author: TIREY, Justice.

text:
    COLEMAN v. WRIGHT et al.
    No. 2227.
    Court of Civil Appeals of Texas. Waco.
    Jan. 25, 1940.

      Bishop & Parsons, of Athens, and J. S. Simkins, of Corsicana, for appellant.
    Richard & A. P. Mays and C. L. Mil-burn, all of Corsicana, for appellees.
   TIREY, Justice.

This is an appeal from an order granting a temporary injunction after notice and hearing by the judge of the District Court of Navarro County. The parties will be designated as in the lower court. Plaintiff described his tract of land by metes and bounds, and alleged that it was his homeátead and was used for homestead purposes, and further alleged that Gertie Wilson and others owned jointly a tract of 138 acres situated and lying between the lands of plaintiff and defendant Coleman. Plaintiff then complained as follows:

“That C. H. Coleman by and through' Cox Brothers, contractors of Corsicana, Navarro county, Texas, are at this time digging, widening, deepening and lengthening certain ditches, levees or canals located on the land of the Colemans and Cains to such an extent as to divert the natural flow of the surface water of the adjacent territory from its natural channel and to carry and convey the said surface waters of the .adjacent territory over and on plaintiff’s land, washing said plaintiff’s land and damaging plaintiff’s land to a considerable extent. That defendants have no right or easement to divert the natural flow of said surface water over and on the land of plaintiff, and although plaintiff has requested and directed defendants to desist from same, the defendants, without right, and contrary to law, still continue to prosecute the same.
“That plaintiff has no means by which to stop said diversion of the natural flow of the surface water upon and over his land and if defendants are allowed to continue the digging, deepening, widening or lengthening of said ditches, levees or canals his land will become valueless and he and his wife will be unable to use same for the purposes of a homestead or to earn their livelihood therefrom.
“That there is now a suit pending in this court against defendant C. H. Coleman and others for damages arising out of the diversion of the natural flow of the surface waters as aforesaid and unless defendants are restrained they will do plaintiff irreparable injury during the pendency and determination of said cause, for which there is no adequate remedy at law."

Plaintiff’s prayer for relief followed his pleadings and, among other things, asked that “said injunction be made permanent pending determination of said damage, suit”, and for general relief and costs of suit.

The defendants urged general demurrer and various special exceptions to plaintiff’s bill for injunction. Said exceptions, among other things, charged that the allegations in the petition were conclusions only and that no facts were alleged supporting said conclusions and showing how or in what manner the acts complained of could wash the land in question or damage same. We quote in full one of the special exceptions urged: “This defendant says that said petition alleges that the land belonging to the Colemans and Cains, and on which C. 'H. Coleman is digging, widening, and lengthening certain ditches, levees and canals is not contiguous to plaintiff’s land, but that a tract of 138 acres of land is situated between the lands of plaintiff and that belonging to the Colemans and Cains, and no facts are alleged showing how or in what way or manner such digging, widening or lengthening can adversely affect or cause damage to plaintiff’s land, and of this he prays judgment of the court."

Upon hearing of the petition, the court overruled the general demurrer and each of the special exceptions thereto and granted a temporary injunction to the plaintiff as prayed for whereby the defendants “are hereby enjoined and restrained from diverting the natural flow of the surface waters of the adjacent territory and from further prosecuting the digging, widening, deepening or lengthening of said ditches, levees or canals on the said lands of plaintiff or defendant, or any land in the watershed of Battle Creek north or west of plaintiff’s land, pending the termination of said damage suit alleged in plaintiff’s petition, and from doing any act tending to divert the same, or in any manner damaging or injuring plaintiff’s land, crops or tenements so owned, occupied and possessed by him until the final termination of this suit.”

There is no statement of facts. The action of the trial court in overruling- the general demurrer and special exceptions to the plaintiffs petition is assigned as error.

This court, in Elder v. Highsmith, Tex.Civ.App., 10 S.W.2d 736 and Plough, Inc. v. Moore, Tex.Civ.App., 56 S.W.2d 681, 682, stated very clearly the rule for the trial courts in passing upon the sufficiency of petition for injunction. The court said: “The petition should allege all, and negative all, which is necessary to establish the right to the injunction. In Gillis v. Rosenheimer, 64 Tex. [243] 246, our Supreme Court said: ‘The rule of pleading, that the statements' of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other sup-posable facts connected with the subject, thus be entitled to relief.’

In Bluitt v. Pearson, 117 Tex. 467, 7 S.W.2d 524, 526, the Commission of Appeals said:

“That a mere legal conclusion of the pleader will not stand as against a general demurrer is well settled by the decisions of our Supreme Court. * * *
“A court is not at liberty to read into a pleading which merely states a conclusion of law, the facts necessary to raise the issue to support such conclusion.”

Again in the case of Kampmann v. Stappenbeck, Tex.Civ.App., 45 S.W.2d 761, 762, writ dismissed, the court stated the rule as applicable to injunctions as follows: “The bill for equitable relief cannot be based upon broad conclusions or indefinite assertions as to sustaining irreparable injury and as to having no adequate remedy at law, but facts showing these matters must be clearly and fully pleaded so that the chancellor and not the pleader can draw the conclusions. Not only should affirmative facts be pleaded, but the bill should negative all probable matters that might prevent relief. * * * No presumption can be indulged in regard to the allegations, but their sufficiency must be judged in the light of the allegations rigorously construed.”

Tested by the above rules, (and in view of the discussion of Article 7589a of our Revised Statutes by the Commission of Appeals in the case of Johnson v. McMahon, 118 Tex. 633, 15 S.W.2d 1023 and of our Supreme Court in Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451 and Internationa-Great Northern R. Co. v. Reagan, 121 Tex. 233, 49 S.W. 2d 414) we have determined that the plaintiff’s bill for injunction is insufficient and' that the trial court erred in its failure to sustain general demurrer and special exceptions thereto.

The order granting the temporary injunction will be here reversed and the application therefor is remanded to the trial court.


source: Caselaw Access Project

author: SHARP, Justice.

license: Public Domain

text:
    NIXON et al. v. HIRSCHI.
    No. 7280.
    Supreme Court of Texas.
    Feb. 14, 1940.
    John M. Martin and Mathis & Caldwell, all of Wichita Falls, for plaintiffs in error.
    T. R. Boone, Kearby Peery, E. T. Duff, and E. L. Fulton, all of Wichita Falls, for defendant in error.
   SHARP, Justice.

Mrs. Rose Lisle Nixon and her husband brought suit in the District Court of Wichita County against John Hirschi, to remove cloud cast upon the title of a certain improved lot of land, and to prevent the foreclosure of a deed of trust executed by plaintiffs in favor of John Hirschi, to secure a sum of money loaned by him to plaintiffs. Based upon certain answers of the jury, the trial court entered judgment in favor of John Herschi for the sum of $317, advanced by him in the payment of taxes assessed against the property, but denied John Her-schi all other relief. The Court of Civil Appeals at Fort Worth reversed the judgment of the trial court, and rendered judgment for John Herschi. 103 S.W.2d 833, 834. For a detailed statement of the facts involved in this case, we refer to the opinion of the Court of Civil Appeals. For convenience, we will designate the parties here as plaintiffs and defendant, as they were designated in the trial court.

The pleadings and evidence raised certain issues, which were submitted to the jury. Judge Brown, in writing the opinion for the Court of Civil Appeals, clearly states the findings of the jury, as follows: “The jury found, among other things, that, when the first loan was made and the deed of trust executed to said loan association, Rose Lisle Nixon and her then husband, S. H. Howell, were actually occupying the premises in controversy, and further-that it was their homestead, and .similar findings were made with, respect to the time when the second loan was made and the second deed of trust executed. The jury specifically found that at the time appellee Rose Lisle Nixon secured the loan from appellant, Flirschi, she represented to him that the $1,500 loan held by the loan association was a valid lien against the property in question. The jury further found that, at the time the loan was closed with appellant, said appellee did not request appellant to pay the said loan association the indebtedness due it, and further that neither said appel-lee nor her former husband, by acts or words, requested appellant to take up such loan. The jury further found that said ap-pellee and her then husband never intended to establish as a homestead the Tarter-Clark property, or the property referred to in their deed of trust to appellant as their homestead. The jury further found that a reasonably prudent person, situated as appellant, would not have believed that either of the properties designated as a homestead by appellee and her then husband actually constituted such homestead; and further that appellant did not believe that said ap-pellee’s homestead was in the Tarter-Clark subdivision in September, 1928; and further found that appellee and her then husband did not intend to deceive appellant at the time they made the. declaration that their homestead was at a different place from the property on which the loan was made; and further found that appellant would have advanced the money to take up the loan association’s debt if he had not believed appellee's homestead was in the Tarter-Clark subdivision.”

Counsel for defendant by their admissions reduced the decision of this cause to one question. They did not plead a subrogation to the lien held by the Standard Savings & Loan Association for the sum of $1,500 borrowed by plaintiffs from that company, nor did they claim a lien for the $1,000 advanced by the defendant. The sole question for decision here is whether or not the plaintiffs are estopped from asserting their homestead rights in the property involved, to the extent of $1,500 advanced by Hirschi to the Standard Savings & Loan Association, by reason of the. false and fraudulent representations made by them with respect to such loan.

Section 50 of Article 16 of the Constitution, Vernon’s Ann. St., specifically provides': “No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbe-fore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void.”

In the case of National Bond & Mortgage Corporation v. Davis et al., Tex.Com.App., 60 S.W.2d 429, 434, it was said: “The courts of this state zealously guard homestead rights guaranteed under the Constitution and laws and will not permit those rights to be invaded by others seeking to establish invalid claims or liens against the property claimed as a homestead, but in upholding the provisions of the Constitution and the laws the courts have also kept in mind that it was never intended by the framers of the Constitution that the homestead law should be used to defeat the rights of an innocent third party, who, in good faith, without notice, for a valuable consideration, has acquired valid liens against the property.”

The burden rested on defendant to allege and prove that plaintiffs were es-topped to assert their homestead rights as against his claim for the $1,500 paid to the Standard Savings & Loan Association. The jury found that plaintiffs were actually occupying the premises in controversy, and that it was their homestead, when the loan was made by the defendant and the deed of trust was executed in his favor by the plaintiffs.

Many issues touching the various phases of this case were submitted to the jury, and answers made thereto. The substance of such findings is stated above. If the evidence raised the issue that the plaintiffs made fraudulent representations to the defendant, in order to induce him to pay off the $1,500 note held by the Standard Savings & Loan Association, the duty rested on defendant to have that precise issue submitted to the jury. This record shows that such issue was not submitted; nor was there a request made for the submission of same. Under the state of this record, we presume that the trial court, in the light of the findings of the jury, found such issue in such way.as to support the judgment rendered. Wichita Falls & Oklahoma Ry. Co. v. Pepper, Tex. Sup., 135 S.W.2d 79.

Therefore the judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    TEXAS MUT. LIFE INS. ASS’N v. TOLBERT.
    No. 7086.
    Supreme Court of Texas.
    Feb. 14, 1940.

      Richey, Sheehy & Teeling, of Waco, for plaintiff in error.
    Robert L. Holliday, of El Paso, and Henry T. Moore, of Los Angeles, Cal., for defendant in error.
   PER CURIAM.

This case was submitted to and decided by Section A of the Commission of Appeals, in an opinion by Judge German reported in 116 S.W.2d 1060. On motion for rehearing the cause was withdrawn from the Commission of Appeals and the judgment of reversal and rendition set aside and submitted to the nine-judge Court. A reconsideration of the questions of law involved convinces us that the opinion written by Judge German correctly states the rules of law applicable to the facts of this case. Therefore, that opinion is readopted by the Court. The opinion is as follows:

“On or about October 21, 1929, William Thomas Tolbert was issued a certificate of insurance by the Texas Mutual Life Insurance Association in the sum of $5,000. This certificate provided for the payment of certain annual dues, and for an assessment in the sum of $5.50 payable upon the death of any member. Tolbert remained in good standing until February 21, 1933. On that date an assessment of $5.50 was made because of the death of a member and due notice was given. On February 23, 1933, Tolbert mailed check of Tolbert Commission Company in the sum of $5.50 to the Association. Tolbert lived at El Paso, Texas, and the general office of the Association was at Waco, Texas. The check was received at Waco in due course, credit given upon the books of the Company for same, and was returned in due course to the bank at El Paso, Texas, for collection. Apparently it was presented 'for collection on March 1, 1933, and when presented there were not sufficient funds to the credit of the Tolbert Commission Company to pay same. It was thereupon marked ‘insufficient funds.’ Sometime during that .day a deposit was made in the bank by the Tolbert Commission Company sufficient to have paid the check, but it was not paid by the bank. Beginning with March 2, which was a holiday, and continuing some ten days due to the National moratorium, the bank was closed. Apparently about March 12, the check was returned by the bank to the Association at Waco unpaid, bearing the notation ‘insufficient funds.’ On March 14, 1933, the Association wrote Tolbert as follows:
“ ‘Your check in amount of $5.50 drawn on the El Paso National Bank, El Paso, Texas, signed “Tolbert Com. Co., by W. T. Tolbert,” has been returned to us with the notation “insufficient funds.” This check was sent in payment of assessment due by you.
“ ‘Won’t you kindly let us have remittance in the sum of $5.50 covering this returned item, in order that we may consider placing this amount to your credit, as your policy is not in benefit at this time? Self addressed envelope is for your convenience.’
“On receipt of the letter Tolbert procured postoffice money order for $5.50 and immediately sent same to the Association. On March 17, 1933, the Association addressed the following letter to Tolbert:
“ ‘We wish to. acknowledge receipt of your Money Order in the amount of $5.50 sent to cover returned check. In view of the fact that the grace period of the assessment has expired it will be necessary that you execute the attached application for reinstatement and return to this office for our consideration. Self addressed envelope is for your convenience.’
“Tolbert was then in bad health and never executed application for reinstatement. A few days later, the Association returned the check and also the money order, notifying Tolbert that the Association considered his certificate forfeited. Thereupon Tolbert wrote the Association that he considered his certificate in good standing, and no further assessments were made or paid. Tolbert died April 20, 1934, and this suit followed. Mrs. Hannah C. Tolbert, surviving wife of William Thomas Tolbert, who was named as beneficiary in the certificate, was plaintiff and will be so designated here. Judgment in the trial court was for plaintiff for the full amount of the certificate, and this judgment was affirmed by the Court of Civil Appeals. 91 S.W.2d 900.
“Among the pertinent provisions of the certificate are the following:
“ ‘This insurance is granted in consideration of the application herefor, a copy of which is attached hereto and which is made a part of this contract, and of the payment of each assessment which shall be levied by the directors of the Texas Mutual Life Insurance Association upon the death of a member hereof, as follows: $5.50 upon the death of any member in this class within ten days from the date of notice of such death, and one assessment per year as annual dues of $5.50 to be paid on or before the 1st day of October each year.
“ ‘It is further agreed that failure to pay any assessment so levied within ten days from date of notice or to pay said annual dues shall forfeit all claims as a member of the Texas Mutual Life Insurance Association.
“ ‘Assessment notices are posted to the last known address of the policyholder; however, failure to receive such noticesi does not relieve the policyholder of liability for payment of any assessment due. Remittances for assessments due should be sent in time to reach the Home Office of the Association by the tenth day after notices have been mailed, for, unless actually received by the' tenth day after notices have been mailed, this policy shall automatically lapse and all benefits hereunder shall be forfeited until reinstatement of this policy has been approved by the Association.
“‘This policy may be reinstated by the insured furnishing the Association evidences of good health, satisfactory to the Association within ninety (90) days after it has lapsed and the payment of all past due assessments.
“ ‘The obligations assumed by the members of this Association shall be several and separate as to each member and not the joint obligation of all. * * *
“‘This policy is subject to all the bylaws of the Association now in force or that may hereafter be enacted.’
“Among the pertinent provisions of the by-laws of the Association are the following:
“ ‘A certificate of membership to become effective and be binding is conditioned upon the payment in full of the application fee having been actually received by said Association and upon the payment having been actually completed of subsequent assessments as may be levied by the officers of the Association on such certificates. Completion of payment of the membership fee or of any subsequent assessment shall be conditioned upo'n cmy check or instrument, tendered to cover such payment, being paid in accordance with its tenor and a bona fide remittance made to cover such payment. (Emphasis ours.)
“ ‘Failure on the part of any member of any class' of this Association to pay any assessment within ten days from date of notice thereof, or failure to pay Annual Dues or the Special Benefit Assessments when same are due or failure to have completed payment of application fee in full, shall act as a complete forfeiture of all the rights of any member of said Association to any claim against said Association and said certificate issued to said member by the Association shall become null and void and of no effect.
“ ‘Upon the rights of any member of said Association being forfeited in the manner and under the conditions as above set forth, said member shall have the right to apply for reinstatement in said Association under the following conditions, to-wit: such reinstatement application may be considered by the Association upon the payment of the sum of Five Dollars and Fifty Cents ($5.50) or the amount of one assessment called for in his former certificate, provided however the officers! of said Association may, at their option, require as a condition precedent to the reinstatement of any1 lapsed member that such lapsed member pay all assessments that have accrued in said class during the period in which said member’s certificate was lapsed. The officers may further require at their option any lapsed member to sign a new application for membership in said Association and if such application is accepted may issue a new certificate to such member. The acceptance of any application for reinstatement shall be entirely optional with the officers of the Association in any event. Reinstatement of any member who has lapsed shall not be complete and the policy shall not be in force until written notice of reinstatement has been actually received into the manual possession of the applicant while alive and in good health, and unless written notice of such reinstatement is actually so received by applicant while alive and in good health said policy shall be void and of no force and effect.’

“Although it is undisputed that the assessment of February 21, 1933, was not paid within the grace period of ten days, and by the express terms of the contract the certificate became 'forfeited at the end of such period, nevertheless plaintiff (defendant in error) contends that there was no forfeiture for two reasons. ⅛ the first place it is contended that the crediting of the check upon the books of the Association constituted an unconditional payment of the assessment, notwithstanding it was later returned by the bank unpaid. This precise question was determined contrary to plaintiff’s contention in the recent case of Texas Mutual Life Insurance Ass’n v. Smartt [131 Tex. 227], 114, S.W.2d 528. In that case the same Association and the identical policy were involved that are involved here, and almost exactly the same method of procedure •yvas followed as was followed in this case.

“It .is next contended by plaintiff ■that-the right to claim forfeiture by reason ..of'the failure to pay the assessment within the ten day period was waived by the Association; and the Court of Civil Appeals so. held. The basis of such contention is ■that the Association had on several previous occasions credited assessments as ■paid' when the remittance to pay checks had not reached the office of the Association until after the expiration of the grace •period,.and on perhaps two occasions the checks had been returned unpaid, but the ■Association had accepted payment made in some other manner after the grace period.. The situation here manifestly shows no intention to waive, but on the contrary shows that the ipso facto forfeiture provided for was. fully recognized, and also shows an attempt to strictly and literally follow the plain provisions of the certificate and by-laws.

“It is obvious that for convenience in the transaction of business the Association had made provision for conditional payments of assessments by checks. According, however, to the plain language of the by-laws as well as universal custom, the checks were to be accepted only conditionally and the burden rested upon the member not only to see that the check was honored when presented, but that 'bona fide remittance be made to cover such payment.’"As'directly pertinent to this method of transacting business by mutual assessment insurance companies we deem it appropriate to quote the following language of the court from the case of Martin v.¡ Illinois Bankers Life Assurance Company, Mo.App., 91 S.W.2d 646,. in which the facts were very similar to the facts of the present case (page 649) :

“ ‘Plaintiff argues that the company, by taking the check for collection, held off the lapsing of the policy while the check was being sent through banking channels for the purpose of its collection, and that having thus expressed its willingness and intention to accept the belated premium payment by check and not having treated the policy as lapsed or forfeited at or prior to the time of the death of the insured, the company could not thereafter claim a forfeiture of the policy as of a time prior to the death of the insured upon the theory that the check was not paid by the drawee bank upon its presentment to the bank for payment.
“ ‘The fallacy of plaintiff’s argument is that it presupposes that the necessary consequence of the company’s conditional receipt was to keep the policy in benefit whether the check given for the last premium was paid or not, whereas its obligation was instead to waive a forfeiture only in the event the check was actually paid upon presentment. Upon the expiration of the allotted grace period, the company would have had the undoubted right to have declared a forfeiture of the policy for the nonpayment of the premium during such period, and by its acceptance of the insured’s check after the expiration of such period and its issuance of its conditional receipt therefor the company is obviously to be held to have waived such rights as were voluntarily relinquished by it in so doing. However its waiver extended no further than the measure of the right waived, which was the right to claim a lapsing of the policy in the event the check should be paid upon presentment, and having never agreed or consented to continue the life of the policy in the event the check was not paid upon presentment, we see no basis for plaintiff’s claim of waiver when the admitted fact is that the check was not paid.
“ ‘It is a universal rule of law that in the absence of an agreement to the contrary, the delivery of a check to the creditor and his acceptance of it is not payment of the debt or obligation until the check has itself been paid, and that when the check is not paid, it may not be said to have constituted payment of the debt or obligation for which it was given. Moreover, this rule extends as well to transactions falling within the purview of insurance law, which contemplates that insurance premiums are ordinarily to be paid in cash, and that in the absence of a different intention or agreement, the giving of a check therefor will not operate as payment. Gibson v. Texas Prudential Insurance Co. [229 Mo.App. 867], 86 S.W.2d 400.’ (Emphasis ours)

“It will be observed that in the letter of March 14, 1933, the Association, instead of holding in reserve the right to declare the forfeiture if remittance was not made to pay the dishonored check, expressly stated ‘your policy is not in benefit at this time.’ This was merely declaring what the contract had expressly provided. The request for remittance to take up the dishonored check is not to be considered as a waiver, because it is clearly stated that if the amount is paid, the Association will then ‘consider’ placing the .amount to the member’s credit; meaning, obviously, that this was to be done if Tol-bert made application for reinstatement as was provided by requirement of the bylaws. It will be observed from the provision last quoted from the by-laws that the application for reinstatement would not he ‘considered’ until after remittance of the $5.50. This is forcefully emphasized by the letter of March 17, 1933, acknowledging receipt of the money order and stating that "it will be necessary that you execute the attached application for reinstatement and return to this office for our consideration.’ Under the certificate and by-laws, which constituted the contract between the several members of the Association as well as between the Association and its members, the Association had no other alternative in the matter. Manifestly there could be no waiver by a strict compliance with the ■certificate and by-laws.

“The failure of the bank to return the dishonored check on March 1, and its negligence, if any, in returning same marked ‘insufficient funds,’ after deposit had been made sufficient to pay same, cannot aid plaintiff, so far as the Association is concerned. The bank was not its agent in these matters. The contract expressly provides that ‘remittances for assessments ■due should be sent in time to reach the home office of the Association by the tenth •day after notices have been mailed, for, unless actually received by the tenth day .after notices have been mailed,' this policy •shall automatically lapse and all benefits hereunder shall be forfeited, until reinstatement of this policy has been approved by the Association.’ This rigid requirement was to some extent relinquished by the conditional acceptance of checks, subject of course to their actual payment, as above indicated.

“As the policy was by its express terms forfeited, and Tolbert made no effort to be reinstated according' to its provisions, the Association was not liable.”

, W.e shall notice further contention's made by the defendant in. error, both in her motion for rehearing and at. submission. It is insisted that the rule announced in the case of Texas Mutual Life Insurance Association v. Smartt, 131 Tex. 227, 114 S.W.2d 528, supra, is not applicable to the present case.because the .certificate here involy.ed. was delivered before the .enactment of the bylaw providing “Completion of payment of the Membership fee or of any subsequent assessment shall be conditioned upon any check or instrument, tendered to cover such payment, being paid in accordance with its tenor and a bona fide remittance made to cover s.uch payment.” Hence', such bylaw was not binding on the insured, absent notice of the enactment theréqf. The certificate in suit at the time of its delivery was 'by express agreement “subject to all the bylaws of the association now in force or that may hereafter be enacted”. Thüs the insured agreed to be hound by any legal bylaw thereafter enacted by the association. This is true regardless of notice to the insured of the enactment of such bylaw. Eversberg v. Supreme Tent Knights of Maccabees of the World, 33 Tex.Civ.App, 549, 77 S.W. 246, writ refused, especially so when the bylaw, as in this case, does not offend against any rule of law nor impair vested rights.

It is insisted that the association, by its acceptance of payments of assessments after the ten-day grace period had elapsed without invoking the ipso facto forfeiture provision of the certificate, is estopped to urge such forfeiture at the time the last assessment became delinquent and that the association had established a custom of accepting belated payments of assessments to the extent of showing a clear intention on the part of the association to waive such forfeiture provision of the contract. The alleged facts upon which both theories are predicated ate that during the life of the' certificate the holdef-'of ' the certificate had paid by check and the association had received such checks, nineteen of which were .belated payments out of a total of some fifty assessments due and paid. To be able to say that nineteen of the assessments were paid after the ten-day grace period had elapsed, the time of payment must be calculated from the date of notice of the assessment to the time when the insured’s check was actually paid at his bank in El Paso, Texas. The correct calculation should be, we think, computed from the date of notice of the assessment to the time of the delivery of the check to the association, for in such “transactions, where a check is received as conditional payment, the payijient becomes absolute, and relates to the date of the delivery of the check, when its recipient actually cashes it”. Hooker v. Burr, 137 Cal. 663, 70 P. 778, 780, 99 Am.St.Rep. 17; 21 R.C.L. p. 70, Sec. 69.

Applying the rule stated to the checks passing between the insured and the association, it cannot be said that the association accepted belated payments more than two or three times, and of course such action would not create an estoppel against the association to invoke the plain forfeiture provisions of the certificate and bylaws. Nor can it be said that the holder of the certificate was by such conduct on the part of the association led to believe that the association would not insist on the forfeiture provisions of the certificate.

■ It follows, therefore, that the judgments of the Court of Civil Appeals and of the district court should be reversed and judgment is here rendered in favor of plaintiff in error at the costs of defendant in error.


author: CRITZ, Justice.

text:
    SOUTHERN UNDERWRITERS v. GALLAGHER.
    No. 7440.
    Supreme Court of Texas.
    Feb. 14, 1940.

      Battaile, Burr & Holliday, of Houston, for plaintiff in error.
    Scarborough & Ely, Davis Scarborough, and Edmund C. Yates, all of Abilene, for defendant in error.
   CRITZ, Justice.

This is a workman’s compensation suit. It is founded on Section 19 of Article 8306, R.C.S.1925, as amended, Vernon’s Ann. Civ. St. Art. 8306, § 19. Such statute is generally referred to as the extraterritorial provision of our Workmen’s Compensation Statutes.

Gallagher was injured about March 10, 1936, in the State of New Mexico, while in the course of his employment as an employee of Liberty Oil & Drilling Company, Inc. Southern Underwriters was the employer’s Texas compensation insurance carrier at the time Gallagher was injured. Gallagher contends that, at the time of his injury, he was a Texas employee of the above-named employer within the meaning of the above-mentioned statute. Southern Underwriters contends to the contrary. Simply stated, Southern Underwriters contends that the evidence in this record shows indisputably that, at the time Gallagher was injured, he did not occupy the status of a Texas employee of Liberty Oil & Drilling Company, Inc., within the meaning of the above-mentioned statute.

The case was tried in the district court with the aid of a jury. Based on the answers of the jury to certain special issues submitted to them, the trial court entered judgment'for Gallagher, and against Southern Underwriters. Southern Underwriters appealed to the Court of Civil Appeals at Eastland. On final hearing in the Court of Civil Appeals, that court reversed the judgment of the trial court, and remanded the case for a new trial. 116 S.W.2d 450. The opinion of the majority of the Court of Civil Appeals is by Associate Justice Gris-som, concurred in by Chief Justice Leslie. Associate Justice Funderburk dissented in part. Both parties applied to this court for writs of error, and both writs were granted.

The dissenting opinion holds that the evidence in this record shows indisputably that Gallagher, at the time he was injured, did not occupy the status of a Texas employee of Liberty Oil & Drilling Company, Inc. We agree with such holding, but we are not in accord with all the reasons given therefor.

We will first dispose of the application for writ of error filed by Southern Underwriters. Southern Underwriters contends that the Court of Civil Appeals should have rendered judgment in its favor after reversing the judgment of the trial court, because the evidence in this record shows indisputably that at the time Gallagher was injured he did not occupy the status of a Tekas employee of Liberty Oil & Drilling Company, Inc., sent incidentally or temporarily out of the State of Texas to perform labor or services. In this connéction, it is shown that Gallagher was injured while working for the company just named in the State of New Mexico.

The statute, Section 19 of Article 8306, supra, involved in this case, so far as pertinent here, reads as follows:

“Sec. 19. (Sec. 1) If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas, except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the Association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred.”

In the case of Texas Employers’ Insurance Ass’n v. Volek, Tex.Com.App., 69 S.W.2d 33, 35, Section A of the Commission construed the above statute, and held: “A careful reading of the above statute shows that it has effect to extend the provisions of our Workmen’s Compensation Law to any employee ‘who has been hired in this State,’ even ‘though injured out of the State of Texas,’ if such injury be received within one year from the date he leaves the state. It will be noted that the statute only purports to cover ‘an employee who has been hired in this State.’ This clause certainly does not have reference to the place where the hiring was originally made. The primary purpose of our Compensation Law is to protect our own workmen. The purpose of the extraterritorial provision is to protect, Under our law, employees who are such in this state under some contract of hiring, and who are incidentally or temporarily sent out of this state to perform labor or services.”

In the very recent case of Fidelity & Casualty Company of New York v. McLaughlin, Tex.Sup., 135 S.W.2d 955 (not yet published [in State reports]), we expressly approved and reaffirmed the holding in the Volek case, supra. We quote the following from the opinion in the McLaughlin case: “We will adhere to the construction of the above-quoted statute as announced in the Volek case, supra. Our compensation statutes were enacted primarily to protect Texas workmen and employees. The extraterritorial ' provisions thereof were enacted to protect Texas, workmen or employees — that is, workmen or employees who occupy such status in-Texas under some contract of hiring, who are incidentally or temporarily sent out of this State by their employers to perform labor or services.”

Under the plain provisions of Section 19 of Article 8306, supra, as interpreted and construed in the two cases, above mentioned,) before an employee • injured outside the territorial limits of this state can recover for such injury under our compensation statutes, he must prove that, at the time of such injury, he occupied the status of a Texas employee incidentally or temporarily sent out of the state to perform labor or services. The phrase, “who has been hired in this State,” has no reference to the place where the contract of hiring took place. The test is: What was the status of the employee at the time of injury with regard to being a Texas employee? If, at such time, he occupied the status of a Texas employee, he is entitled to protection under our Compensation Statutes, even though he was working out of the state. On the other hand, if the employee is hired or contracted with in this state to go out of this state to perform labor or services, he cannot claim protection under our Compensation Law merely because the contract was made or entered into in this state. Also, if a person is hired to work in this state,. —that is, if, under the contract of hiring, such person becomes a Texas employee in the sense that it is contemplated that his services are to be rendered in this state, such employee is protected by our Compensation Law, even though he is first sent incidentally or temporarily out of the state to perform labor or services, and the mere fact that such employee performs his first services out of this state will not defeat his right to-protection under our compensation statutes.. In any event, before the statute under consideration can be applied in favor of an employee injured out of this state, it must be-shown that he occupied the status of a Texas employee before leaving the state. Also, it must be further shown that while occupying such status he was incidentally or temporarily sent out of the state by the Texas employer to perform labor or services for such employer.

We come now to test the right of Gallagher to claim the protection of our compensation statutes under the above rules of law.

It is undisputed that Gallagher was injured in the course of his employment as an employee of Liberty Oil & Drilling Company, Inc., hereinafter called the Drilling Company; that such injury occurred less than a year from the date that Gallagher left the State of Texas; and that Southern Underwriters was, at the time of injury, the Texas compensation insurance carrier for the Drilling Company, and liable to pay compensation to Gallagher if he was, at the time of injury, protected as a Texas employee under the Texas Compensation Law. The one question to decide under the application for the writ of error filed by Southern Underwriters isrwhether the evidence in this record shows, as a matter of law, that, at the time of his injury, Gallagher did not occupy the status of a Texas employee of the Drilling Company. Southern Underwriters contends that the record so shows. The majority opinion of the Court of Civil Appeals holds that, as presented by the record, the matter under discussion presented a fact issue for the jury to make a finding on. Such opinion contains a full statement of all the evidence bearing on the question. Such evidence is contained in the testimony of Gallagher himself, quoted in “Q. & A.” in the opinion. We refer to such opinion for a full statement of such evidence. In order, however, that this opinion be complete within itself, we make the following statement:

Gallagher was sworn as a witness in his own behalf, and on the question under discussion testified, in substance, as follows: That he first talked to the officers or agents of the Drilling Company at Kermit, in Winkler County, Texas; that Kermit is about twelve miles from the New Mexico line; that at the time he first talked to the above-mentioned officers they were going to drill a well in Texas near Pecos; that he spoke to such officers about going over there on the Pecos job, and they said when they got ready to start that job they would send him (Gallagher) over there; that he did not go to work on the well near Pecos in Texas, and never did any work for the Drilling Company in Texas; that the well was started in New Mexico, and he was told by the officials of the Drilling Company to go over there, and when the Drilling Company got ready to rig up, he (Gallagher) would be transferred back to Texas; that the officers of the Drilling Company told him (Gallagher) that he would-be sent to the deep test in Pecos County, Texas, which well was another job; that he (Gallagher) said he would rather work in Texas than in New Mexico for the reason he lived in Texas with his family; that the officers of the Drilling Company told him (Gallagher) to go over there (we presume meaning New Mexico), we carry Texas compensation insurance, and that he (Gallagher) then took the job and went to work on the well in New Mexico; that he (Gallagher) did not go to work in Texas; and that he was injured before the Texas job got started.

Gallagher further testified: That he started to work for the Drilling Company on the well at Jal, New Mexico; that he began working on March 1, 1936; that he talked to the officer of the Drilling Company the day before he started to work; that such conversation took place at Kermit, Texas; that on that occasion it was agreed his wages would be $8 per day; that this conversation took place on the last day of February; that he (Gallagher) was told to report for work at Jal, New Mexico, the next morning; and that he did report for work at such place at the time directed.

Gallagher further testified: That during the time he worked for the Drilling Company at Jal, New Mexico, he lived, or stayed, at Kermit, Texas; that he would spend the night at Kermit; that he was injured on March 10, 1936, at Jal, New Mexico; that at the times here involved the Drilling Company had tools and drilling rigs running in Texas; and that the work the Drilling Company was doing at Jal, New Mexico, was similar to work the company was then doing in Texas.

Gallagher further testified: That he first talked to the officer of the Drilling Company at the home of such officer at Kermit, Texas; that at such time such officer said he would employ him at the first opening the Drilling Company had; that such officer told him (Gallagher) he had a job for him; that he should report for duty the next morning at Jal, New Mexico; that such officer then said the Drilling Company was figuring on starting a deep test in Pecos County, Texas, and would transfer him (Gallagher) to that job when the work started; that such officer then said that they only wanted him (Gallagher) to stay in New Mexico until they started the test in Pecos County, and would then transfer him (Gallagher) back there; that he (Gallagher) told such officer it was a long drive from Kermit, Texas, to the work at Jal, New Mexico, and that he (Gallagher) was living at Kermit; that the Drilling Company officer then told him (Gallagher) to go to the New Mexico job the next morning; that at such time they talked about other jobs; that he (Gallagher) then said he would go to the job in New Mexico; that the officer of the Drilling Company then said that as soon as the well in Pecos County was started, they would transfer him (Gallagher) to that job; that he (Gallagher) told such officer of the Drilling Company that he would appreciate being transferred to the Pecos job because he wanted to work in Texas.

Gallagher further testified: That he asked the officer of the Drilling Company if such company was covered with compensation insurance, and such officer stated his company had a Texas policy for its men working in New Mexico, and he (Gallagher) told such officer that was agreeable; that in connection with this talk about compensation insurance, the Drilling Company officer said that the company carried Texas compensation insurance on the men the company hired in Texas, and New Mexico compensation insurance on the men the company hired in New Mexico.

It is undisputed that Gallagher never did any character of work and never performed any character of services for the Drilling Company in Texas prior to the time he went to work for such company in New Mexico. He therefore cannot be said to have been a Texas employee of the Drilling Company, simply laid off for a time, on the occasion when he was sent out of the state to work at Jal, New Mexico. It follows that he cannot be classed as a Texas employee under facts similar to those involved in the Volek case, supra. As shown above, the contract under which Gallagher performed labor in New Mexico was made in Texas, but the place where the contract was made and entered into is not the determining factor in deciding a case like this. Texas Employers’ Insurance Ass’n v. Volek, supra.

From what has been said above, it is evident that if it can be said Gallagher occupied the status of a Texas employee of the Drilling Company temporarily or incidentally performing labor or services for such company in New Mexico at the time of his injury in such state, it must be upon the theory that his testimony will justify a fact finding that, at the time he (Gallagher) went to work in New Mexico, he and the Drilling Company had already entered into a contract'by the terms of which he (Gallagher) became a Texas employee, in the sense that his services were to be performed in Texas, and thereafter he (Gallagher) was sent temporarily or incidentally to New Mexico to perform labor or services for the Drilling Company.' We are unable to. find any evidence in Gallagher’s testimony that would justify such a conclusion. In fact, such evidence absolutely refutes the same. Gallagher’s testimony is to the absolute legal effect that he and the Drilling Company simply made a contract in Texas by the terms of which Gallagher was to go to New Mexico and there perform labor or services for the Drilling Company. It is true that the employer told Gallagher that when a certain job was started in Texas, he would be transferred thereto, butpsuch statement did not constitute him a Texas employee under any of the rules above announced. At most, it was a mere promise to make him a Texas employee at some time in the future.~J

Gallagher seems, to lay great stress on what was said about the New Mexico employees of the Drilling Company being covered by compensation insurance under the Texas law. In the first place, the matter as to what employees working in New Mexico were covered by the Texas Compensation Law must be governed by the law. The Drilling Company could not extend the law to New Mexico by simply telling the-employee that it had done so. The legal status of the employee determines the matter. ] If the employee is protected, it is by reas'on of the fact that at the time of injury he occupies the status of a Texas employee, temporarily or incidentally sent out of the state by his employer to perform labor or services'.^' Finally, when we carefully examine the testimony as to what was said about the employees of the Drilling Company who were working in New Mexico being covered by compensation insurance under Texas' laws, it is clear that thejoffi-cer of the Drilling Company merely expressed the erroneous opinion of law that the employees working in New Mexico were protected under Texas compensation insurance, because the contracts under which said employees went to work were made in Texas. ;

We have given the questions above discussed unusual consideration because of their importance to Texas workmen, employers, and compensation insurance carriers. We are fully aware of the rule that our Workmen’s Compensation Law should he liberally construed in favor of Texas employees. In spite of this rule, we cannot bring ourselves to the conclusion that it is the intent or purpose of such law to extend its protection to an employee injured in a foreign state, where the undisputed facts show that such employee never, in any sense, occupied the status of a Texas employee prior to leaving the state.

Our rulings above make it unnecessary for us to discuss any of the questions of law raised by Gallagher’s application for writ' of error.

It appears from this record that the facts regarding Gallagher’s status as an employee of the Drilling Company have been fully developed. Therefore, no purpose can be served by a remand of this cause for a new trial.

The judgments of the Court of Civil Appeals and the district court are both reversed, and judgment here rendered for Southern Underwriters.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    Ex parte ERNEST.
    No. 20680.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    Rehearing Denied Feb. 21, 1940.

      Cantey, Hanger, McMahon, McKnight & Johnson, R. K. Hanger, and J. A. Gooch, all of Fort Worth, for appellant.
    Cole, Patterson & Cole, of Houston, and Terrell, Davis, Hall & Clemens, of San Antonio, amicus curiae.
    Paul Petty, of Ballinger, for respondent.
    L. L. Geren and L. W. Shepperd, both of Groesbeck, for the city of Groesbeck.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

On August 9, 1939, relator Fay Ernest presented to this Court his original application for a writ of habeas corpus charging that he was illegally restrained of his liberty by the Marshall of the City of ' Winters, under and by virtue of a warrant issued out of the Corporation Court of said city by the Secretary thereof, based upon a complaint charging him with having unlawfully sold and delivered bread manufactured for human consumption which was prepared and baked in a bakery located in Fort Worth, Texas, the owner and operator of which had not obtained from the health officer of the City of Winters a permit or license to sell or deliver its bread within the limits of said city as provided by ordinance. The writ was granted by this Court, as prayed for, and the hearing set for October 4. The ordinance is attacked by the relator on many grounds, among them being that it is unconstitutional under the 14th amendment of the Federal Constitution, U.S.C.A., and under Sections 3 and 19 of Art. 1 of our Texas Constitution, Vernon’s Ann.St. We do not deem it necessary to decide the case on Constitutional grounds, inasmuch as it is our opinion that the ordinance is invalid because the city had no power, under any Legislative grant, to pass such an ordinance. In order to more clearly reflect the basis of our decision, we deem it proper to set out the pertinent sections of said ordinance. The caption thereof reads as follows : “An Ordinance regulating the manufacture, handling, storage, sale and distribution of bread and other bakery products intended for human consumption within the corporate limits of Winters, Texas, prescribing sanitary and health regulations for such products and the handling of same; prescribing license, permit and inspection fees for bakeries within and without the city limits; providing that where part of the ordinance is held to be unconstitutional it shall not affect other parts; prescribing penalties for violations; and declaring an emergency.”

Section 8 of said ordinance provides as follows: “For the purpose of carrying into effect the provisions of the ordinance, the City Health Officer of the City of Winters shall be charged with the responsibility for and authorized to carry out and enforce the provisions of this ordinance, and the City Health Officer, with the approval of the governing body, is hereby authorized to appoint an inspector to assist the Health Officer in the enforcement of this ordinance, acting under the supervision and direction of the City Health Officer. Any person, firm, or corporation or association who shall sell, offer for sale or deliver within the City limits of the City of Winters, any bread, pies or doughnuts intended for human consumption, prepared or manufactured by such person, firm, corporation, or association shall first make application on forms prescribed by the Health Officer of the City of Winters, for authority to engage in the business of selling, offering for sale and delivery of such products. Immediately upon the filing of such application with the Health Officer, the Health Officer, or inspector provided for in this ordinance shall inspect the plant or bakery wherein such products are prepared and manufactured for sale, and if said Health Officer, or inspector finds that said plant and bakery is equipped and operated in compliance with the requirements of this ordinance, he shall approve said application and grant a permit upon the payment of a permit, license and inspection fee of $12.50 for a bakery located within the corporate limits of the City of Winters and for a bakery outside said limits the fee shall be determined as follows: To the above mentioned fee of $12.50 for bakeries within the City limits, add $2.40 for each mile of distance such bakery is located from the City of Winters, the distance being measured along the most direct designated highway leading to such bakery. If said Health Officer or inspector shall find that said plant or bakery is not equipped or operated in compliance with the provisions of this ordinance he shall refuse to grant such permit until such plant and bakery is equipped and operated in accordance herein provided for; shall inspect all bakeries holding permits of the City of Winters, not less than once each month.”

From the ordinance it appears that no matter how far outside the corporate limits of Winters the plant of the company desiring to sell bread within said city is located, the inspection by the Health Officer of the City of Winters is still authorized and demanded as a prerequisite to the sale of bread, etc., within its limits. In the case of bread baked in Fort Worth, located 175 miles from Winters, the fee or license amounts to $432.50. Sec. 9 of said ordinance makes it unlawful to sell any bread, pies or doughnuts in Winters unless the permit has been obtained in conformity with Section 8. Sec. 11 of said ordinance provides a penalty up to one hundred dollars for a violation of the same and declares that a violation constitutes a misdemeanor. The preceding sections of the ordinance contain practically the same provisions as Art. 719, P.C., and a reference to that article without setting it out at length is deemed sufficient.

The appellant was charged with having sold bread, delivered in the City of Winters and manufactured by Mrs. Baird’s Bakery, Inc., located in Fort Worth. This plant seems to be an up to date one which meets all the requirements of Arts. 705 and 719, P.C., relating to health and sanitation measures. It is not charged in the complaint that relator sold or delivered any unwholesome or contaminated bread; hence the presumption obtains that the bread was suitable for human consumption. Nor is it charged that the bakery in Fort Worth was not operated in compliance with Arts. 705 and 719, P.C., supra. Consequently, in our opinion, the only question involved is whether the City of Winters, by ordinance, can require the bakeries located in the City of Fort Worth and elsewhere to pay to the authorities of Winters the sum of $2.40 per mile. The health officer of the City of Winters, or any other agency of said municipality, not having a legal right to inspect the bakeries located in Fort Worth would not legally be entitled to compensation for such services. To permit the 'health officer of the City of Winters to invade the City of Fort Worth and to inspect the bakeries located therein and require the bakeries to pay to the City Health Officer of Winters the sum of $2.40 per mile provided for in said ordinance as a prerequisite to the privilege of selling their products in said city, would be an assumption of authority and the exercise of extraterritorial powers not delegated to it by any Constitutional or Legislative grant. The power of municipalities is concisely stated in 28 Cyc., p. 266, as follows: “As a general rule a municipal corporation’s powers cease at municipal boundaries and cannot, without plain manifestation of legislative intention, be exercised beyond its limits.”

See also City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829, in which the court uses the following language with respect to this matter: “The jurisdiction or power exercised by a municipal corporation is and must be confined to the territory of its situs (except where authorized for purely local purposes), to its inhabitants, and to its corporate entity, and cannot be divorced therefrom either in fact, thought, or law.”

Municipal ordinances are, therefore, necessarily local in their application, operating usually only in the territory of the municipality in which they are enacted and without force beyond it. Each incorporated city is a political subdivision of the state, and operates under and by virtue of authority conferred upon it by the Constitu7 tion and the Legislature. The City of Winters is incorporated under the general -laws of the State of Texas and has no special charter. Each such city has only such powers as are expressly given it, and those which may be necessarily implied therefrom. Its jurisdiction is ordinarily limited to its boundaries unless the Legislature expressly grants it extra-territorial powers. Each municipality such as the City of Winters stands upon the same footing and has the same legal authority and all have the same legal right to make necessary rules and regulations relative to health, sanitary conditions, etc. This being true, we do not think one municipality may invade the province of another and require its citizens to permit an invasion of their factories by a health officer of another city, and to require the bakery to pay an inspection fee to such health officer as a prerequisite to its right to dispose of its products in said city, a failure on the part of the bakery to comply with such ordinance subjecting the operator of the bakery or one acting for it subject to criminal prosecution and a fine. Should this be approved as within its charter powers, the result would be that bakeries located in one city, although complying strictly with the sanitary laws provided by the state and its own municipality, would be confined in the disposition of their products to their territorial limits unless they complied with the regulations aforesaid of any other city in which they desired to do business. In addition they would be required to pay a fee prescribed by the other city, the amount thereof depending upon the distance of said city from their plant. Under what authority the City of Winters may legally extract from the bakeries located outside of its city the fee prescribed in the ordinance is, we must confess, unknown to us, nor are we cited to any. The effect of such a provision is nothing more nor less than to establish a tariff wall by confining bakeries, in their commercial activity to the limits of their own municipality which appears to us to be in restraint of trade. See Kosciusko v. Slomberg, 1891, 68 Miss. 469, 9 So. 297, 12 L.R.A. 528, 24 Am.St.Rep. 281. To establish and approve such doctrines would give to the bakeries of the City of Winters the exclusive right and privilege to supply the needs of its inhabitants with bread. If this doctrine can be sustained with reference to bread then it would seem that it can be sustained as to all food, including fruit and groceries. It might be that many dealers at wholesale located in the larger cities would welcome such holding by the courts, as it would give them the exclusive right to do business within the confines of their respective cities. It is obvious that the City of Winters by the ordinance in question, is attempting to exercise extra-territorial jurisdiction over bakeries located outside of its territory when the Legislature has neither expressly nor impliedly granted any such power or authority. However we do not wish to be understood as holding that the manufacturer of bread could not be punished under an ordinance of the City of Winters for selling unwholesome bakery products within said city. It is true that under subsection 19 of Art. 1175, R. C. S., the Legislature saw fit to grant extra-territorial powers to municipalities with respect to health, etc. Yet it limited such extraterritorial powers to dairies and slaughterhouses — making no mention of bakeries. Consequently the Legislature confined and limited the grant of such authority and the courts would not be authorized by judicial construction to extend it to include bakeries. Moreover, we do not think that the Legislature intended for this section to authorize one city to extend its functions and authority into another city. At any rate, these sections appear to relate only to Home Rule Cities. Art. 1015, R. C. S., relating to cities such as Winters, nowhere grants the cities power to exercise extraterritorial powers with reference to bread or any other commodity which extend into the confines of another city.

Art. 4414, R. C. S., Vernon's Ann.Civ.St. art. 4414a, provides for the state board of health; Art. 4418a prescribes the duties of this board; Art. 4423 provides for the appointment of a county health officer, and Art. 4425 provides for the appointment of a city health officer. Art. 4430 prescribes the duties of a city health officer, and Art. 4427 provides the duties of a county health officer. We cannot believe that the Legislature, in enacting these provisions and providing for these officers, intended that their duties should overlap. That the legal authority of one county health officer or one city health officer should be so construed as to allow him jurisdiction over another county or city. Such seems manifest from the wording of the statutes and any other interpretation would tend to create confusion and lead to friction. To authorize or permit the City of Winters to extend its authority of inspection to within the limits of the City of Fort Worth would be an encroachment by the City of Winters upon like powers of the City of Fort Worth and make its powers subordinate and subservient to the powers of the City of Fort Worth. We are cited by the City of Winters to the decision by the Court of Civil Appeals for the Tenth Supreme Judicial District of Texas in the case of the Jones Fine Bread Company, et al. v. City of Grosbeck, et al., in support of the contention that in such case a similar ordinance as the one here in question was construed and upheld. We are informed that upon motion for rehearing the Court of Civil Appeals certified the question to the Supreme Court of Texas, where it is still pending.

We note, however, that the Court of Civil Appeals held that the city had the legal authority, under Art. 1015, R. C. S., “to regulate the inspection of beef, pork, flour, meal, salt and other provisions * * * to regulate the weight and quality of bread to be sold or used within the city * * * to authorize the proper officer of the city to grant and issue licenses,” etc. It appears that the decision in that case is based upon the general broad powers of regulation in the confines of its territorial limits without giving consideration to the principle that the power and authority of one city ends where the other begins. There is no question in our minds as to the authority of the city to pass such an ordinance and enforce it as it applies to that particular city, but we do not think that it can be seriously contended that one, city can legally authorize its city health officer to invade the province of a sister city, make inspection of its bakeries, dairies, etc. and require the bakeries to pay the city health officer the inspection fee specified in the present ordinance. It seems to us that such procedure is contrary to the spirit and object of our form of government and the státutes above referred to. There is no doubt of the legal authority of the City of Winters to inspebt food products when they enter its borders and punish those for bringing contaminated bread into the city. However, the powers of city health officers and their qualifications are assumed to be equal. Their integrity in the absence of any showing to the contrary must be assumed to be above reproach. Consequently when the bakeries of the City of Fort Worth are inspected by the city health officer thereof and have issued to them a clear bill of health, what useful purpose could be served by an inspection of their bakery by the health officer of the City of Winters ?

In the case of the City of Rockford v. Hey, 366 Ill. 526, 9 N.E.2d 317, it appears that the City of Rockford enacted an ordinance prohibiting the sale of ice cream for human consumption within said city which was made or manufactured by anyone in another city without first having its factory inspected by the health officer of the City of Rockford and a permit or license obtained from him. The ordinance in question here is very similar to the one in question in that case. The Court, among other things, held that the City of Rockford had no such extra-territorial powers as would permit its officers to invade the territorial dominion of other municipal corporations. See also Root v. Mizell, 95 Fla. 979, 117. So. 380-in which the Supreme Court of Florida also held that a municipal corporation could not inspect dairies beyond the corporate limits of the city without legislative authority, and require non-resident dairymen to pay an inspection fee of $25 per month or $300 per annum. We do not deem it necessary to cite any other authorities in support of the opinions -herein expressed because viewing it as an elementary legal proposition, it appears to us to be predicated upon a firm foundation.

Having reached the conclusion that the ordinance in question, insofar as it authorized the city health officer of Winters to,enter the domain of another city to inspect bakeries therein located and require the operator thereof to pay an inspection fee of $2.40 per mile as a prerequisite to sell its bread in said city, is void, it is therefore ordered that the relator be, and he is, discharged.

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.

On Respondent’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully considering respondent’s motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

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.


author: HICKMAN, Commissioner.

text:
    GENERAL MISSIONARY SOC. OF GERMAN BAPTIST CHURCHES OF NORTH AMERICA v. REAL ESTATE LAND TITLE & TRUST CO.
    No. 2287-7433.
    Commission of Appeals of Texas, Section A.
    Feb. 14, 1940.

      Weldon O. Calhoun and Davis & Davis, all of Denton, for plaintiff in error.
    George M. Hopkins, of Denton, for defendant in error.
   HICKMAN, Commissioner.

Defendant in error was plaintiff and plaintiff in error was defendant in the trial court. They will carry the same designations in this opinion. The suit was upon installments 3, 4 and 5 of a paving certificate -issued by the City of Denton, and for a foreclosure of the assessment lien upon certain real estate belonging to defendant. Defendant pleaded limitation as a defense to installment 3. The trial court sustained the plea and denied plaintiff any recovery upon that installment. Upon appeal by plaintiff the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 115 S.W.2d 466.

Admittedly, the plea of limitation was good, unless defeated by the matters pleaded by plaintiff in its supplemental petition. In that petition plaintiff declared upon certain letters therein set out, some of which were signed “William Kuhn, General Secretary,” and others were signed “Phillip Potzner.” It was alleged that Kuhn and Potzner were agents of defendant, that by and through such letters defendant acknowledged the justness of the installment sued on and promised to pay same, and that it was therefore estopped to plead limitation and had waived its right so'to do.

A question is raised as to the sufficiency of the language employed in these letters to acknowledge the justness of the indebtedness, but we do not find it necessary to consider that question. We are assuming its sufficiency for that purpose and are basing our decision of the limitation question upon another ground as hereinafter reflected.

In answer to plaintiff’s supplemental petition defendant filed its verified plea of non est factum, in which plea it was alleged that the letters pleaded in the supplemental petition were not executed by the defendant or under its authority. A further verified plea was interposed, in which it was alleged specifically that neither Kuhn nor Potzner had been given any authority to bind the defendant by a promise to pay this indebtedness, and that, if such promise was made, same was not binding upon it.

The case was tried before .the court without the aid of a jury. The judgment specifically recited that the court found that installment No. 3 was barred by the' statute of limitation, duly pleaded by the defendant.

The effect of the plea of non est factum was to cast upon the plaintiff the burden of proving that the letters relied upon to save the 6ase from the bar of the statute of limitation were executed by a duly authorized agent of the defendant. Revised Statutes, Article 3734. Robertson v. Du Bose, 76 Tex. 1, 13 S.W. 300; Galveston-Houston Interurban Land Co. v. Dow, Tex.Civ.App., 193 S.W. 353, error refused; 17 Tex.Jur. 693, § 295; 33 Tex. Jur. 625, § 174.

In support of its claim that it discharged that burden plaintiff invokes the reply letter rule of evidence, which was well expressed in Hartford Fire Insurance Co. v. Ollinger & Bruce Dry Dock Co., 16 Ala.App. 302, 77 So. 452, 453, in this language: “The receipt of a letter answering a letter addressed to another, and signed by one purporting to be the agent of the person addressed, raises the presumption both of genuineness of the signature and of the authority of the writer to bind the person addressed.” That rule is recognized in this jurisdiction. St. Louis Southwestern R. Co. of Texas v. McIntyre, 36 Tex.Civ.App. 399, 82 S.W. 346; 17 Tex.Jur. 747, § 324. But the difficulty in plaintiff’s position lies in the fact that the record does not contain sufficient evidence to bring this case within the rule. Some of the letters relied upon were signed “William Kuhn, General Secretary,” and others were signed “Phillip Potzner.” Plaintiff introduced copies of only two letters written by his counsel. One of these was dated February 12, 1935, and addressed to “Mr. William Kuhn, post office Box 6, Forest Park, Illinois,” and the other was dated February 4, 1935, and addressed to “Rev. Phillip Potzner, 2012 North Fitzhugh, Dallas, Texas.” Plaintiff’s cause of action, if any it had, was based on the new promise, and not upon the original certificate. York v. Hughes, Tex.Com.App., 286 S.W. 165; White v. Stewart, Tex.Civ.App., 19 S.W.2d 795, error refused; Cannon v. Stanley, Tex.Civ.App., 100 S.W.2d 377; 29 Tex.Jur. p. 270, § 174.

If defendant is to be held liable on these letters, it must have authorized them. Piad a letter been sent to it at its address, which apparently was 7346 Madison Street, Forest Park, Illinois, and in reply thereto the letters relied upon had been received it could be justly presumed that the defendant authorized them; this for the reason that when a letter is sent to a corporation and a reply is received thereto, it is to be presumed that the matter followed the regular channels-through the office, and that the person or persons having the power to do so designated the one signing the reply letter to handle the matter and gave him the authority to bind it by the statements made in his reply. There is no ground for such a presumption when it is not shown that the corporation was called upon to make a .designation. Obviously, a plaintiff must offer positive evidence aliunde bringing his case within the rule, for the rule itself, being but a presumption, cannot be built upon a presumption.

In this state of the record, it cannot be held that the trial court erred in sustaining the plea of limitation. From this it follows that, in our opinion, the Court of Civil Appeals erred in reversing the trial court’s judgment on that ground.

The plaintiff (defendant in error here) prosecuted no writ of error to this court. It, therefore, présents to us no question for decision; but, since we have determined that the judgment of the Court of Civil Appeals cannot stand on the ground upon which it was based, we have inspected the briefs in that court for the purpose of determining whether we would be authorized to affirm its judgment upon some other ground. We have the authority to affirm that judgment, and it is our duty to do so, if it may be done upon a consideration of the brief filed by plaintiff in that court. Cox v. Humble Oil & Refining Co., Tex.Com.App., 16 S.W.2d 285; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123; Independent Eastern Torpedo Co. v. Herrington, 128 Tex. 17, 95 S.W.2d 377.

We have inspected the brief filed by plaintiff in that court and, after considering the assignments therein contained, have concluded that none of them can be sustained. There is one assignment brought forward in that brief of which we will make mention. It presents the contention that the court erred in concluding that defendant tendered a sufficient amount to pay all of the principal and accrued interest on installments 4 and 5. An inspection of the record indicates that the court probably erred to the extent of $4.60 in calculating such interest. The plaintiff did not call the attention of the trial court to this error by a motion for a new trial. Had it done so we must presume that that court would have corrected the error. It is a well established principle that appellate courts will not reverse an otherwise errorless judgment because of slight mistakes of calculation when the trial court is given no opportunity, in a motion for new trial, to correct such error. Wills Point Bank v. Bates, 72 Tex. 137, 10 S.W. 348; Orange Rice Mill Co. v. Noguess, Tex.Civ.App., 264 S.W. 117, writ refused; Martin v. Lee County State Bank, Tex.Civ.App., 265 S.W. 1057, writ refused; Hartford Fire Insurance Co. v. Owens, Tex.Civ.App., 272 S.W. 611, writ refused. Annotation 44 A.L.R. p. 175 et seq.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    GREAT NAT. LIFE INS. CO. v. HULME.
    No. 2290-7442.
    Commission of Appeals of Texas, Section A.
    Feb. 14, 1940.

      Webster Atwell, of Dallas, for plaintiff in error.
    Ray Winder, of Gainesville, for defendant in error.
   HARVEY, Commissioner.

This suit was brought by the defendant in error, J. A. Hulme, against the plaintiff in error, the Great National Life Insurance Company. Hulme seeks to recover the amount called for by a life insurance policy, which was issued to his wife in her lifetime, by the said Insurance Company. Hulme is named as beneficiary in the policy. The company defends on the ground, among others, that said policy never became effective as a contract of insurance. The case was tried before a jury on special issues, which resulted in a judgment in favor of the Insurance Company. From this judgment, Hulme appealed and the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for him. 116 S.W. 2d 459. The Insurance Company has been granted the writ of error.

The controlling question is whether or not the policy sued on ever became effective as an insurance contract. The material facts are undisputed. They are substantially as follows:

Jack Bell was the soliciting agent for said Life Insurance Company, but had no authority to make an insurance contract or any other sort of contract. In 'May, 1935, he took the application of Mrs. Hulme for insurance on her life. Among questions contained in the application which were to be propounded to Mrs. Hulme was one inquiring if she had heart trouble. Printed in -the application was the following stipulation, among others: “That the insurance hereby applied for shall not take effect until a written or, printed policy shall have been manually delivered to and accepted by me while I am in good health * *

Bell, the soliciting agent, read to Mrs. Hulme the questions contained in the application and wrote in the answers. To the question inquiring whether she had ■ heart trouble, Mrs. Hulme in effect answered “yes.” Bell, however, did not write said answer in the application but, without the knowledge of Mrs. Hulme, wrote “No” as the answer. After he completed the filling in of the answers, Mrs. Hulme signed the application without reading it, and therefore did not know that Bell had written a false answer to the question respecting heart trouble. The application was forwarded to the Insurance Company by Bell. A short time later, the policy was issued, with the application attached to it as a part of it, and was sent to Bell to be delivered. He delivered the policy and collected the required premium. At the time the policy was delivered by Bell, Mrs. Hulme was afflicted with heart trouble which was a serious menace to the prolongation of her life. This heart trouble caused her death about five months later. Mrs. Hulme never read the policy and her husband did not read it until after she died. Sometime after the policy was delivered, but before Mrs. Hulme died, the company learned for the first time, that Mrs. Hulme was afflicted with heart trouble when she made the application for insurance and at the time the policy was delivered. Upon learning this, the company promptly repudiated all liability under the policy, tendered' back the premiums which had been paid, and did not accept any premium after that.

It is to be observed that the application for insurance, which has become a part of the policy sued on, contains a stipulation to the effect that the policy was not to take effect as an insurance contract unless the insured was in good health at the time the policy was delivered.

It is well settled that such a stipulation is valid and prevents the policy from becoming effective as an insurance contract, if the insured, at the time the policy is delivered, is afflicted with á disease or infirmity which increases the risk under the policy. American Nat. Ins. Co. v. Lawson, Tex.Com.App., 127 S.W.2d 294, and cases cited there. The fact is established that at the time this policy was delivered Mrs. Hulme, the insured, was afflicted with heart trouble which constituted such a disease as this stipulation contemplates. For this reason, the policy never became effective as an insurance contract.

It is true that Bell, the soliciting agent, in reducing to writing the answers made by the insured to the questions propounded to her, was acting as 'the agent of the Insurance Company, and therefore the company would not be permitted to say that a false answer which Bell wrote in the application, without the insured’s consent, constitutes a misrepresentation made by the insured which avoids the policy. The doctrine upon which this rule rests presupposes that the policy involved has become effective as an insurance contract according to its terms. It can never be employed as a means to charge an insurance company with liability under a policy without the company’s consent. Etna Ins. Co. v. Brannon, 99 Tex. 391, 89 S.W. 1057, 2 L.R.A., N.S., 548, 13 Ann.Cas. 1020. Bell had no authority from the company to make an insurance contract, and therefore no agreement made by him, or fraud perpetrated by him, or knowledge possessed by him, can be given effect to modify the good-health stipulation contained in the policy. Indianapolis Life Ins. Co. v. Powell, Tex. Com.App., 127 S.W.2d 172. It cannot be said that the company, in issuing the. policy and having Bell to deliver same, consented to modify said stipulation by excepting heart trouble from the scope of its operation. This is so for the reason that in issuing the policy and causing its delivery, the company was ignorant of the fact that Mrs. Hulme had heart trouble, and the company did nothing to signify that it consented to such a modification. In this connection it is noticed that in subdivision 3 of Article 4732 of the Revised Statutes it is provided in effect that the policy and the application attached to it shall constitute the entire contract between the parties. In the present instance there is nothing contained in the policy, or the application attached to it, to indicate that heart trouble is excepted from the scope of operation of the good-health stipulation. In view of the statute just mentiqned, we are not certain that such a modification as we have discussed above could be read into the stipulation at all. We simply find it unnecessary to reach a conclusion in this respect. .

Because, the policy sued on never became effective as an insurance contract, the trial court properly rendered judgment in favor of the company.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: HAWKINS, Presiding Judge. KRUEGER, Judge.

text:
    WALDROP v. STATE.
    No. 20736.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied Feb. 21, 1940.
    H. S. Beard, of Waco, for appellant.
    Lloyd' W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for forgery, punishment assessed being three years in the penitentiary.

No bills of exception are brought forward complaining of any trial procedure, and the only question involved is the sufficiency of the evidence to support the finding of the jury.

Appellant was indicted under the name of Bill Waldrop, charged with having made a check on the First National Bank of Melvin, Texas, payable to the order of the Walker Smith Company for $46.61, signing the name of W. W. Waldrop to said check. Appellant defended on the ground that W. W. Waldrop was his true name. The trial judge realized that under the indictment as drawn if appellant signed his true name to the check he could not be convicted, and he protected appellant’s rights in that regard in every way possible. In submitting the case from the State’s standpoint, after requiring the jury to believe from the evidence beyond a reasonable doubt all the other facts necessary to make the execution of the check forgery, he required them to believe beyond a reasonable doubt that W. W. Waldrop was not the name of appellant before they could convict him. In a subsequent paragraph of the charge he told the jury that before they could convict appellant they must believe beyond a reasonable doubt that W. W. Waldrop was not his real and correct name. Still further advising the jury in another paragraph he charged the jury as follows: “You are ^further instructed that if you find and believe from the evidence that the defendant commonly- and frequently used the name W. W. Waldrop, and that he signed the check in question ‘W. W. Waldrop’ pursuant to such ordinary custom and habit, or if you have a reasonable doubt as to the facts in this respect, you will give the defendant the benefit of such doubt, and say by your verdict not guilty.”

The evidence shows that the check in question was given in payment for goods purchased by appellant from the Walker Smith Company and that he represented at the time that he was in the cafe business at Melvin, and in reply to a question as fS whether he was related to Mr. Waldrep, a banker at Melvin, appellant stated that he was a third or fourth cousin. The evidence further developed that appellant was not in business in Melvin and that he was not related to Alvis W. Waldrep, who was the cashier of the bank at that place. The evidence further shows that appellant had never lived in Melvin or in that community. Upon the issue of appellant’s true name the witness Baker testified that a few days before the check in question was executed by appellant that witness had sold appellant a bill of merchandise at Ballinger and that appellant executed a check in payment for such merchandise, signing it “F. W. Wal-drop.” A sister of appellant testified that he sometimes signed his name as F. W. Waldrop, sometimes as W. W. Waldrop and sometimes Bill Waldrop; that his name was “Felter William Willie Bill Waldrop.” It also developed that appellant had been tried for lunacy in June, 1935, and was convicted thereof under the name of F. W. Waldrop and had been sent to the insane asylum at the time under said conviction. The sister further said that she testified upon the lunacy trial that appellant’s name was F. W. Waldrop. The sheriff of McCulloch County, who was also the jailer,"testified that appellant received letters while confined in the jail, addressed to him as Bill Waldrop. As we understand' the sheriff’s testimony the letters addressed to appellant before the indictment was returned against him were directed in the name of Bill Waldrop, but after the indictment was returned that he received some letters addressed “Bill W. W. Waldrop,” and that prior to the indictment none had been received by appellant as W. W. Wal-drop. Appellant also received some letters while in jail addressed to F. W. Waldrop, but none addressed to W. W. or Bill W. W. Waldrop prior to the return of the indictment. The sheriff further testified that appellant wrote some letters while in jail and that most of those sent out by him were signed “Bill Waldrop,” and that his recollection was that no letters were signed “W. W. Waldrop” until after the indictment was returned^at which time he began signing his letters as “W. W. Waldrop,” and that they were so mailed out; that most of the letters he received while in jail were directed either to “Bill” or “F. W.” Waldrop.

The true name of appellant as assigned to him by his sister — Felter William Willie Bill Waldrop — is, to say the least, unusual. Tlie other testimony speaks for itself and we have concluded that we would be unauthorized under the evidence to substitute our judgment for that of the jury, which, if they followed the court’s instructions, must have found that W. W. Waldrop was not appellant’s name.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

After carefully considering appellant’s motion for rehearing, we are constrained to adhere to the conclusion reached by us in the original opinion.

Appellant’s motion for a rehearing is overruled.

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.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    HEDGES et al. v. STATE.
    No. 20533.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    Rehearing Denied Feb. 21, 1940.
    Wm. E. Davenport, of San Angelo, for appellants.
    ■ Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is a suit for bond forfeiture in the district court of Runnels County, based on a judgment nisi forfeiting a bail bond in the sum of $1,000, signed by S. M. Hedges, George L. Short and T. L. Salvato.

The State’s pleading, consisting of the scire facias which answers the same purpose as an original petition, alleges, in substance, that on October 28, 1937, in justice court of precinct No, 1, in cause No. 1118, the defendant S. M. Hedges, in which he was charged with a felony, made and entered into an appearance bond signed by himself and the two above named sureties, wherein he was obligated to make his appearance before the district court of Runnels County on the 15th day of November, 1937, and from day to day and term to term thereof to answer said charge of a felony; and whereas said cause was called for trial on the 29th day of November, 1937, and the defendant came not, but wholly made default, and the court did on said last named date declare such bond forfeited, and entered his judgment nisi at such time.

This citation was duly served upon the defendants requiring their attendance on November 14, 1938, to show cause why said forfeiture should not be made final. A copy of said scire facias was served on the two sureties on September 16, 1938, same being issued on September IS, 1938.

On February 22, 1939, the State, through her district attorney, filed an amended scire facias, or amended original petition, as it was called, on which it declared on a bond in a similar amount, signed by the same parties, but reciting that same was given in cause No. 1119 in the same justice court, obligating the said Hedges to appear and answer in the same district court on the 15th day of November 1937, and there remain from day to day, etc. In the .statement of facts we find that the bond also requires the appearance of Hedges on the 15th day of November 1937, and bears the date of October 28, 1937, and same shows to have been filed in cause No. 1119 of the said justice court of precinct No. 1, Runnels County, Texas.

This matter presents itself in a rather confused condition, and at the end of this trial the district attorney made the following motion: “The State now moves to substitute the scire facias from cause No. 4380, and re-number the same 4448, to be the scire facias, in place of this in cause 4449, for the reason that the defendants are the same parties in cause No. 4380 as in cause No. 4449; the amount of the bond is the same; the principal is the same; the bonds in said causes were for felonies; the record shows that indictments were returned by the same grand jury in each criminal case in which the bonds were forfeited, to-wit: 1544 and 1543, and that these defendants are now in open court and have filed answers herein.”

In order to render the above statement understandable, it is necessary to state certain matters gathered from a study of the record. It seems that there were two cases in justice court of precinct No. 1 of Run-pels County, one numbered 1118 and the other numbered 1119, each charging a felony, that is burglary of two different places. It seems that two bonds were given, each for the same sum, and signed by the same parties, one requiring attendance on November 15, 1937, and the other requiring attendance on November 29, 1937. Each was forfeited, and judgment nisi entered. Scire facias was issued, and after having found a mistake in the justice court number in this cause, the district attorney endeavored to switch scire facias writs in the case declaring upon a forfeiture in the bond given in justice court number 1118 to the other case declaring on a forfeiture in justice court cause No. 1119, and vice versa, he switching No. 1119'to the scire facias declaring a forfeiture on No. 1118. The confusion in numbers also appears in that these two justice court cases were merged into two criminal cases on the district court criminal docket in, to-wit: Nos. 1543 and 1544. Again they appear on the civil docket of said district court as Nos. 4380 and 4449.

The crucial point herein is whether or not the State shall be allowed to file an amended pleading as a trial amendment, changing the instrument declared upon in the original pleading filed in the form of a scire facias, from a bond given in one case to another bond given in another case. In other words it amounts to moving a citation from one case to another case when only one case is before the court at that time.

It is our judgment that this proof and allegation do not correspond, and that- the amendment offered changes the cause of action to another and different bond, and that this is not permissible under the rules of good pleading.

This cause should be reversed, and a new citation should be issued based upon the proper bond, and in accordance therewith we reverse the trial court’s judgment and remand the cause.

On State’s Motion for Rehearing

CHRISTIAN, Judge.

After careful consideration of the state’s motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

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.


text:
    HEDGES et al. v. STATE.
    No. 20534.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    Rehearing Denied Feb. 21, 1940.
    Wm. E. Davenport, of San Angelo, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This case is a companion case to S. M. Hedges et al. v. State, Tex.Cr.App., 136 S.W.2d 606, and presents itself in the same condition and under the same circumstances as that case.

Merely because the two bonds are in the same amount, and executed by the same parties, will not render their citations interchangeable so that each citation can be moved from one case over into the other by means of a trial amendment. Each bond is a separate undertaking, and possibly susceptible to separate defenses, and the office of a trial amendment can not be utilized for the purpose of correcting a fatal variance between the allegation and the proof.

The judgmen of the trial court is reversed and the cause remanded.

On State’s Motion for Rehearing

CHRISTIAN, Judge.

After carefully re-examining the record in the light of the state’s motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

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.