author: I-IIGGI'NS, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. MELTON.
    (No. 2241.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 21, 1929.
    Rehearing Denied March 14, 1929.

      Harry P. Lawther, Shelby S. Cox, and R. M. Perry, all of Dallas, for appellant.
    Caldwell, Gillen, Erancis & Gallagher, of Dallas, for appellee.
   I-IIGGI'NS, J.

This is an action in the district court by appellee, Melton, under the Workmen’s Compensation Act (Rev. St. 1925, arts. 8308-8309), against the insurer. The first issue submitted was whether Melton, as a result of his injury, suffered the total and permanent loss of the use of his left hand. This was answered in the affirmative, and upon an additional finding as to the average daily wage judgment was rendered in Melton’s favor.

Appellant assigns error to the refusal of a peremptory charge in its favor, and also to the refusal of the court to submit questions requested upon the issue presented by the pleading and evidence as to whether the injury was sustained by appellee in the furtherance of the master’s affairs or business. Melton and Chester Burrows were employees of the Mid-Kansas Oil & Gas Company, working upon one of its leases in Pecos county. Their duties were to gauge oil tanks, switch oil, and clean the premises around the wells and tanks, saving and salvaging all materials and articles found which might be of value to their employer.

In the late afternoon of December 28, 1927, while cleaning up around a tank, they discovered some dynamite caps on the ground. With reference to what then happened appel-lee testified: “We were cleaning up the lease, raking up rocks to be hauled off and piling them up, and we found a bunch of dynamite caps there that had been rained on, and they were damp, and we didn’t know whether they were any good, and didn’t know whether to throw them away or keep them; so we decided to shoot one of them, to see if it was any good, and in lighting this fuse, the wind was blowing and I struck three matches and they werit out, and I was trying to'light the fourth match, and the cap went off in my hand, and the explosion tore up my hand. The weather was reasonably fair that day, but it had been raining. By looking at the caps you could not tell whether or not they were good, and the only way to determine that was to shoot one, to see if they were any good.”

The explosion of the caps inflicted the injury complained of to plaintiff’s hand. Ap-pellee further testified:

“I don’t know how many dynamite caps I found there, but there was quite a bunch — 10 or 15. There was a pretty good sized roll of fuse lying there. These caps were found within about 40 feet of the well, and within about 10 or 15 feet of where the electric company had a poje in there. They had taken the pole out, but they did not blow it out. I don’t know whether the electric company used caps and fuse around there or not; I was not around there when they put up the line. I suppose the caps and fuse belonged to the Mid-Kansas Oil & Gas Company; it was on their lease. It was 10 feet from where this pole was‘taken up and 40 feet from the well. The Mid-Kansas Company had done dynamiting around this well, but I don’t know how long it was before the accident; I was not there. *
“Chester Burrows and I had a conversation about these caps, as to what we would do with them; I found them there, and I asked him what they were, and he said he didn’t know. We had never seen any dynamite caps before, but I knew what the fuse was, because I had seen fuses before, and we supposed these were dynamite caps. It had been raining, and we decided to shoot one to see it is any good. I don’t know who decided to shoot it; we talked about it between us. As near as I can remember, I said, ‘Let’s shoot one to see if they are any good.’ He said, ‘Well, try one of them.’ He did not have anything to do with the actual shooting of this cap; he was lighting his pipe when it went off, and he was within 4 or 5 feet of me at the time.
“Mr. Lewis was out there that day at noon, but had not been back- any more. I guess I could have carried these caps in one hand. I could have left these caps where they were, or put them away somewhere until Mr. Lewis came around again. Nobody had ever told me to shoot dynamite caps, and I had never seen any before. I don’t think I had ever heard of anybody else testing dynamite caps to see if they were any good. They were all piled there together, and it looked reasonable that, if one of them was good, all of them would be good.”

Chester Burrows testified:

“About 4 o’clock in the afternoon on that day there was an accident to Mr. Melton, and I was present. At that particular time we were raking rocks close to the well, and he run across these dynamite caps, and came to me and asked if we should have them. He said, We will shoot one and see if it is good,’ and I told him I didn’t know what they would do. He was cutting off a piece of fuse, and I was lighting my pipe. I had never seen any dynamite caps, and it went off and tore his fingers all up, and there was blood all over him. He said, Why don’t you take me to the doctor,’ and I took him to the doctor. Blood was all over his shirt. We did not discuss together these dynamite caps before he lit one. I have heard dynamite explode on the pi’emises lots of time. The accident occurred on the premises of my employ-. er near the east No. 1 well. If my employer provided a storage for dynamite and caps before December 2Sth, I did not know where it was. A day or two before-we ran across this dynamite, it had been raining and the weather was damp and cold. You could not determine by looking at the caps whether or not they were good. If the dynamite cap had turned out to be good, we intended putting them in with the good material and turn them in, as the company used dynamite caps. The soil in that vicinity is very hard and rocky. I have heard explosions of dynamite there lots of times.”'

Cross-examination: “I did not have anything to do with lighting this cap; I knew nothing about the dynamite cap, and did not know what it would do. I didn’t agree or disagree with him that was the thing to do; you might say I didn’t say anything. 1-Ie said, ‘Shall we light that?’ and I think I said, T suppose so.’ I could not state exactly what I did say, because I was scared that day. * ⅜ * These caps were found within about 40 feet of the well. I could not say how many there were of them. They were found within about 10 feet of that pole on the high line. I don’t know whose caps they were, but they were on the Mid-Kansas location, and so far as I know they belonged to the Mid-Kansas Company. The high line is also on the Mid-Kansas lease. I could not swear that they belonged to the high line, because I never worked for them, and did not see them shoot any dynamite. Melton and I were not hired to handle dynamite caps, and we didn’t know anything about it. We were hired to gauge and switch oil and clean up the premises. They never told me anything about dynamite or caps, and nobody told us to test out any of these caps; but we were to save anything that was good, but how did we know what to throw away; if one was good, the chances were that all of them were good.”

I-I. N. Lewis, farm boss of the employer, and superior of Melton, testified he saw Melton the morning after the accident and further :

‘T had a conversation with J. R. Melton at that time in his residence and there was no one present except Mr. Eroomer, Mrs. Melton, and myself at that time. Mr. Melton told me at that time that he took one of these dynamite caps and was going to have some fun, and that he put a six-inch length of fuse in the cap and touched a match to it, intending to throw it away like he would a fire cracker. He said at that time it was a fool trick, and 'that he was ashamed of it; he said it was a ‘kid trick.’ * * * He was a gauger and switcher of oil, but he had other duties, such as cleaning up around the well, raking up rocks or trash, and anything along that line that needed to be done, and they would do whatever I ordered them to do. If they came across some good timbers, that would be valuable to us in the work, I would want them saved, and if they came across any other material which was of value to me in the work down there, I would want that saved. To look at a dynamite cap and determine whether or not it was good would be ■pretty hard to do; in fact, a person could not do it. At that time we had no place where dynamite and explosives could be stored. These caps should have been gathered up as a matter of safety. I was interested in Mr. - Melton gathering everything up that would help the safety of the camp. I never prohibited any one from gathering up djmamite, and I never prohibited the plaintiff from picking up dynamite, but I never did tell any man to shoot it. I wanted a man who was picking up trash and raking up the premises to use his discretion.”

J. J. Froomer, district foreman of the employer, testified:

“I savv Mr. Melton on the following morning at his residence about 7:30-, and H. N. Lewis was with me. No one else was there, except Mrs. Melton. I asked J. R. Melton how the accident occurred and I made out the accident papers. He said he found these dynamite caps there and some fuse, and that he cut off about six inches of the fuse and put it in the cap, and he said he was going to shoot this cap and have some fun and throw it away like a firecracker, and it went off in his hand. He said it was just a kid's trick; he said, T am really ashamed of it; it was just a kid’s trick.’ * * * Mr. Melton told us he lighted this like he would a firecracker and was going to throw it away. We don’t hold them in our hands when we light them, like you would a firecracker; they light the fuse, of course, but do not hold it in their hands. I tell the foreman what work we want done, and it is up to him to pick the men out for the particular jobs, and he assigns them to the work. It is.the policy of the foreman to keep the premises clean, and we salvage good and serviceable material. We use quite a large quantity of dynamite around the.camps and on the lease, and we would expect any man working for us to eliminate explosions through dynamite or any other explosives, and we would expect any man working for us not to leave dangerous material around,.like dynamite; we would expect any man to prevent an explosion, if he could do so. Our' men have all had instructions not to fool with dynamite and dynamite caps, because we have men for that purpose, and nobody else is to do our shooting, except our experienced dynamite men. If one of our men saw dynamite or caps around on the premises, we would expect him to report it; we would expect them to use their judgment and discretion about the matter.”

It is appellant’s theory the peremptory charge should have been given, because Melton’s injury was not sustained in the course of his employment, for in exploding the dynamite cap he did so out of curiosity and in sport, and not in furtherance of his master’s affairs or business.

With respect to the assignments complaining of the refusal to submit the issue as to whether the injury was sustained in furtherance of the master’s business, appel-lee asserts it was not necessary to submit such issue, because the undisputed evidence shows he was injured in furtherance of such business. The evidence quoted shows plainly that, upon discovering the dynamite caps, it was appellee’s duty to gather up the same and remove them from the premises. This is shown by the testimony of both Lewis and Froomer.

But, on the other hand, appellee could not be considered as acting in furtherance of his master’s business, if, after discovering the caps, he exploded one as a firecracker, simply for his own diversion and amusement, as his statements to Lewis and Floomer the day after the accident would indicate. Such an act was not in furtherance of the master’s business, but aside therefrom, and if the injury was sustained in that way he cannot recover under the Compensation Act. 1 Sehneider on Workmen’s-Compensation Law, § 28S. The issue should have been submitted, and failure so to do requires reversal.

According to the theory of appellee, he did not explode the cap for his diversion; but his purpose was to ascertain whether they were good, so as to determine whether he should salvage them. If the explosion occurred under those circumstances, he is entitled to recover. Appellee is not to be deprived of the benefit of the Compensation Act because of bad judgment in his effort to discharge his duty to his employer. As was said in Nordyke & Marmon Co. v. Swift, 71 Ind. App. 176, 128 N. E. 449: “* * * An employs who, in an honest attempt to discharge a duty assigned him, does an act incidental thereto not specifically directed, or departs from the usual methods of performing his work, does not thereby necessarily deprive himself or his dependents, of a right to compensation, if injured while so engaged.” The peremptory instruction was properly refused.

Appellee in his petition alleged defendant had actual notice of the injury within, thirty days after it happened. Notice to the subscriber was not alleged. It is further contended the peremptory charge should have been given, because notice to appellant was not proven as alleged. While the evidence.upon the question of such notice is not entirely satisfactory, yet we think the testimony of the witness Gallagher sufficient to show notice to appellant within the thirty-day period.

The ruling upon evidence complained of in the ninth proposition presents no reversible error. However, the evidence seems to have been irrelevant, and the objection thereto should have been sustained.

Reversed and remanded.


source: Caselaw Access Project

author: LOONES, J.

license: Public Domain

text:
    JONES et al. v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.
    (No. 10465.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1929.
    Rehearing Denied March 2, 1929.

      W. P. Dumas and L. S. Stemmons, both of Dallas, for. appellants.
    C. C. Huff and J. M. Chambers, both of Dallas, and Foree & Ridgell, of Rockwall, for appellee.
   LOONES, J.

Appellant RockwaR county levee -improvement district No. 3, acting by and through its supervisors, the other appellants, instituted proceedings before the county judge of Rockwall county, in the usual form, against Missouri-Kansas & Texas Railroad Company of Texas, appellee, to condemn a cross-section (about half an acre) of the company’s right of way to be used in constructing a levee across the railroad, in furtherance of a conservation and reclamation project. The county judge appointed special commissioners, who, .after a hearing, assessed damages in favor of the company, and, being dissatisfied with the report, the company filed objections, and, on trial in the county court, judgment was rendered for the district, condemning the property and allowing the company certain damages. On appeal by the company, we affirmed the judgment (see 2CC S. W. 163); the Supreme Court granted a writ of error, referred the case to Section B of the Commission of Appeals, and adopting, as its own, an interesting opinion by Judge Speer, reversed and remanded the case for a new trial (see 297 S. W. 206).

After the return of the ease and the issuance of mandate, the company filed this suit in the district court of Rockwall county to enjoin the district and its supervisors from proceeding with the trial of the condemnation suit, pending final determination of the issues presented here.

The ground for injunction, and the company’s position in the matter, is shown by the following excerpt from its brief, to wit: “It is not here contended that the defendant district is not invested with the power to condemn . for the purpose of constructing the levee nor that the proceedings leading up to the trial of the case in the County Court were not regular. ' But it is contended that because of the great loss to be sustained by ap-pellee, which for the purpose of this hearing is admitted to be true, should the land be condemned and the levee constructed, as compared with the negligible benefit to the public as stated in the petition, it would be an unjust and unreasonable exercise of the police power of the State to condemn appellee’s right of way and construct the levee, and only the equitable powers of a court of general equity jurisdiction cap be invoked to determine that question, and since such a question does not arise in a proceeding of condemnation and since it is not a question where the amount in controversy determines the jurisdiction, the County Court has neither original nor appellate jurisdiction thereof, and we respectfully submit that the action of the District Judge in granting the temporary injunction should be affirmed.”

The contention of appellants below was that all matters alleged as grounds for the injunction were in issue, and should be determined in the condemnation proceeding; hence the district court was without jurisdiction to grant the writ.

On hearing, 1-Ion. Joel R. Bond, District Judge, granted the temporary writ; fiom this order the district and its supervisors have appealed.

The only question for our decision is this: Has the county court of Rockwall county jurisdiction to try and determine, as a part of the condemnation suit, the issue raised here; that is, whether or not the proposed condemnation of part of the company’s right of way would be an unreasonable exercise of tbe police power?

That the county court is Tested with exclusive jurisdiction, in the first instance, to try all condemnation suits, is well settled.. Chapter 3 of title 41, R. S. 1925, regulates the power and jurisdiction of county courts; among others, article 1960 (1775) (1166), R. S. 1925, provides that: “ * ⅛ * Jurisdiction shall obtain in all matters of eminent domain over which the county courts have jurisdiction by • the general laws of this State.”

Title 52, R. S. 1925, furnishes the procedure. Among other provisions, article 3266 (6507-28), subd. 6, R. S. 1925, reads as follows: “If either party be dissatisfied with the decision [of the commissioners], such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.”

■ That the Legislature was authorized to confer on county courts exclusive original jurisdiction over the subject of eminent domain, without regard to the value of the matter in controversy, was affirmed by the Supreme Court in Southern Kansas R. Co. v. Vance, 104 Tex. 90, 133 S. W. 1043, in the following language: “This grant of power to the county court to hear and determine suits which might in amount greatly exceed its general jurisdiction was sustained under section 22 of article V of the Constitution, which is as follows: ‘The Legislature shall have power, by local or general law, to increase, diminish or change the civil or criminal jurisdiction of county courts; and in cases of any such change of jurisdiction the Legislature shall also conform the jurisdiction of other courts to such change. And it was held (G. C. & S. F. Ry. Co. v. Tacquard, 3 Willson, Civ. Cas. Ct. App. § 141) that under this broad grant of power the Legislature did not exceed its constitutional authority in conferring upon the county courts the jurisdiction in question.”

Article 1956 (1771) (1169), R. S. 1925, reads: “Subject to the limitation stated in this chapter [jurisdictional limitation], the county court is authorized to hear and- determine any cause which is cognizable by courts, either of law or equity, and to grant any relief which could be granted by said courts, or either of them.”

It follows therefore that, county courts may exercise the power of both law and equity courts in the trial of any cause over which they are given jurisdiction, including, of course, a condemnation proceeding, which is to be tried and determined as any other civil cause.

A corporation, either public or private, having the power and desiring to condemn land, is required to file a statement in writing with the county judge of the county where the same, or a part thereof, is situated, stating, among other things, the purpose for which the land is sought to be condemned. In such proceeding the defendant may raise any issue that challenges the legality of the proposed taking, and may defend on the ground, among others, that the taking is not for a public purpose, as this fact furnishes the' only justification for condemning private property at all. The company sought to defeat the condemnation suit in the county court on this ground; that is, it plead that, if the levee should be constructed, in order to adapt its roadbed to the changed conditions, it would have to expend a sum of money in excess of, or largely out of proportion to, any benefit that would result to the public from the enterprise. This is the identical ground relied upon here for injunctive relief. The Supreme Court evidently regarded this a proper defense to the condemnation suit. The court said: “We have no doubt the defendant in error has the power, in the exercise of police powers of state, to do what it has undertaken to do in this case, provided under all the circumstances to do so is reasonable. The plaintiff in error specifically pleaded that it was unreasonable and would deprive it of its property without due process of law and otherwise deny to, it the equal protection of law in violation of the constitutional provisions. The issue was also raised by the evidence. There is evidence from which it can be found that the benefit to the public by way of enhanced values of the land to be protected will be even less than the cofets to plaintiff in error of reconstructing its road to accommodate the increased volume of water within the confines of the proposed levees. This 'consideration should enter in the determination of the district’s rights to construct the proposed levees.” 297 S. W. 212.

We fail to find any material distinction between the case at bar and others where it was held that, all questions touching the right of a condemnor to exercise the power of eminent domain, in a particular instance, or to exercise the power at all, belonged to, and should be determined by, the county court in the condemnation proceeding. The cases cited below are very similar to the case at bar, in which injunctions were sought, in the district court, to enjoin the prosecution of condemnation suits. In each case' the writ was refused, for the reason that the county court was held to have exclusive jurisdiction. Johnston v. O’Rourke & Co. (Tex. Civ. App.) 85 S. W. 501; Ellis v. H. & T. C. R. Co. (Tex. Civ. App.) 203 S. W. 172, 175; Stemmons v. Dallas Power & Light Co. (Tex. Civ. App.) 212 S. W. 222; Texas & N. O. R. Co. v. City of Beaumont (Tex. Civ. App.) 285 S. W. 944; Wilson v. Donna, etc., Hidalgo County (Tex. Civ. App.) 8 S.W.(2d) 187.

The county judge may also afford all needful protection to a litigant during the pendency of any suit over which his court has jurisdiction. This authority is expressly granted by article 1057 (1772) (1163) (1170), in the following language: “The county judge, either in term time or vacation, may grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari and supersedeas, and all other writs nebes-sary to the enforcement of the jurisdiction of the court.”

As jurisdiction of the county court of Rockwall county had attached to the subject-matter of the litigation prior to the institution of this suit, it will be permitted to retain the same to the end, although it be conceded that the district court could, with propriety, have enjoined a threatened condemnation of the company’s right of way on the ground here alleged for injunction. Riesner v. Gulf, C. & S. F. Ry. Co., 80 Tex. 656, 36 S. W. 53, 33 L. R. A. 171, 50 Am. St. Rep. 84; Ex parte Grimes (Tex. Civ. App.) 216 S. W. 251; Henderson v. Miller (Tex. Civ. App.) 286 S. W. 501, 507.

Furthermore, we are of the opinion that the decision of the Supreme Court on appeal of the condemnation proceeding is conclusive against the company. That court reversed and remanded the cause to the county court of Rockwall county for a new trial on the pending issues, one of which is the identical ground relied upon by the company for relief in this case. See 297 S. W. 206.

We hold, therefore, that the county court of Rockwall county has exclusive jurisdiction to try the condemnation suit and to determine therein all relevant issues, including the question on ~which the company is now seeking injuhctive relief; that the district court was without jurisdiction to issue the writ. Its order, therefore, is reversed, the writ dissolved, and the suit dismissed.

Reversed and dismissed.


author: VAUGHAN, J.

text:
    MATLOCK v. DALLAS ARCADIA FRESH WATER SUPPLY DIST. NO. 1.
    (No. 9963.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1929.

      J. J. Fagan, of Dallas, for appellant.
    John H. Awtry, of Dallas, for appellee.
   VAUGHAN, J.

Appellee, Dallas Arcadia Fresh Water Supply District Number One, on the 80th day of June, 1926, filed this suit as a body corporate under chapter 4, composed of articles 7881 to 7959, inclusive, of the 1925 R. C. S. of Texas, relating to fresh-water supply districts, against appellant, G. A. Matlock, to recover the sum of $16.46 due ap-pellee as taxes for the years 1922, 1923, and 1924, together with penalty and interest, and for the foreclosure of tax lien against certain real estate owned by appellant and alleged to be within and comprising a portion of appel-lee fresh-water supply district, as provided for' by said chapter 4, supra.

Appellee alleged that, since its formation in the latter part of 1921, it had operated as a fresh-water supply district in Dallas county, Tex.; that, in the process of its creation, ap-pellee conformed to all of the requirements of said chapter 4, supra. Appellee further alleged a compliance with each requirement of the law; as to the bonds issued by appellee, the levy and assessment of taxes on the lands comprising appellee district, to pay the interest on and provide a sinking fund for the payment of said bonds, the amount of taxes assessed against appellant and his failure to pay same, describing the land on which the taxes sought to be recovered had been assessed against appellant, and a compliance with the requirements of the provisions of said chapter 4, in reference to the collection of delinquent taxes up to and including the filing of this suit.

Appellant, in defense of said action, pleaded that appellee district had been illegally created; that the statutes had not been followed in the creation of said district when it was created on September 24, 1921; and, further, that the notices of the creation of said district, had not been posted in 1921, as required by law; and, further, that the voters had not been required to take the proper oath when the district was created, that the tax levied was exorbitant, and that the Legislature had no authority to create a fresh-water supply district, in that the act as passed by the Legislature attempting to authorize the creation of fresh-water supply districts was not in conformity with section 59 of article 16 of the Texas Constitution, and that said act was violative of the Fourteenth Amendment of the Constitution of the United States of America, in that it authorized the taking of property of citizens without due process of law; and, further, appellant attempted to allege a cause of action against one F. G. Jester, whereby appellant would be entitled to recover over against said Jester any sum for which he might be held liable in this suit to appellee — this because of certain acts and conduct alleged to have been committed by said Jester in making sale of the real estate involved in this suit to appellant.

Appellant complains of the action of the court in overruling certain special exceptions addressed by him to appellee’s second amended original petition, and to the act of the court in sustaining appellee’s general demurrer and special exceptions addressed by it to appellee’s first amended original answer, in view of the fact that, under the disposition we shall make of this cause, it is hardly probable that any of the errors so complained of will again occur, we do not deem it at all necessary to discuss the rulings of the court on said exceptions.

Under peremptory instructions of the court, the jury brought in a verdict in favor of ap-pellee for $16.46 as the amount of taxes, penalty, and interest due appellee, and for the foreclosure of the tax lien against lots 8 and 9 in block 9 in Arcadia Gardens, owned by appellant and located within appellee fresh-water supply district.. Judgment was rendered in conformity with said verdict in favor of appellee, and from which appellant duly prosecuted his appeal to this court.

On June 18, 1927, the following material question involved in this appeal was certified to the Supreme Court, namely: “Is the act of the Thirty-Sixth Legislature, c. 48, Second Called Session (1919) p. 107, now chapter 4, tit. 128, R. C. S. 1925, providing for creation of conservation districts, to be known as Fresh-Water Supply Districts, constitutional, in that said act was authorized by section 59, art. 16, of the Constitution of this State?”

On November 9, 1927, said question was answered in the affirmative; said answer being based on the holding, that said act was “violative of the due process clauses of State and Federal Constitutions (Const. U. S. Amend. 14, § 1; Const. Tex. Art. 1, § 19) for failure to provide for a hearing of the property owners on the question of boundaries of the districts and of benefits to lands included therein.” See Matlock v. Dallas Arcadia Freshwater Supply District Number One (Tex. Com. App.) 299 S. W. 398.

Several days prior to the date of the above certification, the following validating act was passed by the Legislature, namely: “In all Fresh Water Supply Districts heretofore formed, or now being formed, wherein the petition for such conforms to the requirements of Article 7882, setting out the necessity and feasibility of such project, and a notice of the time and place of hearing was given by the clerk, as directed in article 7884, Revised Civil Statutes of 1925, and same was duly posted, and upon the hearing it was found by the Commissioners’ Court that such petition was signed by the requisite number of proper parties, and was necessary and feasible, which shall be construed as a finding that same is a benefit to the lands therein, and ordered an election as provided, and for the purposes sot forth, in. article 7887, Revised Civil Statutes of 1925, and at which election a majority of such voters voted in favor of the District, are hereby declared to have- been legally created within the meaning, intent and purposes of this Chapter, and the same are hereby validated-as of the respective times and dates of such proceedings, and are recognized and established and with the boundaries set forth in such several Districts, and all bonds voted or issued thereunder are validated and declared to be legal and binding obligations of such several districts, according to their terms” — being section 3, Acts First Called Session of Fortieth Legislature, c. 58, p. 165, which was approved June 9, 1927, and became effective September &, 1927. When the above, question was certified, this court was advised as to the then condition of said validating act, and did not deem it advisable to certify a question thereon, nor a question as to the validity of said chapter 4, tit. 128, supra, as to whether or not same was violative of the due process clauses of Federal and State Constitutions.

As the answer made to the above-certified question did not appear to be responsive thereto, said cause was recertified to the Supreme Court on December 29, 1927, on the. following questions:

“Q. 1. Would the assessment and levy of the taxes sued for by appellee become validated under said Act of the Fortieth Legislature, supra, on it being shown that the requirements contained in said section 3 had been complied with?
“As a part of this certificate, we attach hereto a certified copy of the original certification, and restate the original question in the further form, viz.:
“Q. 2. Was the Act of the Thirty-Sixth Legislature, Chapter 48, Second Called Session 1919, page 107, now Chapter 4, Title 128, Revised Civil Statutes 1925, providing for creation of conservation districts, to be known as ‘Fresh Water Supply Districts,’ authorized by article 16, section 59 of the Constitution of •the State of Texas?”

Said questions were answered in the affirmative on January 2, 1929. Matlock v. Dallas County Arcadia Fresh Water Supply District No. 1 (Tex. Com. App.) 12 S.W.(2d) 181, opinion on second certification. As passed, the Act of the Thirty-Sixth Legislature (chapter 4, tit. 128, supra) is unconstitutional, in that it is in conflict with section 1, Fourteenth Amendment to our Federal Constitution, and with article 1, § 19, of the Constitution of Texas, because the act failed to provide for the property owners to be heard as to the boundaries of the district and the benefits to accrue to the lands of the respective property owners included therein. Therefore said act as passed would have the effect to deprive persons who own property within a district so authorized to be created of their property “without due process of law.” 299 S. W. 398, supra.

But for the validating act, supra, the next preceding ruling would terminate this appeal. What would be the effect of said validating act in regard to the formation of appellee district, the assessment and levy of the taxes sued for, on it being shown that ap-pellee had, in its creation, complied with all of the requirements delineated in said act as a prerequisite to securing the benefits, thereof, is a pertinent inquiry. After careful consideration of the provisions of said validating act, we have reached the conclusion that its terms and provisions would relate back to the date of the act (now articles 7881 to 7959, inclusive, supra), it was passed to perfect and to' validate fresh-water supply districts organized thereunder in conformity with said validating act, and that to an appreciable extent said validating act would become merged with the original act so that appellee would become a valid corporation as of the date of its creation just as it would have if there had been no vice in the law under which it was organized, and, further, that the assessment and levy of the taxes sued for would become valid, same being otherwise without vice. Matlock Case (Tex Com. App.) 12 S.W.(2d) 181, supra; Louisiana Ry. & Nav. Co. v. State (Tex. Civ. App.) 298 S. W. 462.

The Act of the Thirtieth Legislature (chapter 48, Second Called Session 1919, p. 107, now chapter 4, tit. 128, R. C. S. of Texas 1925) is authorized by article 16, § 59, of the Constitution of the State of Texas. Matlock Case (Tex. Com. App.) 12 S.W.(2d) 181, supra.

Under the state of the record, is ap-pellee in position to now assert the benefits of said validating act ? This suit was filed in the court below June 30, 1926; judgment was rendered in favor of appellee July 14, 1926 appellant perfected his appeal October 25, 1926; the validating act took effect September 8, 1927. The judgment rendered by the court below was prevented from becoming final by appellant’s appeal therefrom, and, as this cause will be reversed, it will never become final; therefore the rights of the parties will remain in status quo until finally determined. Under the terms of .the validating act, its provisions are available to appellee district in the course of any litigation involving its right to function as a fresh-water supply district until such litigation shall be finally determined. We are therefore of the opinion that this cause should be reversed and remanded for further proceedings to be had, based upon said validating act, same presenting a material issue vital to the rights of the parties, which was not, and from the very chronology of events could not, have been developed before and determined by the trial court. Mather v. Chapman et al., 6 Conn. 54; La. Ry. & Nav. Co. v. State, supra. No statement of facts was filed, and we are not unmindful of the general rule that, where a statement of facts is not .filed in support of an appeal, it is to be presumed that sufficient facts, duly established by proper evidence, were before the court to sustain an instructed verdict. However, the above rule cannot be invoked on this appeal. This because the validating act, supra, was not in existence and, therefore, the issues of fact necessary to be determined in order for appellee to invoke the benefits of said validating act could not have been before the court. The court did not err in refusing to permit appellant to make one F. G. Jester a party defendant, as the allegations made for that purpose only showed a controversy between appellant and said Jester not in any respects connected with or growing out of the cause of action alleged by ap: pellee against appellant.

On the 26th day of January, 1929, a judgment affirming this cause was inadvertently entered. To correct this error, this court on its own motion revoked said judgment, and •judgment is now rendered reversing and remanding this cause for further proceedings to be had on the questions presented by said validating’ act under appropriate pleadings to be filed in reference thereto.

Reversed and remanded.


author: JONES, C. J.

text:
    DALLAS COUNTY FRESH WATER DIST. No. 9 et al. v. CONNOR et al.
    (No. 10280.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1929.
    Beall, Worsham, Rollins, Burford & Ry-burn, of Dallas, for appellants.
    .Yes. E. Jones, of Dallas, for appellees.
   JONES, C. J.

This is an appeal from the refusal of the court to dissolve a temporary writ of injunction heretofore issued in favor of appellees Mrs. C. C. Connor and a number of other residents of the Dallas county fresh water district No. 9, against the district, its supervisors and other officers, appellants, restraining them from collecting or attempting to collect any further taxes levied by said district.

When appellees’ petition is analyzed, it discloses that'.this is a suit by them in their individual capacity and also in their representative capacity, for the benefit of all others in their class, for the purpose of declaring the invalidity of the said district .and the bonds issued for the contemplated' improvements. The constitutional question thus raised has been passed upon by our Supreme Court through the Commission of Appeals, adversely to such claim, in answer to certified questions from this court in the case of G. A. Matlock v. Dallas County Arcadia Fresh Water Supply District No. 1, 12 S.W.(2d) 181. The original act (Rev. St. 1925, arts. 7881-7959) creating these districts had been declared unconstitutional. - The Fortieth Legislature amended this act (1st Called Sess., c. 58, §§ 1, 2), curing the defects in the original act that rendered it unconstitutional,, and also passed an act (Acts 40th Leg. 1st Called Sess. c. 58, § 3) validating all fresh-water districts theretofore created under the original act. This validating act stipulated, in effect, that the statutory requirements under the original act, creating such districts, must have been performed as a condition to the operation of such validating statute on any district. The validating act reads as follows:

“In all Fresh Water Supply Districts heretofore formed, or now being formed, wherein the petition for such conforms to the requirements of Article 78S2, setting out the necessity and feasibility of such project, and a notice of the time and place of hearing was given by the clerk, as directed in Article 7884, Revised Civil Statutes of 1925, and same was duly posted, and upon the hearing it was found by the Commissioners’ Court that such petition was signed by the requisite number of proper parties, and was necessary and feasible, which shall be construed as a finding that same is a benefit to the lands therein, and ordered an election as provided, and for the purposes set forth, in Article 7S87, Revised Civil Statutes of 1925, and at which election a majority of such voters voted in favor of the District, are hereby declared to have been legally created within the meaning, intent and purposes of this Chapter, and the same are hereby validated as of the respective times and dates of such proceedings, and are recognized and established and with the boundaries set forth in such several- Districts, and all bonds voted or issued thereunder are validated and declared to be legal and -binding obligations of such several districts, according to their terms.”

The record in this case discloses that all these statutory requirements for the creation of a fresh-water district under the original act had been complied with in the creation of this district. It necessarily follows that the appellant district, though invalid when first created, is now a valid and subsisting district; that the bonds issued by said district are valid obligations of the district; that the levy and collection of taxes necessary to dis- ' charge this obligation is obligatory on the officers of said district; and that they should not be enjoined from performing such official duties. In addition to the authority of the Matlock Case, we cite the opinion of this court [14 S.W.(2d.) 360] rendered in that case after the answers to the certified questions, and also Louisiana Ry. & Nav. Co. v. State (Tex. Civ. App.) 298 S. W. 462.

It is also alleged in the petition that certain named properties in the district were assessed at too high a value. This allegation Is made, as we understand the petition, as an additional reason why the district should be declared invalid. This fact in*no way tends to invalidate the district, and the law prescribes the way in which relief can be given from such assessments, but such issue cannot be determined in this suit.

We therefore hold that, in view of the validating act above quoted, the petition failed to state a cause of action, that the granting of the injunction was error, and that the judgment of the lower court, refusing to dissolve the temporary writ of injunction, should be reversed and here rendered in favor of appellants, and the dissolution of the injunction ordered.

Reversed and rendered in favor of appellants and the injunction dissolved.


author: RANDOLPH, J.

text:
    EDGAR et al. v. BOST et ux.
    (No. 3164.)
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1929.
    On Rehearing Feb. 27, 1929.
    W. T. Brothers and Shannon, Ochsner & Pheiffer, all of Amarillo, for appellants.
    Carrigan, Britain, Morgan & King, of Amarillo, for appellees.
   RANDOLPH, J.

This suit was originally filed in the district court of Hutchinson county, on January 26, 1928, by John Q. Bost and bis wife, as plaintiffs, against tbe Tyler Oil Corporation, M. F. Woods, and Margie Edgar, as defendants. By agreement of tbe parties, tbe case was transferred to tbe district court of Potter county. On trial before tbe court without a jury, judgment was rendered for the plaintiffs, and defendants Edgar and Woods have appealed to this court.

Tbe case was dismissed in the trial court as to the Tyler Oil Corporation, for the reason that tbe defendant Woods bad acquired the title to tbe lease held by tbe Tyler Oil Corporation by virtue of tbe levy of an execution against tbe said corporation upon-said lease, sale duly made, and tbe rights of said corporation thereby transferred to said Woods.

By their amended original petition, the plaintiffs sought a decree of court canceling a certain lease executed by them to Margie Edgar, which by mesne assignments had become tbe property of the Tyler Oil Corporation, and which lease it is not necessary to give here in full — certain portions thereof will be quoted later.

Defendants answered by general and special exceptions, general denial, and a special plea that the defendant Woods had acquired, the rights and title of the Tyler Oil Corporation in said lease. There were other special pleas .not necessary to state.

The consideration for said lease is stated therein to be that the lessee agrees and covenants :

“1st. To deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all oil produced and saved from the leased premises.
“2nd. To pay the lessor Two Hundred Dollars, each year, in advance, for the gas from each well where gas only is found, while the same is being -used off the premises, and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the same time by making his own connections with the well at his own risk and expense.
“3rd. To pay lessor for gas produced from any oil well and used off the premises at the rate of one-eighth (⅛⅛) of all gas produced and Dollars sold off said premises for the time during which such gas shall be used, said payments to be made each three months in advance.
“If no well be commenced on said land on or before the eleventh day of June, 1924, this lease shall terminate as to both parties, unless the lessee on or before that date, shall pay or tender to the lessor, or to the lessor’s credit in the First National Bank at Amarillo, Texas, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of Four Hundred and 6%00 Dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon like- payments or - tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, thé down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid and any and all other rights conferred.
“Should the first well drilled on the ¿bove described land Be a dry hole, then and in that event if a second well is not commenced on said land within twelve months from the expiration of the last rental period for which rental has been paid this lease shall terminate as to both parties ; unless the lessee on or before the expiration of said twelve ¡months shall resume the payment of rentals in the same amount and in the same manner as hereinbefore provided. And it is agreed that upon the resumption of the payment of rentals, as above provided, that the last preceding paragraph hereof governing the payment of rentals and the effect thereof, shall continue in force just as though there had been no interruption in the rental pay-" ments.”

As to the terms of said lease, it is provided:

“It is agreed that this lease shall remain in force for a term of five years from this date and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”

It appears from the record that the rentals were paid, in lieu of drilling operations, on or before the 11th day of June, in each of- the three years, 1924, 1925, and 1926, but that no rental was paid on or before June 11, 1927, for the ensuing year. There was an apparent effort to begin the drilling of a well by pfeparations therefor prior to June 11, 1927, in lieu of said rental payments. The evidence discloses that the defendant Woods entered into a contract with the Tyler Oil Corporation for the drilling of a well on the land in controversy some time in the early part of the year 1927.' Woods testified as to the building of the derrick, the building of a shack, and the placing of the necessary machinery on the said land, and that the machinery was connected up by the 11th day of June," 1927, engine and all, and ready to fire up at that time, and the well was actually spudded in. He had to haul water quite a •distance, but a little later a water well ‘was drilled.

The question of good faith in the beginning of the well is abundantly supported by the fact that, at the time Woods placed the derrick and machinery on the ground, he could have extended the time by the payment of the $62 rental, hut instead some $5,000 ot more was expended in the commencement of the well.

The plaintiff John Q. Bost testified that the derrick and two shacks had been built on the land prior to June 11, 1297. He also testified, minimizing the character of the “spud-ding in” that had been done at the site of the well.

Under these facts, we think that, so far as concerns the plaintiff’s right to declare a forfeiture for the necessary payment of rental and the failure on the part of the lessee to begin operations for the drilling of a- well, these preparations evidenced the commencing of drilling operations and extended the lease contract to' the full term of five years, its primary term, which would be an extension of said lease for the fifth or last year without the payment of rentals. McCallister v. Texas Co. (Tex. Civ. App.) 223 S. W. 859-861 (writ refused), and authorities therein cited.

In this case there was a down payment of $7,000 paid upon and for a number of leases, including the lease in controversy, but it is not necessary to discuss the effect of this payment upon the extension of the contract for the full term of years; neither is it necessary to consider appellants’ contention that, under the conditions of the down payment and the kind of the drilling operations, diligence was not required in the completion of the well. We will now state our reasons for not considering and deciding those questions.

The Tyler Oil Corporation as owner of the lease, by assignment, made a contract with the defendant Woods to drill a well on this land. After he had placed the derrick and machinery on the ground, as shown above, Woods brought suit against the Tyler Oil Corporation to cancel the drilling contract and for damages. The trial court rendered judgment canceling the drilling contract, and also gave Woods a.money judgment. In due sea'son Woods had an execution issued and had the interest in and title to the lease held by the Tyler Oil Corporation sold thereunder, and at said sale bought in said lease. This purchase by Woods at such sale was on the 6th day of March, 1928. There appears to be no contest over the fact that such sale and ■purchase vested in Woods whatever title and rights the Tyler Oil Corporation had in and to the lease.

Considering, the evidence upon the question of the plaintiffs’ conduct in declaring or attempting to assert a forfeiture of the lease, we find that the plaintiff testifies that he had a conversation with Mr. Tyler before June 11th about the status of the lease. Tyler claimed to be president of the Tyler Oil Corporation. In this conversation the plaintiff John Q. Bost informed Mr. Tyler that the lease would be forfeited. Afterwards he claimed that he told Tyler that the lease was forfeited. The plaintiff, when questioned, denied that he or his attorneys gave notice to several different parties or to one party that they had better not make any contracts with Tyler, as the lease was going to be forfeited. At this point Mr. S. A. L. Morgan, who is a party plaintiff, and interested in the result of the suit at bar and one of the attorneys for the plaintiffs, stated in open court that late in the fall of 1927 he did write such a letter to a Mr. Dickenson of Oklahoma City.

There is no question in our minds, as gathered from the record, that prior to June 11, 1927, the plaintiff had declared his intention to forfeit the lease, and that after that date he stated that he had forfeited it. This being true, and his declarations being followed by the filing of this suit on January 26, 1928, the Tyler Oil Corporation was under no obligation to exercise further diligence in continuing the drilling of the well. Defendant Woods succeeded the Tyler Oil Corporation in its rights and title to the lease on the 6th day of March, 1928, about three months before June 11, 1928, the date of the expiration of the primary lease period. He testifies that as such owner he was ready, able, and willing to proceed with the drilling, but that he was deterred from doing so by the reason of the ixendeney of the suit against the Tyler Oil Corporation, Margie Edgar, and himself, in which plaintiff was seeking the cancellation of the lease. Under these conditions and circumstances, the plaintiffs were not in a position to demand diligence in the further development of the property for oil or gas by the continued drilling of the well, and no further diligence was required. Consumers’ Gas Trust Co. v. Worth, 163 Ind. 141, 71 N. E. 489; Weaver Mining Co. v. Guthrie, 189 Mo. App. 108, 175 S. W. 118; Leonard v. Busch-Everett Co., 139 La. 1099, 72 So. 749; McCallister v. Texas Co., supra.

For the reason that the defendant Woods, as agent of the Tyler Oil Corporation, had begun the drilling of a well for the production of oil and gas prior to June 11, 1927 — that this beginning of the oil well drilling extended the lease contract to the end of the primary period, namely, June 11, 1928, and that the plaintiffs had by their declarations and suit, as stated above, excused the defendants from diligence in the further drilling of the well — we hold that the trial court erred in rendering judgment in favor of the plaintiffs.

For the reasons stated, we reverse the judgment of the trial court, and here render-judgment that the plaintiffs take nothing, from the defendants Edgar and Woods, and further that the defendants Woods and Edgar recover as prayed for by them in their amended pleadings.

Reversed and rendered.

On Motion for Rehearing.

By reason of the fact that the evidence appears not to have been fully developed in this cause, the motion for rehearing is granted in part, and the judgment of this court rendering judgment in this cause is set aside, and the cause is reversed and remanded for a new trial.


author: I-IIGGINS, J.

text:
    WASHINGTON v. RAVEL.
    (No. 2245.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 28, 1929.
    Rehearing Denied March 16, 1929.
    Fryer & Cunningham, of El Paso, for appellant.
    M. V. Ward and Jos. U. Sweeney, both of El Paso, for appellee.
   I-IIGGINS, J.

The Fisher Hotel Building in the city of El Paso is owned by the Terra-zas estate. Appellee Ravel is the lessee of a room upon the ground floor in which he has a shoe store. The upper floors in the building are leased to appellant Washington and used as a hotel.

Appellee’s store was flooded with water coming from the floor above, damaging his stock of goods. He brought this suit against Washington to recover the resulting damage to his stock, which he alleged to be $212.36. It was alleged the defendant negligently and carelessly permitted a faucet or toilet to flow in one of the rooms occupied and used by defendant and controlled by him, and flood ap-pellee’s premises.

Judgment was rendered in Ravel’s favor for $150, from which Washington appeals.

All of the propositions submitted, except two, in different forms assert the evidence is insufficient' to show negligence on the part of defendant in causing the injury and damage. The only evidence offered was the testimony of Ravel. 'He testified:

“On the morning of the 12th of July, I noticed some water run from above my room on to my merchandise. I came down to the store and water was running on my goods; there was about two inches of water, and I couldn’t get any one to help me clean it up so I if.ad to work about three hours moving my merchandise. I went back to the store and mopped up the water. A lot of people were in the store looking at the water.
“The following morning, I called Mr. Washington to come and look at the damaged shoes; he went and looked and he told me to take the shoes out of the boxes and he would come back in the afternoon and make an adjustment. I took the shoes out of the wet boxes and I laid them aside for him to come and make the adjustment. 1-Ie did not come,
“After I received the telephone call and came down to the store the water was coming down right from the hotel, from the coiling of my room. It was still running, not as much as before. It had been pouring down. Mr. Washington had charge and control of the floor above me at that time. * * *
“Mr. Washington runs the hotel. A hotel where people stay, and where people pay something for the, room, I suppose. I do not know what kind of a place it is; I know people stay there. People come there and spend the night and it is a regular hotel. In speaking of the water coming down from the hotel, I do not know from what room the water was coming, but that it was coming from the hotel. I do not know if the room was occupied from which the water was coming through; I couldn’t say; I don’t know. I know it was from the ceiling; it was coming from the upstairs. I say the water was coming directly, overhead. I could not say, that before water finally seeps through that it will run a distance before it runs through, or in other words, if water would come through here, 1 do not know whether it would be possible for it to go along this way (indicating), come down to here, this way, before it finally goes down inside of the room. I don’t know where the water I speak of came down from. I say it was coming down, but where the original water came from I could not say. I don’t know what caused' it. I said that I didn’t know where the water was coming from, but I say it was coming from directly overhead into my room, and that is all that I know about it.”

The testimony shows the water came from a floor of the building in possession of and under the control and management of defendant. The flooding of a lower floor by water escaping from the upper floor through the ceiling is something that does not happen in the ordinary course of things if those in possession and control of the upper floor exercise proper care, an'd, in the absence of any 'explanation by defendant, warrants the inference'of negligence upon the part of the person in control, management, and possession of the upper floor. The doctrine of res ipsa, loquitur is applicable to facts here shownn. Note in 18 Ann. Cas. 534; 45 C. J. 1193; Ornstein & Rice Neckwear Co. v. Hirshfield Skirt Co., 198 Mo. App. 140, 199 S. W. 456.

Appellant argues the doctrine is not applicable because the evidence shows he was running a hotel upon the upper floor and the flooding may have been caused by a guest in the room above leaving the faucet turned. If this was the case, appellant would not be liable; but if such room was occupied by a guest who caused the injury, that was a matter peculiarly within the knowledge of ap-pellee, and it was incumbent upon him to offer such evidence in explanation of the accident and to relieve himself of the inference of negligence arising out of his possession, control, and management of the upper floor.

The inference of negligence arising upon the doctrine of res ipsa loquitur is much strengthened by the unequivocal and undisputed recognition by appellant of his liability and promise to adjust the loss as shown by appellee’s testimony.

The general allegation of negligence was sufficient under the facts disclosed by this record. Mo. Pac. Ry. Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608.

It is further asserted the evidence shows the trial court did not have jurisdiction because the evidence shows the amount in controversy was less than $200. It is true the plaintiff’s testimony shows a damage of less than $200, but for jurisdictional purposes the allegations of the petition, as to the amount of the damage, are accepted as true, in the absence of a proper plea to the jurisdiction of the court.

Affirmed.


author: HIGGINS, J.

text:
    BAUGHN v. HENSLEY.
    (No. 2227.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 7, 1929.
    Rehearing Denied March 7, 1929.
    Ritchie & Ranspot, of Mineral Wells, for appellant.
    John B. Littler and Jas. Little, both of Big Spring, for appellee.
   HIGGINS, J.

September 7, 1927, appellant, residing and engaged in business as an au-’ tomobile dealer, at Mineral Wells, Palo Pinto county, sold to appellee, of Jack county, a Buiek automobile, in part payment for which appellee executed his promissory note in appellant’s favor, secured by mortgage upon the car.

Shortly thereafter appellee moved to Big Spring, Howard county, taking the car with him. October 19, 1927, appellant took possession of the car at Big Spring, without the knowledge or consent of appellee, and removed same to Mineral Wells. This suit was brought by appellee to recover the value of his equity in the car as for conversion. He recovered judgment for $250.

The mortgage provided that the mortgagor should not remove the ear from Jack county without the written consent of the mortgagee. The note wras payable in monthly installments, the first installment being due October 6, 1027. It also contains the usual accelerating maturity clause.

The mortgage authorized the mortgagee to repossess the car, in the event the mortgagor removed the same from Jack county without the written consent of the mortgagee or in the event default was made in the payment of the note. Appellant justified his action in taking possession of the car upon the ground that the same had been removed from Jack county without such consent and because of failure to pay the note according to its terms.

A number of assignments and propositions are submitted by appellant, all of which are based upon the assumption: First, that it W'as error for the court to permit appellee to prove that subsequent to the execution of the mortgage appellant agreed, in parol, that the car might be removed to Big, Spring; and, second, appellant was justified in taking possession of the car because of default in payment of the installment due October 6th.

The admission of the evidence indicated does not, as appellant asserts, violate the parol evidence rule. 6 R. C. L. title Contracts, § 299; 13 C. J. title Contracts, § 609; Morrison v. Ins. Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63; Braden-Zander Constr. Co. v. Seng (Tex. Civ. App.) 179 S. W. ] 103; Weeks v. Stevens (Tex. Civ. App.) 155 S. W. 667.

As to the other matter, the record shows that at the time the note was signed and delivered the amount thereof was left in blank, as the purchase price of some tires, then unascertained, was to be added to the note. Appellee therefore did not know the exact amount -due on October 6th. About October 1st he wrote appellant to ascertain such amount, sent check for $5, and requested to be advised of the correct amount due and he would remit. The evidence shows appellant received this letter, but did not reply thereto.

In this situation appellant cannot be considered as defaulting in the payment of the nrst installment due October 6th. Ordinarily the maker of a note is, of course, charged with knowledge of its terms and the amount properly due thereon, but in the situation here shown it cannot be said that appellee was charged with such notice as to the amount due. It was appellant’s duty to reply to the letter of October 1st, and advise appellee of the amount due on the 6th. Not until this information had been given, and payment not made, could appellee properly be considered as defaulting in his obligation.

Affirmed.


author: DUNKLIN, J.

text:
    W. F. WHITE LAND CO. v. CHRISTENSON et al.
    (No. 11982.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1928.
    Rehearing Denied Jan. 26, 1929.

      Bryan, Stone, Wade & Agerton, of Fort Worth, for appellant.
    P. Walter Brown, of Fort Worth (Spafford & Jackson and Thomas G. Burke, all of Dallas, of counsel), for appellees.
   DUNKLIN, J.

The W. F. White Land Company has prosecuted this appeal from a judgment of the district court denying it the right to forfeit title of C. F. .Christenson and wife, Lula Christenson, to lot 3 in block 1, situated in what is known as Scenery T-Iill addition to the city of Fort Worth, all of which addition was originally owned by the White Land Company, having been taken out of a tract of land then owned by the White Land Company and the plat being duly recorded in the deed records of Tarrant county. '

The record shows that after the subdivision was platted, the land company, on September 20, 1924, sold lot 3 in block 1 and some 16 other lots in the same addition to P. L. Jones, who later sold lot 3 in block 1 to O. F. Christenson, and thereafter Christenson, joined by his wife, Lula. Christenson, borrowed from the Fidelity Building & Loan Association the sum of - $3,500, secured by a mortgage lien on the lot. Thereafter Christenson and wife gave to W. F. Suttles a mechanic’s lien upon the property for. improvements, which were erected on the lot. The loan company, guttles, and Jones were all made parties defendants. There were also other parties made defendants, but it is not necessary to mention them, since issues as to those defendants are not involved on this appeal.

The deed executed- by the land company to P. L. Jones contaj^ed the following provisions :

“1. No building shall be erected on said premises except a private dwelling house and outbuilding thereof, and no building erected thereon shall at any time be used except for such purposes.”
“4. If said party of the second part, his heirs or assigns shall build a residence on said lots the residence so built on lots fronting east on Oakland Avenue shall not cost less than five thousand ($5,000.00) dollars; those built on lots fronting west on Martel Avenue shall not cost less than forty-five hundred ($4,500.00) dollars; those fronting east on Martel Avenue shall not cost less than four thousand ($4,000.00) dollars.
“5. No residence shall be erected on lots fronting oast on Oakland Avenue nearer than fifty feet to front curb line. No house shall be erected fronting on Martel Avenue nearer than fifty feet to the curb lino. No house shall be erected on Oakland Avenue except of brick, brick veneer, stone or stucco construction.
“In case the said grantee, or his heirs,' executors, administrators or assigns, shall ever violate any one of said conditions contained herein and made a part of the covenants of this deed, the said land and all improvements therein shall immediately revert to and become the property of the grantor herein and its successors or assigns, and it shall be lawful for said grantor and its successors or assigns to re-enter said premises as in its first and former estate: and
“The said W. F. White Land Company does hereby bind itself and its successors and assigns to warrant and forever defend, all and singular the said P. L. Jones, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“The said grantee herein, for himself and his heirs, executors, administrators and assigns, does agree with W. F. White Land Company and its successors that the conditions herein contained are intended to and shall run with the land, and that should the grantee, his heirs, executors, administrators or assigns, or any person claiming under him, violate any of the foregoing covenants, then W. F. White 'Land Company, or its successors, or any owner of any lot conveyed herein, shall have the right to enjoin the doing of same, and in the event the violation has already taken place, that then such remedy shall extend to the removal of the improvements placed on said premises in violation of any covenant herein.”

The record shows that the lot in controversy fronts east on Oakland avenue in said addition. It further shows that aUer the Christensons purchased the lot they erected a dwelling thereon, and the plaintiff’s suit was based upon allegations that the residence so constructed cost less than $5,000, and that it was erected loss than 50 feet from the front curb line of the street, and a right of forfeiture was based on allegations that by reason thereof the restrictions in the deed had been violated and the title to the lots with improvements thereon had been forfeited to the land company.

There was an alternative prayer in plaintiff’s petition that in the event it should be determined that plaintiff did not have the right to a forfeiture of the entire title, it should then be awarded a mandatory injunction requiring the defendants to remove the house that had been erected on the lot.

The case was tried before a jury, and judgment denying plaintiff any right of recovery was upon a verdict in favor of defendants rendered in obedience to a peremptory instruction therefor from the trial court.

No direct testimony was offered to show what Christenson actually paid out for the construction of the house, neither he nor the contractor being called as a witness for either side, but plaintiff introduced witnesses who gave their opinions as to what it should have cost to build the house at the time it was erected. According to the testimony of W. B. Martel, who had been engaged in construction work of buildings for some 12 years, the house could have been constructed at the time it was built for the sum of §4,008.95. However, he further testified that the house had already been constructed when he made his estimate. The estimate was made only a few days before the trial, at which time he made an inspection of the house for the purpose of giving his estimate. He further testified that he did not go upon the roof to examine it, and other material used in the construction thereof had been covered up, so he could not determine their particular character of course. Nor could he tell how many brick piers had been put under the house, as he could not get under the house to examine them. In making his estimate, he itemized the cost of labor of the carpenters, and in that connection said: “The pay given to carpenters depends upon the class of carpenters you get. Carpenters get from four to nine dollars a day. As to whether I mean that it would take three four dollar carpenters or three nine dollar carpenters to build this house in twenty-five days. I will say that also depends a good deal; there is no two1 carpenters that will do the same amount of work, even though you pay them the same. But I figure that three good carpenters could build this house in twenty-five working days by taking the average of what carpenters will do. * * * These three carpenters would not get $27 a day unless they were union men.”

GeorgQ Williams, who also was a building contractor and who lived about 200 feet distant from the Christensons’ lot at the time the latter’s residence was constructed, testified at length to observations made by him as to the kinds of material and workmanship employed while the building was in course of construction, and also to examinations made by him before the trial along the same lines, lie gave estimates as to the market price of material and labor at the time the building was constructed, with all of which he said he was familiar. After giving those details, his estimate was that the total cost of the house at the time it was built was $3,417.15. He further testified that while the house was being constructed he protested to the White Land Company of the inferior quality of the house. Plaintiff also introduced in evidence a building contract executed by O. -V. Christen-son and wife, parties of the .first part, and W. K. Suttles, party of the second part, by the terms of which Suttles agreed to furnish all the labor and materials' for and to construct, erect, and comerte the house in a good workmanlike mannST in accordance with the plans and specifications agreed upon, which were attached to the contract, for a total of $4,000, evidenced by a promissory note of Christen-son and wife in that sum, secured by mechanic’s lien upon the lot and improvements to be erected thereon. The improvements to be erected consisted of one five-room brick veneer residence, with bath and sleeping porch, also one five-box garage and barn combined, and 80 yards of chicken fence. Plaintiff also introduced in evidence a transfer from Suttles to the Fidelity Building & Loan Association, defendant, of the promissory note executed by Christenson and wife for those improvements and the lien given to secure the same..

The defendants introduced no witnesses to rebut the evidence introduced by the plaintiff and referred to above.

It is our conclusion that the evidence referred to above was sufficient, nrima 'facie, to warrant a finding by the j ur fthat thehouse constructed on the lot by Christenson did not cost $5,000, as required by the deed to P. L. Jones, executed by the plaintiff company, and under which deed the Christensons claimed title. Especially is this true in the absence of any testimony to the contrary from the defendants when presumably the same was peculiarly within their knowledge. And we believe it was error for the court to take that issue from the jury. Harpold v. Moss, 101 Tex. 540, 109 S. W. 928.

However, we do not believe that the evidence introduced was sufficient to warrant a finding that the house was built nearer than 50 feet from the curb. The evidence was without controversy that when built it. was at least 50 feet from the curb and that later the street was widened by the city. It would be unreasonable to say that plaintiff could take advantage of the fact that after the widening of the street the house was nearer than 50 feet of the curb.

It is our conclusion that what purported to be conditions subsequent in the deed are merely building restrictions denoting covenants, for the violation of which in-junctive relief was provided in the instrument. Daggett v. City of Fort Worth (Tex. Civ. App.) 177 S. W. 222, and authorities there cited; 8 R. C. L. p. 1110, § 171, and authorities therd cited.

It was said by Chief Justice Phillips, in Decker v. Kirlicks, 110 Tex. 90, 216 S. W. 385, that: “Forfeitures are harsh and punitive in their operation. They are not favored by the law, and ought not to be. The authority to forfeit a vested right or estate should not rest in provisions whose meaning is uncertain and obscure. It should be found only in language which is. plain and clear — whose unequivocal character may render its exercise fair and rightful.” To the same effect are the following decisions: Grubb v. McAfee, 109 Tex. 527, 212 S. W. 464; Carey v. Texas Pac. Coal & Oil Co. (Tex. Civ. App.) 237 S. W. 309, writ refused.

In South Texas Telephone Co. v. Huntington, 104 Tex. 350, 136 S. W. 1053, it is said: “To constitute a condition subsequent upon which a forfeiture may be declared because of a failure of its performance, the language must be clear and the condition must be created by express terms, or by clear implication, and it must be strictly construed. Southard v. New Jersey C. R. Co., 2 Dutch [26 N. J. Law], 13-20. If there be doubt as to the meaning of the language used in this instrument, then it must be construed to be a covenant, for the law will not permit a liberal construction to be placed upon its terms in order to cause the forfeiture of a right secured by the instrument”

Other authorities of like import might be cited. Applying those rules of construction to the deed from the White Land Company to P. L. Jones, it -is our conclusion that the plaintiff did not have the right of forfeiture of title for a violation of restrictions therein contained. While it is. true that the right of forfeiture of title is expressly given in the fifth paragraph of the deed,' yet in the concluding portion of that instrument it is ex-J pressly stated that, should the grantee or his assigns or any other claiming under him “violate any of the foregoing covenants,” then the “W. E. White Land Company or its successors or any owner of any lot conveyed herein shall have the right to enjoin the doing of same, and in the event the violation has already taken place, that then such remedy shall extend to the removal of the improvements placed on said premises in violation of any covenant herein.”

It cannot be doubted that by that language the grantor was given a remedy for a violation of any of the restrictions contained in the deed, which are there designated as covenants. In view of the right so given, the grantor is in no position to claim the harsher remedy of forfeiture of title. Furthermore, in his pleadings 'pin intiff claimed that right in the event a forfeiture of title should not be awarded him. If the restrictions in the deed were violated, then under the plain and unambiguous terms of the instrument, plaintiff would have the right to that relief, construing the restrictions as covenants only as insisted by the appellees.

Furthermore, if the house already erected should be removed, the general purpose of the White Land Company in embodying those restrictions in the deed will be accomplished without the necessity of forfeiture of title.

In view of the evidence offered by the plaintiff to show that the house constructed upon the lot in question did not cost $5,000, and therefore the building of it was in violation of one of the restrictions in the deed, the judgment of the trial court will be reversed, and the cause remanded for another trial to determine whether or not plaintiff is entitled to the removal of the house for a violation oi the restrictions already noted; but not foi the purpose of enforcing a forfeiture of title to the property. A trial of that issue, of course, will involve also a determination of the special defenses urged thereto, of such as waiver, estoppel, etc.


text:
    OLD COLONY INS. CO. et al. v. HARDAWAY.
    (No. 2238.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 14, 1929.
    Rehearing Denied March 7, 1929.

      Armstrong & Morrow, of El Paso, for plaintiff's in error.
    Jones, Goldstein, Hardie & Grambling, of El Paso, for defendant in error.
   HIGGINS, J.

By deed dated October 21, 1026, the defendant in error, Hardaway, became the owner of a parcel of land 60x130 feet in the smjtheast corner of block 216, Campbell addition to the Sty of El Paso. Upon the land there was a two-story brick building and a small shingle roof frame building, originally erected as a dwelling house. It was built before the brick building. The back of .the brick building extends to the sidewalk on Virginia street. The frame building is a short distance from such sidewalk. The latter building is a few feet distant from the brick building. The exact distance is not shown, but in the special'issues submitted to the jury it was, without objection, assumed to be about 10 feet distant.

The brick building is numbered 717 Ma-goffin street. The frame building is numbered 129 Virginia street. At the time of the purchase by Hardaway, his grantor transferred to him three fire insurance policies with the consent of the insurers. The property is described in the policies as “the two story composition roof brick building and additions attached thereto, including foundations, permanent piping and fixtures for heating, lighting and water service, while 'occupied as apartments and not otherwise, as a dwelling, and situated as follows: No. 717 Magoffin Street, in El Paso, Texas.”

Subsequent to his acquisition of the property, the Old Colony Insurance Company issued to Hardaway a fire insurance policy with like description of the property covered thereby. The policies mentioned all contained the usual clause apportioning liability in case of loss in proportion to the total amount of insurance carried. During the life of the four policies, a fire occurred in the frame building, seriously damaging same and causing slight damage to the brick building.

This suit was brought against the four insurers to recover of them severally the proportionate share due by each of them upon said loss, together with statutory penalty and attorneys’ fees. No point is made with respect to the joinder in the one action of the several demands. The sum sued for against each defendant exceeds §200, and the total claimed does not exceed the jurisdiction of the county court at law. There is an alternative demand against the Old Colony Insurance Company for the entire loss, in the event it was held the other insurers were not liable for their proportionate share.

Based upon a finding that the frame building was an addition attached to the building numbered 717 Magoffin street, judgment was rendered against each insurer, severally, for its proportionate share of the total loss as fixed by other findings.

The propositions submitted by plaintiffs in error rest .upon the assumption that, as a matter of law, upon the undisputed facts, the frame building was not an “addition attached” to the brick building, and therefore not covered by the policies.

The record shows that the property owned by defendant in error was known as the Barron apartments. The brick building .contained 20 apartments, numbered 1 to 20. The frame building was used as one apartment, and’ numbered 21. It was upon the rear of the parcel of land, and about ten feet from the brick building. It was occupied as an apartment at the time of the fire. All of the apartments were heated by a central heating plant in the brick building, the steam pipes extending into and heating apartment 21. It was supplied with hot and cold water in the same way by pipes leading from the brick building.

It is a familiar rule that policies of insurance‘are liberally construed in favor of the assured. Where the language of the policy is ambiguous, as applied to the facts shown, and is capable of two constructions, that interpretation will be adopted which will uphold the claim of the assured and cover the loss sustained. May on Insurance, § 175; 26 C. J. 72.

The question of whether an addition to a main building will be covered by a policy is dependent upon the language of the policy as applied to the actual situation and use of the property. In the case of mills and manufactories, the use "to which the addition or annex is put is considered of special importance in determining whether it is covered by the policy. 1 Cooley Insurance Briefs, 744. Again, in some of the cases cited hereafter, much importance is attached to the fact that the outlying structure is the only one to which the word “addition” could refer.

In the present ease, it seems, although the evidence upon the issue was not fully developed, that apartment 21 is the only thing to which the term “addition” could have referred.

As we view the authorities, each case, in large measure, is controlled by its own facts in determining whether the word “additions” covers a building structurally detached from the main building.

The position of the plaintiffs in error is well stated in their brief, as follows:

“If the word ‘attached’ is to be given force or meaning, it can only mean that an addition structurally detached is to be excluded from the policy and that only when the structure of one house contributes to the completion of the other house, or some part of the material of which the houses are constructed enters into and forms a part of both houses — can it be said to be ‘attached.’ ”

We do not agree with this strict interpretation of the meaning of the words “additions attached” as applied to the present state of facts. In a sense, apartment 21 is structurally attached to the main building by the heat and water connections, as above shown.

Without reviewing same, we are of the opinion the authorities abundantly support the view that the frame building was an addition attached within the meaning of the policies and the loss in question protected by such policies. Alterman v. Home Ins. Co., 112 Misc. Rep. 445, 183 N. Y. S. 62; Hanover Fire Ins. Co. v Mayfield Planing Mills (Ky.) 119 S. W. 1190; Arlington Co. v. Colonial, etc., 180 N. Y. 337, 73 N. E. 34; Still v. Connecticut Fire Ins. Co., 185 Mo. App. 550; 172 S. W. 625; Ideal Pump & Mfg. Co. v. American Cent. Ins. Co., 167 Mo. App. 566, 152 S. W 408; Phenix Ins. Co. v. Martin (Miss.) 16 So. 417; Montana Stables v. Union Assurance Society, 53 Wash. 274, 101 P. 883; 3 Joyce on Ins. (2d Ed.) § 1739; 26 C. J. 89, § 86.

For this reason, the judgment will be affirmed as against all defendants.

If this is. not the correct disposition of the. appeal, then judgment should, be rendered against the Old Colony Insurance Company for the entire damage to the frame building.

This is true because in applying to the agent of that company for insurance the wife of defendant in error, acting for him, instructed such agent to write the policy so as to cover the frame building, and the jury found that such agent stated to her or Hard-away that the policy issued covered the same. This finding is not questioned. The policy is susceptible of that construction, and such company will not be heard to now question that such is the proper interpretation of the same.

Affirmed.