text:
    JACOBY et ux. v. NORTH AMERICAN BUILDING & LOAN ASS’N.
    No. 12824.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1939.
    Rehearing Denied Jan. 20, 1940.
    Helen M. Viglini, of Dallas, for plaintiffs in error. *
    J. Cleo Thompson and Paul McCarroll,' both of Dallas, for defendant in error.
   BOND, Chief Justice.

The North American Building & Loan Association instituted this suit against George Jacoby and wife, Hattie Jacoby, primarily, in trespass to try title; and, alternatively, on a promissory note in the principal sum of $1,800, with interest and attorney’s fees, and. for foreclosure of a deed of trust lien upon the property involved in this suit, admittedly the homestead of plaintiffs in error. The defendant in error was designated in the court below as plaintiff, and the plaintiffs in error, as defendants; they will be so designated here.

The cause was submitted to a jury and, on its verdict and the undisputed facts found by the court, judgment was entered in favor of plaintiff on the note in suit, for the sum of $1,740.81 principal, with unpaid interest thereon at the rate of 7 per cent, per annum, from March 28, 1936, until paid, and 10 per cent, upon the principal and interest, as attorney’s fees, aggregating, at the time of trial, .the- sum of $2,205.26, less a credit of $795, which was awarded. to the defendants - on cross action, for damages resulting from a writ of sequestration having been illegally sued out ánd divesting defendants of their homestead, leaving a net judgment in favor of the plaintiff in the sum of $1,410.26, with foreclosure of a deed of trust lien on the property, limiting, however, the foreclosure for $1,209.79, and a personal judgment against defendant, George Jacoby, for $200.47, attorney’s fees. Plaintiff makes no complaint of the judgment; defendants alone appeal. So, we are not concerned here with the primary objective of plaintiff’s suit in trespass to try title, or the damages awarded to defendants on their cross action. The validity of the $1,800 note and deed of trust on defendants’ homestead is the crux of the appeal.

The record reveals that the $1,800 note and deed of trust, dated February 4, 1935, were given as a renewal and extension of successive notes and deeds of trust, executed by the defendants to other loan companies and individuals: On June 1, 1926, defendants secured a loan from the Commonwealth Building & Loan Association, evidenced by note and deed of trust, in the sum of $1,500, to extend and renew a valid and subsisting vendor’s lien against the property, in the sum of $250, and for the purpose of making additional improvements thereon in the sum of $1,250, evidenced by a mechanic’s lien contract, executed in the form and manner required by law; on August 2, 1937, the Commonwealth Building & Loan Association conveyed the $1,500 note and lien to Porter Lindsley, and then, in turn, the note and liens were conveyed to Helena Walford and George Walford; and, finally, on February 9, 1931, to the plaintiff, North American Building & Loan Association. In consideration of such renewals and extensions, plaintiff herein loaned to defendants the value of the $1,500 note and accumulated interest thereon and, in addition thereto, the parties to the transaction added another amount of $300, the validity of which is attacked by defendants. This transaction was evidenced by a note and deed of trust in the sum of $1,850, executed by defendants and, at maturity thereof on June 12, 1933, another renewal and extension of all of said indebtedness was executed, evidenced by another note and deed of trust in the sum of $2,400. On February 4, 1935, in furtherance of an extended renewal of the indebtedness and lien, and in compromise of defendants’ express grievances as to the legality of all charges and extensions theretofore made, evidenced by the aforesaid transactions, the $1,800 note and deed of trust involved here were executed. We adopt the specific findings and conclusions of the trial court on the transactions here involved, as follows: “ * * the note and deed of trust dated February 4, 1935, were given in renewal and extension of a note and deed of trust dated June 12, 1933, in the amount of $2400.00 which note and deed of trust were in turn given in extension and renewal of a note in the amount of $1850.00 dated February 9, 1931, and secured by a deed of trust, said sum of $1850.00 having been advanced by plaintiff for the purchase of a valid and subsisting lien in the amount of $1500.00 together with $70.00 interest due thereon and a mechanic’s lien in the amount of $300.00 on defendants’ homestead, and while under the jury’s findings the $300.00 lien is invalid, all of the $1500.-00 note and lien, together with the interest thereon, was a valid obligation against defendants’ homestead, having been executed in part for the renewal and extension of a purchase money note and lien and in part for the placing of improvements upon defendants’ homestead in the year 1926, and the court finds that no part of the principal sum of said $1500.00 lien has ever been paid and the same was at the time of this suit and is yet wholly in default and on the basis of the foregoing facts was a valid and subsisting lien against defendants’ homestead.”

Defendants contend that the $1,-800 note and deed of trust were not signed by the wife, and that the deed of trust was not acknowledged by her before a, notary public in the form and manner, privily and apart from her husband, as to make such obligation an effective lien against their homestead. The contention is based on the findings of the jury that, the wife did not sign the instruments, and, on defendants’ plea of non est fac-tum, a due execution thereof was not shown. Indeed, the jury found that the wife did not sign the note and deed of trust, but the uncontradicted evidence shows that the wife’s name was appended to both the not? and deed of trust; and, in response to special issue, the jury found that “the defendant Hattie Jacoby personally appeared before the notary public H. T. Lackey, for the purpose of acknowledging the deed of trust bearing date February 4, 1935”, and we think the evidence clearly supports the findings. The overwhelming weight of the testimony is to the effect that Hattie Jacoby signed, the deed of trust, and that she acknowledged the same in all formalities of law. The certificate of the notary is in proper statutory form, and, in the absence of pleadings and evidence impeaching the certificate for fraud or imposition, it was immune from collateral attack, in that neither fraud nor imposition was shown to exist. It is settled that, where a married woman appears before a notary for the purpose of acknowledging an instrument, the fact recitals of the notary’s certificate of acknowledgment are conclusive, unless fraud or imposition is shown. Ward v. Weaver, Tex.Com.App., 34 S.W.2d 1093.

Defendants further urged the invalidity of the note and deed of trust, on account of usury in the former transactions. Where a husband and wifé execute to a lender their note and deed of trust for a sum in excess of the amount loaned, and thereafter, by reason of the failure of the borrowers to make any substantial payment on the note, or to pay insurance and taxes on the mortgaged property standing as security, which they agreed to do by express terms of the deed of trust, resulting in the lender advancing such taxes and insurance, thereby increasing the original amount of the loan; and, on the borrowers’ complaint that the amount of the note exceeds the true indebtedness, the lender voluntarily reduces the amount of the obligation by the amount of all interest paid and the excess amount charged in the note, and accepts a new obligation for the actual amount advanced (executed by the borrowers), the transaction becomes purged from that time forward of any invalidity that may have existed in the original transaction.

The record in this case is devoid of any proof tending to show that the $1,500 lien bought by the plaintiff through a succession of conveyances from the original loaner, Commonwealth Building & Loan Association, was tainted with any invalidity. The defendants paid little or nothing on the obligation, and, in the course of years, until February 4, 1935 (when the note in suit was executed), failed to pay. taxes and insurance on the secured property, which were paid by plaintiff, amounting to more than the sum attacked by defendants as invalid; and the jury, in response to special issue, having found that defendants agreed with plaintiff on a complete compromise and settlement of all such disputed issues, antedating the execution of the $1,800 note, we think the note and deed of trust were purged of nny invalidity, if any existed, especially when the judgment of the court reduced plaintiff’s debt far below any amount which defendants contend is invalid.

From a careful review of the record, we fail to find any reversible error; accordingly, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: LOONEY, Justice.

license: Public Domain

text:
    LEE et al. v. MASSEY et al.
    No. 12940.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1939.
    Rehearing Denied Jan. 13, 1940.

      Barnes & McElroy, of Terrell, for appellants.
    Wynne & Wynne, of Wills Point, for ap-pellees.
   LOONEY, Justice.

This is an appeal from an order of the District Court of Van Zandt County, refusing a petition for temporary injunction to restrain appellees from carrying into effect a judgment theretofore entered by said court in a habeas corpus proceedings, involving the custody and control of the four minor children of appellant, Janie Lee, instituted by R. L. McGuire and his 'wife (patprnal grandparents of the children) against Sam Massey, Mrs. Lee’s brother, and Mrs. R. R. Massey, Mrs. Lee’s mother (maternal grandmother of the children). On trial, the suit resulted in the care, custody and control of the children being awarded to the paternal grandparents and the maternal grandmother, respectively, for alternate periods of two weeks each. It seems that the right, if any, of Sam Massey to share in the care, custody and control of the minors was not recognized. Appellants, Janie Lee, mother of the minors by a former husband, and her present husband, Jesse Lee, were not made parties to the habeas corpus proceedings, although, at the time of its institution, Mrs. Lee had custody and control of the children, and had maintained such since the death of their father.

On original submission, in affirming the judgment of the trial court, we announced the rule that the mother’s natural right'to the custody and control of her children was paramount and was not affected by the judgment rendered in the cause to which she was not made a party, but concluded that, as the trial judge who refused the injunction, also sat in the habeas corpus contest between the grandparents, and, not being advised as to the evidence adduced on that hearing, we would assume for the purpose of the present hearing that the trial court had sufficient evidence before him to justify the order entered at the former hearing, and that it was within his sound discretion, in passing upon appellants’ application for injunction, to consider the evidence theretofore introduced on the ha-beas corpus hewing. However, having reached the conclusion that we erred in that holding, appellants’ motion for rehearing will be granted, our former judgment will be set aside, the original opinion filed will be withdrawn, and the present substituted therefor.

In proceedings of the nature of those now under consideration, it is well settled that, where the trial court acts ex parte and without a hearing, the reviewing court is limited in its consideration of the appeal to the allegations of the petition presented below for injunctive relief, the same constituting the statement of facts in the case.

Appellants alleged, among other things, that after the death of the father of the minor- children, Sam Massey, brother of Janie Lee, filed an application in the County Court of Van Zandt County to be appointed guardian of the persons of said minors and that, later, on January 23, 1936, the application was granted. It was also alleged that Mrs. Lee was not notified of the application and did not know the appointment had been made until afterwards, and that, on learning such fact, she and her present husband filed a petition, in the nature of a bill of review, to have the order of appointment set aside, which matter is still pending.

We think it apparent from the record that Sam Massey’s guardianship of the children has been one in name only, as Mrs. Lee’s custody has never been disturbed by Massey and,- in the present proceedings, he is not shown to have asserted any right under his appointment as guardian; and, although a party defendant in the habeas corpus proceedings, the judgment rendered therein failed to recognize that he was entitled tq share with 'the grandparents in the care, custody and control of the children. Therefore, in deciding the instant case, we will consider alone the rights of the grandparents as opposed to the rights of appellants, as to the care, control and custody of the children.

It is a fundamental doctrine of the law that one not a party to a proceeding is not bound by any judgment rendered therein, same being purely res inter alios acta. It may be true that the judgment in the habeas corpus proceedings was correct as between the grandparents of. the children, but in no sense was it an adjudication adverse to the mother who, continuously since the death of her first husband, has been in the actual custody and control of her four children. So, the conclusion is reached that we erred in holding that the trial court was authorized to consider, as. against- Mrs. Lee, in passing upon her application for a temporary writ, the evidence introduced on the habeas corpus hearing, to which she was an entire stranger. If authorities are necessary to sustain the proposition just asserted, see Hailey v. Brooks, 191 S.W. 781, by the Fort Worth Court of Civil Appeals, and Land v. Landry, 244 S.W. 569, by the Beaumont Court of Civil Appeals.

Appellants alleged that the grandparents had threatened and were threatening to assert rights under the judgment rendered in the habeas corpus case, and, unless restrained, would act under the judgment and endeavor to deprive appellant of the custody and control of her children; wherefore, appellants prayed for injunctive relief both temporary and permanent, restraining the defendants and each of them from, in any manner, inter-' fering with appellant’s custody and control of the children by virtue of the judgment rendered in the habeas corpus proceedings.

. Therefore, being of opinion that the judgment rendered in the habeas corpus proceedings, in so far as the rights of Mrs. Lee, mother of the children, are concerned, is a nullity, she had the legal right to enjoin its enforcement; hence, believe the court below erred in refusing the temporary relief sought.

Appellant’s motion for rehearing is granted, our former judgment is set aside, the judgment of the trial court is reversed, and judgment is here rendered granting appellants the temporary injunctive relie,f sought.

Reversed and rendered.


author: DUNKLIN, Chief Justice.

text:
    TEXAS ELECTRIC SERVICE CO. v. HAWTHORNE.
    No. 13995.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1939.
    Rehearing Denied Jan. 19, 1940.

      Bullington, Humphrey & King and Frank Ikard, all of Wichita Falls, for appellant.
    Napier & Napier, of Wichita Falls, for appellee.
   DUNKLIN, Chief Justice.

For some fifteen years the Texas Electric Service Company had been employed by the City of Wichita Falls to repair its electric traffic lights, installed to light its public streets. On December 26th, 1935, C. E. Young, one of its employees, undertook to repair a traffic light located immediately above the center of the intersection of 9th Street, running in a northerly and easterly direction, and Scott Street, running in a northerly and southerly direction. Each of the two streets was 60 'feet wide, and the two streets run at right angles to each other. In making repairs on that light, Young used a Ford V-8 pickup truck, which he parked directly under the light. Attached to the bed of the truck was a ladder, on which Young climbed to reach the light to be repaired. He had no helper and did the work without assistance of any other employee of the Electric Company. The intersection of-9th and Scott Streets was in the business section of the city, where there was much of automobile traffic. In order to repair the light, Young, who was the only employee on the truck, climbed the ladder, and while standing thereon, there was a collision between an automobile driven by J. E. Dodson and traveling west on 9th Street, and an automobile driven by H. T. Heilman, who was traveling east on 9th Street, before reaching the street intersection, but who, upon reaching it, suddenly turned to his left, north on Scott Street, passing the pickup truck on its near side, instead of going around and passing it on its east side. Just as he passed the truck, there was a collision between his car and the Dodson car, on the intersection of the two streets, just north of the truck. There was sufficient space between the truck and the north line of 9th Street for the Dodson car to pass, and that car was traveling within that space just prior to the collision. The collision occurred in daylight, with nothing to obscure visibility.

Miss Evelyn Hawthorne, a sister-in-law of J. E. Dodson, was a visitor in his home, and was riding with him as his guest at the time of the collision. As a result of the collision, she sustained personal injuries, and this suit was instituted by her against the Texas Electric Service Company and H. T. Heilman, for recovery of damages for those injuries. But it appears from the record before us that plaintiff took a non-suit as against H. T. Heilman.

A trial before a jury resulted in a verdict for plaintiff against the Texas Electric Service Company, for the sum of $2,500, for which judgment was rendered, with interest thereon at the rate of six per cent per annum from December 26th, 1935, the date of the collision, and costs of suit. This appeal has been prosecuted by defendant, Texas Electric Service Company.

In answer to the first three special issues, the jury found that the defendant’s truck obstructed the view of J. E. Dodson prior to the collision. That defendant’s employee on the truck was guilty of negligence in failing to warn J. E. Dodson of the presence of the approaching Heilman car; and said negligence was the proximate cause of plaintiff’s injuries. Those issues were duly tendered in plaintiff’s pleading as the sole basis for her right of recovery.

There were further findings that both Dodson and Heilman were guilty of negligence in certain particulars, but that same were not the sole proximate cause of plaintiff’s injuries. It is not necessary to further notice those findings; in view of our conclusions hereinafter noted.

“It is an elementary principle of law that negligence is a failure to observe a legal duty. * * * When no duty exists no legal liability can arise on account of negligence.” 30 Tex.Jur., para. 3, page 649. That announcement is supported by numerous decisions cited, including City of Wichita Falls v. Swartz, Tex.Civ.App., 57 S.W.2d 236;. Missouri, K. & T. R. Co. v. Byrd, 58 Tex.Civ.App. 609, 124 S.W. 738; Lancaster v. Hall, Tex.Civ.App., 277 S.W. 776; Guardian Savings & Loan Ass’n v. Liberty State Bank, Tex.Civ.App., 60 S.W.2d 823.

“In order that there may be an actionable tort there must have been a legal duty— imposed by statute or otherwise—owing by the defendant to the person injured. As to whether the actor is liable for a breach of duty depends on matters such as whether it resulted in an injury to someone to whom the duty was owing in such a manner as to make the breach a legal cause of the injury. Thus a person is under no duty to cut down a natural growth of trees on his land although the trees shade the land of another and sap its fertility, so long as the roots or branches neither penetrate nor overhang the adjoining land.” 41 Tex.Jur., para. 3, page 360.

“There can be no actionable negligence in the absence of some duty which has been neglected or violated.” 4’5 C.J., para. 16, page 639; citing a vast array of decisions, including many Texas decisions. See, also, 20 R.C.L., para. 7, page 9.

It is hardly necessary to add that whether defendant, acting through its employee, Young, owed to J. E. Dodson the legal duty to warn him of the presence and approach of the Heilman car, under the undisputed facts above noted, was a question of law to be determined by the court, in the first instance, rather than by the jury.

It is our conclusion that the evidence was insufficient, as a matter of law, to show such duty, and for that reason there was no proper basis for the findings of negligence on which the recovery was predicated. Defendant’s pickup truck was rightfully on the street intersection and defendant’s undertaking to repair the light was likewise lawful. Indeed, such rights are not questioned by plaintiff in her pleadings, nor here. The defendant, acting through its employee, Young, while engaged in repairing the traffic light over-Tiead, had the lawful right to assume that travelers over the street intersection would obey traffic regulations and exercise reasonable foresight to avoid collisions between the cars they were operating, and ■could not be charged with the legal duty to keep watch in two opposite directions for cars approaching the intersection on 9th Street and discover and give prior notice to Dodson of danger of collision with the Heilman car when that car made the left hand turn on Scott Street. If it was the duty of Young, as defendant’s employee, to keep such watch for approaching cars on 9th Street, then it was no less his duty to keep the same watch for cars approaching the intersection in opposite directions on Scott Street and give the same warnings to operators of cars on that street. In other words, it would have been his duty to watch cars approaching the intersection from four different directions, foresee probable dangers of collisions, and warn drivers of 'Such dangers in time for them to avoid such collisions, all while engaged in repairing the light, which would be unreasonable if not impossible. As suggested in appellant’s brief, if Young was required to adopt such a course, he would have had no time to repair the light, and therefore defendant and the City of Wichita Falls would be deprived of valuable rights vested in them by the laws of the country, and in which the traveling public was vitally interested.

This conclusion is well supported by many decisions in this State, such as St. Louis Southwestern R. Co. v. Arey, 107 Tex. 366, 179 S.W. 860, L.R.A.1916B, 1065; Texas Interurban Ry. v. Hughes, Tex.Civ.App., 34 S.W.2d 1103; Id., Tex.Com.App., 53 S.W.2d 448; Wichita Valley R. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714; Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741, error refused; Kypfer v. Texas & Pacific R. Co., Tex.Civ.App., 88 S.W.2d 528.

We do not believe authorities cited by appellee which involve essentially different facts from the facts of this case, are at variance in' principle, with our foregoing conclusion.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered in favor of appellant; without the necessity of determining further assignments complaining of excessiveness of damages found by the jury and admission of evidence on the issue of damages.

Reversed and rendered.


author: CODY, Justice.

text:
    BROWN & ROOT, Inc., v. TRADERS & GENERAL INS. CO.
    No. 10865.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 16, 1939.
    On Motions for Rehearing Dec. 14, 1939.
    Rehearing Denied Jan. 11, 1940.
    T. J. O’Brien and Edgar Monteith, both of Houston, for. appellant.
    Sewell, Taylor, Morris & Connally, of Houston, for appellee.
   CODY, Justice.

The main action was brought by ap-pellee, a compensation insurance carrier, to collect from appellant the sum of $1,-585.01, alleged to be due as premiums on workmen’s compensation insurance policies, covering the period from January 1, 1935, to April 11, 1935. As there is no question but that the policies sued on by appellee were by it issued to appellant, and by the appellant duly accepted, and remained in force for the time specified, and as no question is made as to the amount of the premiums sued for, no further discussion of the main action is necessary. The question here involved, as indicated, grew out of appellant’s cross-action.

Appellant alleged in its cross-action that during the period from May 2, 1933, to May 2, 1935, it was insured by two policies of workmen’s compensation insurance issued by appellee, being WC-1529 and WC-2332. That in November, 1934, it discovered that the death of one Robert Dewey had been erroneously charged against its experience record, and on November 22, 1934, the Insurance Casualty Commissioner, upon proof of that fact, eliminated such loss from appellant’s experience record. By reason of such elimination the Insurance Casualty Company, by proper endorsement, reduced the rate from a debit of 34.2% to a debit of 27.8% on appellant’s compensation insurance, which modification was made retroactive to May 2, 1934, the normal anniversary-rate date of appellant on the records of said Commissioner. That although appellant demanded of said Commissioner, and of appellee, that such rate modification be made retroactive to May 2, 1933, such demand was refused. The ground of the refusal of said Commissioner to make the rate modification retroactive beyond May 2, 1934, and back to May 2, 1933, was a custom and practice of the Board of Insurance Commissioners and the Casualty Insurance Commissioner not to make rate-modifications retroactive beyond the insured’s next preceding anniversary-rate date. That the application of the rate credit of 6.4% retroactively from May 2, 1934, to May 2, 1933, would amount to an additional rebate to appellant of $1,751.80 (and to which appellant was as much entitled as it was to the rebate on the period back to May 2, 1934), and the failure of ap-pellee to make such rebate to appellant of such over-payment of $1,751.80, damaged appellant in such sum, the true amount lawfully due on a premium on said policy of insurance then in effect being $1,751.80 less than appellee actually collected. Appellant further pleaded that the over-payment was made by it because of the erroneous premium-rate fixed by the Board of Insurance Commissioners and the Casualty Insurance Commissioner, and this error was due to the mutual mistake of appellant, appellee, and said Insurance Commissioners, in including the Dewey death claim in appellant’s experience record. Appellant pled it had a right to have the policies of insurance reformed to call for such premium as was lawfully due thereon after the elimination of the Dewey death-claim from appellant’s experience record, effective back to May 2, 1933. Appellant alleged that the Insurance Commission declined to make the rate modification retroactive from May 2, 1934, to May 2, 1933, only because of the theory that said Commission had no power or jurisdiction to do so. This plea for reformation was made alternatively to a plea in a court whereby appellant sought to recover the said sum of $1,751.80 as money had and received. Appellant also set up the sum of $1,751.80 as a set-off and a counter-claim to any recovery had by appellee in the main suit.

Appellee answered appellant’s cross-action, aside from demurrers, exceptions, and general denial, by pleading the 2 and 4 years statutes of limitation, and by the special plea that the Dewey loss, charged against appellant’s experience record was reported to the Board of Commissioners and the Casualty Insurance Commissioner by the Lumberman’s Reciprocal Association, the insurer carrying appellant’s insurance at the time of the Dewey loss; that this occurred long prior to the issuance of a policy by appellee to appellant, and that if appellant did not actually know such loss had been charged to its experience record, it had constructive notice thereof, the same being a part of the public records of the Board of Insurance Commissioners and the Casualty Insurance Commissioner, and was guilty of negligence in failing to know its experience record, and is thus not entitled to equitable relief of reformation of contract. Appellee also pled estoppel; and denied any mutual mistake, but alleged that if any mistake occurred it was a mistake of the Casualty Insurance Commissioner, relating to a collateral matter occurring pri- or to the issuance of any policy by ap-pellee. Appellee pled that its policies were issued in reliance upon the premium experience rating established by the Casualty Insurance Commissioner and the Board of Insurance Commissioners as applicable to appellant, etc.

At the conclusion of the evidence both parties moved for a peremptory instruction. Appellee’s motion was granted, and judgment was rendered for it in the main action for the sum sued for with interest thereon at the legal rate from April 11, 1935, and appellant was denied any recovery on its cross-action.

There seems to be no dispute about the facts between the parties. Appellee issued to appellant workmen’s compensation policy No. 1529, which covered the period from February 11, 1933, to February 11, 1934; and also the workmen’s compensation policy No. 2332, which covered the period from February 11, 1934, to February 11, 1935, Appellant paid the premiums on the policies in accordance with the existing rate promulgated by the Insurance Department, from February 11, 1933, to February 11, 1934. By the term Insurance Department we mean the Board of Insurance Commissioners and Casualty Insurance Commissioner.

The death of Robert Dewey occurred in 1929, at a time when some other insurance carrier carried appellant’s compensation insurance, and his death was charged against appellant’s experience record by such insurance carrier. Appellant had -no actual knowledge that such loss had been thus erroneously included -in its experience record until November, 1934. The records of the Insurance Department are public, and doubtless the holder of a compensation insurance policy is charged with knowledge of his experience record.

Under statutory authority (Arts. 4907-4916, Vernon’s Ann.Civ.St. arts. 4907-4916), the Insurance Department promulgates the rates on which the premiums applying to workmen’s compensation insurance are based, using, so the evidence indicates, these factors:

1. Workmen’s Compensation rates of premium are based on statistical data comprising pay rolls and losses filed by insurance companies over a five-year period.

2. The manual or base rate is the rate which is determined from the premiums and the losses for a given classification of all of the risks in that class by the Insurance Department. In the contractors’ classification, to which appellant belongs, the rate is based upon the losses and premiums of all contractors that have been reported to the Insurance Department during the rating period. Now the manual rating applies to all contractors who are not eligible for experience rating. Eligibility for experience rating is determined by the volume of premiums per year.

3. The experience rate is the variation of, or the plan for varying, the manual rates based on the experience of the individual risk. If the individual contractor’s losses are lower than the general experience, then his experience rate is lower than the manual rate, if higher, then his modification would raise rate above the manual rate. The experience rate is calculated on the basis of the premiums paid by the risk for the past five years, excluding the first year. The calculation of the experience is based on the premiums paid during the five years apportioned to the losses over the same period.

4. It is customary for the Department to accept statements of the individual’s risk’s experience certified to by a responsible officer over a four-year period. The insurance carrier furnishes the pay roll and loss data, including a history of claims upon which premium rates of individual risks are determined.

5. The Department requests re-reporting of the experience of each individual risk each year, and the data in these reports are assumed to be correct in the light of all information available at the time the rate is published.

6. Normal anniversary-rate date is the date on which rates are made effective for the particular insurance under consideration. Rates are promulgated for one year and remain in force one year from the normal anniversary-rate date. Such date does not necessarily coincide with the effective date of the policy in force.

Appellant’s anniversary-rate date was May 2, and the rate promulgated by the Department affecting the policies which are the subject matter of appellant’s cross-action covered the period of May 2, 1933, to May 2, 1934, on one, and the period of May 2, 1934, to May 2, 1935, on the other, though the effective date in each instance was February 11th, preceding the anniversary date.

7. Workmen’s Compensation premium-rate modifications are never made retroactive by the Department beyond the next preceding normal anniversary-rate date of the risk.

8. The Texas endorsement attached to the Workmen’s Compensation policy carries the provision that classification and rates of insurance are subject to modification in accordance with the Manual and Experience or Schedule Rating Plans. Rate Modifications are made retroactive by the Department when experience or schedule data has not been filed prior to the normal anniversary-rate date; and if error is discovered in statistical data within the 12-month period.

9. The refusal of the Department to make a premium rate or modification retroactive beyond the normal anniversary date is based on custom and practice. The Department construes its rate-making powers to be legislative and prospective, and rules that it has no power to modify an expired rate on an “expired contract”. By “expired contract” is meant those policy contracts, endorsements and rates promulgated, that have been completed and executed prior to the anniversary rate date of the policy then in force — that is, • the Department promulgates rate modifications and makes the same applicable only to the current policy in force, meaning the policy in force between the normal anniversary rate dates at the time when such rate modifications are put into effect.

10. The inclusion of the Dewey death claim in the experience record of appellant, filed with the Department, increased the premium rate of appellant.

Appellant’s main contention here is that the Insurance Department has construed its rate-making power as being capable of being exercised prospectively only, and incapable of being exercised retroactively, so that, consequently, in making the correction .or modification of the rate, November 22, 1934, effective as of the next preceding normal anniversary date, May 2, 1934, the Insurance Department had exhausted its jurisdiction to award appellant reparations against appellee; and that appellant is therefore without any adequate remedy at law for full and complete relief. The various remedies which appellant principally urges that it was entitled to, and was deprived of below, relate to the right of a litigant to invoke the aid of a court of equity when without any adequate remedy at law.

A carrier of workmen’s compensation insurance and its policy-holder necessarily contract with each other that the premium rate shall be the duly and lawfully prescribed rate for the risk involved, and none other. They are without power by contract, or otherwise, to alter such prescribed rate. ’ So, if the parties may not consciously and intentionally change the lawfully prescribed rate, their knowledge, ignorance, or negligence is equally incompetent to work any such change. Therefore, the collection by the insurer of a higher or lower rate than that which is duly and lawfully prescribed for the risk involved constitutes a breach of the insurance contract for such insurer to collect only the duly prescribed rate. And, of course, a suit for reparation for overcharges or undercharges is simply and purely a legal action, with no question of reformation of contract, or other equity involved in it. In other words, if a carrier of workmen’s compensation, for instance, had collected a lower premium rate than was lawfully prescribed for carrying the risk involved, and later discovered such error, it would certainly not have to prove that it was not negligent in collecting the unlawful rate, in order to entitle it to collect the only rate which the law authorized or permitted it to collect; neither would it be necessary for such insurer to have the policy of insurance reformed to specify such lawful rate, for the contract by force of law intends that the premium rate, and only the premium rate, which applies to carrying the risk involved is agreed rate. Premium rates are prescribed with the view of being “adequate to the risks to which they apply and consistent with the maintenance of solvency and the creation of adequate reserves and a reasonable surplus”. Art. 4911. And, of course, the samé sanction of law which requires that an insurer collect the lawful rate, excludes the lawfulness of overcharging equally with undercharging. The controlling question in this case, therefore, is whether the premium rate collected by appellee covering the period from May 2, 1933, to May 2, 1934, was greater than the rate prescribed by the system of schedule and experience rating of the Department as applied to actual facts which made up appellant’s true experience record.

As disclosed by the record in this case, the Department determined that the Dewey death loss was erroneously included in appellant’s experience record, and ■ determined that the inclusion of such loss to that extent falsified appellant’s experience record; and so, eliminated it. And on November 22, 1934, ordered the premium rate that was applied to the policies modified, and required app'ellee to refund the excess premium which it had collected covering the period from November 22, 1934, to the preceding May 2. In making such modification order, the Department could not have considered that it was promulgating a new rate, or a change in rate, for it did hot publish notice thereof for 15 days before the effective date of such modification. Art. 4907. Indeed, as indicated, the Department consciously and intentionally made such correction effective retroactively to the preceding May 2. And the record here affirmatively discloses that the Department disclaims not merely the intention but the power to exercise its rate-making powers retroactively. As recognized by the Department, it is beyond the power of a rate-making body to issue an order fixing a certain rate, and then later set such order aside and declare it to have been unreasonable or otherwise unlawful, and then award reparation for the period such previous order had been in effect. Gulf C. & S. F. R. Co. v. American Sugar Refining Co., Tex.Civ.App., 130 S.W.2d 1030, 1034, writ refused.

The fact, that in making such modification order, and in requiring appellee to maíce reparation to appellant for overcharges collected back to May 2, 1934, the Department did not consider that it was exercising its rate-making powers, would not, in any case, be binding on the court as to the nature of the power which was exercised in making the modification. But the construction which the Department puts on the nature of powers which have been granted to it, or of the powers which it has exercised on occasion, is entitled to be considered by the court, when subsequently reviewing an exercise by the Department of its powers.

It is clear, we believe, that the exercise of its rate-making powers by the Department in so far as the true rate, lawfully applying to the carrying of appellant’s ■risk, occurred when the “system of schedule and experience rating” (which determined the rate to be applied to the peculiar hazard of appellant’s risk) was adopted. Art. 4911. The correction or modification in rate was the result'of an’ exercise of the Department’s fact-finding powers. A policy-holder’s classification, or the premium rate applying to his risk, is subject to change to conform to any factual change which would determine that he belonged to a different class, or which would determine that the hazard of his risk was actually greater than indicated by either an erroneous or a superannuated experience record. Clearly, no action changing rates, which is made necessary to conform to a change in the policyholder’s class or experience record, would constitute the making of new rates. ' For any such change has been brought about by the policy-holder in changing his class or changing his experience record to a class or record to which other rates are attached. Here we are not concerned with a change made in a premium rate to conform to a corresponding change in the policy-holder’s classification or experience record, but are concerned with an instance where the Commission has determined that an error occurred in compiling the data of a policy-holder’s experience record which resulted in the application of an overcharge. The inclusion of the erroneous data in appellant’s experience record had automatically operated, under the Department’s “system of schedule and experience rating”, to raise appellant’s premium rate to 6.4 above what the data in appellant’s true experience record prescribed.

There is nothing very unusual about errors being made in the application of rates, where rates are prescribed by law. The instance most familiar to all is that of freight rates. The occasion for most suits to recover reparation for overcharges or undercharges on shipments of freight, is the claim that some one wrongfully classified the commodity which was the subject-matter of the shipment, and that there was, as a consequence, the wrong rate applied and collected. If the claimant in such a suit succeeds in proving that the commodity shipped was wrongfully classified, and succeeds in proving that it belonged to a classification carrying a lower rate, he will, of course, recover reparation for overcharges. There are, of. course, inherent differences in the modus operandi of carriers of freight and carriers of insurance with respect to the determination of the rate lawfully applying to their respective services. A rate clerk of a freight carrier determines from inspection, or from a way bill, the commodity and its class; he determines from the tariffs then in force what rates the commodity and the classification calls for. If he was mistaken in his classification of the commodity, the corresponding mistake was made in the rate which was applied. But it would occur to no one at this late date to justify the collection of an illegal rate just because the mistake wasn’t sooner discovered, or was innocently made. From the evidence before us it would appear that a correct determination of the classification of a policy-holder and a true report of the data making up his experience record would make it a mere clerical function to determine the lawful premium rate to be charged. Neither the policy-holder nor the insurance carrier can claim any vested right in an error in the policy-holder’s experience record, or classification, and thus defeat the law prescribing the correct rate to be applied thereto. Under the facts here disclosed .appellee has simply collected an excessive premium rate on the period from May 2, 1933, to May 2, 1934. Since it does business under the rates prescribed by the Department, it would be no hardship on appellee to be required to carry the risk at the lawful rate to say the least.

Now, while the finding of the Commissioner, to the effect that appellee was collecting a premium rate from appellant in excess of what appellant’s true experience record indicated, is conclusive and binding in the state of the record before us, this cannot be taken -to mean that the Commissioner had authority to limit the effect that' such determination should have on the rights of the parties. Nor did ■ he assume any such authority. It is evident to us that the Department considers it essential to the proper discharge of its duties to treat a policy of insurance. as being currently before it for the exercise of its regulatory powers over the parties to it during the period between the policyholder’s anniversary-rate dates. Having corrected the rate, it seems entirely proper to us that the Department, in so far as, and. for the period that the parties were subject to its regulatory powers, should make effective such correction. It would have amounted to a usurpation of power on its part had the Department undertaken to have itself enforced such correction beyond the scope of the operation of its regulatory powers — i. e., beyond the current period embraced between the policyholder’s anniversary dates. As regards the enforcement of the right of the policyholder to recover the overcharges on the “expired contract” portion of the policy, there was neither occasion nor excuse for the Department to undertake to award reparation.

From the record in this case it is clear that appellee collected $1,751.80 in excess of the lawful rate for the period between May 2, 1933, to May 2, 1934. The cross-action was instituted October 10, 1936. For the same reason that a<suit for .reparation on a railroad overcharge or undercharge is not barred for four years next preceding the filing of the suit therefor, a suit for overcharges on premiums on an insurance policy is not barred for any time during the period of four years next preceding the filing of a suit therefor. No overcharges made to appellee from appellant subsequent to October 10, 1932, are barred by the statute of limitations.

While it does not readily occur to us that any basis to resist recovery of the reparation for the overcharges sued for by appellant can be shown to exist, it does seem clear that the court below tried the case on the wrong theory, on the theory that in order for appellant to .recover it must be shown that it was entitled to reformation of contract or some other equitable relief. As the case was tried on the wrong theory, and under that theory the court rendered judgment for appellee, we believe that in reversing the judgment we should, under the authority of Waldo v. Galveston, H. & S. A. Ry. Co., Tex.Com.App., 50 S.W,2d 274, 276, remand the cause for a new trial, and not here render judgment for appellant. The trial court will render judgment on the main action as heretofore, re-trying only the cross-action, and if appellant recovers judgment the amount will be set off against the judgment awarded in the main action.

Reversed and remanded.

On Motions for Rehearing.

Appellee has, it seems to us, confused the rate-making function of the Insurance Department — which .function is legislative in character and cannot therefore be exercised retroactively in violation of the constitutional prohibition against making ex post facto and retroactive laws —with its administrative function of rate-application, on which the prohibition against making retroactive laws has no bearing. We will first of all show that the correction made by the Department on November 22, 1934, referred to in our original opinion, was an exercise of the Department’s administrative function, and that the prohibition against retroactive legislation cannot possibly constitute a legal obstacle to the correction of the application of an erroneous rate, or to the right of reparation for the time the erroneous rate was applied.

As is well known, rate-making is law making. And, as is true of all other legislation, after orders which prescribe rates for particular services have gone into effect, such rates must be applied or assessed for the performance of services for which they have been previously prescribed. As pointed out in our original opinion, errors will inevitably occur at times whereby the agency, which is charged with the duty of administering or applying rates which have been previously prescribed for particular services, will assess for the performance of a particular service a rate prescribed for a different service. In the case of railroad rates, which are prescribed by one agency, and are applied by another —-the individual carriers themselves — there is small danger (after it has been established as a fact that the rate which had been previously prescribed for a particular service was not assessed for the performance of such service, but that a different rate was assessed therefor), of confusing the action of the commission in prescribing the rate (which is legislative) with the error of the carrier in assessing and collecting an erroneous rate (which is administrative). Furthermore, it is practically impossible to think, or to argue, that a carrier, which is by law denied all rate-making power, may, by assessing and collecting an erroneous rate, thereby establish a rate, which it has erroneously assessed and collected, as the only lawful rate for such service, so as thereby to-enable the carrier or shipper to claim that any correction in application would constitute retroactive legislation. An argument which is so patently absurd when used of an error in applying a railroad rate prescribed for one service to another and different service, loses something of its absurdity, though it can gain nothing in validity, when used of an error made by the Insurance Department in applying a rate previously prescribed for a greater risk than the risk which was actually involved, because the Department has by law both the power to prescribe rates, and to apply them after they have been prescribed to the risk for which they were prescribed.

The action taken by the Insurance Department on November 22, 1934, by which a change was made in the rate which was applied to appellant’s particular risk, was not the exercise of the Department’s legislative or rate-making functions. No change was thereby made in the Department’s rate structure. But, to the contrary, it affirmatively appears from the record in this case, that the Department applied on November 22, 1934, the same identical rate which it would have applied as early as the very inception of appellant’s policies of insurance had the fact been made known to it at that time that the Dewey death loss had been erroneously included in appellant’s experience record. In other words, it is not pretended that the rate which was applied on November 22, 1934, was then established, or that it had not been in full force and effect at all times from the very inception of appellant’s policies, and available to be applied by the Department, and would have been applied by the Department then but for the fact that the Department did not then know said rate should be applied because appellant’s experience record erroneously included the Dewey death loss. Indeed, ap-pellee, on original hearing, made the point that the only reason why the rate, which was applied by way of correction on November 22, 1934, was not applied even as early as the inception of the policies, was due to the negligence of appellant in failing to discover the Dewey death loss. The action taken by the Department on November 22, 1934, was obviously an exercise of its administrative function of rate-application, and not the exercise of its legislative function of rate-making. And the constitutional prohibition against retroactive legislation does not operate to prevent the Department from applying the correct rate, and does not operate to prevent appellant from recovering reparation for premiums which appellee collected in excess of the rate which appellee earned and the Department would have assessed, except for said error in appellant’s experience record. It is clear that in the instant case, the rate which the Department determined on November 22, 1934, was correct, was one that could and would have been applied at the inception of the policies but for the erroneous inclusion of the Dewey death-loss. And that is to say it was the rate prescribed by law — even prior to the inception of the policies for the service of carrying appellant’s risk; and it was because it was in full force and effect that it was applied by way of correction on November 22, .1934.

It is no'doubt true, as it insists, that, had appellee sued appellant for the portions of premiums which had, according to the face of the policies accrued between May 2, 1933, and May 2, 1934, and obtained judgment therefor before the correction was made, appellee would have recovered judgment from appellant for the amount then indicated by the face of the policies. That is, appellant would have recovered on the basis of the erroneous rate. Such a recovery would have been final. But such a recovery would have resulted, not because the amount so recovered was actually due by law, but because the proof which would then have been made would have erroneously established such amount as based on the duly prescribed rate. Judgments are sometimes recovered on evidence which at a later day could be proven erroneous, yet the judgments so obtained finally conclude the matters in litigation. But that such a judgment as indicated would have, resulted, if taken before the error in rate had been corrected, is to he attributed solely to the doctrine of finality of judgments, which is based on the same policy as is, of course, the statute of limitation.

Appellee further urges that it works a hardship and great inconvenience on insurance companies to require them, long after they had collected premium money, but within the period of the four year statute of limitation (Vernon’s Ann. Civ.St. art. 5527), to make reparation, merely because the Insurance Department might at such late date uncover errors. The purpose of prescribing by law the rates that shall be charged is a most excellent one. No error made in administering the law can repeal it, or knowingly be permitted to defeat it; certainly the convenience of those whose business the law is meant to regulate, cannot serve to defeat it. It is doubtless true that some of the errors which the Insurance Department corrects from time to time, as in the present case, in misapplications of rates, are errors which the Insurance Company concerned could not have discovered itself. But it is difficult to understand how the substitution by the Department of the correct rate for an erroneous rate could have serious consequences to an insurance company. The error made by the Department in applying a rate can no more give an insurance company the right to a wrong rate, Than can an error made by a carrier in applying a rate give a shipper the right to a wrong rate. And in legal contemplation the company can suffer no harm by being required to carry the actual risk involved at the rate previously prescribed therefor. Moreover, the rule works both ways. While it may be that the greater vigilance of insurance companies in such matters, and the' greater expert knowledge possessed by them, keep down errors made against them and in favor of policy holders; yet such errors are inevitable, and then the rule will work for them.

Appellee further argues that, where the Insurance Department is permitted to make correction such as it made in the present instance, and if policy-holders are permitted to recover reparation on the basis of such corrections, that insurance rates will be wholly unstable; and insurance companies will have no certain rates to count on. It is but fair to appellee to state again in this connection that it fails to distinguish between the exercise of the rate-making function by the Department, and its rate-application function in the exercise of which it applies to particular risks rates theretofore prescribed for carrying the particular risk involved. Possessed of such a view, it is entirely logical for appellee to consider that the Department, when it establishes a new manual or base rate, is but exercising the same function which it exercises when it applies a previously prescribed “adjusted” rate. It is, of course, in reference to previously prescribed manual rates that “adjusted” rates can be spoken of as existing, for they are nothing more than variations calculated on the applicable manual rate, according to the provisions of “System of Schedule and Experience Rating” adopted by the Department (and that is certain which by mere calculation can be made certain). So much we infer from the record before us in this case. Of course the establishment of a new manual rate, from which variations to be applied to individual risks must be calculated, can he done by the Department only in the exercise of its rate-making function. To effect a change in a manual rate it is necessary for the Department to publish fifteen days notice before making such a change effective, according to the requirement of R.S. Art. 4907, Vernon’s Ann.Civ. St. art. 4907.' Appellee helpfully indicates in its motion that in making changes in a manual rate, the Department actually does this. And, of course, a newly established manual rate can operate prospectively only. Indeed, as herein indicated, all rates operate' only from and after they have, been prescribed; but the establishment of a manual rate prescribes the variations that are calculated thereon to be applied to individual risks.

Because the correction made by the Department on November 22, 1934, did not violate appellee’s constitutional rights, but simply enforced the applicable previously prescribed rate, appellant was entitled to recover reparation for the excess collected by appellee over the applicable lawful rate then actually in force. It follows that judgment should be here rendered for appellant for the overcharges sued for, as they are fixed by proof; therefore, appellant’s motion for rehearing is granted; the former judgment of this court set aside, judgment reversed and rendered, and ap-pellee’s motion for rehearing refused.

Appellant’s motion for rehearing ■ granted, former judgment set aside, cause reversed and rendered, and appellee’s motion for rehearing refused.

On Appellee’s Motion for Rehearing.

This cause is before us at this time on appellee’s motion for rehearing of our judgment granting appellant’s motion for rehearing, reversing the judgment of the trial court and here rendering it for appellant.

The Legislature is competent to set up an agency to prescribe insurance rates and apply them to workmen’s compensation insurance policies, and can, of course, vest such agency with ample 'powers to enable it to function properly. But the Legislature cannot deprive the courts of their judicial function to determine the legal rights of insurance companies and policy holders, consequent upon a correction being made in rate-application by such legislative agency, and vest such purely judicial function in such agency. Neither has the Legislature attempted to deprive the courts of such judicial function and confer it upon the Insurance Department, nor does the Department pretend to any authority to exercise such judicial function.

,It is true that in the instant case the Department exercised the authority to order appellee to make reparation to appellant for a portion of the excess premiums which appellee had collected from appellant prior to the correction made in rate-application on November 22, 1934. But this order that appellee 'make such partial reparation was but incidental to its exercise of authority to make the correction of the error in rate-application, and to making such correction effective and complete within the limits .of the Department’s administrative function. As we have seen, the limits which the Department has set as fixing the scope within which to exercise its administrative function on insurance policies, is the period between their anniversary dates, one year. Its authority to prescribe the limits within which it deems it expedient to exercise its administrative function will be liberally construed. However, the legpl rights of insunmce companies and of policy holders do themselves necessarily fix limits to the authority which the Department may exercise. In the present instance the Department could in the exercise of its administrative function, require appellee to make reparation to appellant for the excess premium which it had collected covering the period between November 22, 1934 (when the correction was made), and the policies’ preceding anniversary date, because to do so did not deprive appellee of any legal right. That is, appellee had no right not to make reparation to appellant for the entire period between the date such correction was made and the effective dates of the policies; because as we have seen, the rate applied by way of correction by the Department on November 22, 1934, was in force during all the time the policies were in effect. Such rate was the lawfully prescribed rate for the risk in question, as the Department then found. It therefore follows that in collecting premiums based on the higher rate, appellee collected, and appellant paid, more than the lawful rate. And appellant did not derive its right to recover reparation, nor did appellee derive its obligation to make reparation, from the order of the Department requiring appellee to make reparation from November 22, 1934, to the policies’ anniversary date, May 2, 1934, but, to the contrary, the Department could exercise the authority to make such order only because, independently of such order, the appellant possessed the legal' right to reparation and appel-lee was under the legal obligation to make reparation. If the Department should deem it expedient, in the exercise of its control over insurance matters, not to order any reparation made when it corrects an error in rate application, -the one in whose favor the error had operated would still be under the legal obligation to make reparation, and the one against whom it had operated will still possess the legal right to recover reparation. And the Department can at any time it should deem it good policy to do so cease ordering reparations made, even during the period between anniversary dates of policies. But such change in policy on the part of the Department could not abolish the right to recover, and the obligation to make, reparation consequent upon correcting a rate-application, nor deprive the courts of jurisdiction over the action to recover such reparation.

It follows from what has been said that the refusal of the Department to order appellee to make reparation for the period prior to the anniversary date of the policies, preceding the date the correction was made, could not possibly relieve appellee of its legal obligation to make, nor deprive appellant of its legal right to exact, such reparation (for the period May 2, 1933, to May 2, 1934). Indeed, the refusal of the Department to order reparation made on, what it designates as, the “expired” portion of the policies, is obviously referable to its unwillingness to exceed the bounds fixed to the scope within which it will exercise its administrative function, namely, the period between the current anniversary dates. Had the Department, however, not merely refused to order reparation made for the period from May 2, 1933, to May 2, 1934, but had gone further and undertaken to exercise the judicial function and rule that appellant should have no right to recover reparation during such period, such order would have been absolutely null and void. Neither could the Department through the exercise of its unquestioned legislative function have deprived appellant of the right to the corrected rate (inclusive of the right to repa.-ration during the period it was not applied), because it is as much the exercise of the legislative function of rate-making to repeal a rate which is in effect, as it is to make a new one. It would therefore have been as unconstitutional for the Department on November 22, 1934, to undertake to repeal a rate retroactively for the period between May 2, 1933, and May 2, 1934, as it would have been to order a new rate into effect retroactively for such period. The rate applied by way of correction on November 22, 1934, having been in full force during May 2, 1933, to May 2, 1934, appellant could not, as already stated, be denied the right to reparation for such period by the Department. But the refusal of the Department to order such reparation could only, have the effect, and no doubt was intended to have only the effect of, leaving appellant to its legal remedy in court to recover reparation from appellee for the excess premiums collected on the policies from May 2, 1933 to May 2, 1934.

It would be the pedantry of citation to refer to authorities in support of the elementary law hereinabove applied.

From authorities cited by appellee we infer that it considers that the courts are required to give to the orders of the insurance department the same conclusive and binding effect which Art. 6452 gives to the rates, etc., of the Railroad Commission in actions between railroads and shippers, unless and until found invalid or unreasonable in an action brought directly against the Railroad Commission for that purpose. However binding arid conclusive the orders of the Department may or may not be in general, we are here concerned only with the effect in court of the Department’s correction order of November 22, 1934. Of this order we said in our original opinion: “Now, while the finding of the Commissioner, to the effect that ap-pellee was collecting a premium rate from appellant in excess of what appellant’s true experience record indicated, is conclusive cmd binding in the state of the record before us * * *” Thus we there ruled that, at least for the time being in this action, the correction order of November 22, 1934, was conclusive and binding. We were then of the opinion and still believe (but it is now not necessary to rule on the point) that it might be legally permissible for appellee to take steps to attack said finding of November 22, 1934, if the cause were remanded for a new trial; and, as we had found the case had been tried on the wrong theory, upon reversing the judgment of the trial court, we ordered the cause remanded. Upon- consideration of the motions for rehearing, by both parties, upon our judgment remanding the cause, we found that under no possible theory, supported by the record could the trial court do other than render the judgment, in case of a new trial, which we rendered on said rehearing. We therefore considered that it was error for us to remand the cause on the theory that, peradventure, the appellee might thereupon form the desire to attack the Department’s finding of November 22, 1934, which finding it had not merely acquiesced in, but had accepted by making partial restitution thereon. Article 1856 provides: “When the judgment or decree of the court below shall be reversed the court [of Civil Appeals] shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.” As the record disclosed that appellee had accepted the Department’s finding of error in rate-application of November 22, 1934, and its correction thereof, and, as the damage to be assessed under such correction was certain, we were required by force of Art. 1856 to render the judgment which the trial court should have rendered, and not to remand for a new trial.

Appellee’s motion for rehearing, which was filed after the granting of appellant’s motion, is now: refused.


author: TIREY, Justice.

text:
    COLQUITT et al. v. SHELL et al.
    No. 2189.
    Court of Civil Appeals of Texas. Waco.
    Jan. 4, 1940.
    J. S. Callicutt, of Corsicana, for appellants.
    Richard & A. P. Mays, of Corsicana, for appellees.
   TIREY, Justice.

The Corsicana Hospital & Clinic, a corporation, on April 25, 1938, filed suit in the Justice Court of Navarro County against Pierce Colquitt and O. B. Colquitt for professional and other services rendered to said defendants for the sum of $117 that matured on August 23, 1937, and for. interest. Said corporation recovered judgment by default for the sum of $117, with interest from January 1, 1938, at the rate of 6% per annum, together with all costs of suit. On appeal to the county court the defendants filed plea in abatement in which they set up that the Corsicana Hospital & Clinic, a corporation, had been dissolved and asked that the suit be abated and dismissed. Thereupon W. T. Shell, Mrs. W. T. Shell and William T. Shell, Jr., with leave of the court, filed their first amended original petition in this cause and prosecuted the suit in the place and stead of Corsicana Hospital & Clinic and for its benefit, said pleading set up they were and are the directors of said corporation and as such owned the obligation sued on as trustees for the use and benefit of the stockholders of said corporation. The case was tried before the court without the intervention of a jury and judgment was entered on the 28th day of November, 1938, in favor of appel-lees against the defendants and the sureties on the appeal bond for the sum of $117, together with interest thereon from ‘ that date at the rate of 6% per annum. There is no statement of facts.

Complaint is made by appellants that the trial court erred in its failure to sustain their motion to abate and dismiss the suit. This contention cannot be sustained. See Revised Statutes, Art. 1388— 1891; Abilene Steam Laundry Co. v. Shackelford, Tex.Civ.App., 284 S.W. 622; 1 Tex.Jur. p. 145, sec. 105; 11 Tex.Jur. p. 137, sec. 471.

Appellants seasonably filed their motion to adjudge and tax all costs of suit incurred in the county court in Navarro county against appellees because the judgment recovered in the county court in Navarro county was for a less sum than that recovered in the Justice court. Appellants’ motion was duly considered by the trial court and overruled without any reason having been given therefor and this action by the trial court is assigned as error. This assignment must be sustained. In the case of Heidenheimer v. Ellis, 67 Tex. 426, 3 S.W. 666, 667, Judge Gaines said: “Interest cannot be allowed eo nomine unless especially provided for by-statute; but in many instances it may be assessed as damages, when necessary to indemnify a party for an injury inflicted by his adversary, though the statute be silent upon the subject.” Article 5070, Revised Statutes, provides as follows: “When no specified rate of interest is agreed upon by the parties, interest at the rate of six per cent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.” In the case of McDaniel v. National Steam Laundry Co., 112 Tex. 54, 244 S.W. 135, at page 137, the Commission of Appeals said: “The Texas courts have held that an implied agreement to pay for services in looking after pasture, fences, and caring for stock, as well as commissions claimed to be due a real estate broker, was not an open account within the statute. Myers v. Grantham (Tex.Civ.App.) 187 S.W. 532. They have further held that an amount due for board and wages for working in a gin; items of freight paid for another; money advanced under a contract; a physician’s bill for professional services; claims for damages accomplished by loss or destruction of goods; for removing and appropriating cross-ties; for services as a train conductor; for money due a lawyer for professional services are not open accounts within the meaning of our statutes.”

Under the above authorities, we think it is clear that the subject matter of this suit was not an open account within the meaning of Article 5070 of our Revised Statutes and therefore appellees could not recover interest eo nomine as a matter of law from January 1, 1938. Therefore, the-interest recovered in the judgment in the Justice court was part of the amount in controversy, and the judgment recovered in the county court was less than the amount recovered in the Justice court and, under Articles 2065 and 2066 of our Revised Statutes, the appellants were entitled as a matter of law to recover judgment for all costs incurred in the county court in the absence of some good cause stated on the record. See Texas & N. O. R. Co. v. Davidson, Tex.Civ.App., 24 S.W.2d 75, point 2. It has been repeatedly held that “an improper adjudication of the costs is a substantive error which affects the principal judgment itself, and is not merely a collateral matter to be determined independently of the litigation in which the judgment is rendered.” Nail v. Wolfe City National Bank, Tex.Civ.App., 158 S.W. 1166, 1167, writ dismissed.

The judgment of the county court will be reformed and the costs incurred in the county court will be taxed against the ap-pellees as well as the costs incurred by this appeal, and as reformed, the judgment of the trial court is in all things affirmed.


author: LESLIE, Chief Justice.

text:
    BELL v. BELL.
    No. 1963.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 22, 1939.
    Fred O. Jaye and Frederick G. Harmon, both of De Leon, for appellant.
    Oxford & McMillan, of Stephenville, for appellee.
   LESLIE, Chief Justice.

Mrs. Pearl Bell instituted this suit for divorce and her interest in community property against her husband, R. W. Bell. The grounds for divorce were alleged to be acts of personal violence accompanied by threats and abusive epithets inflicted upon her. The defendant answered by general demurrer, general denial and specially denied the allegations relating to in-habitancy in the state and residence in the county required by Art. 4631, R.S.192S, Vernon’s Ann.Civ.St. art. 4631.

The trial was before the court without a jury and at the conclusion thereof a decree was entered granting plaintiff a ■divorce, together with attorney’s fee of $50 and one half of the community property amounting to $150. The defendant appeals. The parties will be referred to as in the trial court.

There are three assignments of error and they will be disposed of in their order.

The first one is to the effect that the decree of divorce was erroneously entered on “uncontradicted” testimony showing “the plaintiff was not possessed with the qualifications of a bona fide inhabitant of the state of Texas for one year and of the county for six months necessary to authorize the bringing of an action for divorce and the awarding of a judgment thereon.”

If the plaintiff’s testimony is to be believed there is no question about her presence and residence in the county during the relevant six months’ period. If there is any doubt concerning either jurisdictional fact it relates more to the one year’s inhabitancy of the state. This seems to have been the second time these parties entered into the matrimonial relation. This last marriage took place September 23, 1937 at Winters, Texas. Apparently they resided there for a while and at Snyder, Texas, then went on a trip to south Texas. On this trip they seemed to have disagreed at Beeville, Texas, where they separated about January 5, 1938. Having no home and the burden of caring for a small child by a former marriage, the plaintiff stayed for a short while with her mother at Mineral Wells and then went to New Mexico where a sister resided. She had some assurance of temporary employment in a beauty shop at that place which furnished some opportunity for schooling in that type of work. Being in straitened financial circumstances and her health impaired she went there for the purpose of bettering her condition in each respect, so she testifies. She further testified that she had lived in Texas practically all her life. She denied that she at any time had entertained the idea of establishing actual residence and inhabitancy .elsewhere. That her testimony covered these points in a manner favorable to the plaintiff is clearly reflected by the record and conceded by the defendant. We find in his brief the following: “We think this .witness’s testimony taken as a whole was a fabrication with a view to establishing of attempting to establish her qualifications relative to her inhabitance of the state and residence in the county for the purpose of obtaining a decree of divorce.” If this is a correct interpretation of the record the evidence certainly raised an issue of fact which the trial court has disposed of. That court had the power and duty to pass upon the credibility of witnesses and the weight to be given to testimony.

From the latter part of January to about the first of May, or soon thereafter, plaintiff was with her sister in New Mexico under the circumstances above detailed. That such was but a temporary visit under adverse circumstances and without any idea of establishing inhabit-ancy in that state is evidently the conclusion of the trial court and the finding that she did not by her visit there lose her residence in Texas is supported by the testimony. Such conclusion is warranted by good authority. Fox v. Fox, Tex.Civ.App., 179 S.W. 883; Snyder v. Snyder, Tex.Civ.App., 279 S.W. 897; Snead v. Snead, Tex.Civ.App., 27 S.W.2d 268.

Doubtless this court is not necessarily bound by the trial court’s conclusions on such matters of evidence but “in passing on the sufficiency of the evidence the appellate court should give much difference to the conclusions of the trial court of jury as .respects the credibility of witnesses, since they have an opportunity to observe the general manner and deportment of the witnesses during the trial.” 15 Tex.Jur. p. 556, sec. 89, citing many authorities in foot note.

The second assignment is that the court erred in awarding plaintiff a decree of divorce because the facts clearly disclose that the defendant had not been guilty of such cruel and tyrannical treatment as to justify the granting of the.same,

By pleadings and testimony the plaintiff charged the defendant with acts’ of personal violence and the use toward her of violent and abusive epithets. If the testimony of plaintiff is to be believed it convicts him of the charges made. Though present in the court at the trial he did not take the stand and deny the charges. The trial court, with the parties before it, was in better position to appraise this testimony, as above noted, than this court is upon the record before Us. It does not appear from the testimony that the trial court in announcing his conclusions abused his discretion. "

Under this assignment - the defendant insists that the uncorroborated testimony of one of the spouses does not meet the requirement that the evidence to warrant a divorce must he “full and satisfactory” etc. This contention is predicated upon the’ language of Art. 4632, R.S.1925. We think this statute containing the expression “full and satisfactory evidence” has been properly interpreted in discussion thereof by Judge Speer in his “Law of Marital Rights in Texas”, p. 764, sec. 618, wherein it is said: “The rule requiring full and satisfactory evidence, however, does not alter the ordinary rules of evidence so as to preclude the introduction of any character of evidence that is ordinarily admissible; it relates rather to the sufficiency of the evidence than to its evidentiary character. And all that is required is the proof of the substance of the issue as in other civil cases.” Further, on page 767, sec. 620, in the same text, the author, discussing parties as witnesses, says: “Under the present statute a divorce may be granted upon the sole -testimony of one of the parties if there be no collusion.” This last statement was made in special reference to Art. 4633, R.S.1925. Whatever may be said of the record before us there is no suggestion of any collusion between these parties.

The third assignment raises the question of variance between the pleadings and the testimony. It is urged that the trial court erred in “permitting plaintiff to introduce in evidence a deed of conveyance executed by V. V. Bell et al to the defendant R. W. Bell * * * because the property therein described was not shown to have been properly described in the plaintiff’s first amended petition.” On the question of community property owned by these litigants the plaintiff alleged “that during their marriage the defendant purchased the east 25 feet of lot 13, block 19, original survey in the city of DeLeon, Comanche County, Texas, which property is community property of the plaintiff and defendant * * In making her proof the plaintiff introduced in evidence the particular deed of conveyance but the land described therein is the east part of the lot, 18x57 feet. Briefly the allegations relate to a tract on the east side of the lot 25 feet wide, and the deed embraced only the east 18 feet o'f the lot.

As stated, the court admitted the deed in evidence and the judgment as rendered recites: “And it further appearing to the court that the defendant owns. a lot located in the town of DeLeon in Comanche County, Texas, referred to in the plaintiff’s petition as the east 25 feet of lot 13 in block 19, original survey, town of De-Leon, Comanche County, Texas, and properly described as follows: All that certain lot, tract * * * [here follows a correct description by metes and bounds as stated in the deed of a tract 18x57 feet, etc.]” (Italics ours.)

A variance is not material, unless it is so misleading as to prejudice the party in his action or defense on the merits. Here the very land owned by the defendant or covered by his deed was embraced in the description in the pleading, of which he had long had notice. He could not have been surprised or misled. And unless a variance has such effect it would not constitute a reversible error.

As said by our Supreme Court in First Nat. Bank v. Stephenson, 82 Tex. 435, 18 S.W. 583, “A variance between the allegation and proof which ought not to have misled the adverse party to his prejudice is not material. It must be such as to mislead or surprise the opposite party.”

For numerous authorities to the same effect, see under subject of Pleading, •30 Tex.Dig., Also, Kelsey v. Myers, Tex.Civ.App., 29 S.W.2d 855.

For the reasons assigned, the judgment of the trial court is affirmed.


text:
    ZWEIG v. VAUGHAN MFG. CO. et al.
    No. 12823.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1939.
    Rehearing Denied Jan. 20, 1940.

      Emil Corenbleth and Chrestman, Brun-didge, Fountain, Elliott & Bateman, all of Dallas, for appellant.
    Leo R. Tresp, of Dallas, for appellees.
   LOONEY, Justice.

Appellant Zweig sued appellees to recover balance due on a promissory note, and to foreclose the lien of a chattel mortgage on certain factory machinery, tools, fixtures, apparatus, etc., owned and used by appellees in their manufacturing plant operating in the City of Dallas.

Following a general denial, appellees plead payment, and in a cross action, sought cancellation of the note and recovery over against appellant, alleging in substance: (1) That during the year 1936, he agreed to allow appellees a credit of 25 cents per dozen garments manufactured with their factory machinery (then in the hands of one Stockton), and that 29,000 dozen garments were manufactured under the arrangement, entitling appellees to a credit of $7,250; (2) that under a verbal agreement between the parties, appellant was to bid on certain government contracts for the manufacture of uniform trousers, to be manufactured by ap-pellees, appellant agreeing to pay $2.50 per dozen and share equally with appellees all profits derived from the contract, under which appellees alleged that 18,000 garments were manufactured at a net profit, after deducting all costs, of $1,800, entitling ap-pellees to $900; (3) that, under a similar agreement of March 15, 1937, for sharing profits on a government contract, 86,000 dozen garments were manufactured at a net profit of $8,600, entitling appellees to $4,-300; (4) and that appellant converted to his own use factory machinery belonging to appellees, of the reasonable value of $7,755; praying recovery of that amount. Therefore, appellees prayed for judgment canceling the note and mortgage, and for judgment over against appellant.

The trial was to a jury. The amount due on the note was fixed by an audit, to which no exception was urged. And, on the issues above set out, the jury found (1) that appellant and appellees entered into a, verbal contract on January 1, 1936, with respect to the use of certain machinery which appel-lees turned over to appellant, under an agreement entitling appellees to 25 cents per dozen on all garments manufactured by its use, and that 24,280 dozen garments were manufactured under said agreement; (2) that, under an agreement of June 1, 1935, appellant, and appellees were to divide 50-50 all profits realized from a certain contract, over and above $2.50 per dozen, manufacturing cost and cost of material, and that 18,000 garments were manufactured under said arrangement, from which $1,800 was derived as profit; (3) that under an agreement of March 15, 1937, appellant and ap-pellees were to divide 50-50 all profits realized from a similar contract over and above $3.10 per dozen, manufacturing cost and cost of material, under which 86,000 garments were manufactured at a profit of $8,600; (4) that appellant failed to return to appellees certain manufacturing machinery belonging to them, of the reasonable cash market value at Dallas, Texas, on January 1,1937, of $3,877.50.

Appellant moved for judgment, notwithstanding the verdict, on the ground that the amount due on the note was not controverted and that, as a matter of law, none of the offsets dr counter claims found by the jury were allowable, for the various reasons set out in the motion. Appellees also moved for judgment for $3,300.12, on the answers of the jury to the special issues, in that the offsets and counter claims, as found by the jury, were more than sufficient — by $3,300.12 —to extinguish the amount admittedly due upon the note. On hearing, the court overruled appellant’s motion but sustaining that of appellees, accordingly rendered judgment in their favor for $3,300.12, and canceled the note and chattel mortgage.

As just shown, the jury found in favor of appellees in the sum of $6,070, for the manufacture of 24,280 dozen garments, including the use of machinery, at 25 cents per dozen; $900, one-half the profit of $1,800, for the manufacture of 18,000 garments, under a government contract; $4,300, one-half the profit for the manufacture of 86,000 garments, under another government contract, and $3,877.50, the value of machinery alleged to have been converted. The amounts found aggregated $15,147.50, from which the court subtracted $11,847.38, balance due. on'the note, leaving- $3,300.12, for which the court rendered judgment in favor of appel-lees over against appellant.

For reversal, appellant urges the following propositions : (1) that the evidence failed to show the number of garments manufactured, as basis for the finding of $6,-070; (2) that the evidence failed to show a profit on the contract of June, 1935, as basis for the finding of $900; (3) that the evidence failed to show a profit under the contract of March, 1937, as basis for the finding of $4,300; (4) that the evidence failed to show a conversion by appellant as alleged, as basis for the finding of $3,877.50 ;• (5) and that, as neither counter claim found by the jury was authorized by evidence, the balance due on the note being undisputed, appellant was entitled to judgment non ob-stante veredicto, hence the court erred in overruling his motion asking such relief.

It is obvious, we think, that the propositions urged by appellant present simply questions of fact. The evidence is voluminous; the “Q&A” statement alone contains 820 pages, besides a large bundle of original documents brought up with the record. Although the briefs of counsel quote but sparingly from this large statement of facts, we assume they quoted all evidence having any relevancy to the issues submitted, in view of which, we do not feel justified in. saying that the findings of the jury, are not supported by evidence. Therefore, we adopt the findings as our conclusions of fact on the respective issues, and overrule appellant’s propositions and related assignments.

• .However, since it is undisputed that appellant obtained possession of the machinery .lawfully and, under the terms of the chattel mortgage, was entitled to take possession upon default- in the payment of the note, in view of this situation, appellant contends that, he could not properly be held liable for conversion, unless and until he had refused to restore the machinery after payment of the note.

It is true, appellant obtained possession of the machinery lawfully, to be employed in manufacturing certain garments, under an arrangement between him and appellees, but it is also true that appellant refused to deliver the machinery to appellees after Completion of the contract. Nor did he plead or insist in the court below, except in his motion for a new trial, that he had the' right to retain possession of the machinery under the terms of the mortgage, simply denied appellees’ allegations with reference to this issue. So, as appellant did not claim the right to retain possession of the machinery under the mortgage, simply denied appellees’ allegations on the issue of conversion, and having, after completion of the contract, under which he obtained possession, refused on demand to redeliver the machinery to appellees, we conclude that the .evidence justified the finding of the jury, therefore overrule appellant’s contention in this respect.

After a careful consideration of all assignments and propositions urged by appellant, and failing to find reversible error, the judgment of the court below is affirmed.

Affirmed.