text:
    SCRUGGS v. ROWE et al.
    No. 11079.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 16, 1941.
    Rehearing Denied Feb. 20, 1941.
    Levert J. Able, of Houston, for appellant.
    Cole, Patterson & Cole and Seymour Lieberman, all of Houston, for appellee Lieberman.
    Sewall Myer, of Houston, for Masseys.
    E. R. Campbell, of Houston, for T. C. Rowe and others.
    Taliaferro & Graves, of Houston, for Carl K. Eckhardt.
   GRAVES, Justice.

Gross R. Scruggs, general agent for various insurance companies, operating as Gross R. Scruggs & Company, hereinafter referred to as plaintiff, brought suit in the district court of Harris County, Texas, on an agencjr-bond against his sub-agent, C. R. Rowe, operating as Rowe Insurance Agency, who signed the bond as principal, and T. C. Rowe, Carl K. Eckhardt, David Robinson, and C. D. Massey, who signed it as joint and several sureties, as defendants, alleging that they jointly and severally owed him a total of $4,280.82 thereon. While such suit was pending, C. D. Massey died, and Mrs. Beatrice Massey, his administra-trix, was duly substituted.

The principal on this bond, C. R. Rowe, in substance and effect did not contest the plaintiff’s claims against him, but the named sureties thereon, upon various and sundry grounds, denied their liability for any of the claimed indebtedness, and, with all parties in court, the cause went to trial before a jury; at the close of the evidence for both sides, the 80th District Court of Harris County, on motion of the defendant-sureties therefor, dismissed the jury, upon its holding that there were no issues of fact to be submitted to it under the pleadings and evidence as a whole, and rendered this final judgment:

“ * * * The Court being of the further opinion that the plaintiff had made its case against the defendant, C. R. Rowe, as a matter of law, and further that the plaintiff had failed, as a matter of law, to establish any cause of action against the defendant’s sureties, T. C. Rowe, Carl K. Eckhardt, David Robinson and Mrs. Beatrice Massey, admin-istratrix of the estate of C. B. Massey, and the Court having heard testimony, being of the opinion that the Master in Chancery (or Auditor) heretofore appointed in this cause is entitled to the sum of $350.00 as a reasonable cost for services rendered, and the Court, after having heard testimony, being of the opinion that the attorneys for plaintiff are entitled to recover the sum of $800.00 as a reasonable fee for services rendered.
“It is therefore Ordered, Adjudged and Decreed by the Court that the plaintiff, Gross R. Scruggs, recover of and from the defendant, C. R. Rowe, the sum of $4280.82, together with interest thereon at the rate of 6% per annum from the 3rd day of September, A. D. 1933, until paid, together with costs of this suit, for which let execution issue.
“It is further Ordered, Adjudged and Decreed by the Court that Seymour Lieberman have and recover of and from the plaintiff, Gross R. Scruggs, and New York Casualty Company, jointly and severally, $175.00 as costs and have and recover of and from the defendant, C. R. Rowe, the sum of $175.00 as costs, for all of which let execution issue.
“It is further Ordered, Adjudged and Decreed by the Court that plaintiff have and recover of and from the defendant, C. R. Rowe, the sum of $800.00 for reasonable attorneys’ fees, together with interest thereon at the'rate of 6% per annum from the date of this judgment until paid.
“It is further ordered, adjudged and decreed by the Court that plaintiff take nothing by his suit against the defendants, T. C. Rowe, Carl K. Eckhardt, David Robinson, and Mrs-. Beatrice Massey, Administratrix of the Estate of C. B. Massey, and these defendants go hence without day and recover their costs.”

On appeal, the plaintiff below has become the appellant, while the defendants, along with the auditor, constitute the ap-pellees; the former inveighs against such judgment in toto, while the latter, joined in .this court by such auditor below, Seymour Lieberman, who was made an obligee under the appeal-bond herein, affirm the correctness of the challenged decree in all respects.

The controlling question the appeal presents is as to whether or not the trial court correctly construed the legal effect of the agency-bond declared upon to be, that the sureties were not liable for the admitted sum of $3,800, which the principal thereon, ap-pellee C. R. Rowe, owed the appellant, Gross R. Scruggs, as the balance due upon their insurance-agency relationships occurring prior to the éxecution and delivery of the agency-bond herein so declared upon by the appellant,, which came into existence on February 8 of 1929.

This bond, so executed and delivered as an incident of C. R. Rowe’s continuing or being reappointed as sub-agent for the appellant, doing business as “Rowe Insurance Agency”, was a wholly gratuitous one upon the part of the appellee-sureties thereon.

The $3,800 indebtedness of appellee, C. R. Rowe, to appellant had been incurred by Rowe under his then firm name of “Rowe & Shaw”, a partnership composed of himself and J. A. Shaw, prior to December of 1925; whereas, the surety-bond herein declared upon and bearing date of February 8, 1929, when it came into being and became effective, was, as indicated, executed by C. R. Rowe under his new business and firm name of “Rowe Insurance Agency”, and was in material substance as follows:

“Whereas, that above bounden C. R. Rowe, has been by Gross R. Scruggs .& Co., Managers, appointed agent of the said Insurance Company, to act in that capacity for the obtaining of insurance and other matters pertaining thereto for said Company, in and for Houston, Texas, and vicinity.
“The Condition of the above obligation is such that if the above bounden, C. R. Rowe, agent shall faithfully and punctually pay over, at Dallas, Texas, to said Gross R. Scruggs & Co., as Managers, and as individuals, all sums due, or that may become due to them, or either of them, from time to time, for premiums on policies issued by such agent, whether said premiums have been collected by C. R. Rowe or not, and also all moneys whatever collected or received by said C. R. Rowe for any account whatever for said Gross R. Scruggs & Co., whether as Managers or individuals, and shall also pay over the return commission upon any and all policies of the said Company, or either of them, which for any cause may be cancelled at any time, whether such policies were actually written by C. R. Rowe, or their predecessor; and shall well and truly perform all the duties of such agent of said Company, and comply with all the instructions contained in his commission of authority, and also that may be, from time to time, communicated to said C. R. Rowe by said Gross R. Scruggs & Co., whether as Managers or as individuals, or their proper representatives, and shall at the termination of said agency, faithfully surrender and deliver to said Gross R. Scruggs & Co., or to their order, all books of record, supplies and other property, belonging to said Company or to said Gross R. Scruggs & Co., whether as Managers or as individuals, then this obligation shall be null and void, otherwise to remain in full force and effect.”

Upon consideration of the very able briefs and arguments on both sides touching the meaning that should be given to this instrument, it seems plain to this court that the trial court was correct in the construction it gave it, and in holding that, notwithstanding its recitation binding the principal, C. R. Rowe, to pay the obligee, Gross R. Scruggs, “all sums due, or that may become due” on his account to the latter, that it was nevertheless forward-looking in legal effect, and did not retroactively obligate his sureties for any such indebtedness under pre-existing conditions that Rowe, in his capacity as former partner of the old firm of “Rowe & Shaw”, may have incurred to the appellant prior to December of 1925, and which had remained unpaid up to the time of this trial. 11 C.J.S. 430, Bonds, § 55; 9 C.J. 42, § 69; White Sewing-Machine Co. v. Hines, 61 Mich. 423, 28 N.W. 157; Rockford Ins. Co. v. Rogers, 15 Colo.App. 23, 60 P. 956; Means v. Floyd West & Co., Tex.Civ.App., 74 S.W.2d 518.

Further, the bond as a whole is plain and unambiguous upon its face, hence was subject to construction from its four corners by the trial court, whose interpretation thereof, therefore, legally removed any fact issues as to its meaning from the case; 7 Tex.Jur., “Bonds”, “Construction” IV, par. 22.

The record and proceedings are unduly long, but the briefs of the contending parties contain admirable summaries of their respective positions, both as to the proper construction of the quoted bond with reference to the $3,800 item, and its subsidiary implications; wherefore, for brevity’s sake, in order that the material positions of both sides may be expressly disposed of, they are thus quoted:

Appellant’s presentments are summarized as follows:

“(1) The evidence shows that the bond sued upon covered the sums composing the $3800 that was due on the date of its execution, as well as the $4151.62 that became due during the life of the bond making the sureties liable, because the bond is composed of at least two separate and distinct obligations, one, perspective covering the $4151.62, the other covering the sums due which included the $3800, due to the provision in the bond which read, “all sums due, or that may become due”, and the surrounding circumstances with which the sureties were charged with notice on the date of the execution of the bond.
“(2) The only payments and credits that the sureties can claim, do not exceed the sum of $3124.69, which was sent in to this account and another account and $622.11, which they were entitled to before the date of termination of liability on said bond, which leaves due and unpaid of the $4151.62 that the sureties do not deny is covered by the terms of the bond, $404.82.
“(3) Due to the directions and the intentions of C. R. Rowe, debtor, which were communicated to the creditor, Gross R. Scruggs, this sum, the $3124.69 sent in to the accounts of Gross R. Scruggs and Robert B. Price of $2275.80 must be divided between this account and the account of Robert B. Price, at least on a proration basis, except as to $529.97 of/the same which, represented collections on the Scruggs account. .
“(4) That the plaintiff, Gross R. Scruggs, creditor, in compliance with said_ directions, or at least not in violation of the same,in so for as defendants are concerned, applied ¿he $3124.69 to the $3800 which became due before the date of the bond, thus leaving due and unpaid the $4151.62 which became due during the life of the bond and which the sureties do not deny they are liable for, because it was covered by the terms of the bond, except as to $529.97, which represented collections on said sum.
“(5) The trial court erroneously assessed one-half of the costs of the Auditor, that is $175.00, against the plaintiff, because the un-contradicted evidence showed that the plaintiff was entitled to recover and not the defendants, and further it showed that the defendant-sureties are liable for the same, because they should have been the losing party in the trial court and had all costs assessed against them, and because they expressly guaranteed by contract that they would be liable for all costs assessed incurred in making a collection upon their bond, the contract of C. R. Rowe with Gross R. Scruggs.”.

The appellees, in turn, counter with these answers:

“(1) Under the terms of the bond, no liability attached for the old $3800.00 ‘Rowe & Shaw’ balance;
“(2) If the court should hold that the bond of February 8, 1929, executed for the ‘Rowe Insurance Agency’, could be so stretched as to include the old $3800.00 ‘Rowe & Shaw* balance, under the undisputed evidence, such $3800.00 balance was barred by the statute of limitations;
“(3) Should the court, by some process, hold that the old $3800.00 balance is included in the 1929 bond sued on, then obviously there was no consideration for such' $3800.00;
“(4) Under the authorities cited by appellant, it has been demonstrated that the whole indebtedness has been paid as far as these sureties are concerned;
“(5) That under the pleadings and evidence the appellant cannot now, after pleadings that Rowe was entitled to credits, and after proving these self-same credits, successfully contend, as he is doing in his propositions 5 to 18, inclusive, that one Robert B. Price should be credited with these payments.”

After a painstaking review of this record, it is determined:

(1) That none of these quoted contentions of the appellant are sustainable, that no liability on the bond attached as against the appellee-sureties for the $3800.00 “Rowe & Shaw” balance, by the plain terms of the instrument itself;

(2) That under the facts conclusively shown and the authorities applicable thereto, the record is such as to have supported a finding by the court that the whole indebtedness of C. R. Rowe to appellant, for which the sureties were properly chargeable, was conclusively shown to have been paid; wherefore, such a finding will be deemed to have been made, as in support of the judgment rendered;

(3) That the one-half of the auditor’s fee was properly taxed against the appellant, under the applicable statutes and authorities, R.S. Articles Nos. 2292 and 2056, San Antonio U. & G. R. Co. v. Storey, Tex.Civ.App., 172 S.W. 188, and under the court’s express finding on the facts that the expenses of the auditor were incurred, both by the plaintiff Gross R. Scruggs, and by the defendant, C. R. Rowe; Article 2056, R.S. 1925; Morrow v. Terrell, 21 Tex.Civ.App. 28, 50 S.W. 734; Brown v. Humphrey, 43 Tex.Civ.App. 23, 95 S.W. 25; Beaumont Rice Mills v. Bridges, 45 Tex.Civ.App. 439, 101 S.W. 511, 514;

(4) That under the conclusive effect of the evidence as a whole, pursuant to the construction here given the surety-bond, the court below rendered the only judgment it properly could have; hence an affirmance should follow.

Affirmed.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    ROBERSON et ux. v. HOME OWNERS’ LOAN CORPORATION et al.
    No. 12952.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 11, 1941.
    Rehearing Denied Feb. 1, 1941.

      Phillip O. Lopp, of Dallas, and G. R. Lipscomb and John L. Poulter, both of Fort Worth, for plaintiffs in error.
    A. M. Frazier, E. L. Early, and John E. Whitmore, all of Dallas, and Joe T. Goodwin, of Austin, for defendants in error.
   BOND, Chief Justice.

The defendant in error, Home Owners’ Loan Corporation, plaintiff in the court below, instituted this suit in a district court of Dallas County against plaintiffs in error, as defendants, primarily for debt and foreclosure of deed of trust lien on the property in suit; and, alternatively, in trespass to try title. The parties will be designated herein as they were in the court below.

Plaintiff alleged, in substance, that it was a “corporate instrumentality of the United States of America,” and that, on or about the 17th day of January, 1935, the defendants, Marvin Roberson and Catha Roberson, executed and delivered to it a promissory note for the principal sum of $9,500, bearing 5% interest, principal and interest payable in monthly installments of $75.12 per month until paid; and provided that, if default occurred in the payment of any installment of principal or interest, and continued for a period of more than ninety days, the holder of the note could declare the balance due, adding a reasonable attorney’s fee if placed in the hands of an attorney for collection, or suit brought. Plaintiff alleged that, simultaneously with the execution and delivery of said note, the makers thereof executed and delivered a deed of trust, conveying the property in suit to a trustee for the use and benefit of plaintiff, to secure the payment of said indebtedness; and that the note and deed of trust were given in lieu and extension of the balance of $8,036.56, principal and accrued interest owing on ten of a series of fourteen certain notes, aggregating $9,000, fully described in a duly recorded deed of trust dated November 12, 1930, executed by Marvin Roberson and Catha Roberson to J. E. Foster, Jr., trustee; and $1,408.11, taxes reasonably levied, validly assessed, and past due against the above described property (in suit), as follows : State and , county, $438.51; city, $969.60. The deed of trust, among other recitals and provisions usual in such instruments, recites that, “The grantors herein acknowledge said aforesaid liens to be valid and subsisting liens against the hereinafter described property (property in suit fully described), * * * and the holder of the note hereinafter described (note in suit) shall be and is hereby subro-gated to all rights, liens, remedies, equities, superior title and benefits held, owned, and enjoyed by the owner or owners of said indebtedness, all of which is hereby acknowledged and confessed.” Plaintiff further alleged the acceleration of the note and deed of trust under the privileges therein granted, and sought judgment for the amount due, principal, interest, and attorney’s ^fees, and for foreclosure of its deed of trust; and, in the alternative, for title and damages under the usual allegations in suits for trespass to try title. Plaintiff vouched into the suit J. E. Foster, Sr., J. E. Foster, Jr., and J. E. Foster & Son, alleged that they were asserting some character of right, title, and interest in the property, inferior, however, to the lien of the Home Owners’ Loan Corporation, and sought judgment of foreclosure to run also against the Fosters and their claim or lien against the property.

The defendants filed separate answers, consisting of general demurrer, general denial, and plea of not guilty; and the defendants Marvin Roberson and Catha Roberson further alleged specifically that they executed the note and deed of trust, but denied that they were in default in payment of installments, warranting acceleration of maturity as provided therein; the defendants, Fosters, acknowledged the inferiority of their lien to plaintiff’s claim, and, in cross action, sought judgment against their co-defendant Marvin Roberson for the value of their note, and foreclosure of their deed of trust against both Marvin Roberson and wife, Catha Roberson.

The cause was tried to the court, without a jury, on plaintiff’s primary suit for debt and foreclosure; its alternative plea in trespass to try title was abandoned. The evidence is uncontroverted: (1) That the defendants Marvin Roberson and Cfitha Roberson executed the notes and deed of trust in suit; (2) that said defendants were in default in the payment of installments for a period of more than ninety days; (3) that there was due and unpaid on said indebtedness, the sum of $9,257.32; (4) that there was due defendants J. E. Foster & Son, on their indebtedness, the sum of $232.55, secured by a deed of trust lien on the property in suit, inferior to plaintiff’s deed of trust lien; and (5) that the aforesaid deed of trust liens were valid and subsisting liens against the property; accordingly, judgment was entered in favor of plaintiff, against defendant ■ Marvin Roberson; for the balance due on plaintiff’s note, with reasonable attorney’s fee, and foreclosure of the deed of trust lien as against all defendants; also, judgment for defendants J. E. Foster & Son, for their debt against the defendant Marvin Roberson, and for foreclosure of their deed of trust lien, secondary to plaintiff’s foreclosure, against the defendants Marvin Roberson and Catha Roberson.

The appeal is predicated on the theory that the trial court, under the doctrine of judicial notice, was compelled to take notice of the provisions of the Act of Congress of the United States, known as the Home Owners’ Loan Act of 1933, which created the plaintiff corporation for the purpose of extending loans to home owners, and because of which, the property in controversy is presumed, as a matter of law, to have been the homestead of defendants Marvin Roberson and wife, Catha Roberson, prior to the enactment of the law, has been since 1929, and is now the homestead of said defendants; and, under sections 50 and 51, Art. 16 of the Constitution of the State of Texas, Vernon’s Ann. St. and Arts. 3832 and 3839 of the Revised Civil Statutes of Texas 1925, Vernon’s Ann.Civ.St. arts. 3832, 3839, providing legal means and procedure to perfect a lien against a homestead, the burden was on plaintiff to prove that the lien was created in a inanner provided by the Constitution and statutes of Texas. Thus, there being no evidence that the deed of trust lien, which plaintiff sought to foreclose, was a valid and subsisting lien on the homestead of said defendants, the court could not take judicial knowledge of facts, in effect, that the lien was created in compliance with the statute of Texas, and for a purpose authorized by the Constitution.

The Home Owners' Loan Act of 1933, 12 U.S.C.A. § 1461 et seq., was created for the purpose of supplying direct relief to home owners; with respect to home mortgage indebtedness, to refinance home mortgages, to extend relief to the owners of homes occupied by them and who are unable to amortize their debts elsewhere, and to pay, within limits, any accrued taxes, assessments, necessary maintenance, repairs and incidental costs. The Act expressly provides: “(c) The term ‘home mortgage’ means a first mortgage on real estate in fee simple or on a leasehold (1) under a lease for not less than ninety-nine years which is renewable, or (2) under a lease having a period of not less than fifty years to run from the date the mortgage was executed, upon which there is located a dwelling or dwellings for not more than four families, which is used in whole or in part by the owner as a home or held by him as his homestead, and which has a value of not to exceed $20,000; and the term ‘first mortgage’ includes such classes of first liens as are commonly given to secure advances on real estate under the laws of the State in which the real estate is located, together with the credit instruments, if any, secured thereby.” The national public purpose embodied in the Act is evident, — to afford relief only to home owners, whether a single man or woman, with or without dependents, owning and using real estate in fee simple as a home, or held as a homestead, and to afford benefits to heads of families owning and using property as homes. The law does not contemplate, forsooth, that because the head of a family lives with his wife and children, on the property, such occupancy ipso facto makes the property his homestead. It is quite possible that the head of a family, owning property and occupying it with his family, may never legally designate it as his homestead; and, again, a legally designated homestead may be the subject of a waiver. It has been held in this state, since the earliest decisions, that “intention in good faith to occupy is the prime factor” in impressing property with the homestead character. Intention alone, without overt acts of homestead occupancy, cannot give a homestead right; but, at the same time, it is equally true that all other things combined cannot give it, absent the intention to dedicate it to the uses of a home. Homestead exemption is a right conferred by law upon the head of a family, and unless such party avails himself of such right by pleadings and proof, courts cannot assume facts exist against the validity of an existing debt and lien, or that the homesteaders wish to claim the exemption.

In this case, neither the note nor the deed of trust securing it indicates that the property subject to the indebtedness was defendant’s homestead; nor was the homestead character of the property pleaded or proved, or the validity of plaintiff’s deed of trust challenged as evading defendants’ constitutional rights, or otherwise. Thus, in all legal aspects, the homestead character of the property, if any existed, was effectively waived. Furthermore, because of said defendants’ failure to plead homestead as a defense against plaintiff’s cause of action for debt and foreclosure, they were not entitled to introduce proof of the homestead issue. Benson et al. v. Mangum, Tex.Civ.App., 117 S.W.2d 169.

The Home Owners’ Loan Act, providing for extension of loans and liens on homes and homesteads by the corporate plaintiff, in accordance with the laws of the state in which the real estate is located, raises no presumption that the Corporation, in the exercise of its powers and authority thus granted, • committed an ultra vires act; it must be presumed, in the absence of pleadings and proof to the contrary, that, the Corporation, in extending loans, duly exercised the powers conferred upon it, and that the debt and loan so extended were valid obligations of the makers ; courts cannot arbitrarily declare a note and deed of trust invalid.

The deed of trust declared upon, signed and acknowledged by both Marvin Roberson and Catha Roberson, recites that, “The note hereinafter described is secured by a first lien against the here-inabove described property (property in suit), being given in lieu and extension of the following described indebtedness: (then follows a detailed statement of the indebtedness refunded) The grantors herein acknowledge said aforesaid liens to be valid and subsisting liens against the hereinabove described property, and that the payment thereof is expressly requested by the grantors herein to be made by the holder of the note secured hereby, and the holder of the note hereinafter described shall be and is hereby subrogated to all rights, liens, remedies, equities, superior title and benefits held, owned, and enjoyed by the owner or owners of said indebtedness, all of which is hereby acknowledged and confessed. (Next follows a description of the indebtedness involved herein).” We think these admissions by the makers of the note and deed of 'trust were of such probative force as the court might determine they were entitled to receive; and if, as contended by the defendants, the burden of proof rested upon plaintiff to show that the indebtedness and lien involved in this suit were valid, such admissions of the defendants against their interests justified finding that the liens were valid and subsisting against the property. Simpson v. Edens, 14 Tex.Civ.App. 235, 38 S.W. 474; Texarkana Gas & Electric Co. v. Lanier, 59 Tex.Civ.App. 198, 126 S.W. 67; Thompson v. Moor, Tex.Com.App., 14 S.W.2d 803; Trice v. Bridgewater, 125 Tex. 75, 81 S.W.2d 63, 100 A.L.R. 1014. The defendants offered no proof that the property involved was their homestead. Indeed, defendants elicited testimony as to their residence, marital and family status and possession of the property involved; but, on objection to this testimony as being immaterial, absent pleading of homestead, said defendants’ attorney limited its purpose, expressly stating, “I just want to know where he (defendant Roberson) lives and how long he has lived there * * * that all necessary parties are before the court that are in possession of this property.” It will thus be seen that the defendants offered such evidence for a purpose other than as proof of homestead, i. e., to show that all necessary parties were before the court — an issue not in controversy. The court did not err in excluding the proffered testimony.

The judgment of the court below is. affirmed.

Affirmed.


author: GRAVES, Justice. CODY, Justice

text:
    TEXAS LIQUOR CONTROL BOARD v. MACEO.
    No. 11188.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 23, 1941.
    Rehearing Denied Feb. 13, 1941.
    Gerald C. Mann, Atty. Gen. of Texas, and Pirtle Watts, M. C. Martin, and Geo. W. Barcus, Asst. Attys. Gen. of Texas, for appellant.
    Stone, Phipps & Dibrell, of Galveston, for appellee.
   GRAVES, Justice.

•On May 25, 1940, appellee, Frank Maceo, applied for a retail beer-and-wine permit to cover certain premises to be known and operated as the “Hollywood Dinner Club”, located in part of a building situated at the northwest corner of the intersection of 61st street and avenue S, in the city of Galveston, Texas. Pursuant to question 34-a of the application form for such permit, he attached an architect’s blueprint of the building, in which the rooms comprising the “Hollywood Dinner Club” to be covered by the permit were located, showing in detail the exact portion of the building involved. The space, as so shown, he took under written lease from Gulf Properties, Inc., a private corporation under the laws of Texas, the owner of the building.

On the 8th day of June, 1940, in due course and after such investigation as the Texas Liquor Control Board saw fit to make, permit No. 35994 was issued to Frank Maceo, d.b.a. “Hollywood Dinner Club”, whereupon appellee commenced his operation of the establishment as a cafe and night club.

Later, on the 22d day of June, 1940, it appears that J. C. Howerton, an undercover agent of the Liquor Control Board, and others visited the Hollywood Dinner Club, and by the express admissions of each of them who testified before the ’appellant Board, discovered no violation of law going on in that Club’s leased premises. Howerton then visited certain adjoining premises, occupied by a corporation known as the Turf Athletic Club, of Galveston, where, he reported to the Board, he had discovered certain alleged violations of law — the possession of whiskey, and the operation of an open saloon — which were subsequently made the basis of the charges here involved against this appellee.

Thereafter, notice was issued by the Administrator of the Liquor Board to ap-pellee to show cause why his permit should not be cancelled, and, on the 13th day of August, 1940, a hearing on such complaint was had in Austin before such Administrator.

The theory of the Board’s examiner advanced at the hearing was not that appel-lee had directly himself, or by his agents, servants, or employees, in the “Hollywood Dinner Club”, violated the law, but rather that there was a connection between appel-lee and the adjoining premises of the Turf Athletic Club together with a relationship of agency existing between appellee, Frank Maceo, and on Sam Maceo, who was apparently in charge of the Turf Club; further that, because of such connection and relationship, appellee was chargeable in law with the alleged violations discovered in such latter place.

Appellee, by counsel, specifically denied each and all of the allegations contained in the complaint, and on the hearing, in addition to the testimony of Mr. Howerton, numerous affidavits and exhibits were introduced, by b'oth the Board and appellee.

After the hearing and before the Administrator’s ruling, appellee filed therein written objections to certain parts of the evidence introduced by the Board, all but one of which were overruled by the administrator, to which rulings exceptions were duly taken.

On the 20th day of August, 1940, the Administrator entered his order cancelling appellee’s permit, upon five findings of fact, which, reduced to their essence, are as follows: (1) That, on the date in question, appellee possessed whiskey on premises directly and indirectly under his control and adjacent to his licensed premises; (2) that, on the date in question, one Sam Maceo was an agent and employee of appellee, and did then and there possess whiskey on premises directly and indirectly under his control and adjacent to the licensed premises; (3) that, on the date in question, appellee possessed whiskey on the licensed premises; (4) that, on the date in question, Frank Maceo and his agent, servant, and employee Sam Maceo, did operate and assist in operating an open saloon on the licensed premises where distilled liquor was sold and offered for sale by the drink; (5) that, on the date in question, one Sam Maceo was an agent and employee of appellee, and did possess whiskey on the licensed premises.

After entry of this order, appellee, in compliance with the applicable provisions of the Texas Liquor Control Act, Article 666 — 14, of the Vernon’s Annotated Penal Code, perfected his appeal to the District Court of Galveston County, Texas, where the matter was heard on the 6th day of September, 1940.

The only evidence introduced was a complete transcript of the proceedings had before the Administrator,, as is contained in the statement of facts now on file in this Court.

On the 26th day of September, 1940, the Court below entered its final judgment, holding “ * * * that said transcript contains no substantial evidence upon which said Administrator of the Texas Liquor Control Board could have based his ruling questioned herein, (and) that such ruling is, therefore, arbitrary and unreasonable, and constitutes an abuse of the discretion vested in said Administrator,” and setting aside and vacating the Administrator’s order; hence this appeal by the Control Board.

Appellant assigns as error the trial court’s action in setting aside the Administrator’s order of cancellation because, it asserts, there was sufficient evidence to support each and all of the five given findings of the Administrator, which i.t successively restates as follows:

“(1) The first finding made by the Administrator of appellant to the effect that about June 23, 1940, appellee did then and there possess on the premises in controversy covered by the license permit whis-ky, when he was not permitted under said license to sell whiskey; (2) the second finding of the Administrator of appellant, to the effect that about June 23, 1940, Sam Maceo, as agent and employee of appellee, did possess on the premises in question whisky; (3) the third finding of fact as made by Bert Ford, Administrator, to the effect that on or about June 23, 1940, Frank Maceo had in his possession on the premises in question whisky; (4) the fourth finding of said Administrator to the effect that on or about June 23, 1940, appellee, Frank Maceo, and his agents, servants and employees, to-wit, Sam Maceo, did then and there on the premises in question operate and assist in operating an open saloon, and were directly and indirectly interested in the operation of an open saloon in which they sold liquor, composed and compounded in part of distilled spirits, and offered for sale for beverage purposes same by the drink; (5) the fifth finding by the Administrator to the effect that Sam Maceo, as an employee of Frank Maceo, violated the provisions of the Texas Liquor Control Act by having in his possession on the premises in question whisky.”

After careful study of this entire record, inclusive of the statement of facts in full, this court is unable to find existent such a state of the evidence; on the contrary, as its general statement supra has in part presaged, it not only finds no evidence whatever tending to support any finding that appellee, personally or through Sam Maceo as his agent and employee, either possessed any whiskey, or operated and assisted in operating an open saloon by selling or offering for sale whiskey'by the drink, “on the premises in controversy covered by his license permit”; to the direct opposite, as the preceding statement recites, “by the express admissions of each of appellant’s agents and inspectors who testified before its Administrator they discovered no such violation of law going on in the appellee’s leased premises”; in other words, they each and all freely admitted that whatever derelictions they claimed to have encountered or suspected, all occurred beyond the precisely-defined area in the building the appellee’s permit covered and in the adjacent premises that were just as definitely defined as being under lease by the Turf Athletic Club.

Indeed,- this whole case-being thus made referable to and dependent upon what happened in the adjoining premises so occupied -and exclusively controlled by the Turf Club, in the absence of any such legally, sufficient proof of any relationship of agency between the appellee, upon the one hand, and Sam Maceo, who was apparently in charge of the Turf Club, upon the other, as would make the -appellee answerable in law for the alleged violations that were testified to under Sam Maceo’s operation of the adjoining place — constitutes, it is thought, a typical instance of such slight testimony, if that much, as only raises a mere surmise or suspicion of the existence of the infractions the administrator cancelled the appellee’s permit upon; that is, in legal contemplation, they fell short of being “any evidence”, under the rule so firmly embedded in our jurisprudence by our Supreme Court in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

In such instances of a paucity of substantial evidence of 'law violations, it is well settled that such a cancellation may be set aside by the courts: Texas Liquor Control Board v. Lanza, Tex.Civ.App., 129 S.W.2d 1153; Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227; Texas Liquor Control Board v. Warfield, Tex.Civ.App., 110 S.W.2d 646; Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300; McCormick v. Texas Liquor Control Board, Tex.Civ.App., 141 S.W.2d 1004.

As the Supreme Court so imperishably said in the Joske case [91 Tex. 574, 44 S.W. 1063], the “policy of the law * * * does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony [in a given case] establishes more” than that; responding to that duty, conceivably'placed upon it in this instance, this court, as indicated, concludes that this evidence at most did not establish more — that there was a completely missing link as to any relationship of principal and agent between those so in charge of these two distinct but adjoining Clubs, which hiatus relieved the appellee of any responsibility for the only violations of law the officers «■yen hinted at — that is, those occurring only in the Turf Club which seems to have been under Sam Maceo’s charge, and' not in the Hollywood Club, that belonged to and was operated by the appellee.

The circumstances apparently depended upon by the appellant to establish the responsibility of the appellee for the occurrences in the other Club seem to this court to have been inconsequential, and to have had no probative force, if not indeed to have been wholly inadmissible against the appellee, under the objections he made to all of them; for instance it was shown that the two Clubs, under written leases, occupied distinct portions of one very large building, with express provisions in both leases that the members of the Turf Club should at all times have the right of ingress and egress to its own rooms through the Hollywood Club’s premises; that the restrooms of the latter were the common convenience of all other tenants of the building; that the appellee’s premises came to him together with the furnishings; fixtures, and equipment therein at the time, which included all the existing public utilities of water, light, gas, telephone, etc.; that the leases of both parties were in writing, dated May 29 of 1940, running for one year, and that, while unrecorded, were not required to be; the circumstance that appellant’s officers found on the tables in appellee’s cafe match covers with the printing thereon: “Hollywood Dinner Club, Galveston Texas, Sam Maceo, Managing Director”, to say the least of it, was an inconsequential feature, that got nowhere, there being no testimony connecting it up as to time, or anything else, with the appellee; it was objected to as being hearsay and irrelevant, which should have been sustained, but even so, if left standing alone, it might have applied to wholly different conditions of many years prior and amounted to no more than a “spark”, as some of the authorities term such a claim for evidence, or at most only a scintilla.

Neither was it of consequence that neither of the'Maceos testified upon the cancellation hearing; the appellee had therein denied each and all of the allegations of the complaints against him, hence a con-jflict in the evidence, which the administrator could have disregarded or not, as he saw fit, was the only further result that could have been brought.about by the testimony of either or both of them; the appellant’s brief is inept in asserting these Maceos, Frank and Sam, to have been brothers, there being no evidence to that effect, and appellee’s uncontroverted brief in that respect denied it.

The public utilities contracts the appellant refers to were furthermore subject to the appellee’s objections that they were all too remote in time, that is, bearing dates of 1934, 1936, 1926 and 1933, whereas the affidavit of J. B. Fox, the appellant’s witness at the cancellation hearing before the Administrator, showed the leased building to belong to the Gulf Properties, Inc.; and, as before indicated, the appellee’s lease with that landlord called for a completely equipped place in those particulars; these objections also of the appellee were good, and should have been sustained.

This court passes over Inspector Howerton’s recited dealings with Sam Maceo, but with the finding, however, that it fails to show that Sam Maceo ever therein connected himself up with appellee’s “Hollywood Dinner Club”, or that it showed him to have any connection with it as an agent for the appellee, or otherwise; his whole dealing and fraternizing with this inspector, as nárrated by the latter, had to do with his own establishment, the Turf Club, and shows his • concern only for what had occurred there, rather than anything that had happened in the appellee’s cafe, for which the appellee was responsible; there was, therefore, no admissible proof whatever to sustain appellant’s charges that Sam Maceo was an agent and employee of the appellee, wherefore appellee’s objections before the Administrator to Howerton’s conversations with Sam Maceo, on the ground that the statement of one claimed to be an agent of another, standing alone, could not be relied upon to prove such agency, should have been sustained, to say nothing of other good grounds that also were interposed.

Appellant is further inept in urging a discrepancy in the description of appellee’s licensed premises, as shown on the blueprint attached to his application, and the premises as they existed in fact; this, because the Administrator found no such misrepresentation in his cancellation order; the blueprint shows a “passage” between the two clubs to have been plainly so marked thereon, and Mr. Phelps, the Board’s ■Chief Examiner, disclaimed, both before the Board and the trial court, having made any such contention.

Wherefore, it is held that the judgment ■of the trial court was correct, and should be affirmed; it will be so ordered.

Affirmed.

CODY, J., dissents.

CODY, Justice

(dissenting).

I believe that substantial evidence was produced at the hearing before the Administrator to sustain his second finding of fact, that is, “(2) That, on the date in question, one Sam Maceo was an agent and employee, and did ‘then and there possess whiskey on premises directly and indirectly under his control and adjacent to the licensed premises.”

Now the “substantial evidence” of a law violation that will sustain the Administrator in cancelling a beer and wine permit is, of course, more than a mere scintilla ■of evidence. At the same time, I take it that it is less than the preponderance of ■evidence necessary to sustain the verdict of a jury. This abotft places it as not less than such evidence as would require a court in a civil case to submit a plaintiff’s cause to a jury, though it might be less than' sufficient to sustain such verdict against a complaint of being against the preponderance of the evidence.

The evidence in this case shows that the Hollywood Dinner Club and the Turf Athletic Club were in the same building, and ■connected by a passageway, a.nd that those who would enter the premises of the Athletic Club must pass through the premises or dining room of the Hollywood Dinner • Club. The evidence further shows that sometime after Howérton found he could not purchase whiskey in Hollywood Dinner Club, that he went through the passageway connecting it with the Athletic Club, as he saw others doing, and past two men, into the bar room of the Athletic Club. The two men just referred to testified that ■they were employees of the Athletic Club ■and- it was their duty to prevent nonmembers from entering. Howerton found a number of people drinking at the bar, and he purchased a scotch and soda for 60 cents. He then went back to the Hollywood Dinner Club, but about thirty minutes later again returned to the Athletic Club and had the waiter bring him another scotch and soda. He then went from the bar room into the pool room where Sam Maceo was. He and Sam went to the bar room and had a drink together. Sam Maceo told him the place was his. The inspector later returned to the Hollywood Dinner Club through the connecting passageway and left.

Two days later the inspector returned. This time he was stopped by one of the two who testified it was their duty to keep nonmembers out. The inspector was required to give his name, and produce means of identification. He told the men he was not a member of the club, and was told by one of these men he could enter; but the other refused him admittance, saying that his (the inspector’s) name was on a list issued by the management. The inspector then asked for Sam Maceo. When Sam Maceo came, he asked the inspector how he had effected his entrance on the first occasion, and was told that he just walked in with a large crowd. Sam Maceo said that this would cost some employee his job. Sam Maceo then told the inspector he didn’t know if he had a case but that he did believe he was in a position to hurt the establishment. When the waiter brought the inspector’s bill, and was receiving the money in payment for it, Sam Maceo took the money from the waiter and returned it, but the inspector insisted on paying the bill. When the inspector left, Sam Maceo went with him in the inspector’s car. He told the inspector he believed he was in a position to hurt or help him (Sam Maceo) provided he already had a case against the Hollywood Dinner Club, and then tried to hand the inspector money, who said he’d like time to think it over.

It was shown at the tables dn the Hollywood Dinner Club matches were placed with covers on which were printed this advertisement : “Hollywood Dinner Club, Galveston, Texas, Sam Maceo, Managing Director.”

The records of the telephone company reflect that the switchboard at the Hollywood Dinner Club was installed June 8, 1936, the application therefor being signed by Sam Maceo; there being three trunk lines and eight telephones. There was no record of the Athletic Club having telephones at this property.

The original water contract was in the name of the Hollywood Dinner Club, dated June 4, 1926, and there was no record of the Athletic Club having water connections at this property.

The records of the Gas Company showed the contract with the Hollywood Dinner Club, signed June 21, 1933, was applied for by Sam Maceo, and there was no record of any contract for gas on this property with the Turf Athletic Club.

I think that the fact that the Hollywood Dinner Club was being served by the public service utilities under contracts signed on behalf of the Hollywood Dinner Club by Sam Maceo at the time in question tends to prove that Sam Maceo exercised authority for said Club, >and to raise an issue as to whether he possessed the authority he exercised, in connection therewith.

I think that the authority he exercised in taking the money from the waiter and trying to hand it back to the inspector when the inspector was paying his bill tends to raise the issue whether he in fact had the authority he was exercising.

I think his concern, displayed at the time he learned who the inspector was, as to whether the inspector had a case against the Hollywood Dinner Club, is cumulative of the other evidence.

I think the fact that the match covers which were placed at the tables of Hollywood Dinner Club for the use of customers, and which advertised to such customers that Sam Maceo was the managing director, tended to establish that they were placed there by authority, and that the customers were authorized to believe such representation by the operator of the Dinner Club, is a legitimate inference which the Administrator might draw.

Frank'Maceo did not testify at the hearing. He knew whether or .not Sam Maceo was his agent. He had the right of course not to testify. But if he exercised such right, the natural inference is that he concluded it would serve his interest better not to tell what he knew. It is true that Frank Maceo’s failure to testify is only negative evidence against him, but I do not see how it can be said, in light of the-foregoing evidence, that no weight can be attached to the inference which it authorizes. So much attaches to the failure of an accused to testify that the law will not permit a prosecutor to comment on it. And in civil cases it is well known that the negative evidence, indicated by the failure of a party to a suit to testify where it would be natural for him to testify unless his testimony would be injurious to him, is not without weight, and is usually commented on in argument before the jury.

As it seems to me there was sufficient evidence before the Administrator, in support of second finding of fact, to meet the test as to what is substantial evidence, i.e., enough to make an issue to go to the jury in a civil case, so as to make an instructed verdict there against erroneous, I must respectfully dissent from the majority.


author: BROWN, Justice.

text:
    CITY OF GAINESVILLE et al. v. HARDER et al.
    No. 14162.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 17, 1941.
    Rehearing Denied Feb. 21, 1941.

      Earl Wyatt, of Amarillo, for appellants.
    John Atchison and W. O. Davis, both of Gainesville, for appellees.
   BROWN, Justice.

This is a suit brought by appellants to establish a debt and foreclose a paving lien purporting to have been created by an ordinance enacted by the City Fathers of the City of Gainesville, Texas, in the year 1929.

On September'17th, 1929, the said City passed an ordinance declaring a necessity for the paving of the streets designated and provided that such city should pay one-fourth of the cost of paving (except that done on the curbing) and the respective property owners three-fourths thereof, and for all of the curbing. This ordinance expressly states, “that said portion payable by said property owners shall be assessed against their abutting property and against the owners of the same, in accordance with the terms- of Chapter 11, Title 22, Revised Statutes of Texas of 1911, and Chapter 9, Title 28, Revised Statutes of Texas of 1925, and the chm-ter and ordinances of the City of Gainesville(Italics ours.)

This is the ordinance, that was passed requiring the advertising for bids and declaring that no assessment shall be made until after notice and hearing to property owners, as is provided by .the statutes above referred to and the charter and ordinances of the City.

On the 4th day of December, 1929, after the construction company had made its bid and same was accepted, the city passed the ordinance attempting to fix the liens against the respective properties and their owners.

Blanche Mason is named as the owner of the two lots involved in this case and the amount assessed is. $387.40.

The work was done and the same was accepted by the city and a certificate in the sum of $351.73, dated June 20th, 1930, was issued to the contractor, Jagoe Construction Company, which makes the assessment payable in five equal instalments of - $70.34 each, the first being due June 20th, 1930, and the 2nd, 3rd, 4th and 5th instalments being due 1, 2, 3 and 4 years after the date of the certificate.

The certificate, by proper assignment, has become the property of Land Title Bank & Trust Company, trustee, under facts which are not material to state.

The City of Gainesville, for the use of the owner of the paving certificate; brought suit, according to the agreement of the parties, on June 20th, 1933, naming Blanche Mason as the owner when the assessment was made, and alleging that Edgar Van Slyke had purchased the property (not saying from whom) and had assumed the payment of the paving lien.

It is interesting to us to read the petition that was filed on October 19th, 1937, and is called the “substituted pleading”. This pleading not only complains of the Van Slyke heirs and Blanche Mason as defendants, but recites transactions which concern the ownership of the certificate that took place in 1934 and 1936, and recites the death of Edgar Van Slyke in 1935 and the probating of his will.

All such matters, occurrences and transactions could not have been recited in the original petition. They had not happened.

The “substituted pleading” alleges that Edgar Van Slyke bought the property (not saying from whom) and that he assumed the payment of the paving certificate.

We cannot accept the “substituted pleading” as a copy of the original petition without doing violence to the obvious facts and the record. We are able to glean from “the agreement” that the city brought suit against Blanche Mason as the owner, when the assessment was made, and against Edgar Van Slyke, who the plaintiff alleged bought the property and assumed the paving debt.

Any rule of construction that will permit the assessment against abutting property to create a lien thereon, regardless of whether the owners, at the time of the assessment, are not named, or are incorrectly named, and that such a proceeding gives the owner of the paving certificate the right to establish its debt and to foreclose its lien, even where there could not be had a personal judgment against the owners, could not, in the very nature of the right, be construed to be one that does not require the owners to be named as parties defendant. Obviously, they must be so named if the relief sought, viz.: thé foreclosure of the lien, is to be had.

These persons, who were owners when the assessment was made, have conveyed their titles by warranty deeds. They had substantial rights when this suit was brought. If they were made parties defendant before the statute of limitations had run, most assuredly the party asserting the right to foreclose the lien as against the property could obtain such a judgment without the necessity of obtaining a personal judgment on the debt, but not having been made such parties within such period of time, who will gainsay the right of these owners to plead limitations as against the right of the plaintiff to a judgment of foreclosure, when it is apparent that they will become liable on their warranties, should the paving assessment lien be foreclosed as a prior lien?

We have found no case, nor has any been cited, where the suit was not brought before limitations had run.

The bill of costs is itemized but bears no dates. This cost bill shows that only one citation was ever issued by the clerk. It likewise shows that no citation was ever served upon any defendant.

The original answer made by the Van Slyke heirs was filed November 6th, 1937.

It is agreed that the suit was filed June 20th, 1933, and the record discloses that Edgar Van Slyke lived until March, 1935, and the Van Slyke heirs were not attempted to be brought into the case until the “substituted pleading” was filed October 19th, 1937.

Edgar Van Slyke did not assume any indebtedness when he purchased the property and never having been served with process he never answered the original petition, and therefore made no appearance.

On February 26th, 1938, the plaintiff dismissed as to Blanche Mason, declaring “that it would no further prosecute its said suit as to defendant, Blanche Mason”, and the trial court entered an order that said cause be dismissed as to such defendant.

On August 12th, 1938, the plaintiffs filed a first amended original petition and this court document simply gives a history of the matters involved. It begins by saying that the plaintiff City issued the certificate sued upon as against the lots involved, and recites the steps taken by the City to make the assessment and to fix the lien; and alleges that the property was formerly owned by "A. Wasson and Sarah J. Was-son, husband and wife, both of whom died intestate before the ordinance was passed levying the special assessment relied upon, and that they left surviving them as their sole and only heirs at law four children: Blanche Mason, a widow, L. A. Wasson, A. Wasson and E. W. Wasson, who each owned an undivided one-fourth interest in the lots in controversy. It alleges the right of the Trust Company to the certificate, and that the 2nd, 3rd, 4th and 5th instalments are past due and unpaid; that the lots were conveyed to Edgar Van Slyke in payment of the debt and lien held by him against the premises, by E. W. Wasson, to whom the lots had been conveyed by the other heirs, and that Van Slyke is dead; that he left a will naming his daughter, Nilla Van Slyke Harder, as independent executrix, and that the property was then conveyed to Esther Van Slyke and Nilla Van Slyke Harder, who appear to be the owners, but who hold subject to the liens and claims of the plaintiff.

In the petition it is stated that “if it should be found that Blanche Mason had a homestead in said property, which plaintiffs deny, still said assessment would be valid and binding upon said premises as against the interests of the said L. A. Wasson, Alonzo Wasson and E. W. Was-son, and enforcible against the same, by reason of the fact that all prerequisites to the fixing of the assessment against the owners of such property, and claims of personal liability and charge against the true owners of such property, whether named or not, etc.”, were complied with.

The prayer is that the City and the Trust Company have judgment establishing the amount of the debt justly due and owing, together with an attorney’s fee and all costs, and that the assessment lien be foreclosed as a first and prior lien upon the premises against the defendants, Esther Van Slyke, a feme sole, Nilla Van Slyke Harder, individually and as executrix of the estate of Edgar Van Slyke, and her husband, Philip M. Harder.

As we view this pleading, the plaintiffs are attempting to make Esther Van Slyke and Nilla Van Slyke Plarder, individually and as executrix (and her husband) the owners of the lots, the sole and only defendants. It cannot be said that Mrs. Mason, or either of her brothers — the Wasson boys — are made defendants because no relief is asked as against any of them.

To this novel pleading, without ever having been served with process, the Van Slykes answered on September 3rd, 1938, and on the same date the three Wasson brothers adopted the answer made by the Van Slykes, and specially pleaded the two years’ statute of limitations, as did the Van Slykes. Vernon’s Ann.Civ.St. art. 5526.

The cause was tried to the court. The undisputed facts show that, as was pleaded, Mrs. Mason and her three brothers became sole owners and joint tenants of and in the property on January 7th, 1929, when their mother died; the father having preceded the mother in death. That Mrs. Mason, a widow with dependent children, was living on the premises with her mother and continued to so live and to make the premises her homestead until March 26th, 1930, at which time she conveyed her interest in the premises to her three brothers, and that on June 26th, 1930, L. A. and A.’ Wasson conveyed their interest to the remaining brother, E. W. Wasson, who assumed the debt and lien thereon held by Edgar Van Slyke, and that on August 9th, 1930, E. W. Wasson conveyed the property to Van Slyke, in payment of the debt against the same. This was a debt secured by a vendor’s and a deed of trust lien.

The trial court rendered judgment that the plaintiffs take nothing. Hence the appeal.

It is contended that the wording of the statutes relied upon, that of the charter provisions and of the ordinances, wherein it is declared that the assessment against the abutting property shall be a first and prior lien thereon, from the date the improvements are ordered, and shall be a personal liability and charge against the true owners of such property at said date, •whether named or not, and the further fact that the respective owners are made liable for their proportionate parts of the assessments, gives the owner of any such paving certificate the right to proceed against all of the owners and to secure a judgment against each owner as the facts may justify.

It is further contended that the City of Gainesville was not required to formally accept the provisions of Article 1105b, Vernon’s Annotated Civil Statutes, same having been enacted in 1927, by the 40th Legislature at its First Called Session, p. 489, Chapter 106, such Acts. That these laws are cumulative of all of the other laws and the Charter of the City, and proceeding under such statute is sufficient.

With this we may readily agree, for sake of argument, and yet find no fault with the judgment of the trial court.

It stands without dispute that no lien could have been fixed as against the interest owned by Mrs. Mason. She was occupying’ the premises, with her children, as a homestead when the assessment was attempted. (

Realizing, as they must have, that this homestead exemption was available, the plaintiffs, in February, 1938, dismissed as to Mrs. Mason. She then and there went out of the case, and the pleading thereafter filed reciting the history of the family and of the title is not sufficient to bring her back into the case as a defendant, nor is there any contention that she has been brought back.

Conceding, again for argument’s sake, that the three Wasson boys were made defendants by the amendment in 1938 (on which trial was had), their plea of limitations is well taken; and when we concede, for sake of argument, that the assessment against Blanche Mason was sufficient to bind the other three owners— the Wasson boys — it was certainly incumbent upon the plaintiff to bring suit against them as owners, before limitations ran, if the plea of limitations is to be made of no avail. The debt and lien as against the Wasson boys were barred by limitations long before they were attempted to be even named in the plaintiffs’ pleadings.

Under no theory could Edgar Van Slyke have been held for the debt. He was the owner o.f the vendor’s and deed of trust liens against the premises in question. He could be made a party defendant, when the suit was filed, for the purpose of having the trial court declare the paving lien superior to the liens held by Van Slyke, and to such interest as he may have had.

This is true even though the owners of the property conveyed the title thereto to Van Slyke prior to the day suit was filed.

To give the plaintiffs relief as against Van Slyke and his heirs, it was necessary that the debt be established as against the owners when the assessment was made, even though no personal judgment was sought against them, and such cause of action being barred by limitations as to the owners, there cannot be rendered a judgment against the Van Slykes, ití the face of their plea of limitations.

Assuredly, there can be no lien without a debt, and the suit to establish the debt must be brought before the debt is barred, if the petitioner would avoid the penalty prescribed by the Statute of Limitations.

No attempt was made to foreclose the supposed lien as against the Wasson boys until the right was barred, and the pleading asserted as against Van Slyke’s rights did not serve to toll the statute as against the right of Van Slyke and his heirs to raise the defense of limitations, under the facts found.

There are many assignments of error and many findings of fact and conclusions of law by the trial court which are challenged, but we are of opinion that what we have said is decisive of the case.

All assignments of error are overruled and the judgment is affirmed.


author: PRICE, Chief Justice.

text:
    WILLIAM CAMERON CO., Inc., v. DOWNING.
    No. 3976.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 9, 1941.

      Henry .Russell, of Pecos, and Malone, Lipscomb, White & Seay, of Dallas, for appellant.
    John J. Watts, of Crane, for appellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of Crane County. Plaintiff, L. C. Downing, sought damages for personal injuries charged to have been inflicted upon his person through the negligence of the’.defendant, William Cameron Company, Inc.

The parties will be here designated as they were in the trial court.

Trial was before the court and a jury. On the verdict returned by the jury, the court rendered judgment in favor of plaintiff in the sum of $17,500, and from this judgment defendant has perfected this appeal.

The case, as alleged by plaintiff, involved a collision between an automobile in which he was riding and a truck driven by an employee of defendant. The collision took place on the public highway not far from the town of Wolfforth. The truck and automobile just prior to the collision were proceeding along the highway in opposite directions. Plaintiff charged a negligent rate of speed on the part of the truck, failure to keep a proper lookout on the part of the driver thereof, and the operation thereof on the left-hand side of the road; discovered peril was likewise alleged and relied upon.

Defendant replied by general denial and detailed plea of contributory negligence.

The jury found substantially as follows: Defendant’s truck at and just prior to the collision was operated at a negligent rate of speed, which was the proximate cause of the collision; that at and immediately prior to the time of the collision the truck was operated on defendant’s left-hand side of the highway; that this was negligence and a proximate cause of the collision; that at the time of such operation of the truck on such portion of the highway same was not unobstructed, for a distance of fifty yards ahead,of the truck; defendant’s employee negligently failed to keep a proper lookout ; that this was a proximate cause of the collision. Issues submitting discovered peril were likewise found in favor of the plaintiff. The issue .of unavoidable accident was found in favor of plaintiff. It was further found that Bynum, the driver of the car in which plaintiff was riding, failed to use ordinary care to keep a proper lookout, but that same was not a proximate cause of the accident. Other issues submitting contributory negligence were found in favor of. plaintiff. Further, that at the time of the collision plaintiff and Bynum, the driver of the car, were going to Lubbock in the course of a joint enterprise.

Defendant assigns error as to the conveyance to the jury of information that it was protected by indemnity insurance. The factual basis of this contention as reflected by the record is as to three separate incidents :

First, in the course of a discussion between the court and counsel as to whether plaintiff’s suit should be abated, on account of lack of mental capacity of plaintiff, counsel for plaintiff stated: “The insurance company knew and has known ever since the law suit was filed that we alleged a mental impairment of his mental faculties.” Whereupon counsel for defendant said: “We object to the statement that the insurance company knew, and we move to declare a mistrial.” Counsel for the plaintiff then said: “I mean the Cameron Lumber Company.” The court then asked Mr. Watts, the attorney for the plaintiff, if there was any insurance involved in the case. He replied as follows: “There is no insurance company in this case. I meant to say the Cameron Lumber Company. The court knows we try a great many of these compensation cases where the insurance companies are defendants, and for that reason I made the mistake of referring to the defendant as the insurance company.” The court overruled the motion of defendant to declare a mistrial.

Second, while the plaintiff’s wife was on the stand, counsel for plaintiff asked her the following question: “Just state what the adjuster did in connection with taking or attempting to take a statement in connection with that part of it.” Mrs. Downing replied: “He tried to get him to say Mr. Bynum was looking back talking to his son Billy, and he said ‘wasn’t he,’ and my husband said T don’t know, I don’t know.’ ” Defendant made motion to declare a mistrial. The judge said: “The court doesn’t know who ‘he’ is. Overruled.” Mr. Watts, counsel for the plaintiff, then said: “I just called him an adjuster, a statement taker and I presumed that he was working for Cameron because he was apparently out there taking statements for Cameron and I always call those statement takers ‘adjusters’; as I heretofore said Cameron Lumber Company ⅛ the only defendant in this suit, and I don’t intend for it to be otherwise.” Defendant objected to the statement, and the court overruled same. Defendant renewed his motion, which the court overruled.

Third, in his opening- argument, counsel for the plaintiff used this language: “But this Mr. Tripp, this adjuster, who tells you - ” Defendant’s counsel interrupted the argument and took exception thereto and moved the court to declare a mistrial. Whereupon counsel for the plaintiff, in the presence of the jury, said: “Well, your Honor, he is working for the Cameron Lumber Company, swore he was, and any statement taker is always, in my opinion, an adjuster, any investigator.”

The solution of the question tendered depends on whether the three incidents reasonably conveyed to the minds of the jury that the defendant was protected by indemnity insurance. The record reflects that defendant was not an insurance company. It was referred to as such. This reference by counsel for the plaintiff, we believe, was through pure inadvertence. However, viewed from the standpoint of defendant, it was a grave infringement of its rights, and the prompt exception as to same was natural and within its legal rights. Perhaps the better practice would have been to have requested the withdrawal of the jury and then made the motion for a mistrial. To the jury, if there was not some matter of underlying importance in the matter, it must have seemed “much ado about nothing.” The explanation of Mr. Watts was literally true. There was no question of insurance properly involved in the legitimate issues arising in the trial. He promptly said by “insurance company” he had meant the defendant, . Cameron Lumber Company. This incident, as reflected by the bill of exceptions, standing alone, would not, in our opinion, constitute reversible error. It is not every casual or inadvertent reference to an insurance company in the course of a trial that would necessitate a mistrial. The allusion by question and in argument to defendant’s witness, Tripp, as an adjuster is upon a somewhat different basis. If it may be said that this by reasonable import tended to suggest to the jury that defendant was or might be protected by insurance, it was deliberately done. When the term was first used in the question, it provoked exception and protest from the defendant. The reasonable expecta-ción, we think, that its use in argument would have the same result. The conviction is forced that these two references were artful rather than artless. Nearly every business has terms peculiar to such business. An adjuster in the insurance business is an agent of the company charged with the investigation and adjustment of claims against the company. This, we think, is a general acceptation of the term among the public at large. The intervention of an adjuster suggests an insurance company. Defendant’s name suggests that it was not such.

In the case of Jackson v. Edmondson, 129 S.W.2d 369, 372, by the Austin Court of Civil Appeals, the question arose as follows:

“While attempting to impeach witness Brown, appellant’s counsel handed him a written statement purported to have been made by him. The following then transpired :
“ ‘Q. I want him to look at this statement. (Hands witness paper.) This sentence beginning here. (Indicating.)
“ ‘A. I didn’t read the statement when I signed it; the adjuster read it to me.
“ ‘By Mr. Tuper for plaintiff:
‘“Q. The * * * who?
“ ‘A. The adjuster.’ ”

The defendant asked the court to declare a mistrial, which was overruled. This was held not to present reversible error. In this case, however, the Supreme Court' has granted writ of error, noting on the docket: “Granted. We are inclined to the view plaintiff’s allusion to the adjuster informed the jury that the defendant had insurance.”

In our opinion the situation here is much more aggravated than the situation arising in Jackson v. Edmondson, supra. There, only one incident was complained of. Here, three references were made. One of them, it is true, may have been inadvertent.

In 33 Tex.Jur., Sec. 171, p. 276, the following appears: “It is a general rule in suits for personal injuries or for wrongful death that the fact that the defendant is protected by indemmnity insurance against liability for damages may not directly or indirectly be injected into the case either by the evidence offered, by argument to the jury, or otherwise.”

It is true that every reference to insurance in the course of a trial in a personal injury case is not necessarily reversible error.

The following cases cited by appellee in his brief are instances where such mention was held not to constitute reversible error: Allen & Co. v. Shook, Tex.Civ.App., 160 S.W. 1091; Horton v. Benson, Tex.Civ.App., 266 S.W. 213; Russell v. Bailey, Tex.Civ.App., 290 S.W. 1108; Humble Oil Pipe Line Co. v. Kincaid, Tex.Civ.App., 19 S.W.2d 144; Jimmie Guest Motor Co. v. Olcott, Tex.Civ.App., 26 S.W.2d 373; Russell v. Martin, 121 Tex. 488, 49 S.W.2d 699; Finclc Cigar Co. v. Campbell, Tex.Civ.App., 114 S.W.2d 348. .

In each and every one of the above referred to cases there is a distinguishing feature in this respect from the case at bar. This distinguishing feature lies in the fact that the subject of insurance was mentioned apparently inadvertently, and was not intentionally brought into the case as here.

We think thqt the three incidents, taken together, constitute the conveyance of information to the jury that defendant was, or probably was, protected by indemnity insurance. See Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Texas Power & Light Co. v. Stone, Tex.Civ.App., 84 S.W.2d 738; South Texas Coaches, Inc. v. Woodard, Tex.Civ.App., 123 S.W.2d 395 ; 33 Tex.Jur, Sec. 171, p. 276.

The statement of counsel as to what he called an adjuster, in our opinion, was not sufficient to relieve the references of their harmful effect.

In this case the issues were closely contested, the verdict is substantial in amount. We cannot say that it clearly appears that the unjustified injection by plaintiff's counsel of the question of insurance in the case was harmless. This suggestion was deliberately made by question an,d by argument. The assignments are sustained.

We do not hold that where the credibility of a witness is involved it might not be permissible to show that he is an employee of one upon whom the incidence of the judgment might fall. No such question is before us, and hence no holding with reference to such a case is made.

In view of another trial of this case it is thought proper to discuss other assignments of error.

Complaint is made as to the manner of the submission of the issue of unavoidable accident. There is some doubt as to whether this issue is in this case. Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513; Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777. This incident happened on a straight road with ample room for one motor vehicle to pass the other with safety. One or the other of the drivers was negligent, in that one or the other of the cars was operated on the wrong side of the road. However, it was possible for it to have happened without negligence on the part of either ’the driver of defendant’s truck or plaintiff. This, on the assumption that under the law plaintiff had no right to control the manner of driving of Bynum. If submitted on another trial, it should be submitted as to the conduct of defendant’s driver and plaintiff. The jury found that Bynum and Downing were engaged in a joint enterprise; that Bynum was negligent, but that same was not a proximate cause of plaintiff’s injury. In our opinion, the issue of joint enterprise, under the evidence as developed, was not in the case. There is, to our minds, a total lack of proof of the right of plaintiff to control the operation of the car. El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187; Pryor v. Le Sage, Tex.Civ.App., 133 S.W.2d 308.

In the case last cited the Supreme Court has granted a writ of error, but we believe the legal principles therein announced are sound. In granting the writ the sufficiency of the evidence was perhaps involved. We think our holding in no way conflicts with Waggoner v. Simmons, Tex.Civ.App., 117 S.W.2d 553.

There is some duplication in the .charge as to issues involving the speed of defendant’s truck. One submission we think sufficient. If the rate be above the statutory limit, such speed is negligence, and there is only the question of proximate cause. In case the speed was within the statutory limit, then the question arises as to whether or not it was negligence.

In regard to the assignment as to the cross-examination of Dr. Stiles in relation to the medical work purported to have been written by Dr. Malloy, certain statements were read therefrom to the witness, and he was asked with reference to his agreement with such statements. As we interpret the record, two objections were raised to such action: First, that if was placing before the jury as evidence the statement of Dr. Malloy; second, that the statements were never shown to be those of Dr. Malloy, in that the book from which they were read was never identified as a standard medical work. Medical books are not admissible as proof of the facts therein stated. However, in the cross-examination of an expert, as throwing light on his ability or credibility, they may at times be used. Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260. In our opinion error is not shown by the assignment. The evidence, however, is slight to show that the book in question was what ' counsel for plaintiff claimed it to be.

We do not mean to hold that it is impossible to prove the authenticity of such a book. It occurs to us that if proof be made by any competent doctor that same is used and recognized by the medical profession, that this is sufficient.

Special issue No. 11 was as follows: “What sum of money, if paid now in cash, do you find from a preponderance of the evidence is entitled to receive, if any, the said L. C. Downing for the injuries, if any, and his loss of earning capacity, if any, proximately resulting from the collision in question ?”

Defendant urged objections thereto as follows :

“(a) It is for the court to determine what, if anything, the plaintiff is ‘entitled to receive’ after the jury has determined the facts; since it is not within the province of the jury to determine what the plaintiff is ‘entitled to receive’ for his injuries it is error to submit such a question to the jury.
“(b) It is on the weight of the evidence in that it will lead the jury 'to believe the court is of the opinion the plaintiff is entitled to receive something.
“(c) This is the submission of a general charge to the jury in a case submitted on special issues.
“(d) Asking the jury to find what the plaintiff is entitled to receive is the submission of a question of law to the jury.
“(e) It is the submission, in any event, of question of mixed law and fact.
“(f) The issue is objectionable, too, for the reason that it authorizes the jury to find double damages in that the jury is asked to determine what Downing is entitled to receive for his injuries and also what he is entitled to receive for loss of earning capacity, as though ‘injuries’ did not include loss of earning capacity.”

As we construe it, special issue No. 11 seeks to submit the issue of clamages. It is not in the stereotyped form of such issue. We believe same is subject to objections a, c, d, e and f. On another trial this issue should be recast.

The court should have sustained the objection of defendant to the answer of the witness, Mrs. Downing, that since the accident she and her family “havern’t had any living much.”

In our opinion it was not error for the court to overrule the request to abate the suit on account of the mental condition of plaintiff. This question will hardly arise on another trial, as defendant will have the opportunity, if it desires, to present same upon a formal plea in abatement.

The question as to the admission of the testimony in regard to plaintiff’s driver and the truck being involved in another traffic accident prior to the accident in question will hardly arise again. This testimony was not admissible.

The assignment relating to the injection of the question of insurance in the case is sustained, and as to the manner of the submission of the question of damages.

. It is ordered that the cause be reversed and remanded.


text:
    HURSEY v. HURSEY.
    No. 13124.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 21, 1940.
    Rehearing Denied Jan. 25, 1941.

      G. Ray Lee and Thomas B. Ridgell, both of Dallas, for appellant. •
    House & House and Albert S. Reagan, all of Dallas, for appellee.
   BOND, Chief Justice.

Ancillary to divorce suit between the Hurseys, a receiver was appointed over certain realty and this appeal is from denial of a motion to vacate the same upon hearing. The marriage of. the parties soon ended in violent discord and strife, according to pleading of appellee (plaintiff in the main suit) ; but prior thereto, as she alleged, defendant was possessed of considerable property, of which some four apartment houses, situated at different locations in suburban Dallas, appear of importance in this litigation. Upon allegations that she owned two of these properties by prenuptial written contract, a trial ensued in the case, resulting in judgment for plaintiff, which was, in due course, set aside by the trial court and a new trial ordered. Immediately thereafter, and on April 1, 1940, Mrs. Hursey petitioned for a receiver under voluminous pleading, generally asserting her ownership of aforesaid properties, rents and revenues, as well as a community interest in all revenues from defendant’s other properties, though separate. She alleged a constant intermingling of rental collections from all apartments and diversion thereof to defendant’s individual use; that a similar condition existed as to payment of taxes, interest and insurance premiums; that the chief properties were encumbered, the furniture thereof removable; and that a receiver was- necessary to properly manage the properties, collect and disburse their revenues, etc. Appellee also alleged inadequacy of legal remedy to protect her interest and rights of lien creditors; that the defendant was incapable of handling the apartments or keeping them rented, and that she feared he would injure, damage or encumber same if permitted to remain in charge. Defendant’s sworn answer to such application ■ claimed all property as separate; a prudent and careful management, with no delinquencies in lien, tax or insurance payments; that no just cause for a receiver existed, but, on the other hand, such would be burdensome and likely to result in complete loss of all equities through foreclosure. No particular testimony was adduced at the time of the appointment, same being without notice; the court stating, however, that the action was taken on the basis of the evidence heard by it .during the course of the preceding ten-day jury trial.

The motion to vacate was filed July 11, 1940, the original application being attacked as deficient in statutory or equitable grounds; of no imminent danger that the property would be lost or materially damaged; and that the receivership had already greatly harmed the assets, and income from rentals reduced; also agreeing to an injunction imposing necessary restraint, including regular report and account for all moneys collected, pending final trial. The motion to vacate was regularly heard, overruled, and appeal thereof expedited. Appellant’s grounds of error in the transcript complain largely of the original appointment, insufficiency of the application, and its ex parte nature, as evidenced by his first assignment: “(a) The plaintiff does not clearly allege facts, which evidence immediate and pressing necessity for appointment of a receiver. (b) The receiver in this cause being appointed ex parte and without notice to the defendant, and the petition not clearly showing such intimate and pressing danger of loss to the extent, that the purpose for having receiver would be frustrated by the lapse of a few days’ delay, incident to the giving of notice of the application and therefore, the court further erred in appointing the receiver (in addition) on account of failure to give notice to the defendant.”

His supporting propositions to other assignments are: (1) That plaintiff’s pleadings and facts.fail to disclose .inadequacy of legal remedy, on the contrary, showing that complete relief could be afforded by mere injunction; (2) that lis pendens notices sufficiently prevented a disposition of any property, the facts not establishing insolvency of the defendant or mismanagement; (3) error in placing defendant’s separate property in receivership; (4) the original appointment was unauthorized, in face of sworn answer thereto; (5) it was clearly shown that the estate had been handled to greater advantage and at less cost by defendant.

The order of appointment limited the receiver’s powers to control of the property in suit, for the purpose of rental and collection of revenues, payment of current bills, and holding all receipts intact subject to further order; the court proceeding under Subd. 1, Art. 2293, Vernon’s Ann.Civ.St, that a receiver may be appointed in an action between partners or others jointly owning or interested in any property of fund, “* * * on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.” A divorce suit being involved, the authority of Art. 4636 was also available, providing that: “Pending suit for a divorce the court, or the judge thereof, may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable.” Under the latter statute alone, it is well settled that a court has broad powers and, on proper showing, a receiver may be appointed with or without notice or application. Crawford v. Crawford, Tex.Civ.App., 163 S.W. 115; Kinsey v. Kinsey, Tex.Civ.App., 77 S.W.2d 881; also see 95 A.L.R. p. 911, subject “Receiver’s Appointment in Divorce Suit.” And it is equally clear that appellant’s failure to appeal from the April 1st order appointing the receiver precludes him, in a later motion to vacate, from complaining of defects, if any, incident to the application, such as want of notice, or that the initial order was improvidently made. San Angelo Hilton Hotel Co. v. B. B. Hail Bldg. Corp., Tex.Civ.App., 60 S.W.2d 1049; Lauraine v. First Nat. Bank, Tex.Civ.App., 204 S.W. 1022; Dixie Cotton Machinery Co. v. Garber, Tex.Civ.App., 63 S.W.2d 895. Our courts further hold that pleading involving the above-quoted subdivision of the receivership statute, Art. 2293, need not -show insolvency of defendant, inadequacy of legal remedy, or other equitable grounds; Temple State Bank v. Mansfield, Tex.Civ.App., 215 S.W. 154; Hunt v. State, Tex.Civ.App., 48 S.W.2d 466, 467; Massey v. Greenwood, Tex.Civ.App., 56 S.W.2d 1103. Appellant’s remaining propositions go generally to the receiver’s record of administration, as compared to his own before the appointment. Any criticism of the receiver’s management is carefully avoided by Mr. Hursey as a witness, his proof tending to show that the estate could be made more productive under his own handling; and the status .quo of the property and plaintiff’s interest therein amply protected by ordinary process of injunction. In this connection, it must be borne in mind that plaintiff’s action, both main and ancillary, is based on a connubial partnership now in course of disruption, but, in the inception, voluntarily entered into by the parties. Plaintiff asserts sole ownership to certain items of the estate and such espoused partner has undoubted claim to a present division of revenues from all property, whether separate or community. A civil forum being now called upon by both parties to sever this marital union, they must incidentally bear the burden of the court’s assumption of property control, pending determination of all conflicting claims. In the situation thus created, this record lacks considerably of establishing an abuse of the court’s discretion in granting and continuing the receivership; to the contrary, judicial zeal is demonstrated in the safeguarding of valuable property for whomsoever may be entitled thereto after final judgment in the main case.

The pleadings and facts are sufficient to warrant the court’s prior interlocutory order, in view of its broad discretion touching the matters under review, and a judgment overruling- defendant’s motion to vacate the proceedings in question must be affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE CO. v. HUMPHRIES.
    No. 3784.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 6, 1941.
    Rehearing Denied Feb. 12, 1941.
    John H. Bickett, Jr., and C. M. Means, both of Dallas, and C. E. Coolidge, of Houston, for appellant.
    Gaston H. Wilder, Jr., of Beaumont, for appellee.
   WALKER, Chief Justice.

The theory of appellee’s petition is that his mules escaped from his pasture onto the public highway, through a gap made in his fence by appellant, which gap it negligently failed to repair; and that as a proximate result of appellant’s negligence in failing to repair the fence, the mules were struck on the highway by a passing-automobile and killed.

The jury fixed the value of the mules at $300; the evidence supports this finding.

On the undisputed facts, appellant made a gap in appellee’s pasture fence. The jury found that appellant “failed to repair the fence,” and that this was negligence; and that the mules escaped from the pasture through the gap in the fence made and left by appellant. We overrule appellant’s assignments that these findings are without support in the evidence.

The jury gave an affirmative answer to the following question: “Do you find, from the preponderance of the evidence, that the negligence (if any) of the said Rogers or his crew in failing to replace plaintiff’s fence at said time and place (if they did fail to replace it) was a proximate cause of plaintiff’s mules escaping from his inclosure and being killed?”

We overrule the exception that this issue was multifarious. On the undisputed facts, the mules, after escaping through the gap in the fence, were killed on the highway by a passing automobile. As a matter of law, the presence of the mules on the highway was a proximate result of their escaping from the pasture. There was no fact issue against the conclusion that their presence on the highway was a proximate cause of their death. The only controverted fact issue submitted by this question was whether the failure of Rogers or his crew (appellant’s agents) to repair the fence was a proximate cause of the escape of the mules from the pasture. The evidence sufficiently supports the verdict on this issue.

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

Affirmed.


author: GRAVES, Justice.

text:
    RUSS v. RUSS.
    No. 11135.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1941.
    Rehearing Denied Feb. 20, 1941.
   GRAVES, Justice.

The appellant herein seeks to have this court review an order of the district court of Austin County, of date May 11 of 1940, in a proceeding there entitled, “In the Matter of the Estate of Kinch Russ, Deceased, No. 7299-7315,”- refusing her application to readjudge the costs in the consolidated cause so numbered there; that court had previously, on the 12th day of January of 1940, assessed against this appellant and her sureties, E. D. Sorsby and H. D. Schwartz, on a certiorari bond she had given, all the costs in such consolidated proceeding, involving the validity of a will by Kinch Russ, deceased, in which she had not been a party, but to which J. H. Guthrie, as next friend of her two minor children, Virgie Lee and Charles Ray Russ, along with Mrs. Lulie Russ, had been parties; that is, despite her absence, the court had, after refusing the probate of such will, assessed the costs against appellant and her two sureties.

As indicated, although at the time of its rendition she was not a party thereto, having been, under order of that court prior to the entry of such former judgment, allowed to resign as the nominated independent executrix, and having then been “dismissed and discharged as and from being a party” to that cause, she did not in the application here under review to “readjust and readjudge” such costs, which itself therefore, was an original proceeding in the trial court (11 Tex.Jur., p. 308, par. 47), make parties thereto her named sureties on the bond she had given, nor bring her children in, through their next friend, J. H. Guthrie, as appears from this recitation in the order thus attempted to be appealed from, towit: “1. It appears to the Court that Mabel Guthrie Russ, J. H. Guthrie, as next friend of Virgie Louise Russ and Charles Ray Russ, minors, and Mrs. Lulie Russ are parties to the above entitled and numbered cause, and that the only parties appearing in the matter of this motion, so far as this Court is informed, who have been cited to appear, are Mabel Guthrie Russ and Mrs. Lulie Russ, and it does not appear that J. H. Guthrie, as next friend for Virgie Louise Russ and Charles Ray Russ, was made a party to this motion by citation or otherwise.”

Wherefore, to say nothing of the appeal-ability vel non of such a detached and independent order of the trial court as this one was, it is obvious that both the néxt friend of her children and her own sureties on the bond she had given were vitally interested in the controversy to which her application for the readjudging of the costs related, and were necessary parties to any proceeding to readjudge the same; hence her application for such relief was-fatally defective, for the want of necessary parties thereto. B. K. Durden, Adm’r, v. Miss Jimmie Patterson et al., Tex.Civ.App., 146 S.W.2d 296, decided December 19,-1940; H. M. Cohen Co. v. McCalla, Judge, Tex.Civ.App., 142 S.W.2d 685; Kelly v, Lobit, Tex.Civ.App., 134 S.W.2d 428, and cited authorities.

The judgment of the court below will accordingly be reversed and the application of appellant to retax costs dismissed without prejudice to any right she may have, if any, to again present the same to the court below with all necessary parties included. It is so ordered.

Since it is not necessary to this determination to pass upon the appealability of such an order, even with the essential parties included, that is not done.

Reversed and dismissed without prejudice.