text:
    KRUEGER v. W. K. EWING CO., Inc.
    No. 3934.
    Court of Civil Appeals of Texas. El Paso.
    April 4, 1940.

      Terrell, Davis, Hall & Clemens, of San Antonio, for appellant.
    Clinton G. Brown, Jr., and Brooks, Napier, Brown & Matthews, all of San Antonio, for appellee.
   WALTHALL, Justice.

This case presents an appeal from an order of the District Court of Bexar County, Texas, overruling appellant’s plea of privilege to be sued in Victoria County, Texas, the county of his residence and where he resided at the time the suit was filed.

W. K. Ewing Company, Inc., as plaintiff, filed this suit in the District Court of Bexar County, Texas, against A. W. Krueger, as defendant, seeking specific performance of an alleged written contract, by the terms of which, it is alleged, plaintiff sold to defendant, and defendant bought from plaintiff, certain real estate known and described as the “San Gabriel Apartments,” for the sum of $52,000, the amount of the alleged purchase price, with interest from May 5, 1938, at five per cent per annum, and for foreclosure of its vendor’s lien upon said property.

Defendant seasonably filed a plea of privilege in statutory form asserting his right to be sued in Victoria County, Texas, the county of his residence.

Plaintiff filed a controverting affidavit reiterating the same facts stated in its original petition, upon which the case went to trial, and contended that, under the facts pleaded, the suit was maintainable in Bexar County.

The court overruled the defendant’s plea of privilege.

The defendant duly excepted and perfected his appeal, and the case is now properly before us for review.

The suit is for specific performance of a written contract of sale of real estate in which plaintiff seeks a money judgment and' a foreclosure of its implied vendor’s lien.

At the hearing on defendant’s plea of privilege plaintiff introduced its original petition on which it went to trial as showing the nature of the suit. Plaintiff then introduced three letters which it alleged formed the contract of sale relied upon by-it. The letters are as follows:

“San Antonio, Texas,
March 30, 1938
“W. K. Ewing Co., Inc.
San Antonio, Texas.
Attention of Mr. Wolff, President.
Gentlemen:
On behalf of Mr. A. W. Krueger of Victoria, Texas, I hereby offer you $52,000-00 for the San Gabriel Apartments, the purchase price to be paid $27,000.00 in cash and the balance to be represented by a note for $25,000.00, bearing interest at the rate of 5% per annum, payable $1,250.00, plus interest, semi-annually, the maker to have the privilege of prepayment in multiples of $1,000.00 on any interest paying date, provided such prepayment is tendered with sixty days unearned interest.
This offer is- firm and binding upon my client until Thursday, April 7, 1938, at twelve o’clock noon.
Yours very truly,
(Signed) W. ,V. Greer.”
“April 6, 1938.
“Mr. A. W. Krueger,
Victoria, Texas.
Dear Mr. Krueger:
Confirming our telephone conversation of this day, we have accepted your offer to purchase the-San Gabriel Apartments.
Yours very truly,
FW-sb
President.”
“San Antonio, Texas,
April 12, 1938.
“W. K. Ewing Co.,. Inc.,
San Antonio, Texas.
Attention Mr. Frank.Wolff.
“Gentlemen:
“I have heretofore agreed to purchase from you, and you have agreed to sell to rne the property known as the San Gabriel Apartments for a total consideration of $52,000.00, of which $27,000.00 will be paid in cash, and the balance of the purchase price represented by a note secured by a deed of trust in the amount of $25,000.00, said note to bear an interest rate of 5% per annum, and be payable $1,250.00," plus interest, semi-annually, I, as the maker, to have the privilege of prepayment in multiples of $1,000.00 on any interest paying date by paying sixty days penalty interest.
“Since the making and acceptance of the above offer I have made a thorough inspection of the property which you own, known as the Magnolia Terrace Apartments, and it is my preference to purchase this latter property for a total consideration of $60,000.00, of which $27,000.00 shall be paid in cash, and the balance of $33,000.00 to be represented by a note secured by deed of trust bearing an interest rate of 5% per annum, payable $1675.00 plus interest, semiannually, I, as the maker, to have the privilege of prepayment in multiples of $1,000.-00 on any interest paying date by paying a sixty day penalty interest.
“Please let me have your decision not later than Friday, April 15th.
Yours very truly,
(Signed) A. W. Krueger.”

Plaintiff introduced evidence to the effect that defendant had personally inspected the property known as the “San Gabriel Apartments” before he wrote the above letter. The record shows, and defendant admits, that he signed the letters and knew the property the letters referred to.

The defendant seeks to avoid liability in the suit, we infer from his brief, on the ground that the letters shown above do not sufficiently describe the property to constitute a contract of sale under the statute of fraud.

This is a suit by the vendor of real estate against the vendee for specific performance of a contract, seeking a money judgment and foreclosure of the implied vendor’s lien. The only question before us, as we see it, is that of venue, the county in which the suit may be brought; a suit in which the vendee interposes a plea of privilege to have the case tried on its merits in the county of the vendee’s residence, and in a county other than that in which the land lies.

The suit includes the issue of the foreclosure of the vendor’s lien on the land. The venue in such suits is in the county where the land lies, unless the vendor has agreed in writing to perform the contract in some other county, which is not made to appear. 38 Tex.Jur., p. 744.

In the case of Gambrell v. Tatum, Tex.Civ.App., 228 S.W. 287, 291, the vendor brought a suit of the nature as here. Gam-brell filed his plea of privilege. The trial court overruled the plea. Chief Justice Huff, speaking for the Amarillo Court, said that, “such a proceeding it occurs to us would fall within exception 12 of our venue statute, and give a right to sue where the land is situated.” To the same effect is Hooser v. Forbes, Tex.Civ.App., 33 S.W. 2d 550, a case in point, by the San Antonio Court of Civil Appeals; Brooks v. Herren, Tex.Civ.App., 30 S.W.2d 561, holding that the foreclosure of an equitable lien for the purchase of land is within the purview of subdivision 12 of the venue statute (Vernon’s Ann.Civ.St. art. 1995) which authorizes the suit to be brought in the county where the land is situated, and refers to Flanagan v. Cushman, 48 Tex. 241; Joiner v. Perkins, 59 Tex. 300; Capps v. Edwards, Tex.Civ.App., 180 S.W. 137; Gambrell v. Tatum, supra.

Some of the propositions here go more to the merits than to the venue. In the case of Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, the distinction is drawn between proof necessary to establish venue and proof necessary on a trial on the merits. Here defendant, as shown above, made and submitted a proposition in writing to buy the San Gabriel Apartments, and plaintiff, in due time and in writing, accepted the proposition. The proposition and its unqualified acceptance shows the intention of the parties to contract with reference to the San Gabriel Apartments, and constitutes a contract to perform as proposed.

We think the letters constitute a sufficient basis for plaintiff’s suit to foreclose its implied vendor’s lien.

Subdivision 12 of the venue statute provides that, “A suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.”

Defendant in his brief suggests as a defense to the suit that the contract is unenforceable because of the statute of frauds, in that the contract does not give any description of the property, does not show the state, county or city where located.

Plaintiff’s petition alleged, and the proof shows, that the San Gabriel Apartments are located in the City of San Antonio, Bexar County, Texas.

Defendant contends that plaintiff failed to make out a prima facie case, in that it failed to prove that W. V. Greer, who wrote the letter of March 30th for the defendant, was the defendant’s agent. The trial court found in the findings of fact that Greer was defendant’s agent. In defendant’s letter of April 12th he said: “I have heretofore agreed to purchase from you, and you have agreed to sell to me the property known as the San Gabriel Apartments * * *, and follows by a reiteration of the terms of the purchase. Where a plea of privilege challenges the authority of the agent we think ratification may be shown. The letter of April 12th shows such ratification, as well as the agency. 43 Tex.Jur., p. 868.

Defendant also contends that plaintiff failed to make out a case, in that it failed to prove that Frank Wolff, plaintiff’s president, was authorized to act for it in executing the contract of sale. Plaintiff’s by-laws are in the record, which clearly authorize its president to execute all contracts, deeds, etc., in the name of the company. The president is thereby given the general management and supervision of the affairs of the company.

The fact that there may have been some additional discussion between the parties relating to an abstract, insurance, rent and tax proration, not included in the letters, we think immaterial, since the letters contain a complete agreement. In the letters the property is referred to as the “San Gabriel Apartments,” and as the property “known as the San Gabriel Apartments,” and the evidence shows that the property has been under such local appellation for a period of some twelve years, and under no other name; the property was given that name at the time it was built, and that plaintiff owned no other property by that name.

It is an obvious principle that a grant must describe the land to be conveyed, and the subject granted must be identified by the description given in the instrument itself, or by other writings referred to. Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705; Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257; Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064. The above cases are examples of contracts where parties sought to describe the property by lot and block, numbers of acres, metes and bounds or boundaries, but there was not sufficient description in the contract to distinguish the property by extrinsic evidence from other real estate. But a contract, we think, may also sufficiently describe property by its common or particular name by which it is known in the locality where situated. 25 Ruling Case Law, p. 654; 18 Corpus Juris, p. 181, where it is said: “The office of a description is not to identify the land, but to afford the means of identification, and when this is done, it is sufficient. Generally, therefore, any description is sufficient by which the identity of the premises can be established, or which furnishes the means of identification. A conveyance is also good if the description can be made certain within the terms of the instrument.”

This court applied the above rule in the case of Crawford v. El Paso Land & Improvement Company, Tex.Civ.App., 201 S.W. 233, where the contract was to convey the Angelus Hotel. See also Cunyus v. Hooks Lumber Co., 20 Tex.Civ.App. 290, 48 S.W. 1106, where the land described was “Vanmeter Survey,” and no town, county or state was included in the description. It was held a sufficient description under the statute of frauds (Vernon’s Ann.Civ.St. art. 3995). Dyer v. Winston, 33 Tex.Civ.App. 412, 77 S.W. 227, where the land was described as the “Triangle or Cutoff pasture”; Bates v. Harris, 144 Ky. 399, 138 S.W. 276, 36 L.R.A.,N.S., 154; Henry v. Black, 210 Pa. 245, 59 A. 1070, 105 Am.St. Rep. 802, land described “Hotel Dubuque,” suit specific performance, description held sufficient.

From the date line of “San Antonio, Texas,” it may be presumed that the property was located in San Antonio, Texas. Taylor v. Lester, Tex.Civ.App., 12 S.W.2d 1097; Easterling v. Simmons, Tex.Civ.App., 293 S.W. 690, writ of error refused, the deed did not state the city,- county or state where the land was located. See also Sanderson v. Sanderson, Tex.Civ.App., 82 S.W.2d 1008; Petty v. Wilkins, Tex.Civ.App., 190 S.W. 531.

Propositions not specifically discussed have been considered and are overruled.

The case is affirmed.


source: Caselaw Access Project

author: WALTHALL, Justice.

license: Public Domain

text:
    WITTNEBERT v. AMERICAN NAT. INS. CO.
    No. 3932.
    Court of Civil Appeals of Texas. El Paso.
    March 28, 1940.
    Rehearing Denied April 18, 1940.
    Hull & Oliver, of San Antonio, for appellant. - . . -
    Claud J. Carter, Jr., and Claud J. Carter, both of San Antonio, for appellee.
   WALTHALL, Justice.

This suit was brought by appellant, Lur-line Wittnebert, the surviving widow of Duke Wittnebert, against' the American National Insurance Company to recover lipón a policy of insurance issued by the appellee Insurance Company to her husband, and in which policy appellant was named the beneficiary.

The policy was of date November 27, 1925, and was in the sum of $2,500. Duke Wittnebert, the insured, died on October 4, 1936, within the first quarter of the policy year, which commenced on November 27, 1935, and ended on November 27, 1936. Appellant alleged that all premiums had been paid on said policy, including the first quarter of the policy year in which the insured died, the policy year being 1935.

The Insurance Company answered in the suit and alleged that at the time of the death of the insured on October 4, 1936, the policy was lapsed.

The case was tried by the court without a jury and resulted in a judgment in favor of the Insurance Company.

The plaintiff, appellant here, prosecutes this appeal.

The only question presented here is whether all premiums had been paid on the policy at the time of the death of the insured on October 4, 1936.

The facts are undisputed. The insured, Duke Wittnebert, paid the premiums on the policy from the time the policy was issued to him on November 27, 1925, and died within the policy year which commenced on November 27, 1935, and ended on November 27, 1936.

Within that policy year the insured paid the whole of the first quarter and a part of the second quarter of that policy year.

Prior thereto the insured had borrowed from the appellee Insurance Company the remainder of his cash benefits under the policy, for which he had executed his note, the' note to be deducted from the benefits.

The insured in his written application for the policy, which forms a part of the policy, requested the Insurance Company to pay the premiums as they became due and charge such payments as a loan against the policy.' The Company did so until March 15, 1936, on which date the Company submits that the policy, by its terms, lapsed, and was out of -benefit on October 4th of that year, the date of the death of the insured.

We copy here such parts of the policy as seem pertinent to the issues presented:

“The first premium hereunder, receipt of which is hereby acknowledged, is that shown at the head of .this page. This premium or this premium with others corresponding to the first year’s duration of this contract shall be for term insurance terminating -on the 27th- of November, 1926. Premiums subsequent to the first premium hereunder shall be payable and in the amounts as follows:
“Payable annually on the 27th day of November, $65.38
“Payable semi-annually on the 27th days of November and May * * * of each year, $34.10
“Payable quarter-annually on the 27th days of November, February * * *, May * * * and August of each year, $17.43
“It being understood that one annual, or two semi-annual, or four quarter-annual premiums constitute all the payments required under this Policy for the period of one full year, and it being further understood that, until a change has been made in accordance with the provisions hereinafter set forth, the mode of payment and amount of premium shall be that set forth at the head of this Policy. The payment of premiums shall continue until the death of the Insured, any remaining premiums for the then current policy year being deducted in any settlement hereunder. The method of payment of premiums may be changed at any time after the first policy year upon application to the Home Office.
“Consideration
“The consideration for this policy is the application herefor, which is made a part of this contract and a copy of which application is attached hereto or endorsed herein, and the payment in advance of premiums for the periods, at the times, and in the amounts as provided above, the first year’s premium hereunder being for preliminary term insurance as there specified.
“Payments of Premiums
“All premiums under this policy are payable in advance either at the Home Office or to any Agent upon delivery of a receipt signed by the President, Vice-President, Secretary or Actuary of the Company.
“If any premium or obligation given for all or a part of any premium or other indebtedness is not paid on or before the date when due, the liability of, the Company hereunder shall cease, except as otherwise provided in this policy.
“A period of grace of one month in accordance with the Statutes of the State in which this Policy is delivered will be allowed for the payment of every premium hereunder after'the first, without any interest charge therefor, during which month the full insurance hereunder shall continue in force, if, however, the Insured shall die within said period of grace, all unpaid premium or premiums for the current policy year will be deducted in any settlement hereunder.
“Cash Loans
“After three full year’s premiums hereon have been duly paid, the Company at any time while this Policy is in full force will loan upon the proper assignment of said Policy, and upon the sole security thereof, at a rate of interest at six per centum per annum, a sum equal to, or at the option of the owner hereof, less than the reserve hereon at the end of the current Policy year, from which has been deducted an amount not greater than twenty-per cent of the reserve hereon or two and one-half per cent of the amount insured hereunder, whichever is less. The Company will deduct from such loan value any existing indebtedness hereon and any unpaid balance for the premium for the current policy year, and will collect interest in advance on the loan to the end of the current policy year. Said loan may be deferred for not exceeding ninety days after application therefor is made.
“Premium Loans
“If any premium hereon shall not be paid when due and if the Insured has so requested in said Insured’s Application herefor, the Company will, without further request on the part of Insured, charge the amount then due hereunder as a loan against the Policy, with interest in advance at a rate of six per cent per annum, if the loan value hereon after the payment of the premiums so charged be sufficient to secure all indebtedness hereunder with interest. If the premium is so charged, this Policy will be continued in force the same in all respects as though the premium paid by said loan had been specifically requested by the Insured at the time it was made. The same benefit will be applied from time to time as the premiums become due hereunder and are not paid, as long as the balance of the loan value hereon after the payments of the premium as charged is sufficient to pay for one day’s insurance on a pro rata basis.
“Notice of such loans will be mailed to the Insured when made, and said Insured may resume the payment of premiums hereon at any time without medical reexamination while the policy is so continued in force.
“Indebtedness
“Any indebtedness to the Company hereon will be deducted in any settlement hereunder upon the death of the Insured or in the payment of any other benefit. If this Policy shall lapse and there shall be an indebtedness hereon, the said indebtedness will be deducted from the Cash value of the Policy at date of default, and the balance will be (A) paid to the Insured in cash, or (B) applied to the purchase of Paid-up Insurance, or (C) applied to extend the face amount of the insurance hereunder, at the option of said insured, and said values shall be calculated upon the same basis as the value herein shown in the table of guaranteed Loans and Surrender Values.
“In any settlement of the Policy the indebtedness to the Company hereon shall be a first lien iu priority to the claim of any beneficiary or assignee.
. “Default in repayment in any loan, or in payment of interest thereon, shall not avoid the Policy until the total indebtedness hereon to the Company shall equal or exceed the loan value at date of default. The indebtedness may be repaid wholly or in part, in cash, or, subject to the restrictions above set forth, may be allowed to remain as a loan against the Policy.
“If the Insured in the application here-for has requested that Paid-up or Extended Insurance benefits be granted without further action on the part of said Insured, in event of default in the payment of premiums any indebtedness hereunder will be deducted from the cash value of the Policy at date of default and the balance applied to the purchase of said benefits on the same basis as the values shown in the Tables of Guaranteed Loan and Surrender Values; and in case the provision entitled “Premium Loans” be applied, any already existing indebtedness against this Policy will be deducted from the cash value of the Policy in ascertaining the amount available for such loans.”

In the application for the policy the in-insured requested the Company to make the premium loans to pay the premiums, without any action on his part, and also contracted for the payment of the premiums quarterly ($17.43), in November, February, May and August.

Appellant testified that in 1933 her husband made a loan against the policy involved for the sum of $227.50, bearing interest at six per cent from date of the loan, and that the loan was never paid.

Joseph W. Hahn, a witness for appellant, qualified to testify concerning payments of premiums on the policy involved here, and in 1938 made an analysis of policy payments to appellee from its records. The witness testified on cross-examination :

Question: “Just how much was paid by the automatic loan provision of the policy?”

Answer: “The quarterly premiums, February 27, 1934; May 27, 1934; August 27, 1934; November, 27,- 1934; February 27, 1935; November 27, 1935; and a portion of the quarterly premium due February 27, 1936, in amount $3.33.”
Question: “Now, what was the loan on the policy on the 27th of May,- 1934, how much was against the policy at that time?
“After the premiums had been paid by automatic loans?”
“Yes, sir.”
“The total loan then was $248.99.”
“All right. Then, on August 27, 1934, after you had paid the premiums and interest, how'much was against the policy?”
“$270.48.”
“And then on November 27, 1934, after you had paid the premium — the quarterly premium of $17.43, how much was against the policy?”
“$292.29.”
“Then, on the 27th of February, 1935, after you had likewise paid the premium and interest, how much was there against it?”
“The total loan was $314.44.”
“And then on May 27, 1935, after you had likewise paid the premium and interest — the quarterly premium and interest —how much was due?”
“$336.92. I beg your pardon, what was that date you gave me — May 27th?”
“May 27th.”
“May 27th, that is correct.”
“$336.00?”
“$336.92.”
“And on August 27th, when the next quarterly premium was due, you paid that, $17.43, $5.74 interest, — what was the total due?”
“$355.75.”
“November 27, ’35, there was another quarterly premium paid of $17.43, $5.74 interest. How much then was the loan on the policy?”
“$382.92.”
“Then, on the 27th of February, 1936, you paid the quarterly premium of $3.00, part of the quarterly premium of $3.33. Is that right?”
“Yes, sir.”
“And $1.11 interest. How much was due on the policy?”
“$387.36.”
“Now, on the 27th of February, 1936, state whether or not the $387.36 was the full loan value of the policy.”
“No. The $387.36 was the full loan value of the policy at the . end of the seventeenth day period beginning on February 28, 1936, and extending through March 15, 1936. That period was the period for which the $3.33 paid the premium.”
“Yes, sir. Well, when you applied the premium of $3.33 and interest of $1,11, why didn’t you apply the $17.43 and the value of the interest, as you had applied in other payments?”
“It was found that if that were done, if a loan for the full quarterly premium had been made, then the loan value at the end of the period for which they would have been paid would have been less than the loan, that is, the loan would have exceeded the full value of the policy.”

The witness further testified: “The Company’s records show that the Company gave notice to the assured that it was paying these payments by automatic premium loans as provided by the policy, and on March 27, 1936 (witness not certain as to exact date), the Company notified the insured that there was no further value in the policy; that the automatic premium payments and the loan that he had already made of $227.00 had taken up the value of the policy.”

On May 8, 1936, the appellee Company wrote a letter to the insured, the contents of which we omit, but calling his attention to the lapsed policy, and asked the insured to fill out and sign an enclosed application and forward it to the Company with past due premiums and interest. Counsel for appellant admitted that at no time was any application made to reinstate the policy.

Witness Hahn made some further statements, which we omit, but to the effect that $387.36 was the full loan value on the policy on February 27, 1936, and'that at the end of the one month grace period, March 27, 1936, under the witness’s computation, there was no further loan value in the policy; and no further loan value on the policy on October 4, 1936, at the death of the insured.

We have concluded that the insured in his written application for the policy having requested the appellee Insurance Company to pay the premiums as they became due and charge them as a loan against the policy, and the appellee having done so until March 15, 1936, that on October 4, 1936, the policy by its terms had lapsed and was out of benefit, and that the trial court was not in error in holding that appellant recover naught against appellee.

The case is affirmed.


author: GRAVES, Justice.

text:
    SAN ANGELO v. AMALGAMATED MEAT CUTTERS & BUTCHERS WORKMEN OF NORTH AMERICA, LOCAL 103.
    No. 11077.
    Court of Civil Appeals of Texas. Galveston.
    April 18, 1940.

      L. R. Insirilo and Nat Friedman, both of Houston, for appellant.
    Fisher & Holliday and Sewall Myer, all of Houston, for appellee.
   GRAVES, Justice.

This appeal, accelerated into and advanced for hearing by this court, pursuant to R.S. Article 4662, is from an order of the Eleventh District Court of Harris County refusing the appellant a temporary injunction against the appellees preventing the picketing of his place of business in the City of Houston by them, in undisputed circumstances.

By mutual acceptance thereof "from both parties, these findings by the learned trial court represent the facts upon which’ the appfeal must be determined:

■“This is a suit brought by plaintiff, San Angelo, against the Amalgamated Meat Cutters and Butchers’ Workmen of North America, Local Union No. 103, and several of its members, seeking an injunction to prevent picketing, and so forth, in front of the plaintiff’s place of business.
“In June of 1939, a temporary contract was entered into between the Union and Mr. Tambofello-, who was acting as the unauthorized' representative of Mr. San Angelo during the latter’s illness. Upon Mr. San Angelo’s recovery, negotiations were entered into between Mr. San Angelo and representatives of the Union and his employees looking to ,the execution of a contract for a period of one year. The requested contract is, in substance, the same as the temporary contract. After some agreeable delay, and after, several conferences, the various parties failed to reach an entire .agreement upon the matters covered by the so-called permanent contract, and after a vote by the employees of Mr. Sán Angelo and' the Union involved, a strike was called and all of"the employees of Mr. San Angelo who were members of defendant Union walked out. ■ Since that time the striking Union employees have picketed Mr. San Angelo’s place of business, not invading his premises" and only Using placards described in the testimony as peaceful persuasion. There has been no violence of any character.
“Both the executed temporary contract and -the submitted contract were introduced in evidence and speak for themselves as to their respective terms. A number of Mr. San Angelo’s employees are members of defendant Union and were such members at the time of the execution of the so-called temporary contract and are still members thereof.
“At this time the only point in- dispute between the plaintiff and the defendants relative to the submitted contract and which the plaintiff refused to sign, is that portion of the submitted contract by the terms of which it is provided that if plaintiff should hereafter employ anyone to perform duties now performed by his former employees who are members of the defendant Union, that unless such employees should within seven days become members of defendant Union, such employees would be discharged by the plaintiff, the same being what is generally termed a closed shop agreement.
“Mr. San Angelo declined to execute the contract with this provision, but is agreeable to all other provisions. The defendant Union, and the defendants who are striking employees of the plaintiff, insist upon their right to have such provision -substantially incorporated in the new contract with the plaintiff.”

To that factual-basis, the court then appended these conclusions of law:

“The sole question, then, to be determined ■is whether or not such difference between the plaintiff and his employees and such Union is such a labor-dispute as entitles the defendants to picket the plaintiff’s place of business in the manner in which they have been so doing and as heretofore found. The defendants in effect contend that by •such portion of the submitted contract they are entitled to assurance that'they will not he required to work with non-union meat •cutters in Mr. San Angelo’s business for a period of more than seven days and that Such a condition is just' as important to the ■employees as hours of work, working conditions, wages', and so forth.
“There is only one decision in Texas squarely on the point, that being- the decision of Judge Fly in the case of Cooks', Waiters’ & Waitresses’ Local Union v. Papageorge, Tex.Civ.App., 230 S.W. 1086, decided by Judge Fly in May of 1921. The facts of the Papageorge cáse and this case Are substantially identical, except that in this case the striking employees have not .gone to the extent that the employees went in the Papageorge case. Judge Fly cites, in .support of his decision, the Webb case Webb v. Cooks’, Waiters’ & Waitresses’ Union, in Tex.Civ.App., 205 S.W. 465. However, in- -the Webb case, none of the Webb employees' were on strike, but the Union, in the Webb case, was endeavoring to force Webb’s employees to join its union and also thereby to compel Webb to have a closed shop. To my mind, the Webb case is not in point, either to the case now on trial, or to the Papageorge case. Judge Fly, , in the Papageorge case, definitely holds that an attempt by the employees who are-members of a union to secure a closed shop agreement is not such a labor dispute as under relevant statutes would entitle employees to peaceably picket the premises of their employer.
“The defendants herein, in argument, contend that their disagreement with Mr. San Angelo -is a bona fide labor-dispute, and that under the First Amendment to the United States Constitution. (The .Free Speech Amendment) and the Fourteenth Amendment thereto , (the Due Process Amendment), they are entitled, by the means which they have used, to make public the fact that they have such labor-dispute with Mr. San Angelo.
“The case of Senn v. Tile Layers’ Union, by the United States Supreme Court, found in 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. at page 1229, is an opinion by Mr. Justice Brandéis. It is interesting to note- that four members of this Court dissented from the majority opinion. That was a case which came up from the Supreme Court of Wisconsin, 222 Wis. 383, 268 N.W. 270, 872, which has passed on substantially the same point based upon Wisconsin Statutes, which are not. very dissimilar from the Texas Statutes in question. This decision by the United States Supreme Court holds that the issues in this case involving the construction and application of th.e Wisconsin Statutes and Constitution, having been made by the highest court of Wisconsin, is conclusive as to such construction and application. The question determined by the United States Supreme Court is whether or not the Wisconsin Statute, as so construed by this Supreme Court, was invalid as to the Senn controversy, because the sole question in dispute between Senn and the Union was Senn’s refusal to sign a contract -unionizing his shop and' prohibiting him' from doing any work himself, an even stronger situation than exists in the San Angelo. case. The Senn case holds that such picketing and publicity as are authorized by the Wisconsin statute as construed by its own Supreme Court, are not prohibited by the Fourteenth Amendment to the United States Constitution stating in the opinion:
“ ‘Members of a Union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.’
“There are numerous cases by the United States Supreme Court dealing with the abovementioned amendments to the United States Constitution, which would seem to indicate that as a part of the free speech and due process guaranteed to all citizens,' Union members have a right to publicize their differences with their employer.
“To narrow the question to a final point, it is this: Did the defendants, under the free speech and due process amendments to the United States Constitution, have the right to publicize their dispute with their employer, Mr. San Angelo, because of his failure to sign an agreement which contains a closed-shop clause? Judge Fly, in the Papageorge case, holds that such publication is not permissible under the Texas labor statutes, citing the Tucker case by the Supreme Court of Texas, Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, which definitely holds that under the free speech amendment courts of equity may not be used to restrain the exercise of free speech, and that any abuse of this privilege may only be dealt with in civil damages, or under the criminal law.
“It, therefore, seems to me that, in spite of Judge Fly’s decision in the Papageorge case, and under the free speech and due process clauses of the United States Constitution, the defendants in this case have the right to popularize in the manner in which they have been so doing, their dispute with their employer, Mr. San Angelo, even though such dispute involves only the closed-shop feature of the contract submitted to Mr. San Angelo, and which he, for that reason only, refused to sign.
“For the above reasons, the application for temporary-injunction is denied, to which the plaintiffs give notice of appeal.”

The single question of law the appeal presents is whether the court abused its discretion in thus refusing the writ. Scanlan v. Houston L. & P. Co., Tex.Civ.App., 62 S.W.2d 537, at page 539, Col. 2, and authorities there cited.

In passing upon it, the facts so found below and accepted here are binding upon this court, in absence of both a jury and any challenge thereof. 3 Tex.Jur., par. 771, footnote 5, and cited authorities; 4 Texas Digest, Appeal and Error, and collated cases; International-G. N. v. Singer Iron & Steel Co., Tex.Civ.App., 96 S.W.2d 1003, 1006; Standard Savings & Loan Association v. Fitts, Tex.Civ.App., 24 S.W.2d 507.

Not only so, but they will be here reviewed with the sole objective of determining whether or not they support the court’s exercise of discretion, and not for sufficiency, as would be done upon an appeal from a final judgment. Scanlan v. Houston L. & P. Co., Tex.Civ.App., 62 S.W.2d 537, at page 540, writ of error refused.

This court, while not seeing eye to eye with all the able trial judge’s reasoning, experiences no difficulty iii holding this order to have been well within the exercise of a sound judicial discretion.

The two main cases appellant relies upon for a reversal are, as appears in the quoted conclusions, Cooks’, Waiters’ & Waitresses’ Local Union v. Papageorge, Tex.Civ.App., 230 S.W. 1086, and Webb v. Cooks’, Waiters’ & Waitresses’ Union, Tex.Civ.App., 205 S.W. 465. These were both reviewed in Carpenters, etc., Union v. Ritter’s Cafe et al., 138 S.W.2d 223, 226, recently decided by this court. It was there held that neither, when properly construed, constituted any authority against the peaceful picketing of an employer’s premises for a lawful purpose by his employees and their Union,' between whom and himself there existed a bona fide labor-dispute, such as the court below found to have existed in this instance; upon the contrary that, as applied to situations like this, our Texas courts, in those decisions along with others cited, have established as our law in labor-relations certain guiding principles, the first of which was thus' stated: “That picketing by a labor organization or union, or its members (which was unlawful at common law), has been legalized by our cited statutes, with the rather limited objective of allowing striking employees who have a bona fide dispute with their employer over wages, hours, or working conditions, to persuade other employees to leave him, or dissuade third persons from becoming his employees.” Our statutes therein referred to are R.S. Articles 5152-5154.

After deducing that principle from the holdings referred to, it was further in the Ritter opinion said: “Not only so, but as a corollary, they have further declared that no right of free speech under the fundamental law of either nation or state is transcended by an injunction restraining the picketing of a place of business by persons (whether members of a labor organization or union, or not) who seek either to prevent the public from trading with the picketed place, or to compel its owner to, break a contract which he has with some such disassociated third person; see the Webb, Papageorge, and Texas Motion Picture Co. cases, supra, respectively.”

So that, considering the facts in those two cases, both of which were appeals from final judgments rather than from an interlocutory order like that here involved, it-will be found that the decisions in each were predicated upon findings on the facts that the strikes were being not only illegally conducted, but also for an unlawful purpose. For that reason, in each instance, the picketings were- enjoined. It would serve no useful purpose to detail or even make a resume of such findings, since they are plainly stated in the opinions of those two able courts — the Supreme Court having refused a writ of error in the Webb case, and it having largely furnished the basis for the subsequent determination by the San Antonio court in the Papageorge case.

But the illegal acts found there, in consequence of which the restraint against picketing was ordered, constitute a far cry from the facts ruling the case at bar; here the picketing was admittedly peaceful and orderly, and, as we think, by employees of the appellant who clearly fall within the class of those our statutory policy and decisions confer the right to strike upon; the right of the appellant to refuse absolutely to make the tendered contract at all is here not involved — the sole issue is whether, when he refused to make it, his employees and their Union could, in a peaceful and orderly manner, strike against that refusal, and, in like manner, publicize, their views upon it in the way they did in front of his premises; the finding that the original contract of employment between him and them had been unauthorized by him becomes immaterial, because they were.at least his employees de facto; he dealt with both them and their Union as such in negotiations looking to the continuation of that pre-existing relationship, and these only went on the rocks when the- closed-shop provision in the proposed new contract was reached; he had a clear right to refuse to make it, and in turn, as this court understands the law, they had the right to strike and also to publicize the controversy between him and themselves, provided they did so peacefully, as well as within the other limitations our law and decisions have so imposed upon them.

As concerns the right of free speech, as. this court sees it, this was an instance where that privilege inured under our constitutional provisions of both State and Nation to the appellees, so long as they exercised it within the limitations thus laid down. Under the • unchallenged findings, instead of there having been violence or other unlawful acts, all that appeared here was the' stated public protest by the appellees against the appellant’s refusal to make a closed-shop contract with them. While, as indicated, he had the right to so refuse, they, in turn, had the correlative right to so pehcefully exhibit their protest against his refusal, in which — it is thought —they were pursuing a constitutional immunity vouchsafed by both the Texas and United. States. constitutions, Vernon’s Ann. St.Const. art. 1, § 8; Const.U.S.Amend. See Senn v. Tile Layers’ Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, and Ex Parte Tucker, 110 Tex. 335, 220 S.W. 75. That is to say, there having been no interference with any natural or contractual rights of this appellant by attempts of the appellees at intimidation or coercion, nor any threats, verbal or written, nor other unlawful acts, by them against him, their privilege of speaking their own minds in the way they did, upon his refusing to go on with them under a closed-shop agreement, was not subject to suppression by injunction. Thornhill v. State of Alabama, 60 S.Ct. 736, 84 L.Ed. -; Carlson v. People of State of California, 60 S.Ct. 746, 84 L.Ed. -.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.


author: BAUGH, Justice.

text:
    McCUTCHIN et al. v. SUN OIL CO. et al.
    No. 8987.
    Court of Civil Appeals of Texas. Austin.
    April 10, 1940.
    Rehearing Denied May 8, 1940.
    Gerald C. Mann, Atty. Gen., and Edgar Cale, Asst. Atty. Gen., for appellant Railroad Commission.
    Pace & Goens, of Tyler, and- Upchurch & Gresham, of Austin, for appellant Alex McCutchin.
    T. L. Foster, of Dallas, and Powell, Rauhut & Gideon, of Austin, for appellee Sun Oil Co.
    John E. Green, Jr., of Houston, and Stanley Hornsby, of Austin, for appellee Gulf Oil Corporation.
   BAUGH, Justice.

We copy from appellants’ brief the statement of the nature and result of this suit, and the only proposition presented on this appeal:

“This is a Rule 37 case. The appeal is from an order of the District Court of Travis County granting a temporary injunction in favor of the appellees herein and against Alex McCutchin, temporarily enjoining and restraining him, pending final trial, from producing oil 'or gas from the second well on his 2.35 acre tract in Rusk County, Texas, and enjoining and restraining the Railroad Commission and its members from granting Alex McCutchin permission to produce oil and gas from said well and from placing said well on the allowable schedule.
“Appellants’ First Proposition.
“The office of a temporary injunction is to preserve the status quo between the parties in a Rule 37 case. The status quo is the order of the Commission at the time of the filing of the suit. Alex McCutchin having received from the Railroad Commission an order granting him a permit to drill a second well, which order was prima facie valid, the trial court was without authority in law to destroy the status quo-between the parties by granting a temporary injunction restraining McCutchin from producing oil from his said second well under authority of the permit so granted by the Commission.”

We do not understand appellants to contend that the pleadings and the evidence are not sufficient to sustain the trial court's judgment; nor that the provisions of the statute (Art. 6049c, Sec. 10, Vernon’s Texas Civ.Stats.) relating to the bond required were not fully complied with.

The contention made is predicated upon the general and well recognized purposes of a temporary injunction; and as applied to the instant case, particularly upon our holdings in Alpha Pet. Company v. Railroad Commission, Tex.Civ.App., 59 S.W.2d 374; Railroad Commission v. Real, Tex.Civ.App., 80 S.W.2d 494; and Railroad Commission v. Primrose Petroleum Company, Tex.Civ.App., 80 S.W.2d 509. These cases clearly are not applicable here. The-Alpha Petroleum Company case was brought by the Commission to restrain a violation of a proration order of the Commission, general in character, promulgated for the express purpose of conservation. The Company in that case had not attacked the order in the manner prescribed by law; but had openly violated it and urged in that suit that its violation, that is, its excess production, was the status quo which the temporary injunction should have maintained; manifestly an untenable position. In that case we stated [59 S.W.2d 375]: “This case is not analogous to a controversy between private parties where one threatens to destroy the property claimed by the other pending a hearing of the case.” The other two above cited cases involved the production and marketing of illegal oil or its products, wherein the granting of a temporary injunction would, in effect, by suspending the Commission’s rules, have destroyed, rather than have preserved, the subject matter of those suits.

Manifestly no such case is here presented. There is a vast difference between wilful violation of a general rule or order of the Commission, mandatory in character, applicable to all alike, which the law itself requires those affected to comply with; and an individual exception to a general rule, granted to an applicant therefor, not mandatory in character. And where it is predicated upon confiscation, the relative private property rights as between him and the adjacent lessees, that is, whether his tract would be drained, or his neighbors’ tract would be drained, of the oil in place beneath it, is usually determinative of the issue presented. The status quo then becomes the relative property rights of the permittee and the protestants, which when they pursue the method of attack prescribed by the statute, they are entitled to have protected. And where these rights of either party would be so damaged by the conduct of the other that he has no adequate remedy at law before a trial can be had on the merits, he is entitled to have such- rights preserved by temporary injunction.

This method of preserving such rights, pending final hearing on the merits, has been repeatedly recognized and passed upon in Rule 37 cases, wherein this court has affirmed, dissolved and even granted such temporary injunctions where refused in the trial court. In many of them, not necessary to cite here, the Supreme Court has refused writs of error. A recent instance wherein such injunction was issued out of this court is to be found in Gulf Oil Corp. v. York, Tex.Civ.App., 134 S.W.2d 502, writ dis. C.J.

To sustain appellants’ contention would be in effect to hold that a temporary injunction could never be granted where a permit to drill a well as an exception to Rule 37 has been granted by the Commission, except where the Commission’s order showed upon its face to be void.

As above stated, we do not understand appellants to contend that the pleadings and the proof are not sufficient to sustain the trial court’s judgment. The validity of the permit is the subject matter to be determined upon the merits. Under the only issue presented by- appellants, and quoted above, it is unnecessary on this appeal for us to pass upon that matter here. No assignment is presented’ that the proof offered in the hearing on the application for temporary injunction was not sufficient to overcome the prima facie presumption of validity of the Commission’s order, given it by statute.

The only complaint lodged against the trial court’s judgment not being tenable, its judgment is affirmed.’

Affirmed.


author: WALKER, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. CHAMBERS.
    No. 3638.
    Court of Civil Appeals of Texas. Beaumont.
    April 12, 1940.
    Rehearing Denied May 1, 1940.

      Battaile & Burr, of Houston, for plaintiff in error.
    Gaston Wilder and Howth, Adams & Hart, all of Beaumont, for defendant in error.
   WALKER, Chief Justice.

This appeal is by writ of error, but the parties will be referred to as appellant and appellee. This is a Workmen’s Compensation case, with appellee the employee and appellant the compensation insurance carrier. The jury found that on the 10th day of February, 1938, appellee suffered “total incapacity to work and earn money,” and that such total incapacity would continue 401 weeks from the date of the accident. The jury also found all additional facts essential to support a judgment for compensation, and further found in his favor the issues submitted on a lump sum settlement. On the verdict of the jury fixing the average weekly wage, the compensation rate amounts to $15.50. Judgment was entered in appellee’s favor for compensation for 401 weeks at $15.50 a week, to be paid in a lump sum of $5,387.26, with interest at 6% per annum from the 15th day of May, 1939, the date of the judgment.

We quote appellant’s proposition on the sufficiency of the evidence to support the finding of total incapacity for 401 weeks: “In the following discussion of the foregoing propositions of law controlling the issue presented for review, we wish it clearly understood that appellant does not raise a question of the weight or preponderance of the evidence, or the credibility of the witnesses. Such questions are for the determination of the jury and almost conclusive upon the • reviewing courts. What appellant does contend is: That the verdict of the jury finding total disability for a period of 401 weeks has no basis or support in the evidence before it.” It is the law, as appellant contends, that a jury cannot disregard the evidence and arbitrarily make a finding which has no basis in the evidence. Smith v. Hoffman, Tex.Civ.App., 201 S.W. 204; Jeanes v. Blount (Beaumont court) Tex.Civ.App., 206 S.W. 209; Karr v. Cockerham, Tex.Civ.App., 71 S.W.2d 905; Texas Employers Ins. Assn. v. Pearson, Tex.Civ.App., 67 S.W.2d 630. As related to the facts in this case, appellant’s proposition is overruled. The jury’s verdict, finding total incapacity for 401 weeks, has satisfactory support in the evidence. Appellee testified, quoting from his brief:

“That while working for his employer on the big bridge across the Neches River (commonly known as the Port Arthur bridge) a heavy cable, which was pulling an object weighing approximately twenty tons, broke, knocking him over seven feet through the air, and that he would probably have been driven a further distance but for the fact that he landed against Mr. William Clinton DeWitt, and he and Mr. DeWitt were both finally stopped by some other stationary object.
“ ‘A. That engine was in motion when I was struck, pulling a shed that would weigh approximately twenty tons, a shed that come over the' — covered the concrete, about 120 feet long, made out of two-by material, two by six and two by eight, and I judge it would be approximately twenty tons, and the engine was holding it up on those rollers, and was still pulling when I was hit, and they flagged him down and stopped him after I was hit.
“ 'Q. When you went up to Dr. Knight’s office, in Port Arthur, do you know whether there were any signs or evidence of injury on your back? A. I could feel a big ridge across my back there. I couldn’t see it, but I could feel a big ridge. My wife said—
“ ‘Q. Don’t tell what your wife said. Could you feel it? A. Yes, sir, I could feel it with my hand.
“ ‘Q. Could you tell about the location and size of it from the feel of it? A. It was right across the small of my back and about six inches long and felt like it was something near as big as my arm.’ ”

Appellee’s foreman sent him to Dr. Max John Knight, the company doctor. Haying examined appellee, Dr. Knight advised him that he might be able to go back to work on the job and do light work in four or five days. Appellee made an effort to do this, but was not able to do his work. His foreman and a Mr. DeWitt testified that he was not able to do the work. Before he was injured, appellee was a satisfactory employee and did his work satisfactorily; after his injury, on the undisputed testimony of the men who worked with him, he was not able to do his regular work; he was permitted to do light work, but after a short while he was not able to do that. After his injury, appellee was not able to work for his employer nor for anyone else, and since leaving his employment he has not worked for anyone else. Dr. E. C. Ferguson testified that in his opinion ap-pellee was permanently disabled and had a permanent injury. It would serve no useful purpose to give a detailed statement of the evidence. We have examined it carefully and are satisfied with its weight and sufficiency.

Dr. Ferguson examined appellee four or five times; had X-rays made which he examined personally and which he submitted to experts. Dr. Ferguson’s testimony covers pages 84-102, inclusive, of the statement of facts. After his testimony was all in — he had been examined and cross examined four or five times — appellant made the following motion, which was overruled:

“Mr. Battaile: I move to strike the opinion of Dr. Ferguson on the ground the doctor was consulted purely for the purpose of making examination and qualifying as a witness, and his opinion is predicated on self-serving, hearsay declarations and statements of the plaintiff himself.
“The Court: I overrule the obj ection.
“Mr. Battaile: Note our exception.”

The court correctly overruled the motion ; the exception was too general. Much of the testimony given by Dr. Ferguson was free of any possible exception, and under no construction of the law could fall within appellant’s proposition that he examined appellee only for the purpose of testifying.

We sustain the proposition that the verdict, as a matter of law, does not support a lump sum settlement; a lump sum settlement has support only in death cases or cases of total, permanent incapacity. Article 8306, Sec. 15, Vernon’s Ann.Civ. St.; Traders & Gen. Ins. Co. v. Marrable, Tex.Civ.App., 126 S.W.2d 746.

It follows that the judgment of the lower court should be reformed by eliminating -therefrom the decree awarding a lump sum settlement; but judgment should be in favor of appellee, with execution, for all accrued weekly payments to the date of this decree, with interest thereon at the rate of 6% per annum from their date of accrual; the judgment should further direct the regular payment of weekly compensation at the rate of $15.50 per week. Our clerk is directed to make the necessary calculations, to make the judgment conform to this order.

Reformed and affirmed.


author: FOLLEY, Justice.

text:
    REED et al. v. STALEY et al.
    No. 5149.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1940.

      Will Crow, of Canadian, and J. D. Barker, of Canyon, for appellants.
    Clayton Heare, of Shamrock, for appel-lees.
   FOLLEY, Justice.

This suit was filed by the appellant, John R. Reed, against Walter Staley, R. H. Staley, I. C. Thurmond, Jr., I. C. Thurmond, Sr., P. S. Darlington and W. S. Farmer, seeking judgment for debt and foreclosure of a lien on land in connection with IS vendor’s lien notes each in the sum of $138.45, bearing interest from date at 4% per annum, interest payable annually. These-notes were executed by Walter Staley as a part of the purchase price of 276.9 acres of land in Wheeler County, Texas, deeded to him by John R. Reed and wife, Hettie Reed, on December 1, 1926. There were originally 26 of such notes each bearing even date with the deed and payable at Wheeler, Texas, in their numerical order from 1 to 26 years respectively after December 1, 1926. The first 11 of these notes had been paid prior to the filing of this suit. The IS sued upon were numbered 12 to 26, inclusive. No. 12 was due December 1, 1938. This suit was filed December 2, 1938 declaring note No. 12 past due and further declaring the remainder of said notes due under the accelerated maturity provision of the deed.

After purchasing the land and executing the notes above mentioned, Walter Staley conveyed 100 acres of the land to R. H. Staley and later conveyed the re-mainer of the land, 176.9 acres, to I. C. Thurmond, Jr. Neither R. H. Staley nor I. C. Thurmond, Jr., assumed the payment of any part of the indebtedness represented by the 26 vendor’s lien notes above mentioned. R. H. Staley in purchasing the 100 acre tract executed a series of vendor’s lien notes as a portion of the consideration and some of these second lien notes were owned and held by P. S. Darlington at the time this suit was filed. On December 1, 1936, when note Nó. 10 of the original series became due, and on December 1, 1937, when note No. 11 of the same series became due, I. C. Thurmond, Jr., apparently in order to protect his equity in the land, paid such notes together with all the accrued interest on the total outstanding indebtedness. On November 28, 1938 he notified John R. Reed by registered. mail that he and his attorney would be at the court, house at Wheeler on December 1, 1938 to pay note No. 12, which was due on such date, and also to pay the accrued interest due upon the whole indebtedness. I. C. Thurmond, Jr,, and his attorney appeared at Wheeler on said day but Reed did not appear although he admitted receiving the notice. The town of Wheeler was shown to have been Reed’s postoffice and trading point. I. C. Thurmond, Jr., and his attorney remained in Wheeler most of the day and near the closing hour of the only bank in town they deposited $221.51, the total amount due on the indebtedness, both principal and interest, to Reed’s account in such bank, which deposit Reed refused to accept.

The following day this suit was filed against 'the above named parties. The appellant Reed alleged that I. C. Thurmond, Jr., I. C. Thurmond, Sr., W. S. Farmer, R. H. Staley and • P. S. Darlington were all making some 'character of claim against the land and sought judgment against them and against Walter Staley foreclosing his lien. He further sought judgment against Walter Staley personally for the debt. R. H. Staley filed a cross-action against all the other parties except P. S. Darlington asking that the 176.9 acre's of land owned by I. C. Thurmond, Jr., be sold first to satisfy the original indebtedness due John R, Reed and further sought the marshalling of assets as between him and I. C. Thurmond, Jr. P. S. Darlington filed a cross-action in which he adopted the .cross-action of.R. H. Staley. He asked for no further relief as far as his second lien notes were concerned.

Walter Staley filed a plea. in abatement in which he alleged he was also in the town -of Wheeler on December 1, 1938 and was then ready, willing and ' able to pay the amount due Reed upon the original indebtedness and further alleged that I. C. Thurmond, Jr., and the latter’s attorney were in Wheeler on said day and made the deposit to Reed’s credit as aforesaid. This plea in abatement was adopted by I. C. Thurmond, Jr., I. C. Thurmond, Sr., and by W. S. Farmer. I. C. Thurmond, Jr., also filed an individual plea in abatement setting up the facts with reference to his actions and those of his attorney in the town of Wheeler on the day the payment was due, and tendered into court the sum of $221.51 as the amount due Reed the day the deposit was made.

The court tried the issue raised by the plea in abatement along with the merits of the case. At the conclusion of the hearing the court instructed a verdict to the effect that the suit had been prematurely brought by the appellant, John R. Reed, and rendered judgment that Reed take nothing against the other’ parties and that such parties recover their costs. The court further adjudged that I. C. Thurmond, Jr., ' recover judgment against John R. Reed requiring the latter to accept the $221.51 deposited by the former into the registry of the court and that the clerk be directed to pay Reed such sum of money. The court denied R. H. Staley and P. H. Darlington any relief on their respective cross-actions and adjudged the costs against each party as were incurred by him. From such judgment John R. Reed, R. H. Staley and P. H. Darlington have appealed.

The relief sought in the trial court and in this court by R. H. Staley and P. ■ S. Darlington is predicated upon the relief sought by John R. Reed. Therefore, the disposition we shall hereinafter make of the controversy between the appellant Reed and the appellee, I. C. Thurmond, Jr., will dispose of all the issues presented in this appeal.

We think all of the complaints of the appellant, John R. Reed, may be reduced to one general proposition which is, that under' the facts of this case Reed was not compelled to -accept from I. C. Thurmond, Jr.; the money tendered and due December 1, 1938 on the vendor’s lien notes held by Reed because I. C. Thurmond, Jr., was not a party to the original contract of ■ conveyance between Reed and Walter Staley. Reed contends that no tender was made by Walter Staley, his vendee, but only by I. C. Thurmond, Jr., who was a stranger to the original transaction. Reed admits, however, that I. C. Thurmond would have had the right to pay off the entire obligation evidenced by all of the notes remaining unpaid but contends that he was not entitled to place himself in the position of the original vendee and pay the notes with the interest as they became due according to the original contract between Reed and Walter Staley.

The authorities cited by the appellant Reed in support of his proposition in this respect are upon an entirely different proposition of law from that which here confronts us. These authorities are to the effect that the original vendor might ignore the sub-vendees and look only to the original vendee for the payment of his notes. Howell et al. v. Townsend, Tex.Civ.App., 217 S.W. 975, writ refused; Ball et al. v. Belden, 59 Tex.Civ.App. 29, 126 S.W. 20. This seems to be a correct rule of law as applied to the rights of the vendor, but such rule does not undertake to curtail the rights of a subsequent purchaser to protect his equities in the land. It is true that the sub-vendees in this case are not primarily liable on the debt, that Reed shared no privity of contract with them and that they were not necessary parties to his foreclosure suit. Foster v. Powers et al., 64 Tex. 247; Bradford et al. v. Knowles et al., 86 Tex. 505, 25 S.W. 1117. But it cannot be said that these subsequent purchasers possessed no interest in the suit or the subject matter it involved. As was said in the case of Ufford v. Wells, 52 Tex. 612, 619, “Although a subsequent purchaser is a proper party in all suits to enforce a prior lien, yet he may not be a necessary party except to bar his equity of redemption”. In the Ufford v. Wells case it is suggested that whether the vendor sues to foreclose his lien or to recover the land, the original or any subsequent vendee has the right to set up his equities. In commenting on this rule in Stone Cattle & Pasture Co. et al. v. Boon, 73 Tex. 548, 11 S.W. 544, 547, wherein the subsequent purchasers were not parties to the foreclosure proceedings, the Supreme Court of this State said: “We think the contrary has not been held by this court in any case, and we entertain no doubt about the right of any vendee, near or remote, by proper pleadings, to protect himself in all of his equities as fully when the vendor’s suit is to recover the land as when it is to foreclose the lien * * *. For instance, if, in this case, the suit and judgment had been only to enforce the lien, the defendants, without defending at all, could at any time before the sale have paid up the judgment and cleared their title.” If, therefore, a subsequent purchaser has the right to pay off a foreclosure judgment to which he was not a party and clear the title to himself, can it be logically said that he must wait until the claim is reduced to a judgment before such right accrues? We think not. Whatever equitable interest in the land Walter Staley held passed to his vendees with all the-rights he possessed. One of such rights, was to pay the indebtedness as it became due to prevent foreclosure. This right the appellee I. C. Thurmond, Jr., sought to exercise but the appellant Reed refused to accept the money tendered. It is. our opinion Reed was without legal' authority to arbitrarily reject such tender. Pierce v. Moreman et al., 84 Tex. 596, 20 S.W. 821; Standard Paint & Wall Paper Co. v. Rowan, Tex.Civ.App., 158 S.W. 251; Hunt v. Makemson et al., 56 Tex. 9. To hold otherwise would jeopardize the rights of all landholders in this State who own encumbered realty if the lien thereon had its inception prior to the purchase of the property by such owners. It therefore follows that this suit was prematurely brought.

Although there was no error in the court’s sustaining of the plea in abatement of I. C. Thurmond, Jr., we think the court was thereafter unauthorized to render judgment that the appellant Reed take nothing by reason of his suit. We think the court further erred in rendering judgment against R. H. Staley and P. S. Dar-lington upon their respective cross-actions. These matters were not presented by the appellants but we think such errors are fundamental. The rendition of these judgments against John R. Reed, R. H. Staley and P. S. Darlington without restrictions as to future prejudice to re-litigate the same subject matter would at least afford a basis for interposing a plea of res. adjudicata in the event such actions and. cross-actions were re-filed in the future. The proper judgment for the court to have-rendered after sustaining the plea in abate-ment was one of dismissal. Such a judgment would preclude an adjudication on the merits. S. R. Smythe Co. v. Ft. Worth Glass & Sand Co., 105 Tex. 8, 142 S.W. 1157; Strickland v. Sloan et al., Tex.Civ.App., 50 S.W. 622; Real Estate-Land Title & Trust Co. v. Dildy, Tex.Civ.App., 92 S.W.2d 318, writ refused; Stone v. Bare et. al., Tex.Civ.App., 198 S.W. 1102; New State Land Co. et al. v. Wilson, Tex.Civ. App., 150 S.W. 253; Guaranty Building & Loan Co. v. Nowell, Tex.Civ.App., 76 S.W.2d 830; Commonwealth Bonding & Casualty Ins. Co. v. Knight, Tex.Civ.App., 185 S.W. 1037; Wm. Cameron & Co., Inc. v. Bassel, Tex.Civ.App., 252 S.W. 1081. In this connection, however, since the $221.51 was deposited into the registry of the court below, some disposition must he made of it, and we think it was proper for the court to order the same paid to the appellant Reed. It is also our opinion that the trial court was authorized to adjudge the costs against the respective parties.

The judgment requiring the clerk to pay the $221.51 deposited with him to the appellant, John R. Reed, and the judgment fixing the costs below will not be disturbed. The judgment of the trial court will be reformed so that the cause of action of the appellant, John R. Reed, and the respective cross-actions of R. H. Staley and P. S. Darlington will be dismissed, and it is so ordered.

The judgment as reformed is affirmed.


text:
    WEITZMAN et al. v. ADAMS.
    No. 5148.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1940.
    K. H. Dally and Jos. H. Aynesworth, both of Borger, for appellants.
    J. W. Spivey, Jr., of Borger, and W. L. McConnell and Curtis Douglass, both of Panhandle, for appellee.
   FOLLEY, Justice.

On December 26, 1937, the appellee, Frank Adams, was the owner of fifty acres of land in Jasper County, Texas, except for a one-third interest in the mineral rights theretofore disposed of by him. The appellants, Max Weitzman and wife, Dora Weitzman, were the owners of Lot 19 in Block 16 in the town of Borger, Texas. The appellee was engaged in operating a hot tamale and hamburger stand in Borger. He was desirous of buying a building and placing the same upon a vacant lot where he might continue to pursue his business. He approached the appellants upon the subject and in a room of the hotel operated by the appellants in Borger made an oral argeement with them. The exact terms of such agreement are in dispute and this controversy forms the basis of this suit.

On January 3, 1938, a written contract was entered into between the appellee and the appellants wherein the appellants agreed to loan the appellee $250 with which to purchase, move and equip the building, and to allow him to move such building upon their vacant lot. The appellee agreed in such written contract to execute and deliver to appellants his note for $250 payable nine months after date; to execute a deed of trust upon the fifty acres of land in Jasper County to secure such note; and to further secure the debt by executing a mineral deed conveying two-thirds of the mineral rights in such land. It was further agreed that when the debt was paid by the appellee the building should become his property but he agreed to pay the appellants $15 per month ground rental for the lot upon which the building was to stand.

Simultaneously with the execution of this contract, the appellee executed and delivered to the appellants a note for $250, a deed of trust securing same, and a mineral deed, each in keeping with the terms of the contract except there was no provision in the mineral deed to the effect that it was for the purpose of security only. There was no stipulation in the contract, however, that such mineral deed should be placed in escrow pending the payment of the debt, and the appellants forthwith placed it together with the deed of trust, of record in Jasper County, Tex. The appellants did not advance to appellee the full $250 in money at the time of the execution of these instruments, but it is admitted that they did advance appellee money along as needed by him. The testimony, however, was controverted as to the amount of money or supplies so advanced. The appellant, Max Weitzman, testified that approximately $584.73 was advanced either in cash or expended for labor, material and supplies. The appellee admitted receiving some $281.10 of this amount either in cash or its equivalent, and further admitted that other sums were possibly expended for his benefit but he did not know the exact amount of such expenditures.

Immediately upon the execution of the above instruments the appellee purchased a building for $50, which sum was furnished by the appellants, moved the same upon the appellants’ lot and began to improve and equip it suitable to his business requirements. On January 10, 1938, apparently needing more money than had been anticipated, the appellee executed another note payable to the appellants in the sum of $150, due in one year after date, and also executed a second lien deed of trust upon the above land to secure such note. '

On May 20, 1938, the appellee filed this suit against the appellants and Abe Evin, trustee in each of the two deeds of trust, alleging thát he was a negro, uneducated, unlearned and that he could hardly read and write; that the appellants devised a scheme to acquire title and possession of his land; that they took advantage of his illiteracy and incapacity and by false representations induced him to sign the contract, one or more deeds of trust, a mineral deed and one or more promissory notes; that the appellants told him they would loan him $250 and place such sum at his disposal in the Panhandle State Bank in Borger; that no such deposit was made by the appellants; that the appellants represented they would allow the appellee to repay the loan in monthly payments of $15 each but that the instruments he executed did not so provide; that the agreement between the parties was that the appellee was to execute for security purposes only a mineral deed for an undivided one-third interest in the minerals of appellee’s land but that the instrument he executed conveyed an undivided two-thirds interest in such minerals; that the appellants represented to him that upon payment of the debt they would return the mineral deed to him; and that appellee did not agree to execute the deeds of trust upon his land and he was ignorant of the contents of such instruments. The appellee offered to “do such equity as the court may decree” and prayed that “said contract, deed of trust and mineral deed be adjudged to be void and of no effect, that each of said instruments be ordered to be delivered up to plaintiff (appellee) to be cancelled * * * ”.

The appellants filed a general demurrer and general denial and specifically denied that they were guilty of fraud. They further alleged by way of cross-action that the appellee was indebted to them in the sum of $584.73 for money and supplies furnished to the appellee by the appellants for repairs and improvements on the building and asked for a judgment in such amount together with past due rentals on the property, interest and attorney’s fees and for foreclosure of their alleged liens under the deeds of trust and mineral deed.

The cause was submitted to the court without a jury and the court rendered.the following judgment: That the • mineral deed was cancelled and declared void; that the $250 note and deed of trust securing the same were cancelled and decreed void; that the $150 note and deed of trust securing it were decreed cancelled and void; that all liens, encumbrances or obligations growing out of any of the foresaid instruments were null and void and of no binding force and effect; and that the appellants have judgment against the appellee for $109 and have title and possession of the building located on appellants’ lot. From this judgment Max • Weitzman and wife, Dora Weitzman, have appealed.

The appellee has not afforded us the benefit of a brief, and we are therefore privileged to accept appellants’ statement of the case as true and correct. The appellants assert that the facts of this case are insufficient to constitute fraud under the pleading's. From the resume of the appel-lee’s pleadings above set out it is apparent that a most liberal construction must be placed upon such allegations before it could be said that a case of fraud has even been pleaded. Most of the allegations of the appellee refer to a purported breach of the agreement after the same was entered into rather than fraudulent . representations made to procure such agreement. We call attention to such deficiency in the pleadings mainly in view of another trial, since we are of the opinion the case must be reversed upon other grounds.

We think the testimony is wholly insufficient to warrant a cancellation of any of the instruments executed on January 3, 1938. By the admission in the testimony of the appellee, and by the testimony as a whole, all of the negotiations and terms of the agreement transpired prior to the preparation and execution of these instruments. The negotiations began on December 26, 1937, and culminated in the execution of the written instruments on January 3, 1938. The appellee testified that after the details of the agreement had been worked out the appellant, Max Weitzman, went to the office of J. W. Spivey, an attorney at Bor-ger, for the purpose of having the latter prepare the papers. Weitzman’s. testimony was that he and the appellee went together to such attorney and had the papers prepared in the latter’s office. The testimony of the attorney, J. W. Spivey, corroborated that of the appellee to the .effect that according to his best recollection Weitzman came up to his office alone and told the attorney how he wanted the instruments drawn. At any rate, the testimony o'f the appellee, of Weitzman and of the attorney was to the effect that at the time the instruments were executed nothing was said about the contents of the instruments, that the appellee did not read them and did not ask that they be read or explained to him. The appellee merely signed them without asking questions concerning them. Nor is there any testimony of any probative force to the effect that Weitzman or anyone else at any time prior to appellee’s coming to the attorney’s office revealed to appellee the exact contents of the instruments or made any representations, false or otherwise, concerning the $250 note or the deed of trust securing the same. The only semblance of any testimony on this matter was from the appellee that he understood that the mineral deed was for only a one-third interest in the minerals; that this was his understanding when the papers were signed; that this was what Max and Dora Weitz-man told him; and that he relied upon such statements' and would not otherwise have signed the papers. Although the appellee was not cross-examined upon this bit of testimony, in view of the other evidence in this connection, we think it is obvious the appellee was thus referring to representations made to him in the prior oral negotiations leading up to the written contract. Particularly is this true since 'Mrs. Weitz-man was not present at the time the -papers were prepared or executed and the further fact that the appellee stated elsewhere that neither Mr. Spivey nor Mr. Weitzman explained to him what was in the papers or made any representations as to what they contained.

The appellee testified he could not read very well, but it was shown by the testimony that he had some little' ability to read. Granting that he was unable to read and understand such instruments, he did not call such matter to the attention of either Weitzman or the attorney. Spivey testified that if the appellee had requested him to read the instruments he would have- done so and would have read them correctly. He further testified that Weitzman' did not make any statements at the time the papers were signed which were contrary to the provisions of any of the instruments. Therefore, the proof fails to show any misrepresentations were made at the’ time the papers were executed nor was there any showing of .any fraud or imposition to prevent' the appellee from being advised as -to their contents.

In the case of Pioneer Building & Loan Ass’n v. Johnston et al., Tex.Civ.App., 117 S.W.2d 556, 557, writ of error dismissed, the appellee therein sought to cancel an obligation he had given on the theory that before the execution of the instruments in connection therewith he had been informed that the rate of interest charged by the appellant therein was to be 7½% 'per annum. The contract'he later signed provided for 9%. In discussing the issue of fraud thus presented, Justice Alexander, of the Waco Court of Civil Appeals, in the course of the opinion in that case- said: “It will be noted that Johnston’s testimony related wholly to a representation made to him in the prior negotiations and that he did not testify to any misrepresentation having been made at the time of entering into the contract. In fact, the jury did not find any misrepresentation was made by the loan company as to the contents of the written instrument signed by Johnston, but merely found that prior to the execution thereof the loan company had misrepresented the interest charged under its plan of operation. There was no proof offered as to any misrepresentations having been made at the time the loan papers were signed. In fact, it was not contended either in the pleadings or in the evidence that the contents of the document executed by Johnston were misrepresented or that any fraud or imposition was resorted to to prevent his being advised as to the contents of the contract. The above evidence, in our opinion, was insufficient to raise an issue authorizing the setting aside of the contract on account of fraud. Whatever oral negotiations were had between the parties at the first conference were presumed to have been waived or embodied in the written contract when finally executed by Johnston. In the absence of proof of fraud misleading Johnston as to the contents of the written contract actually executed by him, and in the absence of proof of any conduct on the part of the loan company, or its representatives, that prevented Johnston from informing himself as to the contents of such instruments, he is presumed to have known the contents thereof and therefore is not entitled to have such instruments cancelled.”

In the case of Indemnity Ins. Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 557, relative to the duty of one signing a contract to read or have the same read to him and of the effect of his failure to do so, Commissioner Smedley, speaking for the Commission of Appeals, said: “Several of the workmen were not able to read or write and signed by mark attested by Treloar, who neither read nor explained the assignment to them. There is no evidence that they asked for a reading or explanation or that anything was done to mislead or to conceal the contents of the instrument from them. Under such circumstances, they were bound by the terms of the instrument as fully as were those who could, and did not, read it.”

In view of the above holdings and other authorities on the subject, it is our opinion that the evidence in this case was insufficient to warrant the cancellation of the instruments dated January 3, 1938. 7 Tex. Jur. 909; Distributors Inv. Co. et al. v. Patton, 130 Tex. 449, 110 S.W.2d 47; Wheeler v. Holloway, Tex.Com.App., 276 S.W. 653; Parker et al. v. Schrimsher et al., Tex.Civ.App., 172 S.W. 165, writ refused; Cassel v. West, Tex.Civ.App., 98 S.W.2d 437, writ refused; Duncan v. Robertson et al., 129 Tex. 637, 105 S.W.2d 214; Kasch v. Farmers’ Gin Co., Tex.Com.App, 3 S.W.2d 72; Murray Co. v. Putman, 61 Tex.Civ.App. 517, 130 S.W. 631; Cockerell v. Haynes et al., Tex.Civ.App., 255 S.W. 494.

The testimony is equally deficient as to the representations made at the time the instruments of January 10, 1938, were executed. In this connection the appellee testified that Weitzman told him that these papers were “some more of those papers that belonged to that first contract that we drawed up, a mineral deed”, but it was not shown that Weitzman otherwise informed him of their contents. Just what definite information this conveyed to the appellee we are unable to determine. There was no other testimony as to any representations made to the appellee with reference to these particular instruments and we therefore are of the opinion the testimony thus offered was insufficient to show fraud. Wilson v. Jones, Tex.Com.App, 45 S.W.2d 572.

The’-judgment is reversed and the cause remanded.


author: MONTEITH, Chief Justice.

text:
    BANKERS LIFE & LOAN ASS’N OF DALLAS v. ASHFORD.
    No. 10996.
    Court of Civil Appeals of Texas. Galveston.
    April 4, 1940.
    Rehearing Denied May 2, 1940.

      W. S. Barron and Stewart & Barron, all of Bryan, for appellant.
    W. F. Leigh, of Houston, for appellee.
   MONTEITH, Chief Justice.

Appellant, Bankers Life & Loan Association of Dallas, issued an insurance policy, dated November 1, 1935, for the face amount of $250 on the life of Jim Carter. His daughter, Lucy Ashford, appellee herein, was named as beneficiary in said policy.

After the death of insured on November 30, 1938, upon the refusal by appellant to pay the full face amount of said policy, appellee brought suit therefor in the justice court of Grimes County, where judgment was rendered in her favor. On appeal by appellant to the county court of Grimes County, in a trial before the court, judgment was again rendered in favor of ap-pellee. In both trials appellant tendered to appellee the sum of $62.50 in full settlement of her claim. Appellant contended in the lower court and contends here that because of the death of Jim Carter within two years of an alleged forfeiture and reinstatement of said policy, the company’s liability, by virtue of a provision of its bylaws, is limited to 25% of the face amount of the policy.

In reply to this plea, appellee pled that appellant, by accepting payment of past due premiums, had waived its right to declare said policy forfeited and that it was estopped to deny full liability under said policy.

Appellee retained the draft for the sum of $62.50 tendered by appellant, as part payment under said policy, and brought this action for the additional sum of $187.50 claimed by her to be due under said policy.

All of the premiums due on said policy were paid by the insured before they became delinquent up to the time of his death, with the exception of a premium which became due on August 1, 1937. This premium was received and accepted by appellant on August 18, 1937, two days after the fifteen day period of grace provided for in the policy.

It was stipulated by the parties that appellant accepted said past due premium and that it continued to accept premiums as they became due in accordance with the terms of said original policy up to the time of the death of the insured; that on receipt of said past due premium it caused an entry to be made on its books to the effect that said policy had been reinstated, but that it did not notify insured that the policy had been lapsed and had been reinstated, and that he believed that the policy was in force and effect as of the date of its original issue up to the time of his death. It was. further stipulated that appellant is a state-wide mutual assessment life insurance company operating under Article 4859f, § 19, Vernon’s Ann.Civ.St.; that said policy provides that any premium received after fifteen days from due date may be accepted in lieu of a health certificate as a reinstatement, upon the implied warranty that the insured is in excellent health and free from injury at the time of its acceptance; that the insured by accepting the policy agreed to all the terms and conditions stated in the application therefor and in the constitution and by-laws, and that its constitution and by-laws provide that in the event of the death of the insured from any cause within two years from the -date of a reinstatement of the policy, the maximum liability of the association should be 25% of the maximum benefit provided for therein, and that the beneficiary should be bound to accept such sum in full discharge of all liability under said policy.

The trial court found, in response to a request by appellant for findings of fact and conclusions o.f law, that appellant’s act in accepting a past due premium two days after the period of grace had expired, without notifying the insured of its action in declaring the policy lapsed and reinstated, was an unequivocal act recognizing the continued existence of the policy according to the terms of its original issuance and that its action operated as a waiver of its right to forfeit or reinstate the policy under the terms of the contract. The court further found that appellant had the right under the terms of the contract to forfeit said policy or to reinstate it, but that it was also under duty to notify the insured of any change -in the status of the policy, and that having failed to do'so, it is estopped from relying on said change when it raises the issue for the first time subsequent to the death of the insured; and that appellant, by its -silence, had induced the insured to believe in the existence of a state of facts upon which insured relied tó his prejudice.

No objections or exceptions were made by appellant to said findings and conclusions.

Under the facts in this record appellee’s right to recover the face amount of the policy in .question was, by the express terms of the policy and the by-laws of the association, which were made a part thereof, forfeited by the failure of the insured to pay said past due premium, unless it can be shown that appellant by its action has waived its rights to forfeit and reinstate said policy.

It is a well settled rule in the law of insurance that: When, under a policy of insurance, a-forfeiture has‘been worked and the insurer has knowledge of the existence of facts which constitute the forfeiture of the policy, any unequivocal act done after the forfeiture has become .absolute which recognizes the continued existence of the policy or which is wholly inconsistent with a forfeiture, will constitute a waiver thereof. Bailey v. Sovereign Camp, W. O. W., 116 Tex. 160, 286 S.W. 456, 288 S.W. 115, 47 A.L.R. 876; Calhoun v. The Maccabees, Tex.Com.App., 241 S.W. 101. Under the above rule,' in order to bring about a waiver of the forfeiture and reinstatement to the instant case, three conditions of fact are necessary: (1) The insurer must have had knowledge of the ’facts constituting the forfeiture of the policy in question; (2) the forfeiture must 'have been complete and absolute; and (3) there must have been some unequivocal act on the part of the insurer which recognized the continuance of the policy, or which was wholly inconsistent with the forfeiture.

In this case it is undisputed that appellant had knowledge of the facts constituting the forfeiture, since the record shows that it caused an entry to be made in its books to the effect that the policy in question had been reinstated.

The forfeiture became complete and absolute under said policy and the by-laws, which are made a part of the contract, when the insured failed to pay his premium due August 1, 1937, until two days after the fifteen days of grace provided for in the policy.

The remaining question to be determined is whether there was an unequivocal act by the insurance company subsequent to the forfeiture of the policy which recognized the continuance of the policy. The trial court found that the fact of appellant’s accepting a past due premium two days after the days of grace had expired, without notifying insured of its action in declaring the policy lapsed and reinstated, constituted an unequivocal act recognizing the continued existence of said policy according to the terms of its original issuance. Further, as a circumstance tending to show a waiver of its intention to forfeit said policy, no certificate as to the health of insured at the time of the alleged reinstatement was required and appellant continued to receive the premiums on said policy as they became due until the death of insured, a period of more than fourteen months, without notifying insured that said policy had been forfeited and reinstated. Nothing could be more inconsistent with the forfeiture of an insurance policy than the acceptance and retention of the premiums paid by the insured for the full protection afforded by the policy which, it is admitted, the insured thought would be paid to the beneficiary under the policy after his death. Our courts have uniformly held that a waiver may be created by acts, conduct of declarations, and that it may be shown by any competent evidence, express or circumstantial, which tends to prove or disprove such fact. National Mutual Accident Ins. Co. v. Hicks, Tex.Civ.App., 65 S.W.2d 805.

Further, findings of fact and conclusions of law of the trial court not only support the judgment rendered, but since they have not been attacked by appellant, they must be taken as the established facts of the case. McCray v. Kelly, Tex.Civ.App., 130 S.W.2d 458; First Texas Prudential Ins. Co. v. Ryan, Tex.Civ.App., 48 S.W.2d 750; Hudgins v. T. B. Meeks Co., Tex.Civ.App., 1 S.W.2d 681.

For the reasons above stated, the judgment of the trial court will be affirmed.

Affirmed.


text:
    JONES v. JEFFERSON COUNTY DRAINAGE DIST. NO. 6.
    No. 3573.
    Court of Civil Appeals of Texas. Beaumont.
    April 25, 1940.
    Rebearing Denied May 1, 1940.
    Howth, Adams & Hart, and Gaston H-Wilder, Jr., all of Beaumont, for appellant.
    Morris & Bennett and Strong, Moore & Strong, all of Beaumont, for appellee.
   WALKER, Chief Justice.

This case is before us on appeal by appellant, J. A. Jones, from the judgment of the lower court sustaining the demurrer of appellee, Jefferson County Drainage District No. 6, to his petition.

Appellee is a drainage district, organized under the provisions of Art. 8097, Chapter 7, Title 128, V.C.S. On the allegations of' appellant’s petition, appellee maintained a system of ditches within its boundaries, whereby many acres of marsh land were and are being reclaimed; it had the legal authority to dig drainage ditches, and to’ keep them in repair, and to make all necessary extensions thereto, and to transport laborers to and from the drainage ditches, in its efforts to keep them in repair and to extend them.

For cause of action, appellant alleged: He was lawfully hired by one of appellee’s agents who had “the right to hire and discharge him”; he was employed to do work upon appellee’s system of drainage ditches; as an incident of his employment appellee was bound to transport him to and from the work he was employed to do; on the first day of his employment, the agent who employed him undertook to transport him to the place of his work in a truck, which the agent drove in a negligent and careless manner, and at a negligent rate of speed across a rice field which was “uneven and full of ridges and ditches”; the agent did not warn him of the character of the territory over which he was driving, of which appellant was excusably ignorant, and failed to furnish him with a seat in the truck; while “riding on his way to the place where he was required to perform his duties he was thrown with great violence against the side of the truck and then thrown down on the floor of said truck, and in so falling his head struck a tool box which was then and there being transported by said truck,” inflicting upon appellant serious injuries; the acts of the agent constituted negligence, chargeable to appellee, which negligence was the proximate cause of appellant’s injuries.

Opinion.

Appellant’s petition was subject to the general demurrer.

Drainage districts created under the provisions of Chapter 7 of Title 128, Art. 8097, V. C. S., enacted under authority of Art. 16, Sec. 59a, of the State Constitution, Vernon’s Ann.St., are political subdivisions of the state of the same nature and stand upon exactly the same footing as counties, or precincts, or any of'the other political subdivisions of the state. Harris County Drainage District No. 12 v. City of Houston, Tex.Com.App., 35 S.W.2d 118; Wharton County Drainage District No. 1 v. Higbee, Tex.Civ.App., 149 S.W. 381; American Surety Co. v. Hidalgo County, Tex.Civ.App., 283 S.W. 267, writ of error refused; Parker v. Harris County Drainage District, Tex.Civ.App., 148 S.W. 351; Harris County v. Gerhart, 115 Tex. 449, 283 S.W. 139; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430; Braun v. Trustees of Victoria Independent School District, Tex.Civ.App., 114 S.W.2d 947; 15 Tex.Jur. 722.

In the Gerhart Case, supra, our Supreme Court held [115 Tex. 449, 283 S.W. 140] : “It is well established that at common law counties as a rule are not liable for injuries resulting from the negligence of their officers or agents, and no recovery can be had in damages unless liability be created by statute. Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562, 31 Am.St.Rep. 63; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430.”

Since drainage districts are of the same nature and stand upon the same footing as counties, and since counties are not liable for injuries resulting from the negligence of their officers or agents, it logically follows that drainage districts, likewise, are not liable for injuries resulting from the negligence of their officers or agents.

As we understand the authorities cited by appellant, they in no way conflict with the authorities cited above in support of our conclusion of non-liability on the part of appellee for the injuries suffered by appellant. Appellant’s authorities are on the general proposition announced in the Ger-hart case, supra, construing Art. 1, Sec. 17 of the State Constitution, that no person’s property shall be taken, damaged or destroyed, or applied to public use without adequate compensation being made to the owner. Thus, in Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 60, speaking for the Supreme Court, the Commission of Appeals stated: “Many decisions of the courts of this state are in harmony in holding that cities, drainage districts, levee improvement districts, etc., which are defined under the law as governmental agencies, are responsible for damage or injury to a person’s property inflicted in the performance of their acts and functions primarily for the benefit of those within the corporate limits of the municipality.”

In Hidalgo County Improvement District No. 2 v. Holderbaum, Tex.Com.App., 11 S.W.2d 506, damages were sought against the drainage district, resulting from injury to the claimant’s farm. In Cameron County Water Improvement District No. 1 v. Whittington, Tex.Civ.App., 297 S.W. 868, it was held that the watchman employed for the protection of corporate property was not exercising a governmental function. Hidalgo County Water Control & Improvement District v. Gannaway, Tex.Civ.App., 13 S.W.2d 204; is another case of damage to property and, therefore, not in point with the facts of the case at bar.

We overrule appellant’s contention that injury to his person “was a taking or damaging or destroying his property for public use without adequate compensation being made, thereby being a violation of Article 1, section 17, of the Constitution of the State of Texas.” This contention is denied by the authorities cited above, holding that counties are not liable for injuries resulting from the negligence of their agents.

The judgment of- the lower court is in all things affirmed.