text:
    LANDERS v. OVERAKER et al.
    No. 12859.
    Court of Civil Appeals of Texas. Dallas.
    April 6, 1940.
    Rehearing Denied June 1, 1940.

      Bowyer, Gray, Thomas & Jaffe, of Dallas, for appellant.
    Coke & Coke and Thomas G. Murnane, all of Dallas, for appellees.
   YOUNG, Justice.

This suit in the District Court was for personal injuries, by W. H. Landers against C. E. Overaker and wife, his mother, Mrs. Josephine Overaker, and sister, Miss Maude Overaker; the time and place being about seven o’clock in the evening of October IS, 1936, adjacent to Melrose Court, an apartment hotel situated on Cedar Springs Avenue, Dallas. On the trial, all defendants requested peremptory instructions when plaintiff rested, which were refused. Similar requests were urged at the close of the testimony, that of Miss Maude Overaker being granted, and a jury verdict was returned upon many issues touching the remaining parties. Thereafter, defendants, Mr. and Mrs. C. E. Overaker, seasonably and upon notice, filed motions for judgment non obstante veredicto, which were overruled; a like motion of Mrs. Josephine Overaker was sustained. At the same time, motions of Mr. and Mrs. Over-aker (husband and wife) for judgment on the jury answers were sustained; that of the elder Mrs. Overaker and of plaintiff overruled, proper exceptions being taken by all parties to such action of the trial court. Damages were found for •.plaintiff in the sum of $1,800, but the final judgment was in favor of defendants, with a consequence of this appeal.

The trial pleadings of plaintiff set forth that at the time of the accident, he had finished his day’s work and was standing in a public place on the west side of Cedar Springs Avenue, just north of its intersection with Oak Lawn Avenue, in the parkway between the curb and sidewalk; that he was waiting at such point for a street car, near to, or leaning against a telephone pole set in the parkway, on which was a sign indicating that the place was a regular street car stop; that a car driven by Mrs. C. E. Overaker, Mr. Overaker in front, his mother and two sisters on the rear seat, approached slowly along Cedar Springs Avenue from the north; that said automobile party were members of one family and on a joint mission “for the health, welfare, comfort or pleasure of said family and each of them, the exact nature of said joint mission being unknown to plaintiff, but well known to each defendant;” that defendants intended to stop said car at the curb near plaintiff, for one of them to alight. In doing so, the door of the car prematurely opened as it moved toward plaintiff, protruding over the curb and into the parkway where he was standing; that plaintiff was thereby caught between said door and the light pole, to his great injury; and that the defendant who opened the car door, pursuant to said joint enterprise, was either the mother, Mrs. Josephine A. Overaker, or sister, Maude Overaker.

Plaintiff further alleged specific acts of negligence committed by the several defendants, and that, “ * * * such acts each were a direct and proximate cause-of injuries suffered by the plaintiff.” The detailed charges and counter charges of the parties are reflected in the jury issues and answers, which are, in substance: (1) That plaintiff received physical injury at the time and place; (2) that Mrs. C. E. Overaker drove the automobile in question too near the curb for the safety of plaintiff, but that such was not negligence; (3) that Mrs. C. E. Overaker did not fail to keep a proper lookout; (4) that Mrs. C. E. Overaker drove the automobile at the time with the right rear door open, but such was not negligence; (5) that neither C. E. Overaker nor his wife discovered and realized plaintiff’s perilous position in time, by the use of all available means, to have avoided the injuries to plaintiff; (6) that defendant Mrs. Josephine Overaker opened the door of the automobile before it stopped, which was negligence and a proximate cause of the injuries to plaintiff; (7) that C. E. Over-aker, his wife, and Mrs. Josephine Over-aker were engaged in a joint enterprise at the time, a necessary part of which was the stopping of the automobile near the entrance of Melrose Court (the place of the occurrence) ; (8) that the act of opening the right rear door of the car caused said door to extend over the west Cedar Springs road curb, and into the parkway on the west side of said street, which was negligence and a proximate cause of the injuries; (9) that Mrs. C. E. Overaker drove the automobile with the right rear door open and extending over the curb on Cedar Springs road, but was not negligent in so doing; (10) that Mrs. C. E. Overaker was not driving the car at a greater speed than was reasonably safe; (11) plaintiff’s injuries were not the result of an unavoidable accident; (12) that Mrs. C. E. Overaker could not reasonably have anticipated or foreseen that the right rear door of the car might be opened by someone sitting in the rear thereof, just before it reached the telephone post; (13) that the open door of the Overaker car was observed and discovered by plaintiff in time for him to have avoided injury; but that plaintiff’s failure to remove from such position was not negligence; (14) rhat plaintiff did not lunge or fall forward against the automobile as it passed the telephone pole; (IS) nor was his standing and leaning against the north side of the said pole contributory negligence.

It is readily discernible from the above jury findings that Mr. and Mrs. C. E. Overaker were freed of all fault relative to this avoidable accident, except as to the affirmative answers to the “joint enterprise” issues, in which event, the negligence of the mother, Mrs. Josephine Overaker, in opening the door of the car before it stopped, would be imputed to the other defendants connected with such enterprise. El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, 189. The family ride. of defendants, upon which plaintiff predicates his claim of joint liability, arose in this wise: Mrs. C. E. Overaker owned the car and, with her husband also in the front seat, was driving it from their home to the residence of Mrs. Josephine Overaker, in the same vicinity of North Dallas. Residing with the latter at the time were her two daughters, Miss Maude Overaker and Mrs. Ne-ville. The purpose of the trip by Mr. Overaker and wife .was to take the mother and sisters for an automobile ride. The invitation was accepted and the three entered the rear compartment, Mrs. Josephine Overaker taking the right-hand seat, and Miss Maude Overaker, who said she would ride as far as Melrose Court, a few blocks away, being seated on the left side of the car. The automobile, thus occupied and driven, proceeded down Cedar Springs road to said apartment hotel where it slowed down for the purpose of stopping at the pedestrian entrance. The telephone pole, at which plaintiff was standing, was alongside the west curb in the parkway, and from ten to fifteen feet north of said entrance. Further up the same curb to the north, was a fire plug, and beyond that a driveway from the street to the rear of the hotel. Plaintiff claims that the right rear door of the car opened and extended over the curb just after the car passed the driveway, and remained open as it moved slowly along to the lower entrance; that he was thereby caught between said door and the post, sustaining serious injuries. On the other hand, defendants contend the said car door was not opened until after it had passed the telephone pole, unless by plaintiff himself in lunging or falling against it. We think that, under the whole of the evidence, and all inferences properly deducible therefrom, the issue of joint mission or joint enterprise was not raised. A prime element of this relationship, as defined by the court, was: “ * * * an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.” See El Paso v. Leeper, supra. In the absence of any testimony that the rear occupants of the car had any right to control its movement during the casual ride being undertaken (back-seat drivers, as it were), no other inference can be drawn of the existing status of the parties than that of simply host and guests. The determining factor in the cases bearing upon this species of imputed negligence (joint enterprise) is the legal right of control over the agency employed to accomplish the common purpose. 12 Tex.Law Review, 372; West Texas Coaches v. Madi, Tex.Civ.App., 15 S.W.2d 170, affirmed by the Sup.Ct., 26 S.W.2d 199; West v. Bruns, Tex.Civ.App., 294 S.W. 235; see also, Annotations to Keiswetter v. Rubenstein, 235 Mich. 36, 209 N.W. 154, 48 A.L.R., page 1077, et seq. In this connection, it must be noted that in the Leeper case, supra, relied on by appellant, the car in which the young lady was hurt had been loaned to her and the driver jointly. In the Madi case above, under facts sufficiently analogous, Judge Leslie, of the Eastland Court, said, 15 S.W.2d at page 177: “All had a common destination in returning to Utica, N. Y., but there is no evidence that John Madi had an equal right, or any right, to direct and control the conduct of Sam Madi in the operation of the Chevrolet car, owned exclusively by the latter and driven by him at the time of the wreck. John Madi, as such guest or gratuitous passenger, was without the right or authority .to direct and control the operation of the vehicle in which he was riding when he lost his life. In the absence of these elements, there was, under the circumstances and under the rule of law stated, no joint enterprise between Sam and John Madi, which would warrant imputing the negligence, if any, of the latter to the former.”

But plaintiff argues that the judgment for Mr. and Mrs. C. E. Overaker was upon motion on the jury verdict which included the answers favorable to him on joint enterprise, and that their motion non obstante veredicto (overruled by the court with exception taken) was insufficient to confer jurisdiction, under Art. 2211, R.S., Vernon’s Ann.Civ.St. art. 2211, providing, “ * * * the court may, upon like motion [non obstante veredicto] and notice, disregard any Special Issue Jury Finding that has no support in the evidence.” We must overrule the contention just stated, bearing in mind the theory of these defendants that plaintiff’s case was based alone upon joint expedition. Their motion, following the terms of Art. 2211, therefore pointed out that their previous request for peremptory instruction was well taken, that no testimony supporting joint expedition had been adduced; wherefore, the jury issues thereon should be disregarded and judgment rendered in favor of such defendants, all other findings acquitting them of liability. We think the motion in question met the requirements of the statutes in substance and effect, as it could serve no other purpose than that just indicated. Hines v. Parks, Sup.Ct. adopted, 128 Tex. 289, 96 S.W.2d 970, Syl. 3. The trial court should have granted this motion; arriving, however, at a proper judgment for Mr. and Mrs. Overaker by erroneously sustaining other defensive pleading. A correct judgment as to these defendants will not be disturbed perforce of incorrect intermediate rulings, or that wrong procedure was employed not affecting the result. 3 Tex. Jur., Appeal and Error—Civil Cases, secs. 719, 792, pp. 1008, 1129.

Though defendants strongly argue that plaintiff’s petition is bottomed on joint mission alone, the liability of the car’s several occupants being dependent upon the existence of this fact element, and imputed negligence incident thereto, it is evident from such trial petition, that many .other acts of negligence were alleged against each defendant, proximately resulting in said injuries. In line with such allegations, Issue 16 of the court’s charge presented the material question of whether Mrs. Josephine Overaker opened the door of the automobile before it stopped. This and subordinate issues relating thereto were answered affirmatively by the jury. Liability naturally results as regards the defendant involved in these findings, provided they are supported by evidence of any probative force. The final judgment recites that Mrs. Josephine Overaker’s motion non obstante veredicto was sustained because her previous request for peremptory instruction should have been granted; also that all. testimony connecting this defendant with the car door should have been considered stricken as hearsay. Here appellee’s brief strongly reproaches plaintiff Landers for seeking judgment against the elder Mrs. Overaker separately, in this, language: “Plainly it does not become appellant to take the position that he ever sought to allege or prove that eighty-five year old Grandma Overaker, alone and unaided, assaulted him with an automobile. Every line of his petition shows that it was Mr. and Mrs. C. E. Overaker at whom he was aiming and that all else was on the theory of an agency for these main defendants.” So, in view of the court’s action in approving this particular motion non obstante veredicto, it is necessary that we examine the evidence relative to Mrs. Josephine Overaker and Issue 16, for the purpose of ascertaining to what extent, if at all, the same is obnoxious as hearsay. It is clear from the record that such elderly defendant was seated next to the offending door, which, as all parties in the car testified, did not open until the vehicle had moved past the telephone pole. Yet plaintiff swore that a man’s voice called out, before the car reached and injured him, to “close that door”; and that Mr. Overaker later admitted at the hospital that the voice was his. Defendants remained in the car as Landers was conveyed therein to his home; and, concerning such interval, the latter testified, “I didn’t know who opened the door until I got to the house and he (Mr. Overaker) said his mother opened the door, the rear door.” The only persons going into the house were Overaker and plaintiff. It is contended that the statement just quoted was admissible against Mrs. Josephine Overaker as made in her presence, under the evidence rule of “Silence and Acquiescence”; she making no answer thereto and not being questioned on the particular conversation. The statement of facts is in narrative form and otherwise unsatisfactory; but it does not'appear therefrom with reasonable certainty, that the utterance was made while this defendant was present, or that she heard or fully understood it; 17 T.J., Evidence—Civil Cases, sec. 235, p. 569. Certain rebuttal witnesses of plaintiff (J. C. Dorrs, police officer, and Mrs. Hazel Leak) ,testified to similar statements of Mr. Overaker, at the hospital and plaintiff’s home, as to who opened the door; and appellant contends, with much vigor, that all of these utterances made by one principal, though not in the presence of the others, explaining the accident, though spoken shortly thereafter, are admissible as part of the res gestae. It has been often said by the courts and text-writers that no hard-and-fast rule can be laid down as to the precise time, near an occurrence, within which declarations explanatory thereof must be made, in order to be admissible; the important factor being the spontaneity of the statement under the test of whether the declaration was the facts talking through the party, or the party talking about the facts. 17 T.J., sec. 262; 22 C. J., Evidence, secs. 549-551, and Notes; City of Austin v. Ritz, 72 Tex. 391, 9 S.W. 884; Panhandle & S. F. Ry. Co. v. Laird, Tex.Civ.App., 224 S.W. 305. Under the facts of this record and the obvious purpose for which the particular testimony was offered, we regard Mr. Over-aker’s subsequent statements as merely narrative' of past transactions or events. Hence, they were not binding upon Mrs. Josephine Overaker, and simply hearsay as to her. The nature of the testimony being as just indicated, they should' not have 'been received by the court, even for the_ purpose of impeachment; 45 T. J., Witnesses, secs. 212-213, pp. 58, 59. While the relevant facts and circumstances, other than the objectionable matter above discussed, properly raised the jury questions involving Mrs. Josephine Overaker, yet it is manifest that much of the testimony connecting her with plaintiff’s injuries was without probative effect, though highly prejudicial, which is generally true of hearsay statements. , Similarly, if the jury considered this character of testimony in answering Issue 16 (and it must be assumed that they did), we are unwilling to-approve their finding in such connection, for “hearsay evidence, even if admitted without objection, is not competent evidence and will not support a verdict.” Sinclair Refining Co. v. Womack, Tex.Civ.App., 66 S.W.2d 402, 404.

A major counter proposition of ap-pellee is based on Issue 39, that plaintiff discovered said open door in time to have avoided the injury, with a consequence of contributory negligence as a matter of law. However, the jury found that plaintiff was not negligent in failing to remove himself in time to avoid the injury. Considering the position of Landers in the parkway, the nighttime, the very slow movement of the car, and the jury findings as a whole, we must hold that reasonable minds might differ as to whether he was, at the moment, conclusively careless. 30 T. J., Negligence, sec. 153, p. 832.

Absent the element of joint enterprise, which we conclude has not been established as a matter of law, plaintiff’s pleadings otherwise accused the several defendants of individual negligent acts, proximately causing his injury. The court’s charge presented independent acts or omis.sions on the part of each defendant; the issues concerning Grandma Overaker being independent of plaintiff’s other issues. We find no error in the judgment of the trial court, save as to the liability vel non of Mrs. Josephine Overaker. In such a situation, we think it is well within our discretion to apply the procedure many times approved by our Supreme Court, i. e., to affirm in part and reverse in part. Missouri K. & T. Ry. Co. v. Enos, 92 Tex. 577, 50 S.W. 928. Also, rule 62-A for Courts of Civil Appeals, permits partial reversals, “* * * if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error. * * *”

All material matters embraced in this appeal have been thoroughly considered, with' the result that the trial court’s judgment as to Mr. and Mrs. C. E. Overaker, and Miss Maude Overaker, should be in all things affirmed; but, as to Mrs. Josephine Overaker, the same should be reversed and remanded for a new trial consistent with the views herein expressed.

Affirmed in part and reversed and remanded in part.


source: Caselaw Access Project

author: CHRISTIAN, Judge. GRAVES, Judge.

license: Public Domain

text:
    RAFFORD v. STATE.
    No. 21045.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 19, 1940.
    Cecil R. Glass, of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty.,' of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft from the person; the punishment, confinement in the penitentiary for two years.

Jim Thompson, the prosecuting witness, had received a check for $85.26. After cashing the check he paid his taxes and bought some dry goods. Taking the balance of his money, he went to a place in the town and got drunk, on beer and gin. He testified that he and appellant got together. Some one took his money from his pocket without his knowledge.

Appellant testified that he took the money of the injured party but declared that it was upon the request of the injured party that he took it. He stated that the injured party told him at the time that he wanted him to buy him some bread. It was appellant’s version that he did not intend to steal the money at the time he took it. He admitted that he spent part of the money and hid the balance. The officers recovered the money that appellant hid.

Bill of exception No. 4 relates to an objection appellant made to proof of a conversation between Jim Thompson and his son Clint Thompson, the objection being that the testimony was hearsay. The bill of exception is qualified to show that appellant was present when the conversation took place. As qualified, the bill of exception fails to reflect error.

Bill of exception No. 5 is in the same attitude as the foregoing bill.

Bill of exception No. 7 fails to show what the answer of the witness Jim Thompson would have been had appellant been permitted to ask him on cross-examination whether on former occasions he had gotten drunk and delivered his money to friends to keep for him. The bill is. insufficient to reflect error.

Touching appellant’s affirmative defense, the court instructed the jury as follows: “You are further instructed that if you find from the evidence that the defendant át the time he took the money in question from the person of Jim Thompson had no intention at the time to keep the same and appropriate it to his own use, then you wih find the defendant not guilty; or if you have a reasonable doubt thereof you will acquit him.”

Further, the court instructed the jury as follows: “You are further instructed as a part of the law in this- case that if you believe from the evidence that the said Jim Thompson knew that the defendant took the money from his person, and had knowledge of the fact at the time it was taken, you will acquit the defendant and say by your verdict not guilty; if you have a reasonable doubt thereof you will acquit the defendant.”

We quote a further charge: “You are further instructed that even though you believe from the evidence in this case that the defendant took the fifty dollars from the person of the said Jim Thompson on the occasion in question, yet you can not convict the defendant unless you further find from the evidence that the money was so taken without the knowledge of the said Jim Thompson, and if you have a reasonable doubt as to this you will acquit the defendant.”

Appellant leveled no exceptions at the charge of the court, but tendered the court several requested instructions. We deem it necessary to mention only two of these instructions. We quote one as follows: “You are instructed as a part of the law of. this case that even though you believe from the evidence that the defendant took the fifty dollars from the person of Jim Thompson, and you further find from the evidence that at the time defendant took same he didn’t intend to keep it and appropriate it to his own use, you will acquit the defendant, even though you believe that the defendant formed the intention to' keep same subsequent' to the time he took it; or if you have a reasonable doubt thereof, you will acquit the defendant.”

The other requested charge reads as follows: “You are instructed as a part of the law in this case that if you find from -the evidence that the defendant formed the intention ’of keeping said money taken from the person of Jim Thompson after he took the same, then you will acquit the defendant; or if you have a reasonable doubt thereof you will acquit him.”

It is observed that in charging the affirmative defense, the court gave an instruction on the same subject as that embraced in the requested charges. Stated in another way, the main charge and the requested charges dealt with the subject of appellant’s intent. The court required the jury to believe that at the very time of the taking of the money appellant entertained the intent to appropriate it to his own use. As already pointed out, appellant leveled no exceptions at the charge given by the court. Art. 658, C.C.P., as amended by Acts 1931, Chapter 43, Section 5, Vernon’s Ann.C.C.P. art. 658 in part, reads: “Before said charge is read to the Jury, the defendant or his Counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.” We quote from Boaz v. State, 89 Tex.Cr.R. 515, 231 S.W. 790, 795, as follows: “For the court to hold that the requesting of a special instruction, which the trial court could legitimately consider as a substantial repetition of his main charge, can take the place of an objection which should pertinently point out the matter complained of, would virtually work a repeal of the statute.” See, also, Bell v. State, 99 Tex.Cr.R. 61, 268 S.W. 168, and Rawls v. State, 127 Tex.Cr.R. 414, 76 S.W.2d 1053. Giving effect to the announcement of the decisions, we are constrained to hold that it was incumbent upon appellant, under the circumstances, to except to that part of the charge of the court submitting his affirmative defense in a manner which'would have pointed out that it was not as full and complete as it should have been.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant offers us but one proposition in his motion as grounds for the granting of such motion, that is, because of the trial court’s failure to give the requested instruction embracing the proposition that in the event that the appellant took the money from the complaining witness, and at such time of taking, he had no intention of keeping the same, but formed such intent at a later time, then they should acquit the appellant.

It was appellant’s contention, made at the time of the trial, that the complaining witness, Jim Thompson, requested appellant to take his money out of his pocket and purchase for Thompson some flour, and that he took such money out of Thompson’s pocket (between $50 and $71) but did not buy the flour, and later used $10 of said money and hid the remainder in a can and buried it in the ground, and did not return the money to Thompson. We think the trial court met this contention of appellant, and properly charged this defense in paragraphs seven, eight and nine of his original charge to the jury, as follows :

“7. Unless you do believe from the evidence beyond a reasonable doubt that the defendant, on or about the time and in the county alleged, privately and fraudulently took the property described in the indictment from the person and possession of the said Jim Thompson, under conditions and circumstances and with the intent constituting theft from the person as defined in the preceding paragraph, then you will acquit the defendant.
“8. You are further instructed that if you find from the evidence that the defendant at the time he took the money in question from the person of Jim Thompson, had no intention at the time to keep the same and appropriate it to his own use, then you will find the defendant not guilty; or if you have a reasonable doubt thereof, you will acquit him.
“9. You are further instructed as a part of the law in this case that if you believe from the evidence that the said Jim Thompson knew that the defendant took the money from his person, and had knowledge of the fact at the time it was taken, you will acquit the defendant and say by your verdict not guilty; and if you have a reasonable doubt thereof, you will acquit the defendant.”

The motion is overruled.


author: LESLIE, Chief Justice.

text:
    AMERICAN INS. CO. OF TEXAS v. ESTES.
    No. 1994.
    Court of Civil Appeals of Texas. Eastland.
    May 10, 1940.
    Rehearing Denied June 14, 1940.

      Percy C. Fewell, of Dallas, for appellant.
    Kirby, King & Overshiner, of Abilene, for appellee.
   LESLIE, Chief Justice.

Mrs. Ethel -Reagan Estes, beneficiary under a health and accident insurance policy issued by the American Insurance Company to her husband, Dr. J. M. Estes, instituted this suit against that company to recover for the accidental death of her husband on October 10, 1937. The defendant denied liability. At the conclusion of the trial, the court instructed a verdict for the plaintiff. The company appeals. The parties will be referred to as in the trial court.

The defendant is a mutual insurance association, operating in the State under provisions of Art. 4859f, Vernon’s Ann.Civ.St, and is not governed or affected in any way by the general insurance laws of the State. Art. 4859f, sec. 19.

The policy insured against the loss of life, etc., resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means during the effective term of the policy, subject to certain provisions and limitations enumerated in the policy, and it provided that if the insured sustained such injuries, and as the result therof lost his life, the company would pay the beneficiary $2,500 in monthly installments of $100 each.

The first provision of the policy is as follows:

“American Insurance Company
******
does hereby insure
/Insuring Dr. J. M. Estes, Sr., whose occupation Clause/ is physician and surgeon, and whose beneficiary is Mrs. Ethel Reagan Estes, , wife, against loss of Ufe, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means * * * during the term of this policy, respectively, subject, however, to all the provisions and limitations hereinafter contained.
Accident Indemnities
/Part A. Specific Losses
If the insured sustains injuHes as directed in the Insuring Clause, which shall, independently and exclusive of disease and all other causes, continuously and wholly disable the insured and result in any of the following specific losses within 90 days from date of accident causing said injury, the company will pay; for toss of Ufe * * * the principal sum.”

(Italics in the opinion ours.)

The foregoing is the policy’s only promise of indemnity for the loss of life.

Other provisions of the policy material to the questions to be decided will be set out as the opinion proceeds. One such provision is paragraph H, under Additional Provisions: “This policy is issued in consideration of the application of the insured, and the due payment and acceptance, on or before delivery hereof, of $9.00 which included the first quarterly premium hereon, and also the payment on or before the first day of April, 1937, and the further payment on or before each premium date thereafter, of any premium shown in either premium table hereon * ijt ⅜»

Said premium table provided for payment of premiums quarterly, semi-annually or annually. It is undisputed that the deceased elected to pay his premiums quarterly on the first of the month.

In the absence of any other provision said premiums were due April 1, July 1, and October 1, 1937. Plaintiff and defendant are agreed that a quarterly premium fell due October 1, and plaintiff also recognizes the fact that said premium was not paid on its stipulated due date. That is the material date and premium involved.

Unless some other fact or provision of' the policy permitted payment of such premium on another date the protection of the policy lapsed or ceased to exist under its own terms as a result of the failure of Dr. Estes to pay, on its due date, the premium falling due October 1, 1937. That payment was not mailed to the company until October 6, 1937, but it was received and accepted by the company as a reinstatement (October 7, 1937) of the policy as provided therein.

Paragraphs (C) and (D) “Additional Provisions” of the policy are, respectively, as follows:

“(C) In the event the premium charged herefor shall prove inadequate additional assessments may be run or the amount of premiums increased to such extent as may be necessary to enable the company to make full payment of all claims * *
“(D) The date of payment of premiums shall be as indicated from the date of issue of policy [in this case on January 1, 1937, making his premiums due April 1, July 1, and October 1, 1937 on stipulated assessments] or fifteen days from date notification is mailed in Dallas, Texas [this being intended to cover additional assessments, none of which were made in this case] and the company assumes no responsibility for failure to send such notices, or for non delivery of same, and no offer of reinstatement after due date of any premium shall be held a waiver of this condition. Any premiums received after the due date may be accepted as a reinstatement, and upon the insured being in good health and free from any injury or sickness, and in lieu of a health certificate at the time of the company’s acceptance, and the company zvill not be liable for any disability originating before the expiration of fifteen days after reinstatement * *

Proper effect given to the above provisions C and D permits but one construction, and that is, that stipulated quarterly premiums fell due on the first of each of said months and additional assessments, if any, (and none are involved in this case) would be due fifteen days from the date of the mailing of notices of such assessments.

The parenthetical expressions are inserted in. paragraph D as an interpretation .of the contentions of the parties, as well as the record in such respect. Since the defendant is a mutual insurance company, and both permitted and required, under certain circumstances, to make additional assessments in the event stipulated premiums proved inadequate, paragraph D was- evidently included in the policy to provide for such contingency.

Other material provisions of the policy- are as follows: “ (E) The term of this policy begins at 12 o’clock noon, Standard Time, on date of delivery (January 1, 1937) to and’ acceptance by the insured against accident and ends at 12 o’clock noon on date any renewal is due.”

The policy - provides for no grace period and it is obviously a term insurance contract.

A standard provision of the policy is:

“(3) If default be made in payment of the agreed premium for this policy, the subsequent acceptance of the premium by the company or any of its duly authorized agents shall reinstate the policy, but only to cover accidental inpiry thereafter sustained more than fifteen days after the date of such acceptance

As noted, the stipulated premium (of October 1,) received October 6th was accepted by the insurance company and treated by it as a reinstatement of the policy, making it effective to cover accidental injury received after, but not before, October 22, 1937. Such, at least, is the defendant’s contention.

On the other hand, the plaintiff bases her right to recovery on the proposition that the insured was killed instantly and by accidental means on October 10, 1937, and that her suit is not for “injury”, but is one for accidental death, to which above provision “(3)” of the policy with reference to reinstatement has no application. The' defendant counters with the contention that on October 10 (time of accident) the policy did not cover accidental injuries, whether the result was fatal or nonfatal. That is, for death resulting from an accident within the 15-day period following the reinstatement the policy provided no coverage.

In the light of these contentions arid, the above provisions of the policy it is clear that protection of the policy ended on the failure of Estes to pay the quarterly premium due October. 1. Its acceptance October 7th had no effect except to reinstate the policy for another term, but without coverage until October 22. The unfortunate accident occurred October 10, well within the 15-day period following reinstatement.

Giving further and more specific attention to the contention, we are of the view, as asserted' by the defendant, that such contentions, if allowed, would defeat plaintiff’s own- purpose. If plaintiff’s theory be tenable, and “accidental death” is not accidental injury (under the policy) then the trial court’s instructed verdict would be erroneous because under the terms of the policy the insurer did not promise to pay anything for “accidental death”, and the policy merely provided for acceptance of the payment as a reinstatement covering “only accidental injuries thereafter sustained more than fifteen days., after the date of such acceptance.” That such result would follow, or be the -logical conclusion from such theory, is evident from the policy’s only promise of indemnity for the loss of life, which promise, in part", is here restated: “If the insured sustains injuries as described in the Insuring Clause, which shall, independently and exclusive of disease and all other causes, continuously and wholly disable the insured • and result in any of the following specific losses within 90 days from the date of accident causing said injury, the company will' pay: for loss of life * * * the principal sum.”

Be that as it may, we think there is sound authority for the proposition that accidental death suffered by the insured was an injury within the meaning and terms of the policy precluding recovery when the same occurred within the 15-day period following reinstatement of the policy.

In Standard Life & Accident Ins. Co. of Detriot, Mich. v. McNulty, 8 Cir., 157 F. 224, 225, such contention was disposed of in this language: .

“It is obvious that there -are two classes of injuries. Those that are fatal, and those that are not fatal. The word ‘injuries’ is a generic term, and it naturally includes injuries of both classes, because no one of either class is not an injury. Again the word is known by its associates and by the sense in which it is used in other parts of the same contract or in similar agreements. The first sentence of the policy reads that the company ‘hereby insures- the person whose name is entered upon the stub of this ticket * * * against loss of time resulting from bodily injuries * * (A) to the amount of $2,500 if death results from such injuries within 90 days * * *. “It is clear that the word ‘injuries’ in the first sentence of the policy which specifies the risks against which the insured is indemnified includes both those that are fatal and those that are not so, for the amount of the indemnity for the former is specified in class (A) and' the amount for the latter in class (B).”

Upon another contention, that of proper construction of the language of the policy alleged to be ambiguous, the following additional portion of the opinion will be stated: “Counsel for the plaintiff invoke the familiar rule that a policy of insurance should be construed favorably to the insured in cases of doubt or ambiguity. But this rule ought not to be permitted to have the effect to make a plain agreement ambiguous, and then to interpret it in favor of the insured. ‘Contracts of insurance like other contracts are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense.’” Citing many authorities.

On the first contention we take from Ritchie v. Standard Surety & Casualty Co. of New York, 257 App.Div. 545, 13 N.Y.S.2d 1022, 1023, the following:

"It is the contention of the plaintiff that the defendant did not intend the word ‘injuries’ to cover death, and that the policy is ambiguous. I am not impressed with this argument. To recover under the policy, death or disability must occur from injuries within the limitations of the provisions of the policy. I ani not unmindful of the rule that where the terms of an accident insurance policy are ambiguous or subject to different construction, it must be liberally construed in favor of the insured. But I find no ambiguity in the insuring clause nor, in the subdivision of the General Provisions which specifically provides that it ‘does not cover any injuries sustained without the limits of the United States or Canada.’
“Giving the policy the most liberal construction in favor of the insured, the insurer should not be held liable. An insured cannot reasonably -expect indemnity outside the limitation of his contract and where there is no ambiguity, there is no occasion for the exercise of choice of interpretation, and the policy will be construed according to the plain and ordinary meaning of its terms.”

To the same effect, and well in point, we cite Robyn v. New Amsterdam Cas. Co., Mo.App., 257 S.W. 1065.

In reference to the October first premium, the defendant offered testimony that on September 14, 1937, it mailed notice to the plaintiff that said premium would fall due October 1, 1937, and, on the other hand, the plaintiff offered testimony that the insured received a notice on October 5 that said premium was due on the previous date, October 1. The beneficiary makes no contention that such notice was mailed prior to October 1.

In the disposition- we make of this appeal any question of notice becomes immaterial. The premium (October 1) involved and in default was a stipulated quarterly premium and not one based on any extra assessment, notice of which would be necessary to advise the insured that such an assessed premium would be due “fifteen days from date of notification (of same) is mailed in Dallas, Texas.” The defendant was not,under the terms of the policy, obligated to give notice of the premium falling due October 1, and if it gave such notice it was in the interest of the insured and had he .received notice October 5 (as plaintiff claims) it would merely have called to the' insured’s attention his privilege of reinstating the policy. Such, notice, if giv'en, would, in effect, have invited a reinstatement of the policy, under the terms of which the insured, and not the insurer, had the privilege of deciding whether or not a new term of insurance would be applied. for by the payment of the premium in default. By failing to pay the premium when due the plaintiff could have discontinued the insurance $.t any due date and neither party would have had an obligation of any kind, and the term of insurance theretofore paid for would have ended- without the necessity of any notice whatever. Only payment of the premium on stipulated time kept life in the policy.

However, the policy which the insured elected to reinstate provided that the insurer then had the option to reject or to accept the deferred payment. The defendant company would have done no violence to any provision of the contract had it elected to reject the deferred premium. Hiatt v. Union Mut. Casualty Co., 208 Iowa 974, 224 N.W. 53.

Neither do we find any evidence of waiver or estoppel in matter of premium payment. True, the plaintiff paid two other premiums after due date, but such payment, and the company’s acceptance thereof, amounted to no more than a reinstatement of an expired ’term policy. There was after each default and the later acceptance of stipulated premium the possibility of the occurrence of an uncovered accidental injury during the 15 days following each reinstatement; but it so happened in the prior defaults no accident occurred and nothing came of them. Such is not the case with reference to the premium due October 1 and its later acceptance with the consequent reinstatement of the policy as of October 7, 1937, for the reason the fatal accident occurred within the 15 days following. This illustrates all too well the hazard taken each time in fáiling to pay the stipulated premium when due and the penalty following such oversight or neglect.

Further, the policy sued on provided that ' no offer of reinstatement should be held to be a waiver of premium payment date, etc., and also provided that payments after default were to be treated as reinstatements, making the policy effective to cover injuries sustained more than 15 days thereafter. The late payments were treated as reinstatements in strict complaince with the plain terms of the contract which were known to the parties thereto. There Ms no evidence that the insured was in any way misled by insurer’s acceptance of premiums in default and voluntarily tendered, and under such circumstances no custom was established and no right voluntarily relinquished prejudicial to the defenses asserted. The following authorities sustain our conclusion on the point. Phillips et al. v. Fraternal Reserve Ass’n, 171 Wis. 143, 176 N.W. 851; Hiatt v. Union Mut. Cas. Co., 208 Iowa 974, 224 N.W. 53; The Praetorians v. Krusz, Tex.Com.App., 58 S.W.2d 27; Sovereign Camp, W. O. W. v. Moraida, 131 Tex. 250, 113 S.W.2d 177; Sovereign Camp, W. O. W. v. Alston, Tex.Civ.App., 82 S.W.2d 710; Rice v. Grand Lodge, etc., 103 Iowa 643, 72 N.W. 770; Crossman, Administratrix v. Massachusetts Benefit Ass’n, 143 Mass. 435, 9 N.E. 753.

In the Phillips case, supra, the Supreme Court of Wisconsin, considering the question of waiver and estoppel under similar policy and circumstances, where all the stipulated assessments due had been paid or relieved except one, and the contention was made that á custom of accepting delayed premiums, etc., estopped the defendant from invoking the automatic suspension provision in the contract of insurance, held, in part, as follows [171 Wis. 143, 176 N.W. 853]:

“That clause under which the defendant claims the rights of the plaintiffs are forfeited is a self-executing forfeiture provision, and one, therefore, to be sustained by the courts. •* * * The question is whether this positive provision of the contract was, under the circumstances in this case, modified by the conduct of the company which was inconsistent with its provisions. * * *
“The difficulty with the position of the plaintiffs is that with the single exception of assessment No. 142, each default was relieved within the time and in the manner prescribed by the-by-laws. How can it be said that reinstatement in the manner prescribed by the contract operates to modify the contract or to estop the defendant from asserting its rights under other clauses of the contract? The forfeiture clause being a self-executing provision, the contract must be given its full effect; that is, the member is suspended when the default occurs, and the policy is not in force until the member- is reinstated in the manner prescribed by the by-laws. * * * At the time of his death, by reason of his default, the policy was not in force, and the defendant therefore not liable.”

In the instant case the acts of the parties are all consistent with the provisions of the policy and the principle applied in the above case is applicable.

The Hiatt case, supra, involved a policy providing that in case the assured failed to pay the premium note at the time stipulated, the policy would cease to be in force and remain null and void during the time said note or order remains unpaid after its maturity, etc. The policy stipulations authorizing reinstatement are in principle the same as in this case. In part the court held [208 Iowa 974, 224 N.W. 54]:

“The contract plainly provides that if default be made in the payment of the agreed premium for the policy, the subsequent acceptance of a premium by the company or by any of its duly authorized agents shall reinstate the policy, but only to cover loss resulting from accidental injury thereafter sustained and such sickness as may begin more than ten days after the date .of such acceptance. This is a salutary and wise provision and prevents imposition on the company. * * *
“The payment, in advance, of the premium called for was the consideration for the extension of the insurance for a succeeding period. These periods were fixed by dates, and those dates, indicating the duration of a quarterly period, must correspond to the initial date of the first period. * * *
“The payment of the premium, however, revives the policy and makes it good for the balance of the term. The Supreme Court of Nebraska in the opinion, supra (Phenix Ins. Co. v. Bachelder, 32 Neb. 490, 49 N.W. 217, 29 Am.St.Rep. 443], said: ‘It is obvious that the failure to pay the premium note at maturity suspended the policy until payment was made. It could have been revived, for the balance of the term, by making full payment at any time before the loss. This, as we have seen, he failed to do.
‘It is but fair and just that, while the insured is in default of the payment of his note, the Company should not be liable for the loss when the parties have so agreed. We have no right to make a new contract for them, or refuse to enforce the one they have made.’ * * *
“If the company had so desired it could have, without violence to any provisions of the contract, refused to accept the payment made on April 26 [in the instant case, October 7], and who could .have claimed that the insurance was in force and effect.”

We believe the foregoing authorities state and apply sound principles of law applicable to the undisputed facts of this case. We discover no ambiguity in the terms of the policy warranting an interpretation extending a right of recovery to the beneficiary based upon an accidental injury resulting in death October 10, 1937, a date within the 15-day period following the reinstatement of the policy. “Accidental injuries” covered by the Insuring Clause of the policy includes accidental injuries resulting in death, as well as such injuries not so resulting. •

For the reasons assigned, the judgment of the trial court is reversed and judgment is here rendered for appellant.


author: SMITH, Chief Justice.

text:
    STEVENSON et al. v. FRISKE.
    No. 10740.
    Court of Civil Appeals of Texas. San Antonio.
    June 12, 1940.
    Seabury, Taylor & Wagner, of Brownsville, for plaintiffs in error.
    Carter & Stiernberg, of Harlingen, for defendant in error.
   SMITH, Chief Justice.

In this case the several parties have filed a joint motion to affirm the judgment from which the appeal was perfected, it being represented that the matters in controversy have been fully settled between the parties. Upon that premise, and without passing upon the merits of the appeal, the motion will be granted and the judgment affirmed accordingly.


author: ALEXANDER, Justice.

text:
    BLAIR et ux. v. LINDSEY.
    No. 2254.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1940.
    W. E. Pope and A. Jack Pope, Jr., both Corpus Christi, for plaintiffs in error.
    Joe E. Webb and A. H. Menefee, both of Madisonville, for defendant in error.
   ALEXANDER, Justice.

This case was attempted to be removed to this court by writ of error, but the record does not disclose that any petition for writ of error was ever filed. Final judgment was rendered December 9, 1938, and an affidavit of inability to pay costs or give security therefor in lieu of a writ of error bond was filed June 7, 1939, and a citation in error was properly served, but no petition for writ of error appears to have been filed.

Revised Statutes, art. 2256, provides that a party desiring to sue out a writ of error shall file with the clerk of the court in which the judgment was 'rendered a written petition signed by him or his attorney and addressed to such clerk. The filing of such petition for writ of error is necessary in order to confer jurisdiction on this court. Yellow Cab Corporation v. Hill, Tex.Civ.App., 111 S.W.2d 1193.

Since the plaintiffs in error wholly failed to file a petition for writ of error as required by statute, this court never acquired jurisdiction of the cause.

The appeal is therefore dismissed.


text:
    GOSSETT, Banking Commissioner, et al., v. SCOFIELD et al.
    No. 2245.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1940.
    Morrow & Calvert, of Hillsboro, for plaintiffs in error.
    ■ Frazier & Averitte, of Hillsboro, for defendants in error.
   ALEXANDER, Justice.

This is an appeal from an order of the trial court dismissing plaintiffs’ suit. The record discloses that the entry of the order of dismissal was not made at the request of either party, nor because of any lack of prosecution, but because of certain alleged equities in favor of the defendants, of which the trial judge claimed to be familiar, but which were not disclosed by him at the time of the entry of the order. To be more specific, the trial judge seems to have been of the opinion that the plaintiff banking commissioner had failed to properly and timely prosecute suits against others who were indebted to the defunct bank, whose assets were being administered by him, and that, by reason thereof, he should not be permitted to maintain this suit against these defendants, who were also alleged to be indebted to said bank. None of these so-called equities were disclosed at the time the order of dismissal was entered.

In the first place, the alleged equities, if shown, would not have justified the dismissal of the suit; and in the second place, no proof was made of the existence of such alleged equities at the time the order of dismissal was entered. In the case of Barrow, Wade, Guthrie & Co. v. Stroud, Tex.Civ.App., 125 S.W.2d 365, we held that a trial judge was not authorized to take into consideration facts concealed within the secret recesses of his bosom and not shown by the record or otherwise disclosed at the trial in determining whether or not an order of dismissal should be- entered. Such procedure, if permitted, would allow a trial judge to arbitrarily dismiss a suit without any reasonable opportunity on the part of the injured party to show on appeal that the trial judge had abused his discretion.

We are of the opinion that there were no facts before the trial court that authorized the dismissal of the suit. The judgment of the trial court is therefore reversed and the cause is remanded for a new trial.


author: GRAVES, Justice.

text:
    SANDEL et al. v. DAILEY et al.
    No. 10999.
    Court of Civil Appeals of Texas. Galveston.
    May 23, 1940.
    Brownlee & Brownlee, of Madisonville, for plaintiffs in error.
    Kennedy & Granberry, of Crockett, for defendants in error.
   GRAVES, Justice.

These separate statements are taken — in order of precedence — from the respective briefs of the parties here:

“On the 5th day of October, 1937, Ada Masters purchased a Chevrolet automobile from Grapeland Motor Company, a partnership composed of Mrs. Leoti Dail-ey, feme sole, B. E. Dailey, and C. T. Dailey, in Houston County, Texas, and gave the usual conditional sales contract, and signed it in the amount therein stated and on the terms provided. At the time Ada Masters was a feme sole. In October, 1938, Ada Masters married Roland Sandel, and on the 28th day of October, 1938, defendants in error (the three Daileys) brought suit against Ada Sandel and husband, Roland Sandel, for the balance due on said note. An affidavit for sequestration was made, but no writ of sequestration appears in the transcript, nor any return. A replevy-bond for the automobile does appear, executed by Ada Sandel and Roland Sandel, as principals, and T. S. Burtis and R. C. Burtis, as sureties. Judgment by default was entered against the two principals on the bond, Ada Sandel and husband, Roland Sandel, who were the defendants in the original suit, for the amount of the debt on the note or conditional sales contract ($369.75), and against the two sureties on the bond. All of the defendants filed their petition for writ of error in due time and bond was *made and citation issued, served, and returned in proper order and time, and this appeal is now before this court on writ of error for a review of the judgment of court below. In passing, it will be observed that an order of sale was issued, and the automobile in question sold before the time for appeal had expired, leaving a deficiency stated in the return against all plaintiffs in error.”

“The above statement of the nature and result of this case, which appears on pages 1 and 2 of appellants’ (plaintiffs-in-error’s) brief, are not challenged. Before submitting their propositions, appellees (defendants in “error) state that appellants’ proposition No. 2 is correct, and should be sustained. In that proposition appellants complain of a personal judgment, which was rendered against Roland Sandel, the husband of Ada Sandel, when the note in question was executed by Ada prior to their marriage. Manifestly appellant Roland Sandel was not liable for a debt contracted by his wife before their marriage. Appellees suggest that they be allowed to file a release in so far as Roland Sandel is concerned, or that the case be reversed as to him.”

The defendants-in-error having thus confessed error as to the award of a personal recovery against the husband for the separate debt due by the wife, which is also apparent on the face of the record as being directly violative of R.S. Article 1985, that much of the judgment is reversed and the cause on that count is hereby rendered in the husband’s favor.

The other two contentions for reversal —in effect that the citations in the suit were both improperly issued to and served in Madison County, and that the sequestration-affidavit was not made in accordance with the facts, nor was any sequestration-writ at all issued or returned thereunder—are overruled.

This court, on examination of the record brought here, finds no structural invalidity in either of these respects; the original petition alleged that the defendants resided in Harris County, and, presumably at least, since nothing to the contrary appears in the record, the original citations to that county were issued; thereafter the plaintiffs below, on discovering that the defendants they had so sued in Harris County were in fact in Madison County, were entitled to refrain from having the Harris County officers make a nul-la bona return on such original citation, but, instead, to direct the clerk of the court where the suit was pending—that is, in Houston County—to issue process to Madison County, where the defendants had been meanwhile ascertained to be; this appears to be the construction our courts have placed upon R.S. Article 2035, in such holdings as these: Saunders v. Gilmer, 8 Tex. 295; Lauderdale v. Ennis Stationery Co., 80 Tex. 496, 16 S.W. 308; Ft. Worth & D. C. R. Co. v. Hagler, 38 Tex.Civ.App. 52, 84 S.W. 692; Pecos, etc., Co. v. Cox, Tex.Civ.App., 141 S.W. 327; Pierson v. Beard, Tex.Civ.App., 181 S.W. 765, error refused; Mosaic Templars v. Smith, Tex.Civ.App., 236 S.W. 175; 50 C.J., “Process”, page 573, sec. 292.

Indeed, the cited Lauderdale holding, upon which plaintiffs-in-error rely for a contrary purport, apparently gives that statute the effect stated, in this declaration [80 Tex. 496, 16 S.W. 309] : “While original process should be directed to the county in which plaintiff’s pleadings allege the parties to be served reside, it is proper, upon the existence of any contingency mentioned in article 1227. of the Revised Statutes, for the clerk to issue alias process to the same or any other county, as directed, without an amendment of the pleading of the plaintiff; and when such process is found in the record, properly served, it will be presumed that its issuance was properly directed.”

In other words, the rule established in such circumstances seems to be that, in the absence of a contrary showing, it will be presumed that some one or more of the eventualities mentioned in Article 2035 existed, thereby authorizing the issuance of the writ to the county other than that of the residence of the defendants, as alleged in the petition; especially does this seem to be the principle applied in the Pierson v. Beard case, in which writ-of-error was refused.

Likewise, the service in Madison County, on the face of the return made by the sheriff of that county, was regular in all respects, the fact that the constable of Houston County, who, by the terms of the statute itself, had no authority whatever to serve it in Madison County, did in fact append a pseudo return thereon as having been made in Madison County by himself, did not in anywise undermine the other regular return by the proper officer of Madison County, hence it may be disregarded as obviously invalid surplusage. 50 C.J. “Process”, page 573, section 292.

Neither are the grounds alleged in the sequestration-affidavit as a basis for the issuance of that writ shown to be insufficient as a matter of law; in the first place, the plaintiffs-in-error are in no position to complain on this appeal of the adequacy of that affidavit, because they made no such objection against it in the trial court; furthermore, they admitted that a writ-of-sequestration had been issued, pursuant to that affidavit, although the writ itself is not shown in this, record; their replevy-bond does appear as having been executed and delivered by all the plaintiffs-in-error, the Sandels, as principals, and the Burtis’ as sureties; wherefore, since the original petition below alleged, both that the defendants-in-error were the owners of and entitled to the possession of the automobile involved, and also, in the alternative, that they held a mortgage lien against it, of which they sought foreclosure, and since the affidavit for sequestration likewise, in essentially the same manner, set up both of these alternative claims, no structural- invalidity in this respect appears, and the plaintiffs-in-error— having so executed the replevy bond- — are estopped to now say on appeal for the first time that no writ of sequestration was ever issued. Article 6840; Tyson v. First State Bank, Tex.Civ.App., 154 S.W. 1055; Southern Surety Co. v. Adams, 119 Tex. 489, 34 S.W.2d 789; Hearn v. Harless, Tex.Civ.App., 154 S.W. 613; Smith v. Citizens’ Nat. Bank, Tex.Civ.App., 246 S.W. 407; Calvert v. Bennett, Tex.Civ.App., 286 S.W. 303, error dismissed; Wandelohr v. Grayson County Bank, 102 Tex. 20, 108 S.W. 1154, 112 S.W. 1046; Woolley v. Nelson, Tex.Civ.App., 250 S.W. 481; 3 Tex.Jur., Appeal and Error, page 759, sec. 542.

It follows that the trial court’s judgment should be in part reversed and rendered, and in part affirmed; it will be so ordered.

Reversed and rendered in part, affirmed in part.


author: NORA/ELL, Justice.

text:
    MALLEABLE IRON RANGE CO. v. FORD.
    No. 10751.
    Court of Civil Appeals of Texas. San Antonio.
    June 5, 1940.

      C. Burtt Potter and Miller & Dawson, all of Sinton, for appellant.
    Roclcey Plarkey and Plenry V. Broady, both of Sinton, for appellee.
   NORA/ELL, Justice.

Appellant, Malleable Iron Range Company, a foreign corporation with no permit to transact business in the State of Texas, brought this action against appellee, H. M. Ford, upon a promissory note payable to appellant at Sinton, Texas. Appellee sought to abate the suit under the provisions of Articles 1529 and 1536, Vernon’s Tex.Civ.Stats.

The trial court, upon hearing, sustained the plea in abatement and dismissed the action, hence this appeal.

Findings of fact were requested and filed. These disclose that, (1) a representative of appellant called upon appellee during the latter part of the year 1934 and solicited orders; (2) appellee at that time placed orders for $500 worth of merchandise “subject to approval of Malleable Iron Range Company, Beaver Dam, Wisconsin”; (3) appellant’s representative stated that repairs and replacement parts could be- set cured at Houston, Texas; ‘ (4) appellee thereafter mailed certain orders to appellant in Wisconsin; (5) an attorney representing appellant had called upon appellee in regard to the account owed to appellant and secured a promissory note payable at Sinton, Texas, for the amount due; (6) ap-pellee had sent to appellant in Wisconsin a conditional sales contract of a third party and the amount thereof had been credited to appellee’s account.

Based upon these facts the trial court concluded, as a matter of law, that the plea in abatement should be sustained.

The findings of fact do not support the conclusions of law and the case therefore must be reversed. The statement made by appellant’s representative that repairs or replacement parts could be secured at Houston, Texas, is no evidence of the existence of a branch office operated by appellant within the State of Texas. The fact that an attorney employed to collect a debt due a foreign corporation secures a promissory note representing the debt, does not show that the corporation is doing business in the State within the meaning of Article 1529. Baldwin Music Shop, Inc. v. Watson, Tex.Civ.App., 88 S.W.2d 516; Norton v. W. H. Thomas & Sons, Tex.Civ.App., 93 S.W. 711. The fact that the first sale to appellee was effected through a soliciting agent or representative of appellant, would not make the transaction an intrastate transaction. York Mfg. Co. v. Colley, 247 U.S. 21, 62 L.Ed. 963, 38 S.Ct. 430, 11 A.L.R. 611; Southern Discount Company v. Rose, Tex.Com.App., 296 S.W. 482; Southern Discount Co. v. Rose, Tex.Civ.App., 290 S.W. 861. None of the other facts found by the trial court justify its conclusion that appellant was doing an intrastate business.

The judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.


author: CRITZ, Justice.

text:
    PARKS v. PURNELL et al.
    No. 7517.
    Supreme Court of Texas.
    June 26, 1940.
    J. L. Goggans,- o.f Dallas, - for plaintiffs in error.
    Locke, Locke, Stroud & Randolph, Hubert D. Johnson, and Maurice E. Purnell, all of Dallas, for defendants in error.
   CRITZ, Justice.

This case was tried in the district court of Dallas County, Texas, and appealed to the Dallas Court of Civil Appeals. On equalization of the dockets of the- several, courts of civil appeals it was transferred to the El Paso court where the appeal was dismissed on a ruling that the transcript and statement of facts had not been filed in the Dallas court within the time provided by Art.1839, R.C.S.1925, as. amended by Acts 43d Legislature, ch. 67, p. 142, 120 S.W.2d 895. The opinion of the El Paso court fully states the facts in regard to what occurred with reference to the filing of this record in the Dallas court. We here reproduce such statement as follows: “Defendants in error move -to dismiss this appeal because the transcript was not filed in the Dallas Court of Civil Appeals within the time required by the Acts of the Forty-third Legislature, Chapter 67, p. 142, Art.1839, Vernon’s Annotated Statutes. . In this connection the record discloses the following:- Judgment was rendered November 20, 1936, and entered of record three days later; petition for writ of error and writ of error bond were filed May 17, 1937; citation in error issued and was served May 21, 1937; on July 17, 1937, plaintiffs in error filed motion in the Dallas Court of Civil Appeals for an extension of sixty days within which to file the record in that court; on the same day that court entered,.an .order extending the time for such filing for sixty days after the time allowed . by law; on September 10, 1937, -plaintiffs in error filed a second motion for an extension of time, and on September 18, 1937, the Dallas Court granted an. extension until the 27th day of November, 1937; on November 23, 1937, plaintiffs in error filed a third motion asking for an additional -extension of time, and on the same day the time for filing was extended by the Dallas Court to December 10, 1937. In each of the foregoing moT tions the plaintiffs in error set up the illness of' the court reporter and inability to prepare the statement of facts as grounds for the extensions sought. The endorsement of the clerk, of the trial court shows - the transcript was applied for by. counsel, for plaintiffs in error on Dej cember 1, 1937, and delivered to him on December 6, 1937. On December 10, 1937, the record was filed in the Dallas Court of Civil Appeals, which was more than one year after the judgment in the trial court was rendered and entered. Later the appeal was transferred to this Court by an equalization order of the Supreme Court.”

Before proceeding further we deem it expedient to quote the above statute. It is as follows: “In appeal or writ of error the appellant or plaintiff in error shall file the transcript and statement of facts with the Clerk of the Cpurt of Civil Appeals within sixty (60) days from the final judgment or order overruling motion for new trial, or service of the writ of error; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen (15) days, after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period, why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe. As amended Acts 1931, 42nd Leg., p. 100, ch. 66; Acts 1933, 43rd Leg., p. 142, ch. 67; Acts 1939, 46th Leg., H.B. # 28, § 1.” Vernon’s Ann.Civ.St. art. 1839.

An analysis of the facts above' stated will demonstrate that, within the sixty-day period prescribed by the above quoted statute, appellant filed his motion in the Dallas Court of Civil Appeals for an extension of sixty days within which to file the record in that court. Also as shown above, such motion was granted as prayed for. There is no contention that this motion and order of extension did not fully comply with the above statute. A further examination of the above statement will show that the subsequent motions for extensions were filed after the seventy-five-day period named in the statute. The opinion of the Court of Civil Appeals holds that the orders allowing extensions made in response to such subsequent motions were in violation of the statute and therefore void. We quote the following from the opinion of the Court of Civil Appeals: “* * * The first motion for an extension of time for filing the record was filed within the time prescribed by law. But the subsequent motions were filed long after the expiration of the time within which a Court of Civil Appeals has authority to entertain such a motion. There is nothing in the Act which could possibly be construed as authorizing the filing of subsequent motions for extension of time after the expiration of the fifteen-day period.”

We are not in accord with the above quoted ruling of the Court of Civil Appeals. N,o good purpose could be served by an extended discussion of this statute as it now exists, or as it existed before its present form. Simply stated, our construction is that the intent of the present statute is to clothe the Court of Civil Appeals with jurisdiction to grant extensions for filing transcripts and statements of fact on motions filed after the seventy-five-day period named in the statute, provided its jurisdiction over the question of extension has first been invoked by a motion filed within such seventy-five-day period. In this connection we call attention to the fact that the statute says: “* * * provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen (15) days, after the expiration of such sixty-day period * * * the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.” (Italics ours.) We interpret such language to mean that when a motion has been filed within the seventy-five-day period namfed in the statute, the Court of Civil Appeals thereafter has jurisdiction to control the situation, and may prescribe the terms under which the record may be filed in such court. Of course the Court of Civil Appeals must not act arbitrarily and must only grant extensions for good cause.

We freely confess that we have experienced considerable difficulty in construing this statute. We also freely confess that- the construction placed thereon by the El Paso Court of Civil Appeals finds considerable support in the language used. In spite of this, we think the statute is open to construction, and this being true, we ought to give it a construction most favorable to the appellant. The very purpose of allowing extensions as expressed in the Act ought to call for that.

The judgment of the Court of Civil Appeals dismissing this appeal is reversed and the cause is remanded to that court to consider this cause upon its merits.


text:
    WILDER v. AMERICAN PRODUCE CO. et al.
    No. 7559.
    Supreme Court of Texas.
    June 26, 1940.
    C. C. Carsner, of Victoria, for plaintiff in error.
    Edward L. Dunlap, of Victoria, for defendants in error.
   CRITZ, Justice.

This case was originally tried in Victoria County, Texas, and appealed to the Court of Civil Appeals at San Antonio. On the equalization of the -dockets of the several courts of civil appeals it was transferred to the Court of Civil Appeals at El Paso. On final hearing in the last mentioned court the appeal was dismissed on the ground that the record was not filed in the San Antonio court in compliance with the requirements of Art. 1839, R.C.S.1925, as now amended, Vernon’s Ann. Civ.St. art. 1839. The opinion of the Court of Civil Appeals which is reported at 124 S.W.2d 400, fully and fairly states the facts as shown by the record. We quote the following from that opinion: “The judgment of the trial court was rendered in the case on December 2, 1937, and filed on December 8, 1937. Appellant’s motion for a new trial was filed on December 4, 1937, and overruled by an order of the court on December 24, 1937. On February 12, 1938, the court entered its order extending the time for filing the statement of facts and bills of exception for ten days to and including February 22, 1938. On March 3, 1938, the San Antonio Court of Civil Appeals, to which the case was appealed, entered an order on appellant’s motion filed on February 21, 1938, extending the time for such filing to April 1, 1938. On April 13, 1938, the San Antonio Court entered an order on appellant’s motion filed on March 28, 1938, extending the time for such filing to May 1, 1938. The record was filed in the San Antonio Court of Civil Appeals on May 1, 1938. On June 9. 1938, this case was transferred to this Court by the Supreme Court by its equalization order.”

In Parks et al. v. Purnell et al., 141 S.W.2d 585, this day decided by this Court, we have construed the above mentioned statute as authorizing the Court of Civil Appeals to grant extensions in the manner and under the circumstances shown by this record. The opinion in the Parks case rules this case adversely to the ruling and judgment of the Court of Civil Appeals.

The judgment of the Court of Civil Appeals dismissing this appeal is reversed and the cause remanded to that court to be considered on its merits.


author: PER CURIAM.

text:
    HANKAMER v. ROBERTS UNDERTAKING CO. et al.
    Application No. 25028.
    Supreme Court of Texas.
    June 19, 1940.

      Williams, Lee, Sears & Kennerly, Sam R. Fisher, and W. H. Blades, all of Houston, for plaintiff in error.
    P. C. Matthews, of Liberty, and Wood, Morrow, Gresham & McCorquodale, A. C. Wood, and Walter E. Boyd, all of Houston; for defendants in error.
   PER CURIAM.

The application for writ of error is “Dismissed W. O. J. — Correct Judgment.”

We agree that the issue of unavoidable accident was raised by the evidence in this case for the second reason given in the opinion of the Court of Civil Appeals. We disagree with the following holding announced in'the note to the opinion in Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125, 128: “In all cases wherein there are controverted issues of fact, of defendant’s negligence as proximate cause of an’injury and of plaintiff’s negligence as proximate cause of the injury, the issue of unavoidable accident also necessarily arises as an issue of fact.”


author: HICKMAN, Commissioner.

text:
    SOUTHLAND LIFE INS. CO. v. GATEWOOD.
    No. 2301—7471.
    Commission of Appeals of Texas, Section A
    June 26, 1940.
    Malone, Lipscomb, White & Seay, of Dallas, for plaintiff in error.
    Caldwell, Baker, Jordan & Gallagher and Gillen & Francis, all of Dallas, for defendant in error.
   HICKMAN, Commissioner.

Southland Life Insurance Company, plaintiff in error, assumed a policy of life insurance issued to Joe Wilkens Gatewood, defendant in error, by the American Reinsurance Company. Attached to the policy was a rider providing, in substance, that the company would pay for the insured the premium required on the policy for every policy year following the date of approval by the company of proof that the insured had become totally and permanently disabled. The policy contained an automatic premium loan clause stipulating, in substance, that, upon the failure of the insured to pay any premiums when due, the company would advance the amount of such premiums with interest thereon at the rate of six per cent per annum payable in advance as a loan against the policy, providing the loan value was sufficient to secure such advance.

The insured became totally and permanently disabled on August 2, 1933. The company denied liability on the policy on the ground that same had lapsed one day before August 2 on account of the failure of the insured to pay the premiums due on June 23, 1933, and this suit is for damages for an anticipatory breach of the policy contract. The case was tried before a jury. In answer to a special issue the jury found that the annual premium due June 23, 1933, was paid in advance by the delivery to, and the unconditional acceptance by the company of a certain promissory note executed by the insured and payable to the company on November 23, 1933. Upon such finding judgment was rendered in favor of the insured. The Court of Civil Appeals held that there was no evidence supporting such finding, and that the judgment could not 'be affirmed upon the ground submitted in that issue. That court, however, did affirm the judgment of the trial court, basing its affirmance upon an alternative theory pleaded- by the insured. 115 S.W.2d 723.

The alternative plea of the insured was that the loan value of the policy was sufficient to require the company to keep the policy in full force and effect under the automatic premium loan clause above mentioned. The insurance company alone filed an application for a writ of error. The question of whether the Court of Civil Appeals correctly held that there was no evidence to support the finding of the jury above referred to is not before us for review. The question here for review is whether, as a matter of law, the evidence supports the alternative theory adopted by the Court of Civil Appeals. Neither party claims that there was a jury issue upon that theory, and no contention is made that the Court of Civil Appeals based its judgment upon its determination of a disputed fact issue not submitted in the trial court. The question is argued here .as one of arithmetic.

. The company pleaded that the policy lapsed at midnight August 1, 1933. Mr. Churchill, the company’s actuary, -was a witness upon the trial. He testified that, according to his calculations, the policy lapsed'at the time pleaded.' The Court of Civil Appeals, without detailing the testimony upon this question in its opinion, rejected the calculations of Mr. Churchill and adopted those in the brief of the insured,, In its motion for rehearing in that court the Insurance Company produced figures which had been compiled by two other actuaries after the trial. According to their method of computation the policy lapsed on July 31, one day earlier than the time fixed by Mr. Churchill. The argument is made here that those computations are correct, as a matter of law, and should be adopted by this court as a basis for holding that the policy had lapsed prior to August 2, 1933, the date when the insured sustained his injuries.

It is disclosed by the record that for several years prior to August 2, 1933, there had been many small transactions' between the Insurance Company and the insured in the form of policy loans and loans to pay premiums with partial small payments at irregular intervals. The application for writ of error devotes many pages to the calculations made in support of the theory of the actuaries. We assume that all of the additions, subtractions, divisions and multiplications are correct, but we do not conclude that these calculations demonstrate, as a matter of law, that the policy had lapsed. For instance, without setting out here all of the multitudinous details of these calculations, we call attention to this matter: On December 29, 1930, the insured executed to the Insurance Company his note for $332 as evidencing an existing policy loan, the balance of a premium note with interest thereon and cash paid to the insured at that time, with interest thereon calculated in advance. In the computations made by those actuaries this note is disregarded as any evidence of the amount owing at that time. It is figured that the amount actually owing was $332.24; that a mistake had been made by the company in calculating the amount for which the insured should have executed his note back in 1930. Although in its pleading in this case that note was set up as the indebtedness owing at that time, the company now seeks to go behind that note without any pleading justifying the ref7 ormation thereof and treat the true indebtedness as being 24⅜ more than that expressed in the note. As small as that difference is, the effect thereof is to determine this case. If the indebtedness at that time is to be taken as $332.24, then the policy lapsed one day before the insured was injured. If, on the other hand, the note is to be taken as the amount of the indebtedness owing at that time, the policy was still in effect on the day of the injury. Absent any pleading or evidence of mutual mistake, we hold that the company cannot go behind this note and charge the insured this extra 24⅜.

The above is probably a sufficient statement with regard to this question, hut we think it should be observed here that in making those calculations a uniform method of determining interest by the day was not employed. In. some instances these actuaries treated a day as ½60 of a year and in other instances as ⅜65 of a year. Much confusion and many inaccuracies have resulted from this uncertain way of calculating. We are far from being convinced that the calculations demonstrate, as a matter of law, that this policy had lapsed prior to August 2, 1933, hut, on the contrary, are convinced that same was in full force and effect on that day.

Another contention made here is, as we understand it, that the premium waiver rider of the policy was not in effect on August 2, 1933, because the insured defaulted in the payment of the premium due on June 23, 1933. The basis for the contention is that the premium waiver rider contained this provision •,“**** the failure to pay any premiums when due under such policy or this Disability Benefit shall automatically terminate this contract and all rights hereunder.”

In support of this contention plaintiff in error cites the cases of Great Southern Life Insurance Co. v. Cunningham, 128 Tex. 196, 97 S.W.2d 692, and Southland Life Insurance Co. v. Johnston, Tex.Civ.App., 97 S.W.2d 518, error refused. The cases, in our view, do not support the contention. There is no provision in the premium waiver rider that the premium waiver will not apply if the policy is being carried under the automatic premium loan provision. This latter provision contains the following: “At any time while this policy is thus continued in force, payment of premiums may be resumed by the policy holder without medical re-examination, and all rights of the insured under this policy will remain in full force and effect, subject only to the indebtedness hereon, the same as if premiums had been paid in cash by the insured.”

The rider was a part of the policy, and the above provision is broad enough to cover the rider as well as the other parts of the policy.

The other questions presented are properly disposed of in the opinion of the Court of Civil Appeals and it would not be profitable to enter into a discussion thereof.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    MARFA INDEPENDENT SCHOOL DIST. v. WOOD et al.
    No. 2322—7534.
    Commission of Appeals of Texas, Section A.
    June 26, 1940.

      Mead & Metcalfe, of Marfa (John D. McCall and Millard Parkhurst, both of Dallas, on the brief), for plaintiff in error.
    S. J. Isaacks, of El Paso, and Bill-L. Holland, of Marfa, amicus curiae.
    C. W. Croom, of Houston, and E. B. O’Quinn, of Marfa, for defendants in error.
   GERMAN, Commissioner.

This suit was instituted in the District Court of Presidio County by Marfa Independent School District as plaintiff against S. T. Wood et al. as defendants. The parties will be designated as in the trial court. The suit was brought by the district to recover taxes for the years 1934, 1935 and 1936. However, the taxes for the year 1936 alone -are involved here. Judgment for the taxes for that year was rendered in favor of the plaintiff by the district court. This judgment was reversed and rendered by the Court of Civil Appeals. 123 S.W.2d 429. The Court of Civil Appeals in reversing the cause gave as its reason therefor that Article 2742c of Vernon’s Annotated Texas Civil Statutes was unconstitutional and void because, as held by it, same was a special law, such as was forbidden by Article 3, section 56, of the .State Constitution, Vernon’s Ann.St.

The Court further held that the action of ihe County Board of Trustees in adding to the Marfa Independent School District the lands of defendants, as was done on December 12, 1933, was not validated by the Act of the Legislature 'shown as Article 2815g — 8 of Vernon’s Annotated Texas Civil Statutes. Writ of error was granted by the Supreme Court because the court was of the opinion that said Act was sufficient to validate the prior actions of the County Board of Trustees, if void.

The trial court filed elaborate findings of fact. Long prior to December 12, 1933, the Marfa Independent School District was a duly and legally constituted district, acting and functioning as such, having been incorporated under the general laws of the State of Texas. On December 12, 1933, the County Board of Trustees of Presidio County annexed to said district certain territory, which included the lands of defendants. The findings of fact do not specifically show all of the steps that were taken in annexing this territory to the district, but there are findings to the effect that the law was substantially complied with in doing so. In view of the opinion we take of the matter, this becomes of no material consequence.

There are other findings to the effect that beginning with December 12, 1933, the Marfa Independent School District assumed corporate powers over the territory annexed to said district on said date, including the lands of defendants, that it continued to exercise such authority and control • continuously and without interruption from said date until after the levying of the taxes for the year 1936; that the district continued to so function, exercising corporate authority over said district, including the added territory, from said date and was so doing at the time of the trial, levying and collecting taxes, managing and directing the school affairs in said added territory, employing teachers therefor, furnishing supplies thereto, and directing the management thereof, enumerating regularly each year in its district the scholastics, paying teachers for schools in said added territory from the State per capita, and for maintenance taxes on the entire district, during all of which time it was acting under the supervision of the County Superintendent of Presidio County and the State Superintendent of Public Instruction of the State of Texas.

For the purposes of this discussion we shall assume (without deciding) that the Act of the Legislature designated as Article 2742c was a special Act and was unconstitutional and void. We are of the opinion that even though said Act was void, as held by the Court of Civil Appeals, nevertheless the general Act of the Legislature, being Acts of 1935, 44th Leg., First Called Session, Chapter 380, and shown as Article 2815g—8, was sufficient to validate and make legal all acts of the County Board of Trustees in the adding of defendants’ lands to said independent school district, and levying and assessing the taxes for the year 1936. It will be noted that said Act purports to validate all school districts which theretofore had been irregularly or improperly organized. In this instance it i.s not necessary that the Act of 1935 be considered as one validating the district, as the Marfa Independent School District had been legally organized for a number of years prior to 1933. All that was necessary was the validation of the acts of the County Board of Trustees in adding and annexing the lands of defendants to said independent school district. Said Act, among other things, provided as follows: “All acts of the county boards of trustees of any and all counties in rearranging, changing or subdividing such school districts or increasing or decreasing the area thereof, in any school district of any kind, or in creating new districts out of parts of existing districts or otherwise, are hereby in all things validated.”

The Court of Civil Appeals assumed that the County Board of Trustees acted under Article 2742c when adding said territory to said district. This is probably true, although there are no findings of the trial court to that effect. As we view the case, it becomes immaterial. The question is whether or not the County Board of Trustees had power, under any Act of the Legislature, to increase the district or add said lands to same. If it be assumed that Article 2742c was void, then Article 2742f, being Acts of 1929, 1st called Sess., c. 47, as amended by Acts of 1931, 42nd Legislature, p. 235, Chapter 140, was in full force and effect as to this district. Although it may be true that the County Board of Trustees did not follow each of the particular steps provided for by said Article 2742f, nevertheless said article did confer upon the Board power to add this territory to the district, and it requires no argument to show that if they had the power, and there was merely an irregular and improper use of same, the Legislature could validate their acts. In 37 Texas Jur., page 899, it is said: “Curative acts have been held effective to validate the creation of school districts embraced within the terms thereof even though the procedure by which such districts were formed was so irregular as to render the same void, and though the authorizing statute was unconstitutional.”

See State Line Consolidated School District No. 6 v. Farwell Independent School District, Tex.Com.App., 48 S.W.2d 616; Pyote Independent School District v. Dyer, Tex.Com.App., 34 S.W.2d 578.

Apparently these cases hold that a special act creating an independent school district in violation of the Constitution may be validated by a subsequent general act of the Legislature. As pointed out above, however, we have in this instance only the acts of the County Board of Trustees involved, and although same may have been irregularly performed, nevertheless power existed with the County Board of Trustees to do what was done, and undoubtedly the Act in question, being a general Act, was sufficient to fully and completely validate said actions.

The fact that Article 2742f was amended in 1935, certainly did not take away from the Legislature the power to validate acts of the County Board of Trustees done in pursuance of said Act, or by virtue of power given by said Act, in 1933.

The judgment of the Court of Civil Appeals is reversed and th,e judgment of the district court is affirmed.

Opinion adopted by the Supreme Court.


author: KRUEGER, Judge.

text:
    LANGUOD v. STATE.
    No. 21160.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    D. F. Sanders and. J. A. Veillon, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is the possession -of untaxed intoxicating liquor. The . punishment assessed is a fine of $100 and confinement in the county jail for a period of thirty days.

Appellant’s first complaint is that the court erred in declining to sustain her motion to quash the information on the ground of a variance between the information and the complaint upon which it is based. An inspection of the complaint and the information discloses that in the complaint the appellant was charged with the possession of intoxicating liquor in a container which did not bear evidence of the fact that the tax had been paid thereon. The information follows the complaint in this respect, and in addition thereto, charges that the appellant had theretofore,' on the 4th day of December, A. D., 1939, in the County Court at Law of Jefferson County, Texas, been duly and legally convicted of an offense of like character as that hereinabove charged against her in this cause, to-wit, the possession of an illicit alcoholic beverage in a container to which no tax stamp showing the payment of the tax on said beverage due to the State of Texas was affixed, etc.

The case was submitted to the jury on both the original offense charged and the theory that the appellant had theretofore been convicted in the County Court at Law of Jefferson County, Texas, of a like or similar offense as that charged in the complaint, and the jury returned a verdict finding her guilty as charged and assessed her punishment as above indicated. What is this punishment for ? Is it for the simple offense charged in the complaint or is it for the principal offense with the enhanced punishment by reason of a former conviction of a like offense? Had the court not instructed the jury on the law relative to her former conviction it would have been tantamount to a withdrawal thereof from the consideration thereof by the jury and might not have been prejudicial.

It is the well-settled law of this state that the material allegations of an information must substantially conform to those of the complaint upon which it is foundéd. If the complaint fails to charge an offense, the matter cannot be cured by correctly charging the same in the information. In the instant case, there was no charge in the complaint that the appellant had theretofore been convicted in-the County Court at Law of Jefferson County of a like or similar offense. Consequently, the information did not follow the complaint, and so - far as that charge is concerned, there was no basis in the complaint for the allegation in the information. Hence, the court should have sustained the motion to quash that part of the information which charged the former conviction of a like or similar offense. In sujpport of what we have said, we refer to Tex.Jur. Vol. 12, p. 795, sec. 405; also Neece v. State, 62 Tex.Cr.R. 378, 137 S.W. 919.

Having reached the conclusion that the court committed error in failing tp quash that part of the information which has no support in the complaint, the judgment of the trial court is reversed and the prosecution ordered dismissed, subject to the right of the State to file a new information in conformity with the complaint.

PER CURIAM.

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


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    COTHREN v. STATE.
    No. 20983.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied June 26, 1940.
    J. Mitch Johnson, of San Saba, for appellant.
    G. A. Walters, Co. Atty., of San Saba, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of San Saba County on a charge of liquor law violation and, under an enhanced penalty clause, was assessed a fine of $200, from which he appeals.

We have examined this record carefully and it is doubtful that any question is presented to this court properly for its consideration. However, it may be stated that he was charged with selling to an employee of the Liquor Control Board a pint of whiskey and two cans of beer on the 24th day of June, 1939. A former conviction for a similar offense was alleged and proven on the 30th day of November, 1928, in San Saba County. Appellant attacks this suit in , a manner, apparently taking the view that he was being twice put in jeopardy for the same offense. Art. 61 of the Penal Code providing for the enhancement of penalties first appears in our statute in 1857. Similar provision is found in practically all of the states of the Union. It has been so many times approved by this court that we do not consider it a question for our discussion at this time.

Appellant complains of the refusal of the court to define the word “sale”. In the absence of fact issue raising a question for the consideration of the jury, it would be unnecessary to do so. Branch’s Penal Code, Sec. 1243.

Further complaint is made because of the action of the trial court in refusing appellant’s oral request for a continuance in order that he may make application for a subpoena for a witness. There is nothing in the record to show what the appellant intended to prove by this witness, if anything, and it, therefore, does not appear that any harm resulted from the court’s action, even though it should be held to be irregular in some respects. This complaint brings no error to this court for our consideration. No error appearing in the trial court, the judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again complains in his motion because of the fact that after it had developed that when the State’s witness Jno. M. Henderson, an agent of the State Liquor Control Board, testified that he bought certain intoxicating liquor from appellant, and that witness’ son was present at such time, appellant’s attorney requested a continuance at such time because the testimony further showed that such son was absent from such trial, although his name was placed on the back of. the complaint as a State’s witness.

Appellant’s request for a continuance was denied, as well as his request to have a subpoena issued for such witness, the trial court stating that he did not think such was necessary. Nowhere did appellant state what he expected to prove by the son of the State’s witness, and it is evident from the record that he did not know, as he only found out that such witness was present at the alleged sale when the agent so testified. It was also shown that the witness was not in the county at the time of the trial, but was supposed to be in Corpus Christi, and therefore not amenable to a subpoena issued out of the county court.

We do not think any error is evidenced by this occurrence, and this being the only matter presented in the motion, same is overruled.