author: PELPHREX, 0: J.

text:
    JOHN I. KANE CO. v. HEBRON.
    (No. 2167.)
    Court of Civil Appeals of Texas. El Paso.
    Jan. 31, 1929.
    Rehearing Denied Feb. 28, 1929.
    Paul D. Thomas and Wm. Elournoy, both of El Paso, for appellant.

      Davis, Tittmann, Roche & Miranda, of El Paso, for appellee.
   PELPHREX, 0: J.

Appellee, an investor, entered into an agreement with appellant, a corporation engaged in the business of selling bonds. Appellee alleges that the agreement was that he was to temporarily take a bond issued by the TeAnessee Terrace Hotel, Inc., and that later appellant would secure a Wichita Medical Arts Building bond and substitute it for the Tennessee bond. The Wichita bonds were never issued, and ap-xoellee brings this suit to rescind the contract, and prays for a return of the money paid by him to appellant at the time he received the Tennessee bond, and tenders the return of the Tennessee bond. • The case was tried to a jury, and was submitted on the following special issue: “Do you find from a preponderance of the evidence that at the time the bond of the Tennessee'Terrace Hotel Company was delivered by defendant to plaintiff, it was mutually agreed between plaintiff and 0. H. Eckford, acting for and on befialf of John I. Kane. Company, in consideration of plaintiff’s purchase of said bond of the Tennessee Terrace Hotel Company for $1,018.15 that thereafter defendant woujd acquire a bond in the sum of a thousand dollars of the Wichita Medical Arts Building, and deliver same to plaintiff 'in lieu of said Tennessee bond then delivered?”

The jury having answered the issue in the affirmative, judgment was rendered in favor of appellee for $1,015.55, with interest from February 7, 1928. From that judgment, John I.Kane Company has appealed.

Opinion.

Appellant presents numerous assignments and propositions thereunder, among them being one which complains of error on the part of the court in rendering judgment upon the verdict.

Appellee, as we understand his pleading, is seeking to rescind a contract for the purchase of a Wichita bond, and specifically alleges that his possession of the Tennessee bond was only temporary, refuting the idea that he ever purchased it.

On the other hand, appellant alleges that it sold the Tennessee bond to appellee, and denies that it ever agreed to repurchase same by exchange or otherwise, and alleges that th conversation Mr. Eckford had with appel-lee was solely based on a trade to be made and agreed upon in the future.

We have studied the pleadings with care, and can find in them no basis upon which to find the issue submitted. We therefore reverse the judgment, and remand the cause.

In view, of another trial, we deem it unnecessary to discuss the other assignments further than to say that we think the pleadings, as a whole, show a state of facts to which the remedy of rescission is applicable.

’ Reversed and remanded.


source: Caselaw Access Project

author: JAGKSO'N, J.,

license: Public Domain

text:
    LAST CHANCE GAS CO. v. ELLINGER et al.
    (No 3171.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 6, 1929.

      Cook, Smith, McLynn & Teed, of Pampa, for appellant.
    W. M. Lewright, of Pampa, and John E. Williams, of White Deer, for appellees.
   JAGKSO'N, J.,

This suit was 'instituted by the plaintiff, the Last Chance Gas Company, a corporation, against W. H. Ellinger, W. L. Woodward, and 36 other defendants. The appellant obtained judgment against all the defendants except W. H. Ellinger, who is the appellee, and in whose favor a judgment was rendered by the court against the Last Chance Gas Company, the appellant, and it is of this judgment that the appellant complains in this court.

The appellant sued in trespass to try title to'recover % of the oil, gas, and other mineral rights in and to a certain tract of land' situated in Carson county, Tex., and fully described in its petition.

The appellee answered appellant’s .petition by general demurrer, general denial, and plea of not guilty. He also, by cross-action against the appellant and one of his codefendants, W. L. Woodward, and Chas. O. Cook, whom he impleaded, sought to recover an undivided ⅞2 interest of the % interest of the oil, gas, and mineral rights in the land described in appellant’s petition. He pleads in his cross-action a suit in trespass to try title, alleging that on May 4, 1926, he was and still is the owner ana holder of said interest in the land.

The appellee further alleges: That on May 26, 1926, in cause No. 653, Chas. C. Cook v. W. H. Ellinger, in justice court, precinct No. 2, Gray county, Tex., a purported judgment was rendered against him as defendant in favor of Chas. C. Cook, plaintiff. That a writ of attachment had theretofore been issued in said cause by said court, and levied upon his interest in said property and said attachment lien foreclosed in said judgment. That an order of sale was issued, based on the foreclosure of said writ of attachment lien, and the sheriff of Carson county, acting under and by virtue of said order of sale, sold and deeded appellee’s interest in said property to W. Xj. Woodward, who thereafter sold and conveyed same to appellant. That, at the hearing of said cause’ in justice court, an attorney was appointed by the justice of the peace to represent appellee, and a statement of facts made up and filed with the record in said cause. That appellee was not served personally with citation in said cause in justice court, but service was asserted and claimed by,the publication of a citation in the McLean News, a newspaper regularly published in Carson county, Tex. That in the citation by publication, the only statement of the nature of the plaintiff’s demand against the defendant was: “Suit to recover the sum of $200.00 for legal services rendered by plaintiff for defendant at the special instance and request of the defendant.” That such statement was insufficient to place the defendant on notice of the plaintiff’s demand against him, and was insufficient to give the justice court jurisdiction to hear and determine said cause, and the court, being without jurisdiction, the judgment rendered against appellee was void, the attachment lien, the order of sale, the sale thereunder, the sheriff’s deed, and all proceedings had by virtue of said judgment were void and of no force and effect. That by reason thereof, his codefend-ant W. L. Woodward and the appellant acquired no title to his interest in said land. He prayed the court that said judgment, sale, and sheriff’s deed be canceled, and that he have judgment for the title and possession of his interest in said property.

To appellee’s cross-action, the appellant filed a general denial, plea of not guilty, and alleged the validity of the judgment and proceedings in the justice court.

W. Xj. Woodward adopted the supplemental petition of the appellant, and in addition thereto pleaded that he was an innocent purchaser in good faith of the land at the sheriff’s sale, and that appellee had notice of said judgment and sale more than two years before the institution of the suit by appellant in the district court to recover the land.

Chas. C. Cook, impleaded by defendant on his cross-action, answered, alleging the validity of the claim on which he obtained judgment in justice court against the appel-lee, and the validity of his judgment.

Appellee filed a supplemental answer, in which he again alleged the invalidity of the judgment against him in justice court, based on the insufficiency of the citation by publication to give the court jurisdiction, and alleges a meritorious defense to the cause of action upon which Ohas. C. Cook obtained the judgment in justice court.

After the close of the evidence in the case, appellee Ellinger announced in open court that he would dismiss his cross-action against the defendant Chas. C. Cook, and the court entered judgment that the said Chas. C. Cook be and is dismissed from the suit with his costs.

The case was tried to a jury, and the .court peremptorily directed a verdict in favor of the appellant against all the defendants, except the appellee, W. H. Ellinger, and peremptorily directed the jury to find against the appellant in favor of appellee for the interest in the land, as prayed for in appellee’s cross-action. The jury returned' a verdict in obedience to these instructions, and the judgment of the court was entered in compliance therewith. Erom that portion of the judgment in favor of appellee, the appellant prosecutes this appeal.

The record shows: That appellant and ap-pellee agreed that the appellant was the owner of all the land in controversy except an •undivided ⅛ interest, which was owned by appellee on March 22, 1926. That the judg-. ment of the justice court in cause No. 653, Chas. O. Cook v. W. H. Ellinger, was rendered on March 22, 1926, and recites that “the defendant, though duly and regularly cited by publication to appear and answer herein as the law directs, came not, but wholly made default.” That the court appointed,a practicing attorney to represent the nonresident defendant cited by publication. That said attorney answered, a jury was waived, and the court gave plaintiff judgment, and continues: “And it further appearing to the Court that a writ of attachment issued out of said court on the 13th day .of January, 1926, and the following described property was levied on under said writ of attachment, to wit: All of the defendant, W. IT. Ellinger’s right, title and interest, the same being an undivided ⅞2 interest in and to one certain oil and gas lease dated December 1, 1921, executed by J. W. McConnell and wife, Girtha McCon-n'ell, lessors, in favor of R. A. Tipton, lessee, on all of the Southwest quarter of section 201 in' block No. 3, of the lands originally granted to the I. & G. N. Ry. Co., except two acres in the form of a square out of the Southwest corner thereof and containing 150 acres of land be the same more or less, and located in Carson County, Texas, said Tease being recorded in Vol. 27 on page 29 of the Deed Records of Carson County, Texas, and said attachment lien is hereby foreclosed on said property, and the same ordered sold to satisfy this judgment as under execution.”

The record further shows that an order of sale was regularly issued out of justice court; that the sale was made thereunder, the sheriff’s return thereon showing the sale of appel-lee’s interest in the property to W. D. Woodward for the sum of $100, the sheriff’s deed to W. L. Woodward, and the conveyance from W. L. Woodward to appellant, the East Chance Gas Company. The citation by publication states that the plaintiff’s demand is, in substance: “A suit to recover the sum of $200.00 for legal services rendered by plaintiff for defendant at the special instance and request of the defendant.”

The appellant, by several assignments, all of which may be considered together, assails as error the action of the trial court in holding the judgment of the justice court void and rendering judgment against it for the interest in the property claimed by appellee, because the judgment of the justice court is not subject to a collateral attack, as it recites that “the defendant, though duly and regularly cited by publication to appear and answer herein as the law directs, came not, but wholly made default.”

The appellee filed no brief in the case.

This suit is, in effect, an action in trespass to try title, in which the appellant depends on the validity of the justice court judgment to show title, and appellee urges that such judgment is void because of want of jurisdiction in the justice court, to defeat appellant’s title and to authorize the affirmative relief sought by him in the district court. It is, therefore, a collateral attack upon the judgment of the justice court. Brooks v. Powell (Tex. Civ. App.) 29 S. W. 809; Blaske v. Settegast, 58 Tex. Civ. App. 10, 123 S. W. 221. And appellee, at the close of the evidence, having dismissed as to Chas. O. Cook, who was plaintiff in the justice court judgment, did not have all the parties to such judgment before the District Court. Borders v. Highsmith (Tex. Civ. App.) 252 S. W. 271. A justice court, acting within its defined limits, is a court' of general jurisdiction, and a judgment rendered within the scope of its powers cannot be collaterally attacked, and every presumption in favor of the validity of its judgment will be indulged. Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; Williams v. Haynes, 77 Tex. 283, 13 S. W. 1029, 19 Am. St. Rep. 752.

It is settled that the justice court in cause No. 653 had the power to decree a foreclosure of the attachment lien on the real estate and direct the sale thereof. Baker v. Pitluk & Meyer, 109 Tex. 237, 205 S. W. 982.

If the judgment of the justice court was void, it was subject to collateral attack, but, if not void, it was not subject to the collateral attack made upon it in this suit. Hence, the question before us for determination is whether or not said justice court judgment was void.

“It is settled that a judgment of a court of competent jurisdiction can not be collaterally impeached unless the record affirmatively shows the want of jurisdiction. Even where a part of the record, the citation and its return, shows that service could not have been had, the judgment of a Justice of the Peace reciting that the defendant wholly made default, and that he ‘was duly served with process,’ was held not impeached. The judgment being the final act of the Court, its judicial finding imported absolute verity.” Williams v. Haynes, 77 Tex. 283, 13 S. W. 1029, and authorities cited.

“It will be observed that most of these objections relate to failure of proper service upon these unknown heirs. In their brief in the Court of Civil Appeals, counsel for Chapman do not seek to justify the exclusion of this judgment upon any other ground than the fact that the papers in the case show a failure to comply with the requirements of the law as to service by publication upon unknown heirs. This contention of counsel cannot be sustained. This is a collateral attack upon a judgment of a court of competent jurisdiction. The judgment on its face recites due and legal service of citation. These recitals in the judgment in collateral attack cannot be contradicted by other portions of -the record. The judgment in. this respect imports absolute verity.” Chapman v. Kellogg (Tex. Com. App.) 252 S. W. 151.

Construing a cross-bill as a collateral attack upon the judgment of the county court, the Commission of Appeals, in Switzer v. Smith, 800 S. W. 31, says: “Since Treadway v. Eastburn, 57 Tex. 209, it has been the uniform holding of the courts in this state that, as against a collateral attack, the recitation of due service in the judgment proper is conclusive upon such matter, and may not be contradicted by other facts, whether appearing in the record or aliunde. Such recitation imports absolute verity. Martin v. Burns, 80 Tex. 676, 16 S. W. 1072; Gibbs v. Scales, 54 Tex. Civ. App. 96, 118 S. W. 188 (writ refused); Chapman v. Kellogg (Tex. Com. App.) 252 S. W. 151; Borders v. Highsmith (Tex. Civ. App.) 252 S. W. 270; Mariposa Mining Co. v. Waters (Tex. Civ. App.) 279 S. W. 576; Gillette’s Estate v. State (Tex. Civ. App.) 286 S. W. 261; Barton v. Montex Corp. (Tex. Civ. App.) 295 S. W. 950.”

It is held that the same presumption is' indulged in favor of jurisdiction, where citation is had by publication, and seizure of property as in a case where personal service is had. In Stewart et al. v. Anderson et al., 70 Tex. 588, 8 S. W. 295, the Supreme Court says: “There has been much difference of opinion in courts, for whose decisions we have the highest respect, as to whether the same presumptions will be indulged in favor of jurisdiction where reliance is placed on citation by publication and seizure of property as will-be where personal service, made within the territory over which the court has jurisdiction, is relied upon. It seems to us that there can be no substantial reason for holding, in the one case, that it must be affirmatively shown that such process as the law declares sufficient was properly executed, while, in the other, this will be presumed if the record does not show to the contrary. Whether the jurisdiction of a court be general or special cannot be made to depend upon the character of the process through which it acquires power over the person or thing to be affected by its final adjudication.” To the same effect is the announcement of the law in Hardy et al. v. Beaty et al., 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80; Iiams et al. v. Root et al., 22 Tex. Civ. App. 418, 55 S. W. 411.

The recitation in the judgment, that citation was by publication, is not a sufficient identity of the writ to bring this ease under the holding of Fowler v. Simpson, 79 Tex. 617, 15 S. W. 684, 23 Am. St. Rep. 370, because the judgment in that case not only recited citation by publication, but identified the citation “by referring to its date, the return of the officer and the writ upon which the court’s conclusion of lawful service of process was based. Instead of relying upon a presumption it points out the proof upon which its validity depends.”

As stated in the case of Gibbs v. Scales et al., 54 Tex. Civ. App. 96, 118 S. W. 188 (writ denied): “If the judgment recites service of citation, then, in the absence of some recital identifying the precise writ upon which the Court acted, such as was contained in the case last cited [Fowler v. Simpson], we do not believe the judgment is subject to a collateral'attack for lack of proper service.” To the same effect is the holding in Jameson v. O’Neall et al. (Tex. Civ. App.) 145 S. W. 680; Young v. City of Colorado (Tex. Civ. App.) 174 S. W. 986.

In Sloan et al. v. Thompson et al., 4 Tex. Civ. App. 419, 23 S. W. 613, the court says: “The judgment affirmatively finds that ‘proper service had been made by publication on the defendants.’ This is conclusive of all questions as to service, as to publication of citation for the proper length of time, return, and every other essential to make and complete service by publication.”

In Gillon et al. v. Wear et al., 9 Tex. Civ. App. 48, 28 S. W. 1015, the court says: “The recitation in the judgment that the parties were duly cited by publication imports absolute verity, and the same can not be attacked in a collateral proceeding.”

The facts on the issue involved in this appeal were fully-developed, and, under the authorities herein cited, we are of the opinion that the judgment of the justice court in cause No. 653 was not void, and its validity was not subject to collateral attack.

The judgment of the trial court is reversed in so far as it is involved in this appeal, and judgment is here rendered that appellant, the Last Ghance Gas Company, have and recover of and from the appellee, W. H. Ellinger, title and possession to the ⅞2 interest in the property decreed to appellee by the trial court.


author: I-IADL, C. J.

text:
    HEAD v. COMMISSIONERS’ COURT OF HUTCHINSON COUNTY et al.
    (No. 3234.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1929.
    McBride & Harney, of Borger, and Madden, • Adkins & Pipkin, of Amarillo, for appellant.
    Henry D. Meyers, of Borger, and Jos. H. Aynesworth, of Stinnett, for appellees.
   I-IADL, C. J.

This is an appeal from an order granting a temporary injunction. The county judge, joined by the commissioner of Hutchinson county, instituted this action against Dr. Head, alleging: That in October, 1926, the commissioners’ court of said county, by order duly entered, authorized Dr. Malone to purchase a site and erect a building upon it, which is referred to in the record as Malone’s Hospital, Head's Hospital, and the Pesthouse. That on October 26, 1926, the commissioners’ court entered into a contract with Dr. Malone and the Sanitary Appliance Company, whereby Malone, as the agent- of the commissioners’ court, was authorized to ■ contract with the Sanitary Appliance Company to construct, equip, and furnish a building to he used for hospital purposes. That the building was completed and has since been used and is at this time being used as a hospital, but has never been operated or controlled by the commissioners’ court or board of managers. That it has been devoted to private uses by physicians having possession thereof, including the defendant, Dr. J. W. Head, who now assumes to exercise possession by virtue of his being inside of the building, occupying it under a contract with the commissioners’ court dated December 3, 1928. That the county judge and commissioners who executed such contract with Head ceased to hold office January 1, 1929. That the contract made with Head on December 3, 1928, was to extend for a period of three years, and provides that Head should have possession and control of the building and appropriate all the revenues and income from the hospital upon his promise to care for county patients free of charge. That the judge and commissioners of said county who qualified as officers on the 1st day of January, 1929, entered an order upon the minutes of the commissioners’ court on the 10th day of January, 1929, rescinding the contract with J. W. Head and declared said contract canceled and void, and on the 19th day of January, 1929, by a further order of said court, appointed a board of managers, consisting of six persons who are qualified electors and taxpayers under the ' law to take charge of it and manage said hospital. That on January 10,1929, Dr. Head refused to surrender possession of said building and premises to said board of managers, although having been ordered to do so by the commissioners’ court, and announced that he would hold possession against the county for the full term of three years, as provided in his contract made with the preceding commissioners’ court, and that he persists in refusing petitioners a right to enter and possess said building and to conduct it in the discharge of the duties imposed upon them by law and in violation of the rights of the board of managers. That petitioners have no speedy, adequate, or complete remedy at law by which to remove defendant’s obstructions, and irreparable injury will be sustained by the people of said county unless the defendant be enjoined to permit petitioners and the board of managers a right to -enter to take actual possession of said- building and to thereupon cease to interfere with or interrupt petitioners in assuming and retaining possession of said hospital for the discharge of the duties imposed upon them by law through said board. The prayer is that a temporary mandatory injunction issue ordering defendant to permit immediate entry into the building by petitioners and its board of managers and that defendant be temporarily enjoined from in any wise interfering, molesting, or interrupting the commissioners’ court in their possession of the building and from in any wise annoying or harassing the commissioners’ court or its board in the discharge of their statutory duties. That upon a final hearing the mandatory injunction be made permanent. That the contract made by the former commissioners’ court with J. W. Head on December 3, 1928, be canceled, annulled, and held for naught.

Upon presentation of the petition, the court granted the temporary injunction as prayed for and set the matter for hearing on January 18, 1929.

The defendánt, Head, answered by general demurrer, several special exceptions, general denial, and alleged: That his contract with the commissioners’ court dated December 3, 1928, was valid and in full force and effect and had never been canceled or rescinded by any court of competent jurisdiction. That he had never at any time breached the terms of said contract, but had always complied therewith and intended .and desired to continue to comply with the terms thereof in all respects. That it was never the intention of the county to use the building as a hospital. That it was erected for the purpose of caring for indigent, poor, and needy patients who were in need of medical attention, and was erected for that purpose only, and that the county has been saved large sums of money, in that it has not been put to the expense of upkeep and operating the building as a hospital. That necessary parties have not been made to this action, in that the record title of the two lots in the town of Borger upon which the building is situated is in the Borger Town-site Company, a corporation, and not in Hutchinson county.

On the 28th day of January, 1929, all parties appeared, and the court entered an order overruling the general demurrer and all special exceptions, refusing to require the Bor-ger Townsite Company to be made a party, and decreed that the temporary injunction issued on the 16th day of January, 1929, be continued in force and effect until a final hearing and disposition of the matters in litigation should be disposed of by final judgment.

No statement of facts accompanies the record.

We do not pass upon the exceptions to the petition appearing in the defendant’s answer. This duty is left to the trial judge upon a hearing on the merits. City of Wichita Balls v. Whitney (Tex. Civ. App.) 11 S.W. (2d) 404.

While the petition alleges that Dr. Head is in possession of the premises, it was stated in the oral argument before this court that Head was in possession of only two rooms in the hospital building, and that the county had possession of the remainder. When reduced to its final analysis, the proceedings, in so far as the temporary injunction is concerned, is not one affecting the title of the property, but the only issue properly before the trial court and this court is the right of possession. A temporary injunction is ordinarily not available as a remedy to obtain the possession of real estate from one who is holding it under a claim of right. Hodges v. Christmas (Tex. Civ. App.) 212 S. W. 825; Jeff Chaison Townsite Co. v. McFaddin, Wiess & Kyle Land Co., 56 Tex. Civ. App. 611, 121 S. W. 716; Simms v. Reisner (Tex. Civ. App.) 134 S. W. 278; Moore v. Norton (Tex. Civ. App.) 215 S. W. 373.

Injunction cannot be resorted 'to where the complainant has an adequate remedy at law. If the county or the managing board is entitled to the possession of the premises, it has its remedy at law, and the equity powers of the court will not be exercised to accomplish that purpose. Hill v. Brown (Tex. Com. App.) 237 S. W. 252; City National Bank of Dallas v. Folsom (Tex. Civ. App.) 247 S. W. 591; Corpus Christi B. & S. Co. v. Corpus Christi National Bank (Tex. Civ. App.) 8 S.W.(2d) 955. If Dr. Head is a trespasser, the law furnishes a speedy and adequate remedy for ousting him. Allen & Yarbrough v. T. & P. Ry. Co. (Tex. Civ. App.) 7 S.W. (2d) 1102.

In his work on Injunctions, section 109, Joyce says, in granting or refusing temporary relief by preliminary injunction, courts of equity should in no manner anticipate the ultimate determination of the question or right involved. From the pleadings and orders before us, and in the absence of a statement of facts, the record is not in such condition that we would feel warranted in passing upon the validity of the contract made with Head and of the orders passed by the two commissioners’ courts. These matters can only be determined upon a final hearing. Plaintiff did not allege that Dr. Head was insolvent, nor is there any allegation of maladministration by him of the affairs of the hospital, and the county may, so far as the record shows, recover a valid Judgment' against him if his possession is a trespass, or may subsequently, oust him upon a final hearing whether his possession is legal or wrongful.

For the reasons stated, the temporary injunction is dissolved.


author: LOONEY, J.

text:
    AMERICAN SURETY CO. OF NEW YORK et al. v. NORTH TEXAS NAT. BANK et al.
    (No. 10320.)
    Court of Civil Appeals of Texas. Dallas.
    Jan. 5, 1929.
    Rehearing Denied Feb. 23, 1929.

      Saner, Saner & Jack and Turner & Rodgers, all of Dallas, for appellants.
    Thomas, Storey & Grady and Touchstone, Wight, Gormley & Price, all of Dallas, for appellees.
   LOONEY, J.

North Texas National Bank brought suit against W. C. Spangler, Southwest National Bank of Dallas, American Surety Company, and the Royal Indemnity Company. Plaintiff’s allegations are, in substance, that Spangler was employed by it as teller, and through his dishonest and criminal acts it sustained a loss of $38,571.-28; that by its bankers’ blanket bond issued July 7, 1925, the Royal Indemnity Company, called Indemnity Company, obligated itself to indemnify plaintiff to an amount not exceeding $100,000 from and against any loss it might sustain through any dishonest or criminal acts of any of its employees; that the loss sustained was within the period covered by the bond, for which both Spangler and the company were liable; that on May 13, 1925 (effective May 16, 1925), plaintiff succeeded by contract of purchase to the banking business of Southwest National Bank, called Southwest Bank; that on and prior to July 7, 1923, Spangler was also employed by Southwest Bank in same capacity, that is, as teller; that the American Surety Company, called Surety Company, by its bankers’ blanket bond, effective July 7, 1923, to July 7, 1925, agreed to indemnify said bank to an amount not exceeding $100,000 against any loss it might sustain through any dishonest or criminal acts of any of its employees, etc.; that upon the succession to its business by plaintiff, the liability of Surety Company, by a rider attached to said bond, was continued in favor of plaintiff to July 7, 1925, and thus the Surety Company became liable to plaintiff for all loss sustained by reason of Spangler’s dishonest or criminal conduct committed from and including May 16, 1925, to July 7, 1925; and further alleged that, if the loss occurred prior to May 13, 1925, the Southwest Bank was liable to it under the terms of the succession contract.

The Surety Company answered by general and special exceptions, general and special denials. The Southwest Bank answered by general demurrer and denial, and, in a cross-bill, over against Surety Company, alleged, in substance, that by different bonds issued it agreed to indemnify Southwest Bank against loss from any dishonest or criminal acts of any of its employees; that prior to the sale of its banking business to North Texas Bank, Spangler, one of its employees, embezzled from it the principal sum of $38,571.28, which was replaced by Span-gler on May 16, 1925, but interest thereon was not paid, wherefore it prayed for judgment against both Spangler and the Surety Company for the interest that accrued upon the various sums embezzled. In answer to the cross-bill, the Surety Company pleaded misjoinder of causes of action, general denial, the statutes of limitation of two and four years (Rev. St. 1925, arts. 5526, 5527), and prayed that, if judgment should, in any event, be rendered against it in favor of either plaintiff or Soüthwest Bank, that it have judgment over against Indemnity Company.

Indemnity Company urged general and special exceptions, general denial, and a special plea to the effect that the bond issued by it to plaintiff upon which the suit is based became effective July 7, 1925; that Span-gler’s embezzlements were committed prior to that date; that the loss resulted when the money was actually appropriated; and that his acts of concealment did not create a loss within the meaning of the bond. The Indemnity Company prayed, however, that if, in any event, judgment should be rendered against it in favor of plaintiff, for a loss that accrued prior to July 7, 1925, that it have judgment over against Surety Company for the same amount.

The case was tried without a jury and resulted in judgment for plaintiff against both Indemnity Company and Surety Company for the principal sum of $38,571.28, with $9,-605.04 interest; in favor of Indemnity Company over against Surety Company for same amount; in favor of each of these companies against Spangler for same amount; in favor of Southwest Bank on its cross-bill against Surety Company for $3,672.36 interest ; that plaintiff take nothing on its cross-bill against the Indemnity Company. Both bonding companies have appealed.

The material facts are these: Spangler was employed as teller, first by the Security National Bank of Dallas, until it was succeeded by Southwest Bank on June 19, 1921, was continued by the latter in same capacity, until it was in turn succeeded by plaintiff bank on May 16, 1925, and thereafter served the latter in the' same capacity until the discovery of his shortage September 1, 1925.

Spangler began to embezzle money prior to January 19, 1919, while in the service of Security National Bank, and continued at intervals during his service with Southwest Bank until April, 1925, when the aggregate amount of his embezzlements reached the principal sum of $38,571.28. I-Ie succeeded in conceáling his wrongdoing by withholding for a day or two evidence of deposits made by customers, and when other deposits were made would pass the latter in with the withheld credit slips, when proper credits would be entered on the books in favor of said depositors, and, in turn, would withhold evidence of the other deposits, which were credited later in the same way. On Monday, May 16,1925, the first day he served North Texas Bank as teller, in like manner, he caused money deposited by a group of its customers, equal in amount to his shortage, to be passed to the credit of customers of the Southwest Bank of the Saturday preceding, evidence of whose deposits he had withheld, and throughout the time he served North Texas National Bank as teller, from day to day, he withheld evidence of deposits, equal in amount to his. shortage, which, within a day or two, could be properly credited with money deposited by other customers, until detected September 1, 1925. On the next day he made a full confession and at that time had on his person evidence of deposits made September 1, 1925, by five certain depositors, that equaled his shortage. These five depositors had not been credited, as the money deposited by them was passed by Spangler to the credit of a preceding group, whose deposit slips he had in like manner been withholding. Plaintiff bank recognized and discharged its liability as debtor to these five depositors by making proper settlements.

Aside from questions that grew out of the cross-bill of Southwest Bank against Surety Company, for the recovery of interest to be discussed later, this contest is largely between the two bonding companies as to which should be compelled to pay the loss sustained by plaintiff. The Indemnity Company contends that the loss occurred prior to the effective date of its bond, whilst the contention of Surety Company is that the loss occurred, after its bond expired, but each company prays, in the event of an adverse judgment as to it, for judgment over against the other.

The pertinent provisions of the 'bonds of these companies are in effect the same — that is, each agreed to indemnify its insured against any loss through any dishonest or criminal act of any of its employees, etc., to an amount not exceeding $100,000. It follows, therefore, that the mere commission of dishonest or criminal acts by Spangler was not sufficient to fix the obligation of indem-nitor to pay; a loss must result therefrom before liability under the bond could exist. Therefore if, on September 2, 1925, Spangler, with outside money, could have caused proper credits to be entered in favor of the five depositors of September 1, 1925, whose deposits he diverted in favor of prior depositors, plaintiff would have lost nothing, and there could have been no recovery on the bond, notwithstanding the many acts of dishonesty and crime committed by him during the preceding ten years. When Span-gler received the money of the five customers of the bank September 1,1925, the relation of debtor and creditor was created between them and plaintiff bank, although they received no credits for the amounts deposited. Plaintiff discharged its. liability to these, and, in doing so, was compelled to draw upon its resources other than general deposits. This was not the case as to other depositors; they had been properly credited, and presumably were paid from general deposits in due course of business, and thus, on September 2, 1925, Spangler’s protacted dishonesty and crimes reached a climax, culminating in loss to plaintiff of the sum of $38,-571.28.

Indemnity Company, combatting this idea, cites an array of authorities in support of its contention that the loss to plaintiff did not occur during, but prior to, the effective date of its bond.

After careful examination, we are of the opinion that each case cited is distinguishable from the present case, either on the facts or conditions of the bonds involved. The cases seemingly relied upon by Indemnity Company with greatest confidence are: Fidelity & Casualty Co. of New York v. National Bank (C. C. A.) 71 F. 116; First National Bank v. National Surety Co. (C. C. A.) 130 F. 401, 66 L. R. A. 777; Royal Indemnity Co. v. Vitrified Products Co., 117 Ohio St. 278, 158 N. E. 827.

Fidelity & Casualty Co. of New York v. National Bank (C. C. A.) 71 F. 116, was a suit on a bond to recover the sums embezzled by an employee of plaintiff bank. The bond contained a condition, among others, that no liability would exist for an embezzlement not discovered within twelve months after the expiration of the bond. The employee, by falsifying books and records of the bank, evaded detection until after the twelve months’ period. The court held that the failure to discover the embezzlement within twelve months was a complete bar to the action. That question is not involved in the instant case. First National Bank v. National Surety Co. (C. C. A.) 130 F. 401 (opinion by Judge Lurton), turned on the proper application as between different sets of sureties of deposits. The bookkeeper of the bank had, by falsifying the record during a period of four years, given a customer a fictitious credit of about $50,000. During the four years the bank was protected by different bonds, the last, the one in suit, covered only a few months, during which time deposits made by the favored customer exceeded drafts drawn against the account. The court held that plaintiff could not recover because, by applying deposits as credits during the period covered by the bond, no loss was sustained, notwithstanding, as the net result of the dishonesty of the bookkeeper for the four years, a fictitious credit of $50,000 was created in favor of the customer, which resulted in an actual overdraft and loss to the bank of that amount. This case bears but a slight resemblance to the ease under consideration. The other case, that of Royal Indemnity Co. v. Vitrified Products Co., decided by the Supreme Court of Ohio, reported in 117 Ohio St. 278, 158 N. E. 827, bears a closer resemblance to the instant case. The bond involved there protected the Products Company against pecuniary loss of money, funds, etc., that it might sustain by any act or acts of fraud or dishonesty (including embezzlements, abstractions or misapplications) of certain of its employees, including its cashier. The cashier embezzled funds of insured and covered same with funds subsequently collected from debtors of the company, and continued this procedure, undetected, until his death. The bond in that suit became effective subsequent to the actual taking of money by the cashier. The court held that the loss occurred when the original act of taking was committed; that the use of money subsequently collected to cover prior defaults did not constitute a new pecuniary loss, in that the loss ha.d already been sustained. While this case resembles the one at bar in the method pursued by the dishonest employee, yet in a very material sense it is distinguishable in this, the cashier, in misapplying subsequent collections to cover up prior defaults, committed no act from which a loss could have developed, whilst in the instant case, by juggling and manipulating deposits and credits, Spangler not only avoided detection for years, but had so circumstanced the case as to postpone the maturity of the loss as well.

We are of the opinion, therefore, that the court did not err in rendering judgment for plaintiff against the Indemnity Company for the amount of the loss, to wit, $38,571.28, but, in this connection, we find that the court erred in allowing an excessive amount of interest. The loss having occurred September 2, 1925, plaintiff is entitled to interest on the amount lost from that date to December 9, 1927, the date of judgment, at 6 per cent, per annum, which produces the sum of $5,249.88.

Having reached the conclusion that no loss occurred to plaintiff during the life of the bond issued by Surety Company, as extended by the attached rider, we sustain its contention and hold that the judgment against it for plaintiff is erroneous.

The Surety Company also complains of the judgment over against it in favor of the Indemnity Company. These bonding companies were not cosureties, nor sureties bound for the performance of the same thing; in fact, the liability of Surety Company ended on July 7, 1925, at the instant the -liability of the Indemnity Company began. It follows, therefore, that the doctrine of contribution between sureties is not applicable to the case. If the judgment in favor of Indemnity Company over against the Surety Company was authorized at all, it must be based upon the doctrine of subrogation.

The remedy'of subrogation may exist, even in the absence of a contract, where a party, not a volunteer, discharges an obligation for which another is primarily liable.. In such event, equity will clothe the party thus discharging the obligation in the legal garb with which the contract he has discharged was invested, and will substitute such party to every equitable interest and purpose in the place of the party whose obligation he has discharged. Pease v. Egan, 131 N. Y. 262, 30 N. E. 102, 105; Galbraith, etc., Co. v. Long (Tex. Civ. App.) 5 S.W.(2d) 162, 167.

But no loss was sustained by insured through misconduct of Spangler committed during the life of bonds issued by Surety Company; no liability existed for which judgment could properly have been rendered against it; hence the doctrine of subrogation was not invoked by the facts.

The only authority cited by Indemnity Company, in support of the contention that it was entitled to judgment over against the Surety Company, is the case of Yawger v. American Surety Co., 212 N. Y. 292, 106 N. E. 64, L. R. A. 1915D, 481, 484. This case is not in point. The question of subrogation was not involved. The case turned on the application of the doctrine of contribution between cosureties on official bonds of a town treasurer. Among other things the court said: “We think that to the extent of the loss suffered during the first term the defendant, as well as the second surety, was liable to the town, and that the second surety, having discharged a debt for which the defendant was equally bound, is entitled, through the remedy of contribution, to enforce an equitable division.”

We are of the opinion that the judgment over in favor of Indemnity Company against Surety Company is erroneous.

Surety Company also complains of the judgment for interest' against it in favor of Southwest Bank. The funds embezzled by Spangler from Southwest Bank were after-wards replaced, and his liability extinguished by the application thereto as credits deposits made by customers of plaintiff bank, as before explained, but Southwest Bank was deprived of the use of the money in the meantime, suffered a loss incident thereto, and was entitled to recover from both Span-gler and Surety Company 6 per cent, interest as damages on the money embezzled. Surety Company was obligated to indemnify and hold Southwest Bank harmless from any loss through any dishonest or criminal act of Spangler’s. If this obligation is performed by Surety Company, the bank must be placed in the same position it would have occupied if Spangler had not taken and detained its money.

The statute fixes the value of the use or detention of money, arising on written contracts where no-rate of interest is agreed upon, at 6 per cent, per annum, and by analogy the same measure will be applied as damages where money has been converted. Commercial, etc., Bank v. Jones, 18 Tex. 811, 830; Houston & T. C. Ry. Co. v. Jackson, 62 Tex. 209; Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Baker v. Smelser, 88 Tex. 26, 28, 29 S. W. 377, 33 L. R. A. 163; Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031; McDaniel v. National, etc., Co., 112 Tex. 54, 244 S. W. 135.

The Surety Company also contends that the claim for interest was barred by both the two and four years’ statutes of limitation prior to the filing of the cross-bill. The bond of the Surety Company being a written contract that ascertains the sum payable within the meaning of article 5070, R. S. 1925; Federal Life Ins. Co. v. Kriton, 112 Tex. 532, 249 S. W. 193, the claim is controlled by the four years’ statute. Article 5527, R. S.1925; Maryland Casualty Co. v. Farmers’, etc., Co. (Tex. Civ. App.) 258 S. W. 584; American Surety Co. v. Blaine (Tex. Civ. App.) 272 S. W. 828; Id., 115 Tex. 147, 277 S. W. 619.

As the cross-bill was filed November 30, 1927, all interest that accrued on the money embezzled within four years prior to that date is, in our opinion, recoverable. The evidence justifies the following conclusions: That is, on November 30, 1923, Spangler’s shortage amounted to $20.801.26; on January 23, 1924, $29,287.23; on July 7, 1924, $36,994.-17, and on April 1, 1925, $38,571.28; and thus it remained until Southwest Bank was succeeded by the North Texas Bank May 16, 1925. By computing interest, at 6 per cent, per annum, on these amounts for the periods indicated, we ascertain that Spangler was due Southwest Bank on May 16, 1925, interest, as damages on the money embezzled, the sum of $2,894.46. This was the bank’s loss, on which Surety Company should be charged interest, eo nomine, at the rate of 6 per cent, per annum from May 16, 1924, to December 9, 1927, the date of judgment, to wit, $447.18, making a total of $3,341.64, for which judg; ment should have been rendered.

The Surety Company also assigns error on the action of the court in admitting in evidence, over the objection that same was hearsay, the confession of Spangler. On September 2, 1925, Spangler was under suspicion, but before being actually discharged by plaintiff made a verbal confession, after-wards reduced to writing, in which he gave the origin and progress of his embezzlements, the method pursued of taking money deposited by one group of customers and passing same to the credits of customers of a preceding day, etc., as hereinbefore fully explained. When his probity was questioned, Spangler owed his employer the duty of a full and frank explanation of his conduct. The confession related to matters occurring during the period covered by the bond and within the' twelve months thereafter for discovery ; it followed immediately after his conduct was called in question, and was made to officials of plaintiff bank that had, under contract of succession, taken over the banking house and business of Southwest Bank. We think that under these circumstances the confession was admissible as res gestae. Brite v. Atascosa County (Tex. Civ. App.) 247 S. W. 878; Farmers, etc., Co. v. U. S. Fidelity, etc., Co., 150 Minn. 126, 184 N. W. 792; Kent County v. Krakowski, 207 Mich. 631, 175 N. W. 427. But Spangler testified later by oral deposition to substantially the sainé facts, and at the examination appellant exercised the privilege of cross-examination. The deposition testimony was original evidence, unobjectionable in nature, and its admission rendered harmless the error, if any was committed, in admitting the confession.

The Surety Company also assigns error on the admission of the testimony of the expert witnesses, Massie and Keane, over its objection that the same constituted unwarranted opinions and conclusions. These witnesses were experts in regard to the matters-about which they testified; their testimony, and the report of the witness Keane, resulted from an exhaustive audit of the books of the banks, as they related to the defalcations of Spangler. Massie’s audit covered the period of Spangler’s services as teller with the plaintiff, while the audit and report of Keane covered the entire period of his services with the three banks.

Appellant offered no evidence' on this issue and made no attempt to show that the audits or the reports were incorrect. As the facts were too voluminous to admit of a practical or satisfactory examination of the books and records in open court, the situation not only authorized but demanded this character of evidence to show what the books and voluminous records revealed in regard to the matters under investigation. Clopton v. Flowers (Tex. Civ. App.) 183 S. W. 68, and authorities cited; Cochran v. Hamblen (Tex. Civ. App.) 215 S. W. 374; Stark v. Burkitt, 103 Tex. 437, 129 S. W. 343; Esterman-Verkamp Co. v. Rouse, 211 Ky. 791, 278 S. W. 124.

We have carefully considered all assignments and propositions urged by appellants, including those not specifically discussed, as well as those mentioned, and, except as here-inbefore indicated, they are overruled. The judgment for North Texas National Bank against Royal Indemnity Company will be reformed, by reducing the interest allowance to $5,249.88, which, added to the principal, $38,571.28, totals $43,821.16, and as reformed is affirmed; the judgment for North Texas National Bank against American Surety Company, and for Royal Indemnity Company against American Surety Company, are both reversed and here rendered for the Surety Company; the judgment for Southwest. National Bank against American Surety Company for interest is reformed by reducing the recovery to the .sum of $3,341.64, and as reformed is affirmed; in all other respects the judgment below is affirmed.

The costs of appeal in this and the court below ■ will be taxed against and paid by North Texas National Bank, Southwest National Bank, and Royal Indemnity Company, one-third each.

Affirmed in part; reformed and affirmed in part; reversed and rendered in part.

On Motion for Rehearing.

The able argument filed by counsel for Royal Indemnity Company, in support of its motion for rehearing, vigorously assails the correctness of our decision and the soundness of our reasoning. The pivotal question is, When did the loss occur for which recovery is sought? Appellant cites a number of authorities in support of the proposition that the relation of debtor and creditor, between plaintiff bank and these depositors, arose the moment the deposits were made, and that the entry, or the failure to enter, credits in their favor on the books of the bank, had nothing to do with that relationship.

We do not controvert the correctness of the proposition that, when these five customers deposited money with Spangler, each became the bank’s creditor just as other depositors, but there was this difference, which in our opinion dates the loss at this time: The bank was compelled to discharge its liability to these depositors from resources other than general deposits, either from its capital or earnings. This was not true as to depositors who had been properly credited, and, presumably, were paid in due course of business, from general deposits. The bank sustained no actual loss by paying depositors from general deposits — in effect, that was but the paying back of money previously deposited — but when the bank was compelled, through Spangler’s misconduct, to pay these depositors from resources other than deposits, an actual, as distinguished from a potential, loss was sustained.

Appellant insists that the loss occurred when Spangler appropriated or pocketed money belonging to the bank, and that his acts of concealment neither increased nor in any manner contributed thereto. The word “loss” has a variety of meanings, dependent upon the connection in which it is used. As used in this policy, we think the payment of money by plaintiff to the five depositors constituted and measured an actual loss, which theretofore was simply potential or threatened.

Under the terms of the policy in suit, the obligation of appellant to pay was not -fixed by Spangler’s dishonest or criminal acts; standing alone, these meant nothing; its obligation was fixed only by the resultant loss; therefore, when the cumulative effect of Spangler’s misconduct compelled plaintiff to pay depositors from its resources other than deposits,' an actual loss was sustained, and appellant’s obligation to. pay was thereby fixed. Stag Mining Co. v. Missouri, etc., Co. (Mo. App.) 209 S. W. 321, 323; Lowe v. Fidelity, etc., Co., 170 N. C. 445, 87 S. E. 250.

Appellant insists that State v. Atherton, 40 Mo. 210, is directly in point and supports its contention. We did not refer to this case in the original opinion, because the conditions of the bonds, there and here, are so dissimilar we did not believe the case was in point. The facts of that case, aside from the conditions of the bond involved, are as near identical with the facts of the instant case as is usually found, but the conditions of the bonds differ radically. In the Atherton Case the court held that the bond was for the integrity and faithful performance of duty by the bank teller, and that any act on his part in violation of these conditions amounted to a breach; in other words, the, bond was breached when the teller defaulted. That was not true under the conditions of the bond in suit, for the reason that Spangler’s criminal arid dishonest acts, standing alone, neither breached the bond nor fixed appellant’s obligation to pay.

It is also contended by appellant that Fidelity &"Casualty Co. of New York v. Consolidated National Bank (C. C. A.) 71 F. 116, is also directly in point and supports its contention. The conditions of the bond that fixed the obligation to pay are in legal effect the same as the conditions of the bond under consideration, but the similarity of the cases ends at that point. The facts are not given; it is simply stated that the bank teller was guilty of fraud and dishonesty; that the Indemnity Company admitted liability for an embezzlement of $5,000, committed within twelve months next before the discovery; but recovery was also sought for previous em-bezzlements not discovered, because of the fraudulent conduct of an employee, within the twelve months’ period. The court held that the loss was occasioned by the embezzle-ments of the employee and not by his fraudulent acts of concealment. It does not appear that any loss could have resulted from any act committed by the employee in an effort to conceal his crime; they simply obscured and prevented discovery. In the instant ease, however, gpangler, by daily acts of dishonesty, not only prevented detection for years, but so circumstanced the case as to postpone the maturity of the loss as well, with the result that it developed and fell on plaintiff when compelled to discharge its obligation to the five depositors in question. As we view these circumstances, the bank could only have sustained an actual loss by having to respond to its liability as debtor to these depositors.

Spangler’s conduct, in juggling deposits, shifting, money deposited by one customer to the credit of another, thus obscuring his crimes and postponing the maturity of the loss, was acting clearly within the scope of his authority as teller, and, although his conduct was fraudulent and for his own personal benefit, nevertheless the bank’s liability to customers and its obligation to respond was fixed by and according to the method pursued by him. This view, that is, that the bank was bound by the events as ordered by Spangler, is sustained by the doctrine announced by the Supreme Court of United States in the recent case of Gleason v. Seaboard, etc., Co., 49 S. Ct. 161, 73 L. Ed.-, to the effect that the liability of a principal for the conduct of an agent, acting within the scope of his authority, is unaffected by the agent’s fraudulent motives or secret purposes.

If, however, we should be mistaken — if in fact plaintiff’s loss occurred on May 16, 1925, when Spangler applied money deposited by customers of plaintiff bank to the credit of customers of Southwest Bank, of Saturday preceding — American Surety Company should, in our opinion, be held liable to plaintiff for the loss by virtue of the rider attached to its bond issued to Southwest Bank, continuing same in favor of plaintiff as beneficiary, from May 16, 1925, to July 7, 1925.

A careful re-examination has brought a clearer and better understanding of the case, also the discovery of certain expressions in the original opinion, apparently in conflict with our views expressed at this time; hence the original opinion will be altered to harmonize with the views here expressed.

After carefully considering all grounds urged by Indemnity Company for rehearing and finding no reason to change our decision, the motion is overruled.

On appellant’s request, we file additional findings, as follows:

“That on July 6, 1925, Royal Indemnity Company executed its bankers’ blanket bond to North Texas National Bank, agreeing to indemnify the bank from and against any loss through any dishonest or criminal acts of any of its officers, clerks, or other employees, which bond was in full force and effect on September 2, 1925. That the bond issued by the American Surety Company to Southwest National Bank was effective until July 6, 1925, and on the succession of North Texas Bank to Southwest Bank on May 16, 1925, the American Surety Company, by a rider attached to said bond, continued it in full force and effect in favor of North Texas Bank until July 6, 1925, at which date the bond of Royal Indemnity Company became effective. That Spangler’s misappropriation of money and the dates thereof were as follows:

On or before July 7, 1920.$ 1,087 63
On or before August 14, 1922 . 778 22
On or before September 20, 1922. 7,964 60
On or before March 10, 1923..... 4,430 36
On or before July 9, 1923. 6,540 45
On or before January 23, 1924. 8,485 97
On or before July 7, 1924. 7,706 94
On or before July 7, 1925. 1,577 11
Total . $38,571 28

That the last money appropriated by Spangler — that is, by putting it in his pocket —was April 1, 1925.

American Surety Company of New York has also filed motion for rehearing, complaining of the judgment rendered against it in favor of Southwest Bank, for interest, in the sum of $3,341.64. After due consideration, this motion is also overruled.

Both motions for rehearing are overruled.


author: WALKER, J.

text:
    STEVENSON v. MILLS.
    (No. 1772.)
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 25, 1929.
    Rehearing Denied Jan. 30, 1929.

      Rucks & Enlow, of Angleton, for appellant. Austin Y. Bryan, Jr., of Houston, for ap-pellee.
   WALKER, J.

This suit was instituted in the district court of Harris county on April 12, 1926, by the state of Texas against Land Title & Trust Company, appellee, V. W. Mills, and appellant, S. K. Stevenson, and the unknown heirs of Mills and Stevenson, to foreclose a tax lien against the property hereinafter described. Judgment was rendered for the relief prayed for upon the confession of all the defendants. Appellee, Mills, answered by plea in the nature of trespass to try title against his codefendant, appellant, Stevenson, praying for judgment for the land involved in the tax suit of the state, describing it as follows: “All of outlots 81, 46 and 140 to the town of Deer Park, Harris County, Texas; also Lot 26 Block 28 town of La Porte, Harris County, Texas.”

Appellant, Stevenson, answered by the same sort of plea over against appellee, Mills. Appellant’s plea was special, in the nature of a collateral attack against appellee, Mills’, title, and against this plea the court sustained a general demurrer. Between appellant and appellee the ease was tried without a jury, with judgment for appellee, Mills, for the land in controversy. Though reserving no exceptions to the ruling of the court sustaining the demurrers against his answer, appellant has brought forward by objections to the testimony offered by appellee, and by exceptions to the court’s exclusion of certain testimony offered by him, the same legal propositions advanced by his plea.

It was conceded that appellant was the common source of title. Appellee offered in evidence the following record title:

(a) Judgment in cause No. 85344, State of Texas v. S. K. Stevenson and others, dated 12-22-19, foreclosing the tax lien against the following described property: “All of out lot No. 140, being 5 acres, in the town of Deer Park, Harris County, Texas. Also out lots 46 and 81 in the town of Deer Park, Harris County, Texas. Also Lots 26 in Block 28 in the town of La Porte, Harris County, Texas.”

The judgment made the following findings and recitations as to service and foreclosure:

“This day came on to be heard’the above numbered and entitled cause, and this day came the plaintiff, The State of Texas, by its attorney, and the defendants S. K. Stevenson and C. S. Ranck and all persons owning or claiming any interest in the property described in plaintiff’s original petition having been duly cited by publication to answer plaintiff’s petition herein as it fully appeared to the court, and a sufficient time having elapsed after such service, the court appointed E. H. Vasmer, Esq. a practicing attorney of this bar, to represent said defendants so cited by publication to answer plaintiff’s petition. * ⅜ * And it, is adjudged and decreed that a lien against each of said tracts or parcels of land for the amount of the taxes, interest and costs herein adjudged to be due on the same, which lien is hereby foreclosed as against said defendant on each of said tracts of land; and it (is further ordered, adjudged that in default of payment of this judgment, interest and costs an order of sale be issued by the clerk of this court, directed to the sheriff or any constable of Harris County, Texas, commanding such officer to seize, levy upon and advertise for sale as under execution each of said tracts of land, and sell the same to the highest bidder for cash as under execution, but if defendant or their attorney shall at any time before the sale file with the sheriff or other officer in whose hands this order of sale shall be placed a written request that the property therein shall be divided and sold in less tracts than the whole, together with a description of said subdivisions, then such officer shall sell the land in said subdivisions as the defendant may request and in such case shall only sell as many subdivisions as near as may be to satisfy this judgment.”

(b) Order of sale issued on judgment just above described, dated 12-22-19, in all things regular, directing the sale of the property described in the judgment.

(c) Sheriff’s return on the order of sale, in all things regular, showing sale of the property, ■ on the 6th day of April, 1920, to the Commonwealth Land & Title Company;

(d) Sheriff’s deed dated 14th day of April, 1920, in all things regular, conveying the property to the purchaser.

(e) Map of the town of Deer Park and map of the outlots to the town of Deer Park, the lots in controversy being identified on the maps as part of the outlots.

Appellee held title under the purchaser in the foreclosure sale.

Appellant insists that a fatal variance exists between the description of the lots as sued for by appellee and as described in the tax judgment and sheriff’s deed, in that the property was described by appellee in his answer as “out lots to * ⅜ ⅜ the town of Deer Park,” while in the judgment and sheriff’s deed . they were described as “outlots * * * in the town of Deer Park.” No variance or ambiguity'grows out of the use of the word “in” in one description and the word “to” in the other. The lots are definitely located by the description “outlots.” Being “outlots,” they could not be “in” the town of Deer Park in the sense of being part of the original plat of the town. By using the word “in” in the judgment in connection with the words “outlots,” the lots were clearly identified as simply parts of the municipal area of the town of Deer Park, a very common use of the word “in” in that connection. Most towns have outgrown the original municipal area, and in speaking of certain property as being “in” such towns, it is not necessarily understood that the property is a part of the original plat, but the description is meant to identify the property as being a part only of the municipal area. The maps and plats introduced in evidence in this case satisfactorily identify the property under its designation of “outlots,” and that was all that was necessary. The rule was thus stated by the Commission of Appeals in Miller v. Hodges, 260 S. W. 168:

“The sole purpose of a description of land, as contained in a deed of conveyance, being to identify the subject-matter of the grant, a deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey.”

By offering the -judgment, the order of sale, the sheriff’s return, and sheriff’s deed, appellee made a prima facie title in so far as the tax suit in the case of the state of Texas against appellant, S. K. Stevenson, was concerned. Harris v. Mayfield (Tex. Com. App.) 260 S. W. 835. As against a collateral attack, the case just cited also holds that judgments in tax foreclosures “have been definitely placed upon the same plane with judgments in general.” And in Brown v. Bonougli, 232 S. W. 490, cited in support of Harris v. May-field, the Supreme Court, speaking through Judge Greenwood, said that a tax sale in consummation of a valid judicial foreclosure is on the same plane “with respect to collateral attack, as other execution sales.”

Appellant seeks to attack appellee’s tax title by the following additional assignments:

(a) As appellant construes the tax judgment, the foreclosure was against all the lots for the taxes due separately on each lot, when it should have been against each lot only for the taxes due against it. He asserts that “it affirmatively and conclusively appears from the face of said tax judgment and the record in said cause” that the lots were separately assessed, yet he asserts the foreclosure was in solido. Therefore, he says, the judgment was “void” and should have been excluded.

(b) The court erred in excluding the original rendition sheets on the ground that, as construed by appellant, they showed separate renditions on the property against which the tax lien was foreclosed.

(c) The court erred in excluding the statement of facts preserved on the trial in said cause on the ground that, as construed by appellant, it affirmatively appeared from the statement of facts that the suit was against appellant, a nonresident, based upon citation by publication, directed to the sheriff of Harris county, Tex., “whereas, the law requires in suits for the collection of delinquent taxes that notice of such suits should be directed to the person sued and that, therefore, the court was without jurisdiction to try said cause and enter judgment therein.”

(d) “The court erred in excluding from evidence upon appellee’s objections the affidavit of the attorney for the state in said cause No. 85,344, for the reason that said affidavit recites that the defendant, S. K. Stevenson, on the 21st day of November, 1919, the date citation by publication was issued in said cause, was a non-resident of the state of Texas, and because said affidavit, taken in connection with the judgment in said cause which recites that the defendant, Stevenson, was cited by publication in said cause and the statement of facts filed and made a part of the record in said cause which recites that the citation by publication issued in said cause was directed to the sheriff of Harris county, Tex., shows that said, citation by publication issued in said cause was illegal and void and that the judgment based thereon was void.”

The attack thus made by appellant upon the tax judgment as a link in appellee’s chain of title comes clearly within the Supreme Court’s definition of a collateral attack, as given in Crawford v. McDonald, 88 Tex., 626, 33 S. W. 325: “A collateral attack on a judgment is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes” set out, etc.

The judgment in the case of State of Texas v. Appellant recited due service of process upon him, together with all other jurisdictional facts. Though a tax suit, under Harris v. Mayfield and Brown v. Bonougli, supra, it is on the same plane with regards to collateral attack as judgments in general. Appellant’s assignments and propositions do not show error, since the attack thus made was purely collateral. The decisions are directly against appellant’s propositions. That a foreclosure in solido does not render the judgment void was held in Orr v. Wallace (Tex. Civ. App.) 285 S. W. 650, and Lacy v. Sanders (Tex. Civ. App.) 295 S. W. 288. In the last case it was said:

“Appellant also contends that he should have been permitted to introduce in evidence the rate card of the tax assessor and collect- or for the years 1908 and 1909, also the tax assessor’s abstract book for the same years, for the purpose Of showing that the judgment in-the tax suit was for more than was owing by the owner of the property. This is a collateral attack upon the judgment in the tax suit, and the question of its excessiveness cannot be inquired into except upon direct attack.”

Also in Ryon v. Davis, 32 Tex. Civ. App. 500, 75 S. W. 59, it was said:

“An execution sale of several tracts of land in gross for taxes, for which a judgment of foreclosure in gross has been rendered, is not void.”

If the judgment on its face decrees a foreclosure in bulk against all of the lots for all of the taxes, it is not void. The court’s jurisdiction to enter such a judgment is clearly granted by article 7326, R. S. 1925: “All suits to enforce the collection of taxes as provided in this law shall include all lands in the county yvhere the suit is brought, owned by the same person on which delinquent taxes are due,” etc.

It affirmatively appears from the face of the judgment that appellant owned the lots in controversy and the delinquent taxes were due against said lots. If the judgment decrees a foreclosure only against each lot for the taxes due thereon, as appellee construes it, of course it is not' void, and under that construction would be in compliance with the law as advanced by appellant.

Lacy v. Sanders, supra, is direct authority for the exclusion- of the rendition sheets. The failure to comply strictly with the regulations of the law as to service by publication was held in Chapman v. Kellogg (Tex. Com. App.) 252 S. W. 151, not to render the judgment subject to collateral attack. It was there said: “In their brief in the Court of Civil Appeals, counsel for Chapman do not seek to justify the exclusion of this judgment upon any other ground than the fact that the papers in the case show a failure to comply with the requirements of the law as to service by publication on unknown heirs. This contention of counsel cannot be sustained. This is a collateral attack upon a judgment of a court of competent jurisdiction. The judgment on its face recites due and legal service of citation. These recitals in the judgment in collateral attack cannot be contradicted by other portions of the record. The judgment in this respect imports absolute verity.”

This authority disposes of appellant’s propositions relating to the citation and the sufficiency of the affidavit of the attorney for the state upon which the issuance of the citation was based.

Rinding no error in the record, it is our order that the judgment of the trial court be, and the same is hereby, in all things affirmed.


author: FUNDERBURR, J.

text:
    MAGNOLIA PETROLEUM CO. v. FORD.
    (No. 524.)
    Court of Civil Appeals of Texas. Eastland.
    Jan. 25, 1929.
    Rehearing Denied March 1, 1929.

      Conner & McRae, of Eastland, for appellant. Will R. Saunders, of Breckenridge, and Grisham Bros., of Eastland, for appellee.
   FUNDERBURR, J.

In the trial court Mrs. Eleanora Ray Ford, joined pro forma by her present husband and suing for herself and her two minor children, recovered judgment against Magnolia Petroleum Company for $4,-000. The suit was for exemplary damages only for alleged gross negligence resulting in the death of John T. Ray, the former husband of Mrs. Ford, and father of said two children, who at the time was an employee of said company as a machinist. The defendant was a subscriber under the Workmen’s. Compensation Act. The ease is brought here by appeal of the defendant company.

By far the greater part of appellant’s brief deals with propositions which are only applicable to the case if the common-law defenses of contributory negligence and assumed risk are, under the law, available as defenses to the suit. Appellant seems to assume that they are and asserts no proposition designed to show that such is the case. Appellees contend that R. S. art. 8306, § 1, abolished such defenses in a case of this kind. We have reached the conclusion that this is correct. Section 1 of article 8306 purports to abolish said common-law defenses in any action to-recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained. The act provides a number of exceptions, none of which in terms include actions seeking to recover exemplary damages for gross negligence. Section 5 of said article excepts from the operation of the Workmen’s Compensation Act claims for exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there may be, of any deceased employee whose death is occasioned by gross negligence of any person, firm, or corporation, from the employer of such employee at the time of the injury causing the death of the latter. This exception does not purport 'to include with it the right of the defendant to interpose the common-law defenses of contributory negligence, assumed risk, etc., nor in any manner to limit the provisions of section 1. No good reason occurs to us why the Legislature should have excepted this character of causes of action from the Workmen’s Compensation Act, and at the same time to have dfenied the right to interpose such defenses. A question of the proper construction of the statute of more or less difficulty might be presented, were it not for the fact that, in our opinion, the legislative history of the Workmen’s Compensation Act makes quite clear the intent that such defenses shall be denied in suits like the one at bar. The original Workmen’s Compensation Act was passed in 1913. In its original form there were sections corresponding to sections 1 and 5 of the present law. Section 1 then, as now, abolished the defenses of assumed risk, contributory negligence, etc., and section 5 excepted from the operation of the law actions for exemplary damages to the same class of persons in death cases as now, but the original section 5, contrary to the present section, provided: “* * * In all cases where exemplary damages are sought under this section, in case the injured party has already been awarded actual damages by the board herein provided, said fact and said amount so received shall be made known to the court or jury trying said cause for exemplary damages; and on the issue for exemplary damages he shall have the same defenses as under the existing law.” Section 5, c. 179, p. 429, Acts' 1913.

Instead of the provisions just quoted, the present section 5, constituting the amendment of 1917, reads: “In any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or finding of the Industrial Accident Board was correct. In any such suit, such award, ruling or finding shall neither be pleaded nor offered in evidence.” R. S. 1925, art. 8306, § 5.

There is thus manifest by the amendment a complete reversal of the legislative policy in one respect and an entire omission of the provision that the theretofore existing defenses should be available. This, we think, must be held to show the legislative intent that the provisions of section 1 should thereafter apply to the causes of action mentioned in said section 5. This construction of the law eliminates a number of points relied on for reversal of the case.

The question is presented whether there was any evidence of gross negligence to justify the submission of an issue to the jury. The appellant contended that the court should have given a peremptory instruction in its favor. The question is raised in different ways, as that there was no evidence of gross negligence, no evidence that the alleged negligence was the proximate cause of the death of John T. Ray, no evidence that appellant could reasonably have foreseen the injury to deceased as the probable result of the alleged negligence, and no evidence of any notice to appellant 'of the existence of the alleged defects essential to show gross negligence. All these phases of the question, we think, may be covered in the consideration of the question as to whether the evidence raised an issue for the jury as to the existence of gross negligence.

“Gross negligence” is a term of varying significance in different jurisdictions. In this state there was long ago recognized the necessity of affixing to the term a definite meaning. This the Supreme Court undertook to do in Southern Cotton Press Co. v. Bradley, 52 Tex. 587, as follows: “Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise a presumption of a conscious indifference to consequences.”

“Gross negligence, to be the ground for exemplary damages, should be that entire want of eare which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it.” M. P. Ry. Co. v. Shuford, 72 Tex. 165, 10 S. W. 408.

In I. & G. N. R. Co. v. Cocke, 64 Tex. 151, it is said: “Negligence cannot be considered 'gross’ unless evidenced by an entire failure to exercise care, or by the exercise of so slight a degree of care as to justify the belief that the person on whom care was incumbent was indifferent to the interest and welfare of others.” Dallas City R. Co. v. Beeman, 74 Tex. 291, 11 S. W. 1102; Robertson v. Magnolia Petroleum Co. (Tex. Civ. App.) 255 S. W. 223.

The “gross negligence” relied on for recovery herein consists substantially of the following facts: That at some indefinite time prior to the accident the defendant, in overhauling a “shaper machine,” replaced one part with another slightly larger. The replaced part was a round iron shaft constituting one of the supports for the upper and movable part of a heavy machine, weighing anywhere from 800 to 1,200 pounds, called á table. The table was designed to be moved up or down and laterally from side to side by means of cranks. It was supported by attachment to the back part of the framework of the entire machine by means of 12 stud bolts, 6 on each side. To be moved up or down it was necessary to loosen the stud bolts. These stud bolts, when screwed up tight, were amply sufficient to hold up the weight of the table, regardless of any other supports. The table, it seems, was designed to be raised or lowered by means of a telescope elevator screw. This screw worked out of a housing which was attached to the .base of the machine. The screw was not attached to the table above. In operation and when the table was supported at the desired height by the stud bolts, it glided over the top of the elevator screw so as to practically clear the same when the table was moved as far as it would go to the side. This elevator screw constituted a support for the table while in operation, having thus a double design. ’ Still forward of the elevator screw was the part that during the said overhauling was replaced. This shaft, something like 1 ½ or 2 inches in diameter, was not attached to the base of the machine, but was designed to glide along on the base from side to side with the lateral movements of the table. It passed up through a hole in the lower part of the table, which was a boxlike affair,-and was made fast to the table at any desired height of the table by means of a “set collar” and screw inclosed in a flange or housing. The “set collar,” a circular piece of metal, was designed to fit round the upright shaft and to be-movable up or down the shaft when the screw passing through same to the shaft was loosed and to be held stationary to the shaft by tightening the screw. The original shaft and the inner surface of the “set collar” were smooth. In the overhauling above referred to the shaft was threaded, as was also the “set collar,” to prevent slipping. Appellees claimed that the collar was reamed out to enable it to fit over the larger sized shaft that replaced the original. This “reaming out” had the effect of weakening the collar. It would not support as great weight without breaking as it would before being reamed out.

On the occasion of the accident, John T. Ray, operator of the shaper machine, undertook to make some repairs on the above-mentioned'"elevator screw.” To do’so he loosed the 12 stud bolts, leaving the table without their support. The elevator screw being out of repair, for that reason furnished no support for the table. Ray, who had no knowledge of the “reaming out” of the “set collar,” depended on the shaft with the set collar, being only one of the supports of the table, to hold up the entire weight of the table during the repairs. Ray then got his head down under the table to begin repairs on the elevator screw, when the table, dropping down, killed him. After the accident the set collar was found to be broken, evidently caused by the weight of the table.

There was a claim of gross negligence based upon a failure to inspect the machine, which phase of the case need not be considered, since the jury found that there was no negligence in the matter of inspection.

Disregarding all testimony ■ of witnesses tending to rebut the existence of negligence and giving the fullest weight and credence that a jury would be authorized to do to the testimony designed to establish the conclusion of negligence, we may say that the evidence shows that, during an overhauling of the shaper machine at a time from three to six months prior to the accident, the set collar was reamed out to an uncertain extent, but to such extent that the collar would not support the entire weight of the table without breaking ; the work of reaming out the collar was done in the shop-, under the supervision of the head mechanic, who had knowledge of such act, or was chargeable with knowledge of same; the deceased knew nothing about the collar being reamed out and had the right to assume that his employer had been guilty of no negligence by which the effectiveness of the collar, for the purposes it was designed to be used, had been impaired. If the collar had not been weakened by the reaming out process, it would have held up the table and deceased would not have been killed.

As a matter of law, does this fall short of showing gross negligence? We have reached the conclusion that it does, particularly when considered in Connection with the undisputed facts and other evidence introduced by ap-pellees. There is a total lack of evidence that in the design or construction of the machine it was intended that the set collar should be used to hold up the whole weight of the table. There is likewise a total absence of evidence of any custom or practice of depending upon this collar to hold up the entire weight of the table. In the machine as it came from the manufacturers the staff constituting the support in question was perfectly smooth. The inner surface of the encircling' set collar was smooth. It was intended, by a turn or two of the set screw, to draw one smooth surface against the other so tight as to effectuate the purpose of the support by means of friction alone. Certainly, then, such purpose could not be to sustain, perhaps, a 1000-pound weight. Manifestly, the purpose of the set collar was to firmly lock the support to the table. It was undisputed that at least one purpose, if not the main purpose, of this support, was to prevent vibration of the table during heavy work. It was likewise undisputed that this support was not necessary and was not used at all times the table was being operated. To better accomplish this design of the set collar than was done in the original construction of the machine, corresponding threads wore cut in the staff and collar. What was there to charge the employer with notice that it mattered at all that the collar was reamed out so that it would not support as great a weight as formerly, if its effectiveness for the purpose of its use was in no manner impaired, but, on the contrary, improved by the interlocking threads to prevent slipping? As said in Corpus Juris: “Where the place of work, machinery or appliances is reasonably safe and suitable for the purpose for which it was intended, a servant cannot hold his master liable for personal injuries resulting from its inappropriate, unauthorized, careless, improper or unusual use or test.” 39 C. J. 441. This statement of the law has been approved by courts of this state. See, Dawson v. King (Tex. Com. App.) 222 S. W. 164; Roberg v. H. & T. C. R. Co. (Tex. Civ. App.) 220 S. W. 790.

Application of this principle requires us to hold that the employer in this case, could not foresee, and was not chargeable with the duty of foreseeing, that its servant would make an unnecessary or unusual use of the collar in question from which injury to him might reasonably be expected to result. There was then, as we see it, no proof of even ordinary, negligence. We are compelled to this view of the matter, even if at the time the collar was being refitted the employer should have foreseen that at some time an employee would probably have occasion to get his body under the table in order to make some repairs or for other proper purpose. There was no more reason for the employer to foresee that an employee would get under the table with the main supports removed than that an employee who, when furnished different sizes of chains for different purposes, would unnecessarily use an insufficient sized chain for a particular purpose, as in the case of Roberg v. H. & T. C. R. Co., supra. There is no conflict in the evidence whatever that there was no necessity in removing and leaving removed the principal and admittedly adequate support of the table and to depend alone upon an auxiliary support the very mechanism of which shows that it was not designed to support great weights. While, perhaps, two or three witnesses testified that they had known the entire weight of the table to be supported by this staff and set collar alone, and one or two had depended upon it to do so, only one witness, a comparatively inexperienced mechanic, said that this support was designed to hold up the entire weight. In answer to cross-interrogatories, he said the object of the support was not to hold up such entire weight, thus strongly suggesting an error in the transcribing of his testimony. At any rate, this but leads up to the matter next noticed.

But, even if appellant should have foreseen that at some time one of its employees might have occasion to release the table from its certain supports, and would not avail himself of the two or three methods at hand to keep the table up, but, on the contrary, would rely on the support in question to sustain the entire weight of the table, what further consequence could have been reasonably foreseen than perhaps the loss of a few moments’ time to raise the table up again and maybe replace a broken collar? How could appellant foresee that its employee would not only remove the main supports of the table, thereby placing the whole weight on the set collar, but would at the same time unnecessarily place his body under the table? Not a witness in the case testified it was necessary to do so, but, on the contrary, that it was wholly unnecessary. Perhaps every witness testified that he never knew such a table to fall. No witness testified that he ever knew of any one to place his body under such table to make repairs. All of the testimony shows that, in order to make repairs on the elevator screw, it was unnecessary to get under the table.

While contributory negligence and assumed risk are not available as affirmative defenses, this does not mean that in testing the existence, or not, of negligence the employer is to be regarded as chargeable with the duty of foreseeing and guarding against all dangers necessarily inherent in a given line of business. West Lumber Co. v. Smith (Tex. Com. App.) 292 S. W. 1103.

Abolition of such defenses in cases like this does not work a modification of the rule that the employer is guilty of actionable ■ negligence only when by his act or omission claimed to constitute negligence he should have reasonably foreseen or anticipated the resultant injury or some like injury as a probable result. As said in Agent v. Houston Belt, etc., R. Co. (Tex. Civ. App.) 247 S. W. 649: “Whether the acts of the defendants alleged to be actionable negligence were in fact such negligence depends upon whether the resultant injury or some like injury could have been reasonably anticipated as a result of the acts complained of. If no such injury could have been so anticipated, no recovery could be had.”

In the absence of any evidence whatever to charge the appellant with a duty to foresee that the deceased or any employee under similar circumstances would, in an attempt to make repairs on the shaper machine, remove all supports from the table, except the one in question, and then would unnecessarily get under the table, we think we would be required to hold,'as a matter of law, that the sole proximate cause of the injury was the act of deceased in getting under the table. Where the evidence without dispute unmistakably shows that a particular act or omission was the proximate cause of an injury, it is error to submit an issue of proximate cause to the jury, unless it is clear that the jury was not misled thereby. T. & P. Ry. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36; Gulf, C. & S. F. R. Co. v. Rowland, 90 Tex. 365, 38 S. W. 756; Culpepper v. I. & G. N. R. Co., 90 Tex. 627, 40 S. W. 386; Parks v. S. A. Traction Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100. In other words, in such case, proximate cause comes under the rule governing any other issuable fact in a case which is admitted or established by uncontroverted evidence.

All that has been said would be true, we think, were we considering only a question of ordinary negligence; but what is there in the entire evidence to remotely suggest that appellant by its act in reaming out the set collar to make it fit a larger shaft exercised such “entire want of care which would raise a presumption of a conscious indifference to consequences”? What was there in such act as to “raise the belief that the act * ⅜ * was the result of a conscious indifference to the welfare” of the deceased? By the only reasonable interpretation of the evidence the very operation by which the set collar was reamed out was the same one by which the support and collar were threaded to make them more secure against slipping and thereby better to accomplish their intended purpose. This very act itself evidencing some care takes the transaction out of the definition of gross negligence. , We doubt if gross negligence could possibly exist under the general circumstances of the ease, as disclosed by appellee’s evidence, in the absence, among other things, of (a) certain knowledge on the part of appellant that the deceased would rest the entire weight of the table so as to be supported alone by the strength of this collar; (b) that the collar in such case was so weakened by the reaming out process that it would break; and (e) certain knowledge that deceased would place his body under the table. We doubt if, in the absence of a concurrence of all these three things, there could be shown an entire want of care indicating a conscious indifference to the safety of employees. At any rate, some of these facts would have to be present and so far as we can see there is none.

The ease appears to have been fully developed, and, being impressed with the view that undisputed facts exclude the existence of any cause of action for exemplary damages for gross negligence, the judgment of the trial court will be reversed, and judgment will be rendered for appellant.