on August 15th, 1937, driven during the course of the day with the automobile, with the trailer attached, being driven during the course of that day about, oh, let’s say twelve or fifteen miles, at the most. Is that about right ? And then driven the next day about 112 miles when, while the trailer was still attached to the automobile, the left arm broke. Now, assuming also that a nut and the lock washer there, and as I recall one other lock washer (I hope you gentlemen correct me if I get my facts wrong) were missing from the right arm, an attachment to the bumper, and one or two lock washers missing from the other arm, assuming also that the car was being driven on the morning in question at an average rate of speed of approximately thirty-five or thirty-six miles an hour, now, what in your opinion probably caused the breakage of this arm?
“A. Two lock washers missing from the right hand side and one nut missing on that side would in my opinion cause that side to work loose or allow that side to work loose and the bending of the left hand arm which would be rigidly attached to the car, would cause the arm to break by setting up a fatigue in the weaker section.”

It is contended by appellant that the matter of whether the loosening of the right hand trailer arm attachment would probably cause the left arm to break was not such a question as would require expert opinions to determine. It appears that the two connecting arms of the trailer extended forward, bending downward and reduced in size to a point immediately next to a hinged joint at the clamps, which were bolted to the arms of the car. The hinged joint was made with small forks in the trailer arms, which had a bolt passed through them to allow for play up and down, but not sidewise. The effect of the testimony of Akey was that if by loosening the union on one side, the connection would cause play back and forth, that side would automatically become shorter or longer while the trailer was in motion and would not permit it to follow the car in a true course, but throw the strain and pressure of the load on the rigid arm, and if the strain was sufficient probably would cause it to break. It is said.in 19 Tex. Jur., page 54, sect. 54: “Questions connected with the operation of machinery frequently require elucidation by persons of science and skill and it is not necessary that the machine be complex or unusual in order to make their testimony admissible.” In the same text, at sect. 19, it is said: “The testimony of experts may be received wherever peculiar skill and judgment applied to a particular subject are required in order to explain results or trace them to their causes.”

Again it is contended that the evidence of the expert witness was inadmissible because it was based upon a hypothetical question containing many highly controverted issues, and infringed the functions of the jury. Under the rule of the admission of expert .testimony, it cannot' be said that the opinion of the witness based upon a proper hypothetical question infringes the duty of the jury. His testimony is, like all other evidence, to be considered in arriving at a proper verdict. In Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314, 315, the Supreme Court said: “When the issue is one upon which the [expert] witness may properly state his opinion, he may do so, notwithstanding his answer embraces the very issue on trial. The conclusion of the witness is then testified to, as any other fact to be considered by the jury, for what they may believe it to be worth. In many cases witnesses may testify to the existence of the very fact to be found by the jury.”

There were circumstances shown by the testimony which tended to support the hypothetical question put to the witness Akey. It presented appellee’s theory of how, under the testimony, the accident happened. Some of the matters included were disputed by other witnesses, and appellant, if it had so desired, could have formulated a question based on its theory that may have elicited a different answer from the witness. It declined to exercise this privilege. Negligence as well as proximate cause may be proven by circumstantial evidence. Houston, E. & W. T. Ry. Co. v. Boone, 105 Tex. 188, 146 S. W. 533; Bock v. Fellman Dry Goods Co., Tex.Com.App., 212 S.W. 635; English v. Miller, Tex.Civ.App., 43 S.W.2d 642. We see no merit in the assignments presented under propositions two to twelve, and they are overruled.

Propositions 13, 14 and 15 raise the question of contributory negligence by appellee’s husband in operating the automobile with the trailer attached, when he knew of the defective coupling, as contended for by appellee. It is contended by appellant that if the coupling was loose, as claimed by appellee, that' the undisputed evidence shows Mr. Levy knew it, and was guilty of contributory negligence in its use, as a matter of law. That the answer of the jury to the contrary had no support in the testimony and the court should have disregarded that answer and entered judgment for the appellant on its motion. We see no error in the rulings of .the court in these respects. It was a question about which reasonable minds might differ. Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S.W. 63; Wallace v. Southern Cotton-Oil Co., 91 Tex. 18, 40 S.W. 399. The record in this case reflects that the jury in its deliberations had much trouble in arriving at an answer to the issue; they originally answered in the affirmative and wrote that answer into their verdict, but subsequently changed their minds and erased that answer and finally returned the verdict with a negative answer.

The trend of decisions in this State is that courts will seldom hold that as a matter of law, facts shown constitute negligence or contributory negligence. The exceptions are mainly those in which a statutory provision is shown to have been violated proximately causing an injury, or be such acts as are contrary to the dictates of common prudence. Temple Electric Light Co. v. Halliburton, Tex.Civ.App., 136 S.W. 584; writ denied 104 Tex. 493, 140 S.W. 426; Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227. See, also, Beck v. Texas Co., 105 Tex. 303, 148 S.W. 295, and 45 C.J., page 856, sect. 513.

Propositions 16 and 17 and the assignments to which they relate complain of argument made by opposing counsel. The bills of exception and the proposition show that appellant’s counsel had argued to the jury, in support of the weight of the testimony and credibility the jury should give to its witnesses, that they were disinterested, whereas those testifying for appellee had an interest in the result of the suit. Appellee’s counsel in replying challenged the correctness of appellant’s contention and in connection with that argument, said, “Where is the negro boy, who was working with him (Kirby, appellant’s employee who attached the trailer) ?” Again counsel said, “Where is Sebastian, the man in charge out there?” (Referring to appellant’s manager of the shop where the trailer was attached.) The complaint of appellant is based upon the ground that the record does not indicate that these witnesses were within the jurisdiction of the court, or that they were under the control of or available to appellant at the time of the trial.

Relative to the two persons referred to by appellee’s counsel, the testimony shows without dispute that Kirby was the mechanic at appellant’s shop, who attached the trailer to the automobile; that he had a negro boy assisting him, and that the colored boy attached one arm of the trailer while Kirby attached the other; that Kirby then inspected the work done by the boy. Sebastian, referred to in the argument, is shown to have been the manager of appellant’s shop at the time the trailer was attached, and that he was subsequently “transferred”, perhaps to Chicago.

The general rule in such cases as this, is, as contended for by appellant, to the effect that comment of opposing counsel on the absence of witnesses is improper, when the person mentioned is as much under the control of one party as the other, or that he is not available, shown either by evidence or by legitimate presumptions. 41 Tex.Jur., page 782, sect. 64. In this case, each of the persons referred to by counsel in the argument is shown to have been in the employ of appellant when the trailer was attached, and it does not appear that they were not so employed by or available to appellant at the time of the trial. In this situation, the rule is as stated in 17 Tex.Jur., page 255, sect. 62: “It is a general rule with wide applications, that where the existence of a status or state of things, a personal relation or a custom is once established, it is presumed that such status, etc., continues until the contrary is shown, or until a different presumption is raised from the subject in question.”

It is a well established rule of law in this state that where a party to an action fails to produce evidence which he could have produced, and which was his duty to produce, it will be presumed that if produced, it would have been unfavorable to him, and every intendment will be indulged in favor of the opposite party. The somewhat recent case by our Supreme Court of Marek v. Southern Enterprises, Inc., 128 Tex. 377, 99 S.W.2d 594, 597, definitely supports the above statement. There it was said: “Legitimate inferences from the testimony do not fall in the category of improper argument.” The assignments are overruled.

Propositions 18 to 31, both inclusive, and the assignments of error upon which they are based raise the question of misconduct of the jury, and allege errors of the court in refusing to set aside the verdict and in entering judgment thereon. Some of these assignments . present reversible error; we shall presently show why we have reached this conclusion.

After the verdict had been returned and received by the court, pending appellant’s motion for new trial, four of the jurors were placed on the stand and questioned concerning what took place during their deliberations. The juror Strangways said the first thing that was done by the jurors after organization was to take a vote as to how they stood on “whether there should be a verdict for the plaintiff or for the defendant.” That about three-fourths were in favor of plaintiff recovering from the defendants some amount. That when they reached the issue as to whether or not Mr. Levy was negligent in driving the car, knowing that the trailer was not properly attached, there was a discussion among them as to whether if they answered the question in the affirmative appellee would fail to recover; that some one then said, “Well, boys, now we have voted, and most of us are in favor of giving Mrs. Levy some damages in this case; now if we say Mr. Levy was negligent, maybe that would bar her getting damages.” He further said in substance that since none of them knew what effect such an answer would have, they determined to inquire of the court. Whereupon, the foreman sent the following written inquiry to the court:' “Can we award damages if we find negligence on both sides?” The court replied that the matter inquired about was no concern of the jury, and instructed them to follow the instructions as given. The juror said they had answered the issue of contributory negligence in the affirmative, but they thereafter erased the answer and inserted a negative answer. Mr. Manning, the foreman, testified that if the answer as to contributory negligence was ever changed from what was written in at first, he did not know it. The original charge was by order of the court sent up on appeal as an exhibit; it clearly shows that something had been erased at the place where the final negative answer appears. No other juror controverted what Mr. Strangways said about the vote to determine if they would render a verdict so that appellee would recover, nor that the-inquiry was made of the court as to whether they could assess damages if they found both parties were negligent. Another juror, Mr. Grace, testified that the answer to Special Issue No. 4 was changed after it had been first answered. The foreman testified that if it was changed he didn’t remember it.

In 31 Tex.Jur., page 54, sect. 47, it is said: “ * * * Thus' it is a ground for new trial that they (the jury) agreed in advance as to the party who should prevail and then answered the issues accordingly.” Many authorities are there cited, to which we also refer. See also 41 Tex. Jur.,.page 1211, sect. 345, and cases cited, and Figula v. F. W. & D. C. Ry. Co., Tex.Civ.App., 131 S.W.2d 998, writ refused.

As disclosed by the testimony given by the juror Strangways, the matter of insurance carried by appellants was discussed among the jurors while deliberating upon their verdict. Jurors Manning and Grace said that if it was discussed they didn’t hear it. Strangways said that two or three members of the jury talked about it, that some one said:. “Well, Montgomery Ward must have insurance, a big firm like that, and they would not have to pay any judgment if we gave one.” Also it was said that a moderate judgment would not be appealed, but would be paid, and if the judgment was not too high, that it would be paid off by the insurance company; although that was not discussed as much as the insurance. The juror also stated that he had made up his mind not to award more than $2,500 damages, but that he saw they would be hung up if he did not go higher, “But that the argument of the insurance company was brought up, and that softened me.” He then agreed if another question which he thought had been answered wrong was changed to the way he thought it should be, he would vote for a $5,000 verdict. The issue referred to was No. 4, which had been answered to show that Mr. Levy was guilty of contributory negligence. It was then changed to a negative answer and Strangways voted for the larger verdict. Two other jurors said that when matters of hospital and doctor bills were mentioned, the foreman warned them not to discuss those items, but to follow the court’s charge. The foreman was not asked if he made such admonition, but said he did not hear either of those matters mentioned in the jury room. These discussions are condemned as misconduct in 31 Tex.Jur., pages 43 and 44, sect. 38.

As bearing upon the points discussed, we are cited by the appellee to the case of Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, but in that case the testimony before the trial court concerning alleged misconduct was a controverted issue of fact; the rebuttal evidence was substantial and the trial court effectually held that the acts complained of did not happen. A writ of error was denied by the Supreme Court, because the judgment was correct. In that case we cited in support of the rule announced, Traders & General Insurance Co. v. Lincecum, 130 Tex. 220, 107 S.W.2d 585. In the instant case the matters complained of were undisputed. No juror said they did not happen. In such circumstances there was no issue of fact for the court to determine on motion for new trial. Here, the misconduct is indisputably shown to have occurred and the presumption of law is indulged that it had a harmful effect. No testimony was offered to rebut that presumption. Appellant’s propositions 18 to 23 cover the acts discussed by us, and they are sustained. Propositions 24 to 29 refer to discussions by the jury, while deliberating, questions of hospital and medical bills and attorney’s fees; and 30 and 31 complain of comments and opinions given by a juror as to his experience with metal bolts, washers and nuts. There was rebuttal testimony offered by appellee in these respects and the overruling of the motion by the court is a finding that such comments were eliminated from consideration by the jury. The assignments presented by propositions 24 to 31 are overruled.

The trial court should have granted a new trial upon presentation of those points which we have sustained. The judgment is therefore reversed and the cause remanded for another trial.

136 S.W.2U 673


source: Caselaw Access Project

author: SMEDLEY, Commissioner.

license: Public Domain

text:
    ANDERSON & KERR DRILLING CO. et al. v. BRUHLMEYER et al.
    No. 7543.
    Supreme Court of Texas.
    Feb. 21, 1940.

      Catlett & Kerr, of Oklahoma City, Okl., for appellant Kerr.
    Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, and Hayes, Richardson, Shartel, Gilliland & Jordan, of Oklahoma City, Old., for appellant Port-man.
    John W. Culp, of Gainesville, Fred H. Minor, of Denton, A. A. White, of Tyler, Wynne & Wynne and Wm. A. Wade, all of Longview, and A. W. Walker, Jr., and Preston Shirley, both of Austin, for appel-lees.
   SMEDLEY, Commissioner.

The Court of Civil Appeals for the Second District has certified three questions to this court by certificate which briefly and clearly sets out the nature of the case, the material facts and the questions as follows:

“This is an appeal from an order appointing a receiver to take over the entire management and control of a tract of land in Cooke County; Texas, on which there area number of producing wells, which are being operated under a lease by the appellants.
“The appellees, who prayed for the appointment of the receiver, and all parties interested, are circumstanced as follows: N. J. Johnson and his wife, M. E. Johnson, owned this tract of land on April 28th, 1891, and conveyed same to one J. R. Cother. The following reservation is found in this deed: ‘And the said N. J. Johnson and M. E. Johnson reserves one-half interest in all Minerells Paint Rock &c found or will be found on said tract of land.’ The ap-pellees, who are heirs of the Johnsons, contend that this reservation entitles them to one-half of the oil and gas in and under the said lands.
“The appellants, on August 4th, 1936, brought suit in the district court of Cooke County against N. J. and M. E. Johnson and their unknown heirs, and others, in trespass to try title, and judgment for plaintiffs was had on October 29th, 1936; the service on the defendants being had by publication.
“On August 21st, 1937, appellees, who are heirs of the Johnsons, filed their original petition, seeking to set aside said judgment and amended their petition on August 29th, 1937. No citations were issued upon the defendants in this action, and the hearing was set for November 5th, 1937, in vacation, and appellants were required to answer the application for receivership by telegraphic notices. Upon a hearing, the trial court appointed a receiver, on November 23rd, 1937, giving such receiver full authority to take over the entire management and control of the property and the producing wells.
“The undisputed testimony discloses that the wells on the premises are being operated in a prudent and economical manner. There is no evidence of waste or extravagance in the operation thereof.
“It is undisputed that the appellants have the fee simple title to and are entitled to the possession and control of the property, so far as an undivided one-half interest in the oil and gas in and under the lands is concerned, and that the fee to the surface rights belongs absolutely to the appellants.
“When the matter was being tried before the District Court and such court indicated that the petition for a receiver would be granted, the appellants requested the trial court to limit the powers of the receiver to that of taking over and protecting the proceeds from the portion of the oil claimed by appellees and to provide for the impounding of such funds in some bank to be selected by the court, or, in the alternative, that the trial court require a bond, conditioned in such manner that it would protect the appellees with respect to the operation of the properties, and to compel appellants to account for the proceeds of the oil produced from the premises.
“The trial court declined to do either or any of these things and appointed a receiver to take full and complete control of the properties, including all wells, equipment, machinery, etc.
“This court passed judgment on the cause, as is reflected in the opinions published in Tex.Civ.App., 115 S.W.2d pp. 1212 to 1217, and the matter having been brought to the Supreme Court by petition for a writ of mandamus, in obedience to the judgment and opinion of the Honorable Supreme Court, we respectfully certify to you, for determination, the following questions:
“No. 1. Did the clause of exception and reservation contained in the deed from N. J. Johnson and wife, M. E. Johnson, to J. R. Cother, reading as follows: ‘And the said N. J. and M. E: Johnson reserves ½ interest in all Minerells Paint Rock &c found or will be found on said described tract of land’, except and reserve as a matter of law, a fee simple title in said grantors in and to an undivided one-half interest in all oil and gas in and under the land conveyed by said deed, or is such provision so ambiguous, or so lacking in definiteness, that its meaning requires proof and explanation?
“No. 2. If, in the opinion of the trial court, the appellees have a probable interest in the fee simple title to an undivided one-half interest in and to the oil and gas in and under the lands in controversy, are the appellees entitled, as a matter of law; under the terms of Article 2293, Sec. 1, Revised Civil Statutes, 1925, to have a receiver appointed to take complete control of the oil and gas estate and all equipment, machinery, wells and to have such receiver take complete charge of all operations, pending the final determination of litigation instituted by appellees to obtain a judicial determination of their ownership, where appellants, being the owners, and' lessees of the owners, of ,an unquestioned undivided one-half interest in the lands and mineral rights, are in exclusive possession of the lands and have drilled a number o.f producing wells thereon, from which they have produced and sold, and are continuing to produce and sell large quantities of oil and gas, and are denying the right of appellees to possession of the property, to drill thereon, to lease the lands to others, or to share in the proceeds of the oil and gas being produced therefrom?
“No. 3. The trial court being of the opinion that appellees have a probable right of recovery of an undivided one-half interest in and to the oil and gas in and’under the lands in controversy (or if such interest be undisputed, as a matter of law), and if it be held that under the provisions of Subdivision 1 of Article 2293, Revised Civil Statutes, 1925, appellees were, under the allegations and proof, entitled to the appointment of a receiver, was the request, or motion, made by appellants, to have the trial court limit the power and authority of the receiver to that of protecting and controlling the proceeds of the portion of oil in which appellees have an absolute or probable interest, less the necessary and reasonable cost of operation, and the offer to protect the probable interest of ap-pellees by a sufficient bond, or by impounding the portion of the net proceeds to which appellees have a probable interest, in some bank to be selected by the court, sufficient to render the appointment of a receiver of the entire lands, leases, wells, machinery and equipment, improper where such motion and offer were made subject to appellants’ exceptions to the appointment of any receiver and without waiver of such objections, and when such motion and offer were made after the trial court indicated that-the prayer for a receiver would be granted?”

As to the first question, the appellees take the position that the clause of exception or reservation contained in the deed from N. J. Johnson and wife, M. E. Johnson, to J. R. Cother, excepted or reserved as a matter of law a fee simple title in said grantors in and to an undivided one-half interest in all oil and gas in and under the land conveyed by the deed. The appellants, on the other hand, contend that the meaning of the said clause of exception or reservation is sufficiently uncertain or indefinite to require or permit the court to construe the language used in the instrument with any light that may be shed thereon by a full consideration of the entire transaction as shown by the attending facts.

The original deed and photostatic copies thereof which accompany the record will be considered in connection with the facts set out in the certificate, as both parties in their briefs and oral arguments have invited such consideration. The reservation appearing in the deed is as follows: “and the said N J & M E Johnson reserves ½ interest in all Minerells Paint Rock &c found or will be found on said discribed tract of land.”

Attention is directed to the erroneous spelling of the word minerals and the word described and to the absence of punctuation. The deed is on a printed form, the names of the parties, the statement of the consideration, the description of the land and the reservation being written in longhand. In many places the draftsman failed to insert periods where they should have been used. There are a number of semicolons in the description of the land by metes and bounds, but we have found only one comma, or possibly two, in the part of the deed written in longhand, although there are many places where commas should have been inserted. Often a dash appears where ordinarily a comma or period would be used.

Errors in spelling are usually unimportant. In an early Pennsylvania case, Watters v. Bredin, 70 Pa. 235, 237, the court, after setting out a deed to be construed, said: “I have omitted the inaccuracies in spelling, for mala grammatica non vitiat chartam”. The following rule is stated in Baustic v. Phillips, 134 Ky. 711, 121 S.W. 629, 630: “Where it is perfectly plain that a word is misspelled, the courts will construe the deed according to the meaning of the word intended, rather than according to the meaning of the word actually used.” See also Huntington v. Lyman, 138 Mass. 205; 18 C.J. p. 260, Sec. 213.

We are warranted, therefore, since it is perfectly plain that the word was misspelled, to read the clause of reservation as if “minerals” had been written instead of “Minerells”.,

The following rules with reference to punctuation have been announced: The words, not the punctuation, are the controlling guide in construing a contract. If the meaning of the words is clear the court will interpret a contract according to their meaning and without regard to the punctuation marks or the want of them. While punctuation may be resorted to in order to solve an ambiguity which it has not created, punctuation or the absence of punctuation will not of itself create ambiguity. Holmes v. Phenix Insurance Company, 8 Cir., 98 F. 240, 47 L.R.A. 308; Commonwealth Casualty Company v. Aichner, 8 Cir., 18 F.2d 879; Lessee of Ewing v. Burnet, 11 Pet. 41, 9 L.Ed. 624, 630; Olivet v. Whitworth, 82 Md. 258, 33 A. 723, 724-725; 12.American Jurisprudence, pp. 799-800, Sec. 256, 18 C.J. p. 258, Sec. 207; Note 3 A.L.R. 1064-1068.

The absence of a comma between “Minerells” 'and “Paint Rock” does not cause ambiguity or such uncertainty in the meaning of the reservation as will permit the consideration of extrinsic evidence in construing the deed; and we may insert the comma, in order to ascertain from the words used the intention of the parties. When the comma is inserted and the erroneous spelling corrected the clause is as follows: “and the said N J and M E Johnson reserves one-half interest in all Minerals, Paint Rock, etc. found or will be found on said described tract of land”.

In our opinion it is well settled by the decisions in this state that this reservation includes oil and gas. Luse v. Boatman, Tex.Civ.App., 217 S.W. 1096, application for writ of error refused; Luse v. Parmer, Tex.Civ.App., 221 S.W. 1031, application, for writ of error refused; Elliott v. Nelson, 113 Tex. 62, 251 S.W. 501; Rio Bravo Oil Company v. McEntire, 128 Tex. 124, 95 S.W.2d 381, 96 S.W.2d 1110; Warner v. Patton, Tex.Civ.App., 19 S.W.2d 111, application for writ of error refused; Graham’s Estate v. Stewart, Tex.Civ.App., 15 S.W.2d 72, application for writ of error refused.

In Luse v. Boatman and Luse v. Parmer, supra, the deeds reserved “all the coal and mineral on and in the above-described land”. It was held that the reservation included oil and gas. The decision made in Luse v. Boatman was given express approval in Elliott v. Nelson, supra, and the opinion was adopted by the Supreme Court. In the case last referred to the court answered in the affirmative a certified question, which was whether a reservation “of all minerals”, contained in a deed executed in 1883, included within its operative effect oil and gas. It was held in Rio Bravo Oil Company v. McEntire, supra [128 Tex. 124, 95 S.W.2d 383], on the authority of Elliott v. Nelson and the other cases above cited, that a reservation, made in 1882, of “coal, mineral, stone, or any other valuable deposits” was sufficient as a matter of law to include oil and gas. We are unable to find any reasonable basis for a distinction between the reservation under consideration in the instant case and the reservations which were construed in the prior decisions above cited. Here we have a reservation of all minerals, paint rock. etc. In those cases the reservations were of “all the coal and mineral” [113 Tex. 62, -251 S.W. 504], “all minerals”, “coal, mineral, stone, or any other valuable deposits”. In some of those cases the contention was made, as here, that the parties did not contemplate that the reservation should include oil and gas, because there had been no considerable production of oil or gas in the community or in the state when the deed was made. It was held, however, that the reservation included oil and gas as a matter of law because the plain language used in the deed was broad enough to include them.

The Supreme Court of Appeals of West Virginia, in Norman v. Lewis, 100 W.Va. 429, 130 S.E. 913, held that oil and gas were reserved by a deed in which the language used is strikingly similar to that contained in the deed here under consideration. The deed, executed in 1879, reserved “all minerals, coal, iron, etc.”. Also very closely in point is a recent decision of the Kentucky Court of Appeals in Maynard v. McHenry, 271 Ky. 642, 113 S.W.2d 13. It was held that natural gas was included in a reservation of “all ‘minerals’ coal and oil privileges” because the word minerals embraced natural gas and there was nothing in the language of the deed to show that the parties contemplated something less general than all substances legally cognizable as minerals.

In our opinion the ejusdem gen-eris rule cannot be applied to exclude oil and gas from the operation of the reservation. It would have been more appropriate to the reservations contained in some of the cases above discussed than to the reservation here to be construed and in those cases it was either expressly rejected or not considered. Furthermore, the words “all minerals” precede the particular words “paint rock”, whereas the rule is generally thus stated: “General words following particular words, will not include things of a superior class”. (Our italics) Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 103, 157 S.W. 737, 739, 51 L.R.A.,N.S., 268. See also Richardson v. Nesbit, Tex.Civ.App., 204 S.W. 689, application for writ of error refused; 17 Texas Jurisprudence, p. 308, Sec. 175; 19 C.J. p. 1255; 3 Words and Phrases, First Series, p. 2328; Bouvier’s Law Dictionary, Rawle’s 3rd Revision, Vol. 1, p. 979. By the same authorities attention is directed to the fact that the rule of ejusdem generis is merely a rule of construction, an aid to interpretation when the intention is not otherwise apparent. We believe it clearly appears here, from the use of the term “all minerals” and from its position in the phrase, that the larger subject, “all minerals”, was primarily in the minds of the parties, that the words “paint rock” following “all minerals” were intended as . a partial enumeration of minerals and that “&c” was' used to denote minerals not enumerated. Norman v. Lewis, 100 W.Va. 429, 130 S.E. 913, 914.

We do not believe that the word “on”, appearing in the reservation instead of the commonly used “on, in and under”, limits the reservation to those minerals that are on the surface. The preposition “on” has a broader meaning than “on the surface of”. To say that gold or oil has been found on a tract of land may mean that it has been discovered on the surface, but usually discovery beneath the surface is meant. Oil or water is found on land when it is discovered ‘ in a well drilled or bored below the surface. For examples of instruments clearly intended to affect oil and gas or other minerals beneath the surface but using the words “on the land” see Donnell v. Otts, Tex.Civ.App., 230 S.W. 864; Way v. Venus, Tex.Civ.App., 35 S.W.2d 467; Kentucky Diamond Mining & Developing Co. v. Kentucky Transvaal Diamond Co., 141 Ky. 97, 132 S.W. 397, Ann.Cas.1912C, 417.

Appellees, in support of the contention that extrinsic evidence should be admitted to determine the intention of the parties as to what minerals should not pass to the grantee, invoke the rule that when an instrument does not by its terms plainly and clearly disclose the intention of the parties, or is phrased in language fairly susceptible of more than one interpretation, the intention is to be ascertained, not solely from the words of the instrument, but from its language when read in the light of the circumstances surrounding the transaction. We recognize that rule. It is supported by many authorities. Colquitt v. Eureka Producing Company, Tex.Com.App., 63 S.W.2d 1018; Ryan v. Kent, Tex.Com.App., 36 S.W.2d 1007; Gulf Production Company v. Spear, 125 Tex. 530, 535, 84 S.W.2d 452; 12 Am.Jur. pp. 786, 787, Sec. 248. It is plainly implied, however, from the statement of the rule that when the instrument by its terms plainly xnd clearly discloses the intention of the parties, or is phrased in language not fairly susceptible of more than one interpretation, the intention of the parties is to be ascertained by the court as a matter of law from the language used in the writing and without aid from evidence as to the attending circumstances. And the authorities so hold. Soell v. Haddon, 85 Tex. 182, 187, 19 S.W. 1087; Reynolds v. McMan Oil & Gas Company, Tex.Com.App., 11 S.W.2d 778, 781, 785; Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360; Graham’s Estate v. Stewart, Tex.Civ.App., 15 S.W.2d 72, application for writ of error refused; 12 Am.Jur. p. 787, Sec. 248, and authorities cited in Note 1. To the authorities last cited may be added the decisions above discussed which hold that a reservation of “minerals” is sufficient as a matter of law to include oil and gas, although at the time the reservation was made coal or other solid mineral had been produced in the community, or state, but oil and gas had not.

From our conclusion that the deed by its terms plainly and clearly evidences the intention of the grantors to reserve all minerals, including oil and gas, it follows that it became the duty of the court to give the deed that construction without looking to the attending circumstances for explanation.

We answer the first certified question as follows: The clause. of exception and reservation contained in the deed excepts and reserves as a matter of law a fee simple title in the grantors in and to an undivided one-half interest in all oil and gas in and under the land convéyed by the deed, and such provision is not so ambiguous, or so lacking in definiteness, that its meaning requires proof or explanation.

The second and third certified questions relate to the action of the trial court in appointing, after hearing, a receiver to take possession of the minerals in the tract'-of land, with authority to take charge of the oil wells on the land, the pumps and equipment used in producing and marketing the oil, to continue to produce and market the oil, to care for the property and to hold the proceeds arising from operation subject to the orders of the court. The material facts set out in the certificate, most of which are embodied in the second certified question, are as follows: Appellants .are the owners and lessees of an unquestioned, undivided one-half interest in the' land and mineral rights, are in exclusive possession of the land and have drilled a number of producing wells thereon, from which they have produced and sold, and are continuing to produce and sell, large quantities of oil and gas, asserting ownership of, and the right to produce and sell, all of the oil and gas. Appellants have excluded, and are excluding, appellees from possession of the land, and have denied, and are denying, the right of appellees to possession of the land or to drill thereon or to lease the' land to others or to share in the proceeds of the oil and gas produced therefrom. The substance of the second question is whether, in view of these facts, and if they have a probable right to, or interest in, the fee simple title to an undivided one-half interest in the oil and gas, appellees are entitled, as a matter of law, undef the terms of Subdivision 1 of Article 2293, Revised Civil Statutes of 1925, to have a receiver appointed for the oil and gas estate, with the authority above stated.

Article 2293, omitting Subdivisions 2 and 3, which are not relevant here, is as follows :

“Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:
“1. In an action by a vendor to vacate a fraudulent purchase of property; or by a creditor to subject .any property or fund to his claim; or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
“4. In all other cases where receivers have heretofore been appointed by the usages of the court of equity.”

This statute, enacted in 1887 and brought forward thereafter in the several codes, broadens the right to a receiver as recognized in courts of equity by expressly specifying certain cases enumerated in its Subdivisions 1 to 3 in which receivers may be appointed. The prior statute, Article 1461 of the Revised Civil Statutes of 1879, in general terms only, gave authority for the appointment of a receiver “when no other adequate remedy is given by law for, the protection and preservation of property or the rights of parties therein, pending litigation in respect thereto.”

. The instant case is one of those named in Subdivision 1 of Article 2293, the present statute, being a suit between persons jointly owning or interested in property. Subdivision 1 is not merely the statement of one ground for the appointment of a receiver to be made when justified by the usages of equity. The subdivision itself gives the standard from which the right to the relief may be ascertained in a given case without resort to rules of equity. It provides in substance that in such suit the court may appoint a receiver when two conditions exist: (1) The plaintiff or other party must be shown to have a probable right to or interest in the property or fund; (2) it must be shown that the property or fund is in danger of being lost, removed or materially injured. There is no additional condition or requirement, as for example, proof of insolvency of the defendant or that the plaintiff or other applicant for the appointment of the receiver has no other adequate remedy.

We think it clearly appears from the terms of Article 2293 that, when appointment of a receiver is sought in the character of suit specified and on the grounds stated in Subdivision 1 of that article, “allegations and proof of insolvency of defendant, inadequacy of legal remedy, or other equitable grounds, are not necessary.” Hunt v. State, Tex.Civ.App., 48 S.W.2d 466, 469. This construction has been given the statute by many decisions of the Courts of Civil Appeals. Freeman v. Pierce, Tex.Civ.App., 250 S.W. 778; Consolidated Petroleum Co. v. Austin, Tex.Civ.App., 283 S.W. 879; Richardson v. McCloskey, Tex.Civ.App., 228 S.W. 323; Temple State Bank v. Mansfield, Tex.Civ.App., 215 S.W. 154; Massey v. Greenwood, Tex.Civ.App., 56 S.W.2d 1103; Friedman Oil Corporation v. Brown, Tex.Civ.App., 50 S.W.2d 471; Zanes v. Mercantile Bank & Trust Co., Tex.Civ.App., 49 S.W.2d 922, application for writ of error refused.

In our opinion, the facts shown by the certificate of the Court of Civil Appeals brought the case within the provisions of Subdivision 1 of Article 2293, and authorized the trial court’s order appointing the receiver. The first of the two prescribed conditions existed. Appellees, the heirs of the grantors in the deed reserving the one-half interest in the minerals, had, as indicated by our answer to the first question certified, more than a probable right to or interest in an undivided one-half of the minerals, including oil and gas. The second of the two prescribed conditions also existed. . Appellants, in possession of the property and admitted owners of a one-half interest in the minerals, were asserting ownership of all of the minerals and denying appellees’ ownership of any interest therein. They had drilled oil wells on the property and had taken and disposed of, and were continuing to take and dispose of all of the oil produced, and denied, and were denying, the right of appellees to participate in developing the property or producing the oil or to have or take any part of the oil, or its proceeds, when produced. Such acts on the part of appellants rendered “precarious the interests of ap-pellees in said property and place [d] a portion of it in danger of being removed and the remainder materially injured”. Freeman v. Pierce, Tex.Civ.App., 250 S.W. 778, 782.

Mandamus requiring the certification of the questions with respect to the appointment of the receiver was granted because of conflict between the decision of the Court of Civil Appeals herein and the decision of the Court of Civil Appeals in Freeman v. Pierce, supra. See Wright v. Dunklin, 132 Tex. 188, 123 S.W.2d 301. As shown by the opinion granting the writ of mandamus, the facts in issue involved in the particular ruling in each of the two cases are materially the same. It is apparent from what has been said that we approve the decision made in Freeman v. Pierce.

We conclude that the facts alleged and proven, as set out in the certificate, show compliance by appellees with the requirements of Subdivision 1 of Article 2293, and that the trial court’s order appointing the receiver was authorized by such facts. The second certified question is answered in the affirmative.

It is shown by the third certified question that after the completion of the hearing of the application for the appointment of a receiver, and after the trial court had indicated that a receiver would be appointed, the appellants requested the court to limit the power and authority of the receiver to that of protecting and controlling the proceeds of the portion of the oil in which appellees might have an interest, less cost of operation, and offered to protect the probable -interest of appellees in such proceeds by a bond or by impounding in a bank the net proceeds to the extent of such interest. The substance of the question is whether such request and offer on the part of the appellants defeated appellees’ right to a receiver of the property or rendered the appointment of the receiver improper.

Appellees are not asserting merely an interest in the proceeds of oil and gas taken from the land. They claim, under the reservation, the title to an undivided one-half interest in all minerals in place. The appellants are denying that claim and asserting title to the entire interest in the minerals. The property in controversy, therefore, is the minerals in the land. Appellees sought the appointment of a receiver for the property, that is, the minerals in the land, as owning the property jointly with appellants. -Subdivision 1’ of Article 2293 authorizes the appointment of a receiver for the property, which in this case is the oil, gas and other minerals in the tract of land. While the extent of appellees’ asserted interest is an undivided one-half interest, the receivership was correctly made to apply to the entire interest. This is true both because the statute clearly contemplates that the .receivership extend to the entire property and because otherwise a receivership of property owned in undivided interests, or owned and claimed in undivided interests, would not be effective. See Merrell v. Moore, 47 Tex.Civ.App. 200, 104 S.W. 514, 517. It is appropriate to observe in this connection that, as has so often been said, the receiver is not appointed for the benefit of the applicant, but to receive and preserve the property for the benefit of all parties interested therein.

Restriction of the receivership to the proceeds of the oil after production and sale would not constitute compliance with the statute which, as has been said, authorizes the appointment of a receiver for the property, nor would it afford adequate and equal protection to both parties pending litigation. Appellees, if the owners of an undivided one-half interest in the oil and gas, have the same right to enter upon the land and produce and market oil and gas that appellants have. A receivership extending only to the proceeds of the oil and gas, or to a part of the proceeds, or the giving of a bond, or the impounding of such proceeds, would leave the production and marketing of the oil and gas within the control of the appellants, who are denying the asserted rights of appellees, rather than to the impartial control of a receiver acting for all interested parties.

An offer somewhat similar, to avoid the appointment of a receiver, was made in Richardson v. McCloskey, Tex.Civ.App., 228 S.W. 323. The Court of Civil Appeals, in affirming the order appointing the receiver, expressed the opinion that the offer was properly rejected by the trial court, because the appellees had shown a legal statutory right for a receiver and further .because the offer was so conditioned and limited as to deny the substantial relief ap-pellees were seeking. These same, reasons support the trial court’s action in the instant case.

In our opinion, the request and offer made by appellants, stated in the third question certified, were not sufficient to render the trial court’s order appointing the receiver improper. That question is answered in the negative.

Opinion adopted by the Supreme. Court.


author: SLATTON, Commissioner.

text:
    MARKOWSKY et al. v. NEWMAN et al.
    No. 7594.
    Supreme Court of Texas.
    Feb. 21, 1940.

      Lewright, Dyer & Sorrell, of Corpus Christi, for appellants.
    R. L. Miller, of Gonzales, amicus curiae.
    E. A. Tully, Jr., City Atty., and John J. Bell and H. W. Wallace, all of Cuero, for appellees.
   SLATTON, Commissioner.

Questions of law have been certified to this court by the Court of Civil Appeals at Galveston. The facts appear in the certificate, which we quote:

“This is an election contest case.
“The questions of law hereinafter certified arise out of the record in this cause-pending here undisposed of on appeal from the district court of DeWitt County — involve among other issues the correct construction of Article VI, Section 3a, of the State Constitution, Vernon’s Ann.St., and of Article 2955a, Vernon’s Ann.Civil Statutes, reading in part, “When an election is held by any * * .* city * £ * for the purpose of issuing bonds * * * only qualified electors who own taxable property in the State, county, political subdivision, district, city * * * or village where such election is held, and who have duly rendered the same for taxation, shall be qualified to vote * * * ’, etc.
“The election, out of which the questions hereafter certified arise, was held in the City of Cuero, on November 29, 1938. In said election the proposition was submitted to the qualified voters of said city of whether said city should issue $150,000.00 of lighting and power system revenue bonds for the purpose of constructing and installing an electric lighting and power system for said city. On the following day the canvass of the election was held by the City Council of Cuero, and as a result it was declared that the proposition for the issuance of such bonds had been carried by a majority of 85 votes. Appellants were contestants, appellees contestees, below. The case was tried without a jury, and after sustaining the challenges of appellants to the ballots cast by 61 of the persons who voted in such election, the court found that the illegal votes were not sufficient in number to have changed the result of the election, and rendered judgment on February 4, 1939, denying the relief sought by appellants.
“The questions of law hereinafter certified arise out of the court’s action in sustaining exceptions to the following allegations of appellants’ statement or pleading, and having same stricken:
“(9a) 353 persons, whose names are set forth in Exhibit A hereto attached, and hereto made a part hereof, for all purposes, were permitted to vote in said election and actually voted at said election for the issuance of said bonds and for said proposition, and which said 353 votes were actually counted by said election officials in determining the results of said election, and which said voters, at said time, were not legal and qualified voters of the city of Cuero, Texas, and were not legally authorized to vote at said election, the same being an election involving the expenditure, of public funds and being such an election as that, in order to be a qualified voter therefor, the person offering himself to vote must not only have paid his poll tax and have been a resident of the city of Cuero, but, also, must have been a property-owning resident of the city of Cuero, and must have duly rendered such property for taxation during the current year at which he offered himself to vote, and your contestants further charge and show unto the court that, in order for a person voting in said election on November 29, 1938, to have duly rendered his property for taxation, that the same must have been rendered by him to the proper official of the city of Cuero, being its tax assessor and collector, on or before April 1, 1938, and your contestants charge and show unto the court that said 3S3 voters herein referred to, did not actually render their property for taxation to the said city assessor of the city of Cuero on or before April 1, 1938, and therefore, were not lawfully qualified voters to vote in said city election on November 29, 1938.
“ ‘Contestants show unto the court that they have been informed and, upon such information, allege the fact to be that the city of Cuero has attempted to change its fiscal year so as that same commences upon April 1st of each year and terminates upon March 31st of each year, but they aver that such change of the fiscal year is the only attempted change of the fiscal year which said city has ever made and therefore, that the city authorities of said city could, by proper ordinance, fix the time of rendition of property for taxation in said city so as to have the same commence and terminate during the first three-months period of such new fiscal year and so as that- same would terminate upon June 30th of each year, but your contestants do not know whether such attempted change of rendition period has ever been made by the city or not, but they here now allege the fact to be that, in any event, said city has never attempted and, under the facts, could not attempt to change the time of rendition of property for taxation therein to any period of time past June 30th of each year, and if it should be found and determined by the court that the said city of Cuero has, lawfully, changed its fiscal year as that the same commences on April 1st of each year and terminates upon March 31st of the following year, and if it should be found and determined that the said city of Cuero has, by proper ordinance, changed the period of time, the voluntary rendition of property for taxation, as permitted by statute, from April 1st of each year to the first three-months’ period after April 1, 1938, which said three months’ period would expire June 30, 1938, then they further charge and show unto the court that none of said 353 voters herein referred to, duly rendered their property for taxation within said three months’' period of time, and that, actually, none of said 353 voters rendered his or their property for taxation to the said city of Cuero until long after June 30, 1938, and that, therefore, irrespective of said change of fiscal year and change of rendition period, if the same be found to exist, said 353 voters did not “duly render” their property for taxation, and if it should be found and determined by the court that said 353 voters’ names actually appeared upon the tax rolls of the city of Cuero as having been rendered by them, that still and nevertheless, the same improperly appeared thereon, and said 353 persons so voting for said proposition were illegally and wrongfully permitted to vote therefor, and their said votes should not have been counted and used in determining the results 'of said election, and upon the same not being counted and used in determining the proper results of said election, the results thereof would be entirely different, and said proposition would be defeated by a large majority, and said election officials wrongfully and improperly counted and used said 353 votes in canvassing and determining the results of said election.’
“The correctness of the court’s action in sustaining exceptions to the foregoing allegations, and having them stricken, is de-terminéd by the proper construction to be placed on Article VI, Section 3a, of our Constitution, and on Article 2955a, Vernon’s Ann.Civil Statutes, which, of course, employs the same language as that used in Section 3a of Article VI of the Constitution, and which we have above, in part, quoted. If, as we interpret the holding by the Honorable Court of Civil Appeals, at Fort Worth, in Texas Public Utilities Corporation v. Holland, 123 S.W.2d 1028, property has been rendered for taxation by its owner, then within the meaning of Article VI, Section 3a, of the Constitution, and of Article 2955a, even when it has been placed upon the rolls by the tax assessor, after the owner has failed for any cause to make the list, and furnish it to the assessor, such action qualifies the property owner to vote in a bond election, — that is to say, if an assessment of property for taxation by the assessor also constitutes compliance with the requirements of the Constitution and statute, as a qualification to vote in such an election, then the court’s action was correct. But this court doubts that, with reference to taxation, the word ‘render’ can he properly taken as having the same signification as the word ‘assess’. There is merit, for instance, on the part of a property owner who voluntarily renders his property for taxation, especially where it would otherwise escape its just share of the burden of taxation; there is none when the property is assessed — that is none, so far as the property owner is concerned, though no doubt the diligence of the assessor, in ferreting out and assessing property which would otherwise escape, is meritorious on the part of the assessor. As the difference in meaning, when applied to taxation, between assessment of property for taxation by an owner, and its rendition for taxation by its owner, is well known, we are unable to persuade ourselves that such language was placed in the Constitution to include the meaning that assessment for taxation of property by the assessor should qualify a property-owner to vote in the bond election, for the language is highly inept to bear such meaning. In this connection we will add, that the Honorable Court of Civil Appeals, at Fort Worth, cite, as supporting its holding, the case of Campbell, Mayor, et al. v. Wright, County Attorney’ ([Tex.] Civ.App.), 95 S.W.2d 149. It is to be doubted whether, strictly speaking, the cited case can be so taken, as the point was not before the court for a ruling.
“So interpreting the holding of the Fort Worth court in the cited case, and differing with that view of the law, this court — expressing that difference as its tentative opinion in this cause — and regarding this as a compliance with Supreme Court rule No. 15, respectfully certifies these questions :
“1. Did the court err in sustaining the exception aforesaid, and thereby holding in effect what the Honorable Forth Worth court held, namely, that assesment of property for taxation by the assessor will satisfy the legal requirement for qualification to vote in a bond election equally with the voluntary rendition of his property for taxation by a property-owner?
“2. With reference to Article 1043, Vernon’s-Ann. Civil Statutes, amended 1925, if it be found that the fiscal year of the City of Cuero runs otherwise than the calendar year — that is, commences on April 1st"of each calendar year and terminates on March 31st thereafter, what is the latest date at which property can be rendered for taxation so as to qualify the property-owner to vote in such a bond election? In ' connection. with the last,, question we should state that appellants contend that appellees induced numerous negroes and Mexicans to render personal property of small value for taxation on the eve of the election, which was long after the expiration of three months from April 1, 1938, in order to qualify them to vote, and contend such persons had no intention of paying taxes. While we assume the motive which causes a property-owner to render property for taxation is not a proper matter of inquiry, we are doubtful as to whether Article 1043 should be construed as merely directory.
“3. Is R.S. Article 1043 mandatory, or merely directory?” .

It should be noted that the court in certifying the questions of law in this cause does not sufficiently comply with Rule 15 of the rules governing procedure in the Supreme Court of Texas. Rule 15 reads as follows: “When any Court of Civil Appeals shall certify to the Supreme Court any question of law for determination,, or shall send to the Supreme Court, any cause upon certificate of dissent, either upon its own motion or that of any party, in either case the certificate shall be accompanied by the briefs filed in the Court of Civil Appeals. Also, the Court of Civil Appeals may accompany such certificate with the entire record in the case, or any part thereof that it deems advisable. The Court of Civil Appeals shall also accompany the certificate with all or any part of the record that any party to the suit may request. Except in cases of emergency, the emergency to be stated in the certificate, all cases certified to the Supreme Court under Article 1851, R.C.S., 1925, shall be accompanied by a proposed or tentative opinion of the Court of Civil Appeals, which proposed or tentative opinion shall set forth the views and tentative opinion of the Court of Civil Appeals on the questions certified. In certifying questions under Article-1852, R.C.S., 1925, the provisions of Article 1853, R.C.S., 1925, shall be fully complied with. All cases certified under Article 1855, R.C.S., 1925, shall be accompanied by the opinion of the Court.of Civil Appeals in such cases. The Clerk of the Supreme Court shall, upon receipt of the certificate and accompanying record, issue notices to the attorneys whose names appear of record in the case, of the day on which the question, or questions, as the case m'áy!be, shall be set down for submission.”

The rule was evidently promulgated to lighten the increasing burdens of the Supreme Court and to give the court the benefit of the conclusions and the reason-ings therefor of the Court of Civil Appeals. In order to accomplish the purpose of the rule the proposed or tentative opinion of the Court of Civil Appeals should be full and complete within itself, so that the Supreme Court, if it concurs therein, may adopt the same as the opinion of the Supreme Court.

On account of the importance of the questions here involved this court will not dismiss the certificate, but will do so in the future’ when the certificate is not accompanied with a proposed or a tentative opinion of the Court of Civil Appeals.

■ A consideration of the pleadings, to which the trial court sustained a special exception, demonstrates that contestants challenged the votes of electors because such electors had not rendered their property for taxes to the City of Cuero within the time prescribed by Article 1043, Vernon’s Annotated Civil Statutes, 1925. It was' averred that such electors had not “duly rendered” their property for taxation to :the City of Cuero, but that allegation is only a dogmatic conclusion. However, in the same pleading it is specifically alleged that said electors “rendered his or their property for taxation to the City of Cuero until long after June 30, 1938”. When the trial court acted upon the special exception he was required to determine the legality of a rendition of property for taxation to the1 City of Cuero made by the owner thereof after the time required by the quoted statute. He was not required to pass on the question decided by the Honorable Court of Civil Appeals at Fort Worth in the case of Texas Public Utilities Corporation v. Holland, 123 S.W.2d 1028. There the property owner had not listed his property to the city, but the same had been placed upon the tax rolls by the assessor and collector of said city or such property had been listed by an agent of the property owner: According to the pleading quoted in the certificate the challenge here made is- grounded upon the fact that the property •owner did not “duly render” “his or her property for taxation to the City of Cuero on or before April 1, 1938, and in the event the City of Cuero had changed its fiscal year to commence April 1, 1938, that such renditions were not made within the three months’ period beginning April 1, 1938, and that actually none of said 353 voters rendered his or their property for taxation to the said city of Cuero until long after June 30, 1938”.

Article 1043, as amended by the Acts of the 43rd Legislature, 3rd Called Session, p. 50, Ch. 27, Vernon’s Ann.Civ. St. art. 1043, reads as follows: “Each person, partnership and corporation owning property within the limits of the corporation shall, between January first and April first of each year, hand to the city assessor and collector a full and complete sworn inventory of the property possessed or controlled by him, her or them, within said limits on the first day of January of the current year. If the fiscal year of a municipal corporation runs otherwise than the calendar year, such corporation may by ordinance require said inventory to be made as of the first day of such fiscal year, in which case the inventory shall be handed to the city assessor and collector within the first three months of the fiscal year.”

The purpose of the statute is to require all property within the limits of the municipality on the first day of January of the current year to be inventoried to the city assessor and collector so that said property shall bear its share of the expenses of the city government. This statute and other applicable statutes providing for the rendition, assessment and collection of taxes by a city such as the City of Cuero do not evidence an intent on the part of the legislature that the “time of rendition” provided in the above-quoted statute is mandatory. The general rule to be applied to the instant statute may be stated as follows : “Where a statute directs the (Joing of a thing in a certain time without any negative words restraining the doing of it afterwards, the provision as to time is usually directory”.

Or, as stated in 39 Texas Jurisprudence, Section 16, page 38, “a statute authorizing or commanding an act to be performed or a thing to be done, a provision as to time is usually regarded as directory; that is, it does not necessarily follow that a thing which a statute directs to be done at a particular time may not be done afterwards. Nor is it implied that an act for which a statute affirmatively provides will be effectual if it is done at a different time than that prescribed”.

It must be noted that the statute quoted does not restrain the doing of the things required by it after the time provided therein. In the case of Federal Crude Oil Company v. Yount-Lee Oil Company, 122 Tex. 21, 52 S.W.2d 56, 61, this court adopted the following from Mr. Sutherland’s work on Statutory Construction, Section 611, page 1114: “Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if that which is done accomplishes the substantial purpose of the statute”.

It certainly cannot be said that a rendition made in the manner alleged would not be a legal rendition, and the property so rendered and the owner thereof did not become liable for taxes levied on such rendition.

Under Article 6, Section 3 of the Constitution of Texas, it was held that a person otherwise qualified to vote who owned property was a taxpayer and qualified to vote in elections to determine expenditure of money or assumption of debt (in an election like this) even though his property did not appear on the tax rolls. Neither was it necessary that the property tax was actually paid. Kempen et al. v. Bruns, Tex.Civ.App., 195 S.W. 643; Hillsman v. Faison, 23 Tex.Civ.App. 398, 57 S.W. 920. It is a matter of common knowledge that many persons were allowed to vote in elections such as this without having any property on the tax rolls and in fact without paying any taxes to the municipality at all. In order to cure this evil and perhaps to further guarantee an honest election, the amendment quoted was adopted by the people of this state. In construing that amendment the language used therein must be presumed to have been carefully selected and the words used are to be interpreted as the people generally understood them. Another rule of construction is generally, it may be said, that in determining the meaning, intent and purpose of a constitutional provision the history of the times out of which it grew and to which it may be rationally supposed to have direct relationship, the evils intended to be remedied and the good to be accomplished, are proper subjects of inquiry. Travelers’ Insurance Company v. Marshall, 124 Tex. 45, 76 S.W.2d 1007, 96 A.L.R. 802.

Applying the rule stated to the amendment, we must ascertain the meaning intended by the people in the use of the term “duly rendered”. We learn from Webster’s dictionary that the word “duly” means “in due, fit or becoming manner, properly, regularly, sufficiently, timely; or orderly”. And from the same authority it is said that the word “render” means “to give an account, to explain or confess, to surrender”. So, then, it may be safely said that the term in its ordinarily accepted meaning as used in the amendment simply means only qualified electors who own taxable property * * * who have in due, fit and becoming manner given an account o- surrendered the same for taxation. It might be further safely said that the good sought to be accomplished by this amendment was to induce owners of property to place it upon the tax rolls and become liable for its pro rata share of the taxes levied and assessed by the municipality. Applying this construction to the constitutional amendment and the construction placed upon our taxation statutes, it cannot be said that the electors described in the pleadings quoted were not qualified electors within the purview of the amendment.

It is argued by the contestants that the legislature in the enactment and amendment of Article 1043 by using the word “shall” in the statute intended that all requirements thereof were mandatory. It may be conceded that the legislature intended by the statute to require all property situated within the municipality to be inventoried to the city for the purpose of taxation, but the failure of the legislature to restrain by express words the inventory of property after the time fixed in the statute indicates to our minds that the time provided therein was not mandatory but directory. This conclusion necessarily follows when we consider that if property is inventoried after the time specified in the statute to the city and the city authorities accept the same, no injury could possibly accrue to the property owner or the city because of the belated time of such rendition. Moreover, it would be of great benefit to the taxing authorities to have such rendition of personal property, particularly where such property cannot be easily found by the city authorities. It follows, then, that the trial court did. not err in sustaining the special exception urged by the contestants to such pleading.

The first question, after omitting the immaterial portion certified by the Court of Civil Appeals, is “Did the court err in sustaining the exception aforesaid?” to which we answer in the negative.

”[9] With reference to the second question certified by the Court of Civil Appeals, it is apparent that the court did not certify sufficient facts upon which a question of law might be predicated. We are therefore without authority to answer the same.

With reference to the third question, “Is R.S. Article 1043.mandatory, or merely directory?” we answer in accordance with our. conclusions above expressed that the Article 1043 with reference to time of rendition of property is directory. It must be understood that our answer to the third question is limited to the time element of the statute, because the facts of this certificate have only placed that question before us.

Opinion adopted by the Supreme Court.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    COOPER v. STATE.
    No. 20678.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    Rehearing Denied Feb. 21, 1940.
    Carlisle & Henry, of Kaufman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by complaint and information with the unlawful sale of intoxicating liquor in a dry area, and his punishment assessed at confinement in the county jail for a period of thirty days.

The major portions of appellant’s bills of exceptions concern themselves with an effort to have the court instruct the jury relative to the law of accompliceship in that it is claimed that the witness John Reese, whom the State contended purchased a bottle of whisky from the appellant,, was an accomplice.

The purchase of intoxicating liquor where a sale thereof is unlawful is not a violation of the law and the purchaser is not an accomplice, and the jury may convict upon his uncorroborated testimony. Robertson v. State, 77 Tex.Cr.R. 410, 178 S.W. 1191, and authorities there cited; also see Art. 666—23a, Vernon’s Ann.P.C.

Appellant also contends that the State should have alleged and proven the successive steps bringing about the dry status of the county. The information alleged such facts, and proper proof was made thereof.

Bill of. exceptions No. S is in question and answer form, and there is no certificate of the trial judge showing the necessity for the same to be thus drawn. We therefore are unable to consider the same.

Other bills of exceptions claim misconduct on the part of the jury. They are qualified, however, by the court, and as qualified and shown by the testimony of the jurors, if the things complained of occurred it was after the verdict had been reached and agreed upon, and we can see no reason for disturbing such verdict.

It also appears in some of the bills of exceptions that there was a typographical error made in the spelling of some of the words in the information, such as the word “alcohilic” and the word “decalring”. However immediately after the word “al-cohilic” we find the allegation “containing alcohol in excess of four per cent by weight,” and the word “decalring” is but a transposition of the letters a and 1. It is plain from the context what the typist meant, and we see no error of importance therein.

We find no error in the record, after having considered all the bills of exceptions, and the judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant insists that his bill of exception No. 5 should be considered notwithstanding it is in question and answer form. If the bill should be considered it is observed that it is concerned with the impeachment of a witness for appellant who was questioned upon his cross-examination relative to having been convicted on a charge of possessing intoxicating liquor for the purpose of sale. There is nothing in the bill of exception to show that the witness gave testimony material to appellant’s defense. If the question propounded to him by the district attorney was improper, in the absence of a showing that the witness gave material testimony in behalf of appellant, we would not be warranted in holding the error reversible. McMurray v. State, 119 Tex.Cr. R. 446, 45 S.W.2d 606, 607. In Widener v. State, 109 Tex.Cr.R. 423, 5 S.W.2d 138, 139, we said: “By bills of exception Nos. 1 and 2, ■ appellant complains of the misconduct of the county attorney in improperly impeaching one of his witnesses. While appellant’s bills show that the method of impeachment was improper, they contain no statement of facts showing the materiality of the testimony of the impeached witness. We do not know from said bills what testimony the witness gave. If his testimony was immaterial, his improper impeachment would not have been harmful to appellant. Miller v. State, 67 Tex.Cr.R. 654, 150 S.W. 635; Holmes v. State, 68 Tex.Cr.R. 17, 150 S.W. 926. The bills of exception being insufficient in the respect mentioned, reversible error is not made to appear.” See also Ewing v. State, 120 Tex.Cr.R. 137, 49 S.W.2d 450.

We disclaim any intention of holding that the bill of exception was improperly dealt with in the original opinion herein.

The motion for rehearing is overruled.

PER CURIAM.

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