author: GRAVES, Justice. KRUEGER, Judge.

text:
    BRILEY v. STATE.
    No. 20618.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Rehearing Denied Jan. 17, 1940.
    Denman & Fowler, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Justice.

Appellant and his brother, E. D. Briley, were jointly indicted charged with the unlawful killing of J. B. Williams on October 17, 1938. Upon a joint trial therefor E. D. Briley was acquitted, and appellant was convicted and given a penalty of five years in the penitentiary.

The facts show that appellant and his brother were the owners and operators of a small sawmill in Nacogdoches County, and that Mr. Williams, the deceased, had worked for them at different times. We also gather from the testimony that a settlement between the deceased and appellant and his brother had been had, and that appellant owed Mr. Williams the sum of $2.72. That at the time of the homicide E. D. Briley and the deceased were engaged in a difficulty which terminated in a-fist fight, at which time this appellant entered into the transaction and struck the deceased on the head with an oak stick, fracturing the skull, which injury resulted in the death of Mr. Williams a short time thereafter. The appellant claimed self-defense, his contention being that Mr. Williams was the aggressor and made an attack with the oak stick upon the brother who was acquitted, the appellant taking the stick away from the deceased and throwing it away; that the deceased then produced a knife with which he struck at and cut E. D. Briley; that the deceased then turned on appellant with such knife, and appellant then picked up this oak stick, and as Mr. Williams rushed at him he struck the deceased the blow that resulted in his death. The testimony shows that this oak stick weighed about thirty-five or forty pounds and was about five feet long. The theory of the State, and its testimony, vigorously contested the defense theory, and it showed by witnesses that the appellant was in pursuit of the deceased, who was fleeing, when struck by this stick on the rear portion of his skull by the appellant. In any event the truth of these two different theories was a matter to be ascertained by the jury, and they evidently discarded appellant’s theory and accepted that of the State, and we do not feel like disturbing their solution of the matter. We think the testimony sufficient to sustain the jury’s finding thereon.

Appellant’s bill of exceptions No. 1 complains of certain remarks of the county attorney in the opening address to the jury, in which he said, among other things, the following: “ * * * My contention is when a man has killed another, it is a rare-exception that he has to do it. You don’t hear of those things often. Do you know we try three or four murder cases here at every term of this court, and we ask them —,” at which point he was evidently interrupted by appellant’s attorney who excepted to the last sentence in the above quotation on the main ground that same was evidence out of the record, and was prejudicial and made for the purpose of prejudicing the minds of the jury against the appellant. Upon the offering of such objection the trial court instructed the jury to disregard such statement, but the appellant contends that such remarks were so prejudicial and inflammatory that error in making the same could not be cured by the trial court’s instruction to disregard them. We are not in accord with his contention. The amount and kind of cases tried at the term of the court was a matter of public record, doubtless known to many of the citizens of the county, and the mere statement that three or .four murder cases were tried during each term of this court would not be calculated to so inflame the minds of the jury that such a condition could not be controlled by the instructions of the careful trial judge. This bill is overruled.

Bill of exceptions No. 4 complains of what is termed misconduct of the jury in that while deliberating in the jury room, after having finished the testimony and having heard the arguments of counsel, it is alleged that other and further testimony was heard by the jury. This is based upon the fact that practically all of the jurors swore, in the hearing of the motion for a new trial, that the juror L. A. Sitton made the statement in the jury room that: “These defendants had planned to kill Mr. Williams that morning; this was all a planned affair; they planned on killing Mr. Williams that morning.”

There seems to be no contradiction among the jurors as to what was said by Mr. Sitton, nor the time that it was said. There also seems to be no confusion as to its effect upon the jurors, nor as to their understanding of the remarks. We quote from the testimony of one of the jurors on the hearing of the motion for a new trial: “He (Sitton) did not tell us nor anybody in my presence that he knew anything about the case except what he heard from the witness stand. He did not say or do anything to indicate to me that he knew anything about it, except what he heard from the witness stand. Mr. Sitton did not say or do anything to indicate to me that he was making the statement upon anything outside of what he heard from the witness stand on the trial of the case; he merely said he believed it was a planned affair, that they intended to kill Mr. Williams that morning, — both of them, therefore he was for convicting both of them.”

To the same effect was the testimony of the remaining jurors who testified.

. Mr. Sitton himself testified, in part, as follows: “I did not know E. D. Briley or Everett Briley before this trial. I had not heard anything of the facts of the case before I was selected as a juror — not a thing about it. No o'ne had talked to me about this case before we tried the case. No one outside of the jury talked tó me during the trial of the case about it, and no one had attempted to talk to me about it before or during the trial of the case; if they did, I didn’t know anything about it. In making that statement, I based my opinion solely upon the evidence I heard from the witnesses there; that is everything I based it on in rendering my verdict; that and the law given us in the charge of the court. I did not know anything or consider anything outside of what I heard from the witness stand in rendering my verdict. In making that statement, I made the statement as my conclusion that I had reached from the evidence I heard in the case — that they both planned to kill the man when they went out there — just what I heard on the witness stand. I still believe that. I heard the witnesses testify; they were both out there; and I heard both the defendants testify. And from the evidence that I heard from the witnesses I reached the conclusion that they both intended to kill Mr. Williams when they went out there that morning. I did not.consider anything other than the evidence and the law given in the court’s charge when I made that statement.”

We gather from thesé quoted statements as well as the balance of the testimony that the juror was merely giving his opinion as to the impression that the testimony of the witnesses had made upon his mind, and the deductions he had drawn therefrom. We can see no impropriety in his making such a statement to his brother jurors when they began their discussions in the privacy of the jury room. Such a full and free discussion among themselves is to be commended, especially in an effort upon the jury’s part to get together upon a satisfactory verdict, and we can see no reason for censure therefor.

We have carefully considered all matters presented to us, and we have found nothing that is deemed erroneous.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, asserts that he is entitled to a reversal on three grounds. The first is on the alleged improper argument of the county attorney. This matter is fully discussed in the original opinion and we see no need of a further discussion. The argument complained of was not of a highly inflammatory and prejudicial nature, and the prompt action of the careful trial judge in sustaining appellant’s objection thereto and his instruction to the jury not to consider the same cured the error, if any. -Not every improper remark of the prosecuting attorney will require a reversál. It is only where the argument is of such prejudicial nature as was calculated to, and probably did, produce a conviction or enhance the punishment. See Tweedle v. State, 29 Tex.App. 586, 16 S.W. 544; Davis v. State, 69 Tex.Cr.R. 420, 154 S.W. 550; Hardy v. State, 31 Tex.Cr.R. 289, 20 S.W. 561; Howard v. State, 53 Tex.Cr.R. 378, 111 S.W. 1038; Hatley v. State, 133 Tex.Cr.R. 232, 109 S.W.2d 1062, 1063.

He next contends that the evidence is insufficient to justify and'sustain his conviction, in that the state failed to show that he did not kill the deceased in self-defense. He contends that Glenn Lavender testified that he saw appellant pick up a stick and run towards the deceased, but did not see appellant strike the deceased, as he was leaving the scene of the difficulty. He contends that this court cannot assume that appellant did not strike in self-defense. Tp show that such an assumption is unnecessary, we quote from the testimony of Lavender as follows: “After they (referring to E. D. Briley and the deceased) stopped fighting * * * I saw Everett Briley come up with a pole, and Mr. Williams was standing there and he broke and run and Everett, (the appellant) ran towards those two little lumber piles there off west. Mr. Williams was running from him and Everett had a pole running after him. * * * Everett was running toward Mr. Williams and Mr. Williams was running away from Everett Briley.”

Mrs. Williams, who was near the scene of the difficulty, and who carried her husband home, put him to bed and summoned the neighbors, testified as follows: “His skull was crushed in right in the back of his head, knocked in like. * * * The only wound I found was in the back of his head * * *. I say my husband was hit in the back of the head and his skull crushed in.”

She saw no stick or knife anywhere on the ground where he had fallen, and found his pocket knife in his pocket.- The doctor testified that the lick which deceased had sustained on the head was sufficient to fracture the base of the skull and produce his death. We think the evidence in this case is such as would lead any unbiased mind to the logical conclusion that appellant voluntarily and without excuse or justification -killed the deceased. The state is not required to negative every possible defense. The evidence is certainly sufficient to allow the jury to come to the conclusion of a killing without excuse or justification.

The complaint with reference to the misconduct of the jury is, in our opinion, without merit. The remark made by the , juror was but the expression of his conclusion from the testimony before them under the ruling of the court.

Appellant’s motion for a rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: MONTEITH, Chief Justice.

license: Public Domain

text:
    CONSOLIDATED UNDERWRITERS v. CHRISTAL et al.
    No. 10,971.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1939.
    Rehearing Denied Jan. 11, 1940.

      Benbow, Saunders & Holliday and Sam Holliday, all of Houston, for plaintiff in error.
    Gordon O. McGehee and Morris Pepper, both of Houston (J. A. Copeland, of Houston, of counsel), for defendants in error.
   MONTEITH, Chief Justice.

For convenience in this opinion we shall designate the plaintiff, in error, appellant, and the defendant in error, appellee.

This is an appeal in an action brought by appellee, Zelia Christal, to set aside an award of the Industrial Accident Board in favor of appellant, Consolidated Underwriters.

The record shows that Shellie Christal, the deceased husband of Zelia Christal, died on the night of November 6, .1937, from the effect of a cerebral hemorrhage. At the time, of his death he was employed as a rice trucker for the Pritchard Rice Milling Company, by whom he had been employed for approximately eight years. For a period of a year and a half prior to his death he had suffered from high blood pressure and had been treated for this ailment as late as April, 1937.. On the morning of November 5, the day before his death, he went to work as usual in apparently good health, but in the middle of the afternoon complained to his fellow-workers of a severe headache. On the following day he complained continually and was unable to work the latter part of the day. He died about 9 o’clock P. M. on November 6, 1937.

The Industrial Accident Board denied appellee a recovery. From this ruling she appealed to the district court of Harris County.

The case was tried before a jury, who in answer to special issues submitted found that on or about November 6, 1937, in handling sacks of rice for the Pritchard Rice Milling Company, Shellie Christal over-exerted himself; that on said date he was affected by a pre-existing disease of high blood pressure which was aggravated by such over-exertion and from which he sustained a cerebral hemorrhage on November 6, 1937; that such over-exertion was a direct cause of such injury, which was sustained in the course of his employment with the Pritchard Rice Milling Company; that said injury was a direct and contributing cause of his death, which was caused by the combined effect of such injury and the pre-existing disease of high blood pressure, and that his death was not caused solely by disease; that the payment to plaintiff of compensation in weekly installments, instead of a lump sum settlement, would result in manifest hardship and injustice to her.

Appellant assigns error in the refusal of the court to submit to the jury its requested issues Nos. 2 and 3. Requested special issue No. 2 reads: “Do you find from a preponderance of the evidence that such overexertion, if any, did not act only to make Shellie Christal more predisposed to have the fatal cerebral hemorrhage as the result of his high blood pressure?”

Requested special issue No. 3 reads: “If you have answered Special Issue No. 3 'We do’, and only in that event, then answer the following: Do you find from a preponderance of the evidence that such aggravation, if any, was only such as to make Shellie Christal more predisposed to have the fatal cerebral hemorrhage as a result of his high blood pressure?”

The record shows conclusively that prior to his death Shellie Christal was suffering from high blood pressure. Both Drs. Brum-by and Thompson testified that this preexisting condition of high blood pressure was the cause of the fatal cerebral hemorrhage. Dr. Thompson further testified, in answer to a question as to the relation of over-exertion to a cerebral hemorrhage: “It is a pre-disposing cause to a hemorrhage, provided you have a high blood pressure connected-with that. In other words, in a high blood pressure case I advise my patients to do light work and not to get around to where they get too excited or do too heavy work, because heavy work or excitement are pre-disposing causes to cerebral hemorrhage, provided you have high blood pressure.”

The record shows that the work in which Shellie Christal was engaged required á great deal of effort and strain. The jury found in answer to special issues submitted that the pre-existing disease of high blood pressure was aggravated by over-exertion and that such over-exertion was a direct cause of the cerebral hemorrhage which he sustained on or about November 6, 1937.

It is stated in 45 Tex.Jur., page 492, Section 98: “If a protected employee sustains an accidental injury of the character defined in the law and from which disability or death results, it is compensable even though, at the time, he was suffering from some disease or infirmity, that rendered him more susceptible to such an injury, or that aggravated or enhanced its effect. That is to say, if there be a real injury, the background of his peculiarities will not defeat compensation for it, and, ‘there is no defense to a claim for compensation, based on the fact that the injuries would not have been as great had the employee been in a perfectly healthy condition.’ The employer accepts the employee subject to his condition when- he enters the employment. Moreover, the fact that the disease was a concurring cause with the injuries in causing disability or death does not preclude the grant of compensation. But in these cases it must appear that there was an injury in the course of employment which directly resulted in disability or death.”

It is further stated in 45 Tex.Jur., pages 494-496, Section 99, that: “Included among accidental injuries received in the course of employment, for which compensation has been allowed, are those resulting from strain and those sustained where a strain resulted in the bursting of a blood vessel and consequent apoplexy and death or partial paralysis, where such injuries flowed from something out of the ordinary, and unexpected, and were definitely located as to time and place. The mere fact that the workman in whom the rupture occurred had at the time diseased arteries or high blood pressure is not conclusive as to the injury having been the result of a disease and not accidental. Whatever the physical condition of the individual may have been, if it was such that some physical exertion or strain was required to cause the rupture the injury may. be classed as an accidental one.”

Since the jury found on sufficient evidence on the ultimate issues that such over-exertion was the direct producing cause of said fatal hemorrhage and that the death of Shellie Christal was not caused solely by disease, appellant cannot avoid liability by showing a pre-existing disease or that an exaggeration thereof was only such as to make Shellie Christal more predisposed to cerebral hemorrhage as a result of his high blood pressure. Armour & Co. v. Tomlin, Tex.Com.App., 60 S.W.2d 204; Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72; United States Fidelity & Guaranty Co. v. Baker, Tex.Civ.App., 65 S.W.2d 344; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753; Hurd v. Republic Underwriters, Tex.Civ.App., 105 S.W.2d 428.

We overrule appellant’s contention that the court erred in refusing to submit its requested issue No. 4, which reads: “Do you find from a preponderance of the evidence that the directness of the causal connection, if any, between such over-exertion, if any, and the fatal hemorrhage in question was not interrupted by his diseased condition of high blood pressure as a new and intervening cause, as the term new and intervening cause is hereinafter defined for you?”

The evidence is uncontroverted that Shellie Christal had been suffering from the disease of high blood pressure for approximately a year and a half prior to his death. It follows that said diseased condition did not intervene between such over-exertion and the fatal hemorrhage, from the effects of which he died, but that it was a contributing causé therewith and that therefore requested issue No. 4 was not raised by the evidence in the case.

We are unable to sustain appellant’s contentions that the court erred in refusing to submit its requested issue No. 5, which reads: “Do you find from a preponderance of the evidence that Shellie Christal’s physical condition before the occurrence of the fatal hemorrhage in question on November 6, 1937, was such that, as a result of his diseased condition of high blood pressure, he was not in danger of having the fatal cerebral hemorrhage from his ordinary movements of life similar to those made by the public generally.”

The above issue, in effect, requests the jury to find whether the cerebral hemorrhage from which Shellie Christal died was caused solely by his diseased condition of high blood, pressure. The court submitted to the jury special issue No. 10, as to whether the death of Shellie Christal was caused solely by disease. It is the settled law of this state that a party is not entitled to the submission of two or more issues relating to the same ground of recovery or matter of defense. Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356; Texas & N. O. Ry. Co. v. Neill et al., 128 Tex. 580, 100 S.W.2d 348.

Appellant assigns error in the refusal of the court to define the term "injury” in connection with the issues in which the term is used.

The record shows that the trial court used the term “injury” in special issues 5, 6, 7, and 9, but that no definition of the term was given to the jury in connection with such special issues, except that the term “injury sustained in the course of employment” was defined in connection with special issue No. 6. The only objection filed by appellant on the ground that the trial court failed to define the term “injury” was its objection to the court’s definition of the term “injuries sustained in the course of employment” given in connection with special issue No. 6.

Special issue No. 6 and said definition reads: “Do you find from a preponderance of the evidence that such injury, if any, was sustained in the course of employment for the Pritchard Rice Milling Company, as that term is hereinbelow defined for you? * * * The term ‘injury sustained in the course of employment’ includes injuries of every kind or character, having to do with and originating in the work, business, trade or profession of the employer received by an employee in or upon the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.”

Appellant objected to the definition of the term “injuries sustained in the course of employment” given in connection with special issue No. 6, because the term “injuries” as used in said definition is not defined for the jury, and because it is not confined to the injuries pleaded nor to any raised by the evidence, and that consequently it was too general.

The undisputed evidence shows that Shellie Christal died of a cerebral hemorrhage. The jury found that said cerebral hemorrhage was directly caused by overexertion and was sustained in the course of his employment. Under the above facts, we think that, as a matter of law, such injury was compensable, and that therefore it. was not necessary for the trial court to define the term “injury” or “injuries” for the jury, particularly since the definition given by the court of the term “injuries sustained in the course of employment” in connection with special issue No. 6 was given in the exact language in which that term is defined by the statute (R.S.Article 8309, § 1).

We are unable to sustain appellant’s contention that the court erred in refusing to submit to the jury an issue as to whether the injury in question was an accidental injury, since the evidence in the case was amply sufficient to support the jury’s findings that on the date alleged Shel-lie Christal over-exerted himself while handling sacks of rice for the Pritchard Rice Milling Company, and that he thereby sustained the fatal cerebral hemorrhage which was directly caused by such overexertion, and that he sustained such injury in the course of his employment for such company, since it follows that the question as to whether the death of Shel-lie Christal was an accidental injury was a question of law and not an issue of fact, and, further, that since appellant having failed to request the submission of such issue to the jury, appellee cannot be held to have waived such issue.

The testimony of Drs. Brumby and Thompson, taken in connection with evidence of witnesses with whom Shellie Christal was working, amply supports the findings of .the jury and renders the question as to whether the death of Shellie Christal was caused from accidental injuries a question of law to be determined by the court. Southwestern Surety Ins. Co. v. Owens, Tex.Civ.App., 198 S.W. 662; Georgia Casualty Co. v. Mixner, Tex.Civ.App., 289 S.W. 420; Texas Employers’ Ins. Association v. McGrady, Tex.Civ.App., 296 S.W. 920.

As to appellant’s contention that there is a variance between the pleadings and proof, on the ground that the evidence shows that the injury occurred on November 5, 1937, while plaintiff’s petition alleged that the deceased sustained his injury on or about November 6, 1937, we think that appellant cannot complain of said testimony at this time, since no objection was interposed on the trial on the ground of such alleged variance. Further the evidence shows that only one injury was pled by appellee, namely, a cerebral hemorrhage, which was alleged to have occurred on or about November 6, 1937, and there is no evidence or contention that such cerebral hemorrhage was the result of any occupational disease. American Employers’ Ins. Co. v. Scott, Tex.Civ.App., 33 S.W.2d 845; Kelsey v. Myers, Tex.Civ.App., 29 S.W.2d 855.

It was held in the case of Jarrett v. Travelers’ Ins. Co., Tex.Civ.App., 66 S.W.2d 415, where an employee had strained his back on one day and several days later had suffered a more severe strain which resulted in disability, that an injury may develop, long after the original accident and still be the result thereof within the requirements of the compensation act, citing' the cases of Texas Employers’ Ins. Ass’n v. Herron, Tex.Civ.App., 29 S.W.2d 524; Texas Employers’ Ins. Ass’n v. Clark, Tex.Civ.App., 23 S.W.2d 405; that the niceties and exactnesses of common law pleadings are not required in compensation proceedings, and that when an insurer is not harmed it cannot complain of an- error as to the exactness of time when an injury occurred; and further, that an inadvertent error as to the date of an occurrence in an alleged pleading is not material when there had been no claim of surprise and when no one has been misled by the inadvertent error. Consolidated Underwriters v. Hubbard, Tex.Civ.App., 107 S.W.2d 908; Maryland Casualty Co. v. Overstreet, Tex.Civ.App., 42 S.W.2d 160; Indemnity Ins. Co. v. Judice, Tex.Civ.App., 40 S.W.2d 246.

Under the testimony in the instant case that the cerebral hemorrhage from which Shellie Christal died had its inception in a strain or over-exertion which caused the accidental bursting of a small artery in the brain on Friday, and culminated in a greater hemorrhage the following day which culminated in his death, there was in contemplation of the compensation act but one injury, and therefore there was no variance between appellee’s pleading and proof.

Appellant assigns error in the failure of the court to submit to the jury its special issues Nos. 6 and 7.

Requested issue No. 6 reads: “Do you find from a preponderance of the evidence that manifest hardship and injustice to plaintiff, if any, as to the method of payment of compensation, if any, will be avoided by payment of $650.00 thereof in cash and the balance in weekly installments of $9.69 each?”

This requested issue was followed by an issue, requesting the jury to find whether manifest hardship' and injustice to plaintiff would not be avoided by the payment of $650 in cash and the balance in weekly installments of $16.15, with certain legal discounts.

The court submitted to the jury special issue No. 11, which reads: “Do you find from a preponderance of the evidence that the payment of compensation, if any, to plaintiff by defendant in weekly installments instead of a lump sum will result in manifest hardship and injustice to the said plaintiff”, to which the jury answered, “We do”.

Lump sum settlements are provided for in compensation cases under Section 15 of Article 8306, Revised Statutes of 1925. The part of this article material to this appeal reads: "In cases whfere death or total permanent incapacity results from an injury, the liability of the association may be redeemed by payment of a lump sum by agreement of the parties thereto, subject to the approval of the Industrial Accident Board. This section shall he construed as excluding any other character of lump sum settlement except as herein specified. [Italics ours.] * * *”

Section 15a of said Article 8306 reads: “In any case where compensation is payable weekly at a definite sum and for a definite period, and it appears to the board that the 'amount of compensation being paid is inadequate to meet the necessities of the employe or beneficiary, the board shall have the power to increase the amount of compensation by correspondingly decreasing the number of weeks for which the same is to be paid allowing discount for present payment at legal rate of interest;, provided that in no case shall the amount to which it is increased exceed the amount of the average weekly wages upon which the compensation is based; provided it is not intended hereby to prevent lump sum settlement when approved by the board.”

Since there is nothing in either of the above articles which provides that the liability of the insurer may be redeemed by the payment of a portion of the compensation in a small lump sum and the balance in weekly installments, as indicated in above requested issues, we think that the insurer is limited to redemption of its liability in a lump sum where it is found that manifest hardship and injustice would otherwise result from the payment of compensation in weekly installments. We are strengthened in this belief by the fact that the only other method for increasing the amount of the payments of compensation is that which the legislature has seen fit to provide by the terms of Section 15a of Article 8306, which provides that the amount of compensation may be increased by correspondingly decreasing the number of weeks for which the same is to be paid, by allowing a discount for the present payment at the legal rate of interest.

For the reasons above stated, the judgment of the trial court is in all things affirmed.

Affirmed.


author: CODY, Justice.

text:
    TEXAS NATURAL GAS UTILITIES v. CITY OF EL CAMPO et al.
    No. 11006.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1939.
    Rehearing Denied Jan. 4, 1940.
    S. C. Cappel, Jr., of El Campo, and Williams, Lee, Sears & Kennedy, of Houston (Irl F. Kennedy, of Houston, of counsel), for appellant.
    Donald M. Duson, of El Campo, for ap-pellees.
   CODY, Justice.

This is an appeal. from the refusal to appellant of a temporary injunction against the enforcement of an ordinance of the City of El Campo, prescribing maximum gas rates.

For more than ten years appellant has-been selling natural gas, under a franchise from appellee, within appellee’s corporate limits. On August 7, 1939, appellee by ordinance fixed the rates to be effective-after September 1, 1939, which were materially less than those in effect. On August 29, 1939, appellant procured a temporary restraining-order upon sworn allegations that the rates fixed by the ordinance were confiscatory, etc. A temporary injunction was refused on September 11, after a hearing. The allegations of appellant’s petition are to the effect : 1. That the complained-of rates were fixed without giving appellant a hearing.. 2. That the members of the council were incapable of considering and determining, impartially what would constitute legal rates for the city “in the spirit of the just judge”. That the complained-of rates were confiscatory.

Assuming, for present purposes and because of the form in which this appeal reaches us, the truth of appellant’s allegations, we do not believe it was error to refuse' the temporary injunction. If, as appellee contends, the Legislature has. provided an adequate legal remedy against the adoption by the city council even of confiscatory rates, relief by injunction is not available.i Rogers v. Daniel Oil & Royalty Co., 130 Tex. 386, 110 S.W.2d 891. Certainly the manifest purpose of Arts. 6058 and 6059 is to supply a remedy against the abuse, or erroneous use, of the rate-making power by city councils. Article-6058 reads: “When a city government has ordered any existing rate reduced, the gas utility affected by such order may appeal to the Commission by filing with it on such terms and conditions as the Commission may direct, a petition and bond to review the decision, regulation, ordinance, or order of the city, town or municipality. Up,on such appeal being taken the Commission shall set a hearing and may make such order or decision in regard to the matter involved therein as it may deem just and reasonable. The Commission shall hear such appeal de novo. Whenever any local distributing company or concern, whose rates have been fixed by any municipal government, desires a change of any of its rates, rentals or charges, it shall make its application to the municipal government where such utility is located and such municipal government shall determine said application within sixty days after presentation unless the determination thereof may be longer deferred by agreement. If the municipal government should reject such application or fail or refuse to act on it within said sixty days, then the utility may appeal to the Commission as herein provided. But said Commission shall determine the matters involved in any such appeal within sixty days after the filing by such utility of such appeal with said Commission or such further time as such utility shall in writing agree to, but the rates fixed by such municipal government shall remain in full force and effect until ordered changed by the Commission.”

Article 6059 reads: “If any gas utility or other party at interest be dissatisfied with the decision of any rate, classification, rule, charge, order, act or regulation adopted by the Commission, such dissatisfied utility or party may file a petition setting forth the particular cause of objection thereto in a court of competent jurisdiction in Travis County against the Commission as defendant. Said action shall have precedence over all other causes on the docket of a different nature and shall be tried and determined as other civil causes in said court. Either party to said action may have the right of appeal; and said appeal shall be at once returnable to the appellate court, and said action so appealed shall have precedence in , said appellate court of all causes of a different character therein pending. If the court be in session at the time such right of action accrues, the suit may be filed during such term and stand ready for trial after ten days’ notice. In all trials under this article the burden .of proof shall rest upon the plaintiff, who must show by clear and satisfactory evidence that the rates, regulations, orders, classifications, acts or charges complained of are unreasonable and unjust to it or them.”

It was said by the Austin Court in Community Natural Gas Co. v. Natural Gas & Fuel Co., 34 S.W.2d 900, 903: “Rate making is a legislative, not a judicial, function * * * ; and the rate-making power here involved is vested exclusively in the city of Brownwood, with the right of appeal to and trial de novo by the railroad commission, and a further limited right of review by the district courts of Travis county (R.S. arts. 1119, 6058 and 6059).”

In the case of Texas Gas Utilities Company v. City of Uvalde, 77 S.W.2d 750, 753, decided by the San Antonio Court of Civil Appeals in 1934, the City of Uvalde brought suit in the District Court of Uvalde County to enjoin the receiver of the Texas Gas Utilities Company from charging gas rates fixed by an order of the District Court of Val Verde County and in excess of rates fixed by an ordinance of the City of Uvalde. The District Court granted the injunction, but the Court of Civil Appeals reversed the cause and dissolved the injunction, on the grounds that the District Court of Uvalde had no authority to issue the injunction. In discussing the order of the District Court of Val Verde County fixing the higher rates, which was held to be void for the want of jurisdiction, the court said: “However, when the city council refused to raise the rates, the receiver, if not satisfied, could only appeal to the State Railroad Commission, as provided for in article 6058, R.S.1925. Until this legislative remedy provided for by law had been exhausted, no court of this state has any jurisdiction of the matter, and, after the legislative remedy is exhausted, article 6059 gives only the courts of Travis county jurisdiction of the matter.”

In the same opinion, in outlining the procedure which should have been followed, the court uses this language: “In this state all that need be done is to follow the statutes. Article 1119 gives to cities of more than 2,000 inhabitants the legislative power of fixing gas rates to be ‘paid by consumers. Article 6058 provides for an appeal to the Railroad Commission for a trial de novo, and this is made expressly to apply to receivers of gas companies by article 6050. When this has been done, the legislative remedy will have been exhausted and the judicial stage reached. Article 6059 limits the judicial remedy to the courts of Travis county. We consider these statutes valid, and see no reason why they should not be followed.”

It is appellant’s contention, however, that the City council in fixing the complained-of rates went outside of the statutory limitations which conferred the rate-making power, and has acted without any authority of law, and that such action is not merely erroneous, but absolutely null and void, and may be questioned in a court-action without resorting to, or exhausting administrative remedies. State Line Consol. School Dist. No. 6, etc., v. Farwell Independent School Dist. et al., Tex.Com.App., 1932, 48 S.W.2d 616, 617. The principle which appellant seeks to invoke, however, does not apply. The city council, in fixing the complained-of rates, merely exercised rate-making power, and rate-making power was conferred on it by Statute. Art. 1119, as amended in 1937, Vernon’s Ann.Civ.St. art. 1119. What was said by the Commission in Producers’ Refining Co. v. Missouri K. & T. R. Co., Tex.Com.App., 13 S.W.2d 679, of an order of the Railroad Commission which was attacked as void, applies here: “When it [The R.R.Comm.] establishes a rate, it necessarily finds that such rate is neither unreasonable nor discriminatory. The order, therefore, is not in violation of, but in exact' keeping with, the requirements of the Constitution and statute. To hold as we are urged to hold * * * would be to deny that any tribunal can establish a lawful rate in any given instance as against a subsequent claim that such rate is in violation of the requirements of reason and fairness. Such rules would bring about chaotic results and leave rates to be determined at any time their validity might be called in question, in any court having jurisdiction of the amount involved in the particular controversy. * * * ” The claim of appellant that the council has exercised rate-making powers so as to fix -rates that are confiscatory of appellant’s property is not a claim that the council has undertaken to exercise powers not conferred on it by statute, but is a claim that it has exercised its rate-making powers in such an extremely unreasonable and abusive manner as to amount to confiscation. The difference between a rate that is unreasonably low, and one that is so extremely unreasonably low, as to be confiscatory is one of degree, and not of kind. It was to meet just such a claim, and just such a situation that Art. 6058 was enacted, providing for appeals to the Railroad Commission.

In the case of City of El Paso v. Texas Cities Gas Company, 5 Cir., 100 F.2d 501, 503, the City of El Paso passed a rate-ordinance fixing gas utility rates to be charged consumers in that city. Such action was taken by the City Council without giving the gas utility serving such town an opportunity to be heard, and without even giving such utility a reasonable time in which to furnish information concerning their rates which had been demanded by the City Council. The gas utility brought suit in a Federal District Court to enjoin the enforcement of this ordinance, contending that such ordinance was invalid for want of procedural due process, and because it would operate to confiscate their property in violation of constitutional principles. A full hearing was had before the Federal District Court, and the injunction requested was granted. The Circuit Court of Appeals for the Fifth Circuit reversed the District Court and ordered the dissolution of the injunction, allowing a reasonable time for the utility to enter an appeal to the Railroad Commission of Texas. The rate-ordinance in the case referred to was held to be unlawful both by the District Court and the Circuit Court, but nevertheless, the Circuit Court held that the District Court should have refrained from exercising the power of injunction tor two reasons: First, as a matter of comity, the Federal Court should not interfere where State-action is involved, and the action thus far taken was not final, but might be fully reviewed administratively and a redress afforded by the State; and second, that administrative process, whether State or Federal, which could remedy the thing complained of, ought to be exhausted before applying to a court of equity. Referring to these two principles the court said in its opinion: “Under both principles the Court here should have refrained from exercising the power of injunction. An appeal .to the Railroad Commission would have been equally as prompt as final .action by the Court. ' Substantially the •same sort of bond would have been required by the Commission to supersede the ordinance as was required by the Court to restrain it pending hearing; and the Company was amply able to give it. The want •of opportunity to present its case would be fully redressed by a de novo hearing ■before the Commission, and we cannot suppose that that experienced body would reimpose a confiscatory rather than a reasonable rate. We regard the State of Texas rather than the municipality of El Paso as speaking in the legislative act of rate making, although performed by the City Council, and the rate ordinance is thus State action within the Fourteenth Amendment. * * But the State has not finished speaking till its Railroad Commission has spoken. The District Court ought to wait till that time before undertaking to interfere.”

Appellant relies for reversal of the trial court’s action particularly on Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 775, 999, 82 L.Ed. 1129, where the court •said, referring to the action of Administrative Agencies exercising broad control over activities which in their details cannot be dealt with directly by the legislature : “The vast expansion of this field •of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the Legislature shall •appropriately determine the standards of .administrative action and that in administrative proceedings of a quasijudicial •character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand ‘a fair and open hearing,’ essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process. Such a hearing has been described as an ‘inexorable safeguard.’ St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 73, 56 S.Ct. 720, 735, 80 L.Ed. 1033; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 304, 305, 57 S.Ct. 724, 730, 81 L.Ed. 1093; Railroad Commission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 393, 58 S.Ct. 334, 338, 82 L.Ed. 319; * *

What has just been quoted is highly appropriate to the administrative agencies which Congress sets up to exercise broad control over activities which in their details cannot be dealt with directly by the Legislature, for the findings of such agencies are generally made conclusive on the facts, and in the instance dealt with in the Morgan case Congress had provided that the order of the Secretary of Agriculture should be final and conclusive unless appealed to the Circuit Court of Appeals within a certain time. But the fixing of the rates by a city council is, so far as the public utility is concerned, merely tentative. .Such action initiates the process by which the public utility may go before the Railroad Commission. We do not believe that it is necessary to furnish appellant with two such bodies as the Railroad Commission and require that both such bodies conform to such procedure as that followed by the Railroad Commission, in order to safeguard the rights of appellant. No one can complain of any want of “due process” in the procedure before the Railroad Commission, and the right to resort to the Railroad Commission, and thereby enjoy its procedure, is given appellant by statute.

Appellant complains that Arts. 1119, 6058, 6059, single out gas utilities and subject them to a process of rate-regulation not applied to power, light, telephone, water and sewerage utilities, and therefore deny gas utilities the equal protection of the laws, in violation of Section 1 of the Fourteenth Amendment, U.S.C.A.Const.

We are unable to see that the difference in method provided for fixing rates for gas utilities from that provided for fixing rates for other utilities is a denial to gas utilities of the equal protection of the laws. In presenting this point of appellant, we will employ appellant’s own picturesque language: “In baseball parlance, it is the difference between going to bat with one strike against you, and going to bat with two strikes against you. All aggrieved utilities in Texas, except gas utilities, are permitted to go before a judge and jury to seek relief from adverse determination by a single administrative agency (a city council). An aggrieved gas utility, when it finally reaches a judge and jury, is burdened with the imputation arising from having suffered an adverse decision by each of two administrative agencies, one local (city. Council) and the other state-wide (Railroad Commission) in jurisdiction. * * We confess that this objection seems to us to lie on the fanciful side, and for that reason it is somewhat difficult to answer. If we are to assume that judges and juries go into the trial of cases enchained by prejudices, we would be authorized to believe that, in free America, there would be at least as many prejudiced against, as in favor of, the findings of governmental bureaus and agencies. It has never been the theory, in instances where de novo trials are provided for, that the result of the first trial will merit or receive any consideration in the de novo trial. In instances where gas utilities may hereafter appeal rates to the Railroad Commission, should it occur that they are dissatisfied with the action of the Railroad Commission, and attack rates fixed by it, it seems to us that it would be as unlikely as it would be unlawful for either judge or jury to consider what the city council had done. But this is purely unprofitable speculation. It was evidently the belief of the legislature that the provision for action by the Railroad Commission would safeguard the interest of gas consumers, and the rights of gas utilities, a belief which it is very easy to concur in.

Appellant should have pursued its legal remedy, and the learned trial court correctly refused the temporary injunction.

Affirmed.

On Motion for Rehearing

The Legislature has provided the gas utilities with an adequate remedy against council-made rates by affording such utilities an appeal to the rate-making power, and the procedure of, the Railroad Commission. Indeed, the legal history of the various states in general, and of Texas in particular, discloses the fact that the need for creation of a commission to make rates, etc., largely grew out of the inadequacy of courts to deal with legislature-made railroad rates. They indeed had the power and duty to strike down rates which were made operative retroactively, or which were so extremely un-. reasonable and unjust as to be confiscatory, but as the courts have no legislative power, they could not fix rates which were just and reasonable, in lieu of those adjudged void.

The mere fact that a rate may be retroactive or confiscatory or otherwise invalid does not necessarily confer upon interested parties the right to treat it as void for every purpose. Indeed, Art. 6452, R.S.1925, expressly makes the rates, etc., prescribed by the commission, conclusive and binding in actions between carriers and shippers until finally found otherwise in a direct action brought for the purpose in the manner prescribed by R.S. Articles 6453 and 6454. Indeed, the effect of these articles is to deny railroads- and shippers the right to question the-validity of commission-made rates in suits inter sese, because otherwise every case would be bogged down by the complications of rate-making, and thus redress be practically denied. Railroad Comm. v. Weld, 95 Tex. 278, 66 S.W. 1096. If, therefore, it was competent for the Legislature to make commission-made rates, binding as between carriers and shippers, because it also provided an adequate remedy to the parties by giving them a direct action against the commission to test the validity or fairness of such rates, no reason can be perceived why council-made rates shall not be made binding on gas utilities, unless and until such utilities appeal to the commission. At any rate, if the Legislature has provided an adequate legal remedy whereby gas utilities can secure redress for rates of which it is claimed that they are imposed retroactively, or that they are confiscatory or are-otherwise invalid, the gas utilities have-no right to invoke injunctive relief which courts of equity will give only where-there is no adequate legal remedy. The-legal remedy afforded by the Legislature against council-made rates of an appeal; to the R, R. Commission, and a trial dé-novo before that body to establish rates-that will be fair and just, is no more burdensome than is an application for a. writ of injunction. From the standpoint of public welfare, it is much more desirable that fair and just rates be established by a competent rate-making body, than that rates be struck down as void ab initio by an injunction, so as to leave the old. rates. in. effect, rates which the city council in any particular instance must be taken to have deemed oppressive. ⅝

Appellant’s motion for rehearing refused.


author: BLAIR, Justice.

text:
    WEST TEXAS UTILITIES CO. v. WILLS.
    No. 8827.
    Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1939.
    Rehearing Denied Jan. 3, 1940.
    A. K. Doss, of Abilene, and Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    Wm. E. Davenport and T. R. Johnston, both of San Angelo, for appellee.
   BLAIR, Justice.

This appeal is from an order overruling the plea of privilege of appellant, West Texas Utilities Company, a corporation, to be sued in Taylor County, the county of its residence. The plea of privilege was duly controverted, the controverting affidavit, itself, succinctly stating a cause of action for slander in strict accord with the requirements prescribed for such controverting affidavit by the Supreme Court in the recent case of A. H. Belo Corporation v. Blanton, Tex.Sup., 129 S.W.2d 619. Appellant concedes that the controverting affidavit sufficiently alleged a cause of action for slander and all necessary facts to maintain venue of the suit in Tom Green County, under Sub. 29 of Art. 1995, Vernon’s Ann.Civ.St., which provides that a suit for “libel or slander shall be brought * * in the county in which the plaintiff resided at the time of the accrual of the cause of action * * * But appellant contends that appellee failed to prove “the time of. the accrual of the cause of action” (1) because the statements shown to have been made by Huss, chief engineer in charge of appellant’s power plant in Tom Green County, were not slanderous per se and no special damages were shown; and (2) because, if the statements made by Huss constituted actionable slander, then appellee failed to prove that Huss was acting on behalf of appellant in making the slanderous statements. More briefly, appellant’s contention is that in order to maintain venue in Tom Green County, appellee must not only allege in his controverting affidavit but prove that “a cause of action for slander accrued,” citing the holding of the Supreme Court in the Belo case, supra [129 S.W.2d 622], as follows: “The provisions of. Subdivision 29 require the following venue facts: (1) A cause of action for libel accrued; (2) that such cause accrued on a certain date; and (3) that the plaintiff resided in the county where.the suit is filed upon that date.”

It is not contended that appellee failed to prove the last two requisite venue facts required by the decision; but that he failed to prove the first requisite venue fact for the two reasons above stated. We do not sustain these contentions.

Appellee established at least a prima facie case of liability for damages for slander against appellant on the venue hearing, by alleging in his controverting affidavit and by proving that for several years he had been employed by appellant as a switch board operator in its power plant at San Angelo, Tom Green County, Texas, where he had resided continuously for about nine years, and where he resided at the time the cause of action accrued; and by proving facts and circumstances which tended to show, in substance, that because of his activities in the organization of a union of appellant’s electrical employees under ' the recent Wagner Labor Relations Act, 29 U.S. C.A. § 151 et seq., appellant, its agents and officials conspired to discharge him, by first demoting him from his regular duties as switch board operator .to the “bull gang” and to hard labor, where, on the third day thereafter he received an injury to his back while working on a jet and became disabled to work. That since his injury on December 7, 1937, he has not worked and has not been able to work; and that at the time of his injury he weighed 186 pounds, and at the time of this hearing he weighed 153 pounds, and has been in bed about three-fourths of the time since his injury, and was still not able to work. That W. E. Huss, chief engineer in charge of appellant’s power plant and under whom appellee worked, prepared his claim for compensation under the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq. and that .while he was disabled to work because of his injury, and while he was still in the employment of appellant and on the payroll of appellant, the officials of appellant, and particularly W. E. Huss, chief engineer, preparatory to firing or discharging appel-lee because of his activities in the union which appellant was opposing and fighting, circulated the slanderous statement or remark complained of among appellee’s fellow workers at the power plant, and particularly to Wm. Camfield and to the adjuster of the insurance company which carried workmen’s compensation insurance on the employees of appellant, including appellee; that the fellow employees and especially Camfield and the insurance adjuster knew the circumstances of appellee’s injury and of his being entitled to compensation and under the custom of appellant company to his wages during disability; and that the chief engineer Huss stated to them that there was nothing wrong with appellee, but that he was just trying “to put the big breeches on the company”; which remark or statement meant and was understood to mean that appellee was merely faking an injury so as to take advantage of appellant and the insurance company; that appellant, through Huss and other officials, made the effort to keep appellee from obtaining workmen’s compensation, on which issue appellee testified as follows:

“Q. What effort, if any, did the West Texas Utilities Company make to keep you from collecting your insurance? A. According to the insurance company’s adjuster, he told me that Mr. Huss and other officials had told him there was not a damned thing wrong with me, and that they were holding up on the compensation for that reason until they could investigate it. I asked him the question if that was not what the chief engineer and other officials had told him and he said, ‘that is exactly right; that is what they told me.’ ”

Appellee also testified, in substance, that he never had a cross word or complaint about his work at any time, but that because of the ill feeling of appellant against appel-lee for his union activities, Huss and other agents and officials of appellant made the remark or statement that he was faking an injury, which was maliciously and purposely made to injure the character of appellee, and so as to leave the impression that he was being fired and dropped from the payroll for faking an injury, rather than because of his activities in the organization of the labor union against the wishes and over the protest of appellant, its agents and officials.

Wm. Camfield testified that chief engineer Huss made the statement to him that appel-lee was trying “to put the big breeches on the company,” which remark or statement he understood to mean just what was said, and that appellee was faking an injury so as to take advantage of his employer and the insurance company.

On January 20, 1938, Huss, the chief engineer, called appellee to the power plant and gave him a check, paying him for his ■wages up to January 15, 1938; and as reasons for firing appellee stated:

“Q. What did he say to you as the reason he was firing you? A. He said on the shift I was working on they were not getting the cooperation out of me they thought they should have.
“Q. Did he explain in what way? A. No, he did not; he said, ‘we are not getting the cooperation out of you on the shift you have been working on and that is why we transferred you to the repair gang, and as soon as you went to work there you claim you were injured, and according to your ■doctor and the company doctor you are not injured, and under those conditions we cannot use you any longer; here is your ■check.’ ”

Appellee also testified that he went to Abilene, to the home office of appellant, to find out why the company had fired him, .and that the following conversation with the vice-president and general manager took place:

“Q. To whom did you talk? A. I talked to Mr. Schroder, vice-president and ■general manager.
“Q. What was your conversation? A. I asked him the reason I was fired and he .asked me if I hadn’t been told why. I said, ‘Yes, but I want to get it from you.’ He asked the reason they gave me and I told him and he said that was correct.
“Q. He asked you if you had been told ■why you were fired? A. Yes, sir.
“Q. And you told him you had been told ■why? A. Yes, sir.
“Q. What did you tell him ? A. I told him that the Chief told me he was not getting the cooperation out of me on the shift I had been working on and that was the reason he had transferred me to the repair gang, and shortly after I began work on the new job I claimed I was injured, and that according to my doctor and their doctor I was not hurt, and that under those conditions the Company did not want me any longer, and he said that was right.”

The facts and circumstances detailed establish at least a prima facie case of slander by the chief engineer of appellant, who was shown to have the authority to fire or discharge appellee, which act of the chief engineer was also later ratified and confirmed by the vice-president and general manager of appellant. The chief engineer made the statement to appellee’s fellow employees and to the insurance adjuster, and in connection with his duty of controlling appellee in his employment and in firing and discharging him, to the effect that appellee was merely faking an injury so as to impose upon and to in effect defraud both appellant and the insurance company in his claims for wages and compensation insurance during the time he was disabled by reason of the fake injury; which statement was falsely and maliciously made, according to appellee’s testimony, and was made because he had incurred the ill will of appellant in helping organize a labor union of appellant’s employees, under the recent Federal Labor Relations Act, which union appellant was fighting through Huss and its other officials, who talked with appellee while he was in the employ of appellant, protesting his activities in the organization of such union.

Appellant contended that the statement shown to have been made by Huss was not slanderous per se, and since no special damages were shown, no cause of action for slander accrued. The general rule is that it is necessary to accuse a person of a crime in order fo make such accusation per se slanderous; but there is an exception to this general rule which is as well settled as the general rule, and which is that words not otherwise actionable per se sometimes become so if spoken of a person engaged in a particular business or profession, where they charge him with fraud, indirect dealings, or incapacity, and tend to injure him in his trade, occupation, employment, or business. That exception to the general rule is applicable to the instant case, and 'a clear statement of it is made in the case of Mayo v. Goldman, 57 Tex.Civ.App. 475, 122 S.W. 449, 450, as follows: “To impute to a clerk that he has been bribed in connection with the discharge of duties he owes his employer does not charge him with a crime known to our laws, and therefore we are of the opinion that the imputation charged to ap-pellee did not bring his case within the general rule. An exception, however, to the rule as well established, perhaps, as the rule itself, is that ‘words which affect a person injuriously in his office, profession, or occupation are actionable per se, though they are oral, regardless of the fact that they do not impute the commission of any crime.’ * * * To impute to a clerk that he has been bribed to betray the confidence of his employer unquestionably tends to injure him in his vocation, and, if the imputation is false, it is per se slanderous. Fowles v. Bowen, 30 N.Y. 20; Missouri Pacific Ry. Co. v. Richmond, 73 Tex. [568], 573, 11 S.W. 555, 4 L.R.A. 280, 15 Am.St.Rep. 794. We understand the rule to be that when words spoken are per se slanderous, because they impute a crime or because they tend to injuriously affect the complainant in his business, or trade or calling, he is entitled to recover at least nominal damages, if the speaking thereof is not privileged, and if the imputation they convey is false. In such a case, in the absence of evidence tending to show the contrary, it will be presumed that the words were spoken maliciously.” •

To the same effect are Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 4 L.R.A. 280, 15 Am.St.Rep. 794; Scheidler v. Brochstein, Tex.Civ.App., 73 S.W.2d 907; Southwestern Telegraph & Telephone Co. v. Long, Tex.Civ.App., 183 S.W. 421; 27 Tex.Jur., 603, § 10.

In this connection, we sustain the proposition of appellee that an employee’s compensation under the Workmen’s Compensation Act is a part of and incident to his employment, trade, occupation, or calling; and an employee’s union activities and association are a part of and incident to his employment, trade, occupation, or calling, under the modern business methods; and an employee’s right to remain on the payroll and in the employment of his employer and to continue to receive his wages during disability because of injury is a part of and incident to his employment, trade, occupation, or calling; and that to falsely and maliciously accuse appellee of faking an injury so as to take advantage of his employer and of the insurance company carrying the compensation insurance for his employer injuriously affected appellee in his business, trade or calling as an electrical switchboard operator ; and that the effect of such statement was slanderous per se, entitling appellee to general damages; and his cause of action for slander was established without the necessity of proving special damages. We also think that appellee established special damages; but under the rules stated and applicable here that question need not be discussed.

Nor do we think it necessary to discuss at length the second contention of appellant that if the statements made by Huss constituted actionable slander, then appellee failed to prove that Huss, the chief engineer, was acting on the part of appellant in making the slanderous statement. Briefly, the evidence showed that Huss had the authority to demote and to fire and hire appellee and had complete control over him, and did fire him. The statement made by Huss was in connection with his authority to control and fire appellee, which he exercised in ap-pellee’s case, and such action was later ratified and confirmed by the vice-president arid general manager of appellant. The following authorities sustain the conclusion that the slanderous statement made by Huss was made in the discharge of his duty of controlling, hiring, and firing appellee, and was in reference to the duty owed by appellee to the appellant corporation, which can only act through its agents and officials; and that the statement was made in the furtherance of the corporation’s business; > and that the statement made by Huss was ratified and confirmed by appellant. Great Atlantic & Pac. Tea Co. v. Harris, Tex.Civ.App., 75 S.W.2d 974; Magnolia Petroleum Co. v. Guffey, Tex.Civ.App., 59 S.W.2d 174; Providence-Washington Ins. Co. v. Owens, Tex.Civ.App., 207 S.W. 666; Southwestern Telegraph & Telephone Co. v. Long, Tex.Civ.App., 183 S.W. 421; Daughtry v. Blanket State Bank, Tex.Civ.App., 41 S.W.2d 527; Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 4 L.R.A. 280, 15 Am.St.Rep. 794; Evans v. McKay, Tex.Civ.App., 212 S.W. 680.

The judgment of the trial court is affirmed.

Affirmed.

BAUGH, J., did not take part in the decision of this case.


author: LOONEY, Justice.

text:
    SIMS et ux. v. DALLAS RY. & TERMINAL CO.
    No. 12813.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 9, 1939.
    Robert L. Hurt and W. F. Clark, both of Dallas, for appellants.
    Burford, Ryburn, Hincks & Charlton and W. M. Taylor, Jr., all of Dallas, for appellee.
   LOONEY, Justice.

Appellants, Raymond L. Sims and his wife, Verna Sims, brought this suit against appellee Company to recover damages for alleged accidental injuries suffered by Mrs. Sims, while a passenger on one of appel-lee’s buses, due to the alleged negligence of the operator of the bus in suddenly bringing the same to a stop, throwing Mrs. Sims forward off her seat onto the floor, causing the personal injuries for which recovery of damages was sought. Appellee answered, denying appellants’ allegations, and plead specially that, if there was any unusual movement, jerk, or jolt of the bus, injuring Mrs. Sims as alleged, the same was caused by the act of some unknown third party driving an automobile against the rear end of the bus. At the conclusion of the evidence, the court instructed a verdict in favor of appellee; judgment was rendered accordingly, to which appellants .excepted, gave notice of, and perfected this appeal.

The case is before us on one assignment of error, complaining of the action of the court in directing the verdict. The case will turn largely on the applicability, whether or not, of the doctrine of res ipsa loqui-tur, and this, in turn, will depend upon whether or not appellants based their cause of action on specific acts of negligence, or upon allegation of a general nature.

We think it must be conceded that, if the allegation had been simply that, while a passenger on appellee’s bus, Mrs. Sims was thrown from her seat onto the floor of the bus and injured, because of a sudden stopping, lurch, or jerk of the bus, res ipsa loquitur would have applied, requiring ap-pellee to explain, rebut, or otherwise overcome the presumption or inference that, the injury complained of was due to negligence. But, as appellants specifically alleged that, the operator of the bus negligently caused the movement of the bus to be suddenly and unexpectedly checked, with a lurch and jerk, throwing Mrs. Sims forward off her seat and onto the floor, causing the injuries for which damages were sought, we do not think the rule of res ipsa loquitur was applicable.

After alleging that Mrs. Sims was a passenger on appellee’s bus, occupying a front seat just back of the driver, appellants allege that, the “bus was caused to stop quickly, suddenly and unexpectedly with a lurch and jerk, without giving the plaintiff, Verna Sims, reasonable opportunity to place herself in position to avoid being thrown violently to the floor thereof; that the forward motion of said bus was checked and stopped with a lurch and a jerk; that said plaintiff was not notified or warned of the intention of said operator to suddenly check the forward motion of said bus, or stop said bus or to cause same to be stopped; that there was no apparent reason for said unexpected momentary stop causing such jerk; that said bus and the operator thereof was in the exclusive control of defendant and its servants; that said acts, omissions and negligence herein alleged was the proximate cause of the injuries sustained by plaintiff; all of which acts of said operator in suddenly checking the speed of said bus was done without due regard for the safety of the passengers on said bus, the effect of which sudden jerk and stop threw plaintiff forward off her seat toward the front end of the car and in the direction she was facing, and onto the floor of said vehicle”, causing the injuries of which complaint was made. Also that, “the bus operator was in exclusive-control and management of said vehicle, and as such operator of said bus it became his duty to use all reasonable care and diligence in the operation of said bus to prevent injury to plaintiff who was a passenger thereon”; also, that the “Company’s operator of said bus failed to use that degree of care and diligence, as herein alleged * * * required of them in the operation of said bus in this; that said operator of said bus, caused the forward motion of the bus to be checked with an unexpected and unusually severe jerk and stop for reasons unknown to plaintiff, in such manner as to throw plaintiff forward from her seat onto the floor of the bus”, etc., causing the injuries of 'which complaint is made; alleging further “that had defendant’s operator used that degree of care incumbent upon it in the operation of said bus, plaintiff’s injuries would not have resulted as herein complained of”; also that, plaintiff’s injury was not caused by any fault or negligence on her part “but solely by negligence on the part of defendant Company’s bus operator”; and that “as a direct and proximate result of said accident, and of the injury caused to plaintiff through the negligence, carelessness and lack of diligence on the part of defendant’s agent, servant and employee herein complained of, causing said fall herein alleged, plaintiff, Verna Sims, suffered injuries”, etc., of which complaint is made, and that Mrs. Sims’ physical condition “caused by said negligence on the part of defendant’s employee has resulted in permanent injuries”, etc.

The foregoing is a statement in full of appellants’ allegations as to negligence, the gravamen of which, in our opinion, is that, the negligence of the bus operator in suddenly and unexpectedly bringing the forward movement of the bus to a stop, caused Mrs. Sims to be thrown from her seat onto the floor and injured, as alleged. It is thus obvious, we think, that reliance for recovery was based upon specific acts of negligence; and, that being true, we do not think the rule, res ipsa loquitur, was applicable. ■

The parties have cited' any number of cases in which, the doctrine under consideration was discussed, but these are of no particular value as authorities, as each case must be determined on its own peculiar facts. After an exhaustive discussion of' this subject, with full citation -of authorities, in Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 263, 81 S.W.2d 659, Judge Taylor announced the rule that, where specific acts of negligence alone are relied upon for recovery, res ipsa loquitur is not applicable. To the same effect, see Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 200.

The rule under consideration not. being applicable to the case, it follows that, there arose no presumption or inference of. negligence, hence the burden rested upon'-appellants .to establish, or offer evidence-tending to establish negligence, which, in: Our ..opinion,.' they wholly failed to do.. B'oth: on'direct and cross-examination, Mrs. Sims- testified over - and over again, that the accident happened so • suddenly- she didn’t know anything about it until after falling on the floor of the bus. At page 1.0 - of -their brief, appellants admit this-, to be tru.e'; they state that she. “is.not in a position to say what caused the bus to jerk and stop. All she knows is that she was suddenly thrown forward from her seat onto the floor of the bus, and has never, been certain as to just what did happen to cause it”. Thus, it is obvious, we think,that the testimony of Mrs. Sims did not iri..the least tend to .establish negligence; on .the contrary, she testified to a conversation had with th.e operator of the bus at flie time, .in" which he said that the accident was caused 'by someone driving an automor bile;against the rear, end of the bus; the same being a part of the res gestae, tending to establish.- 'th'e defense alleged, by appellee, and this defense was further supported by the operator, who testified positively that he did not stop or check - the speed of the bus; that it 'was moving slowly when struck on- the rear- end by an automobile, which threw him forward against the steering wheel; also, two men passengers testified that an automobile was driven against the rear of the bus, throwing them against the back of the- seats in front. As this undisputed evidence-leaves no dotibt as to -what caused the accident; we do not .think the .court erred in direct ing the verdict for appellee.

However, if the rule of evidence (res ipsa loquitur) were applicable to the case, nevertheless, in view of the undisputed evidence, we think the court correctly directed a verdict for appellee; for, if it can be correctly said that, an inference' of negligence arose from the fact that Mrs. Sims was' thrown from her seat onto the floor of the' bus, the inference being rebuttable, was, in our opinion, rebutted by the uncontradicted testimony of three witnesses, to the' effect that the sudden and tmusual movement of the bus was caused by its'being run into at the rear end by an automobile driven. by a third party.

In the case of Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659, 664, Judge Taylor used the following language in point; he said: “The authorities are not in accord as to the evidential éffect of the application of the rule, due in some' measure to the use of the terms ‘presumption’ and ‘inference’ loosely and indiscriminately. 45 C.J. p. 1198. It is now well settled, however, in this state that in a proper case for the application of the rule the fact of the occurrence warrants an inference of negligence, but does not compel it; that the presumption created by the happening, whether termed' a presumption ■ or an inference, is rebuttable.-The effect of the application is not to shift the burden of proof to the defendant, but only the' burden of going forward with the evidence. It is stated in 45 C.J. p. 1219, that the general rule as affecting burden of proof is that where plaintiff has established a presumptive or prima facie case of negligence, 'by virtue of the doc- • trine of res ipsa loquitur, it is incumbent upon defendant, if he wishes to avoid the effect of the doctrine, to introduce evidence to explain, rebut, or otherwise overcome the presumption or inference that the injury complained of was due to negligence. The rule thus stated is firmly established in this state. Washington v. Missouri, K. & T. Railway Co., 90 Tex. 314, 38 S.W. 764; McCray v. Ry. Co. supra [Tex.Civ.App., 32 S.W. 548, Id., 89 Tex. 168, 34 S.W. 95]; Gulf, C. & S. F. Ry. Co. v. Dunman (Tex.Com.App.) 27 S.W.(2d) 116, 72 A.L.R. 90; Ischar v. West Texas Utilities Co. (Tex.Civ.App.) 54 S.W. (2d) 842 (writ refused); Gulf, C. & S. F. Ry. Co. v. Johnson, 92 Tex. 591, 50 S.W. 563”.

So, we think it obvious that, even if the rule res ipsa loquitur were applicable in the instant case, the burden of proof to establish negligence was not thereby shifted, and the inference or presumption of negligence, if one arose, having been rebutted by undisputed evidence, it was obligatory upon appellants to make out their case, and, having failed to produce any evidence whatever, tending to prove negligence, we do not think the court erred in directing the verdict, as was done. Failing to find reversible error, the judgment of the court below' is affirmed.

Affirmed.


author: WILLIAMS, Justice.

text:
    BUFORD et al. v. COLE et al.
    No. 5534.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 14, 1939.
    Rehearing Denied Dec. 21, 1939.
    T. H. Stone, of Houston, Gordon Huff-master, of Hallsville, and Eugene H. Murphy, of Longview, ■ for plaintiffs in error.
    Williams, Lee, Sears & Kennerly, of Houston, W. H. Francis and Roy C. Led-better, both of Dallas, John E. Green, Jr., Joe S. Brown, and Robert F. Carter, all of Houston, E. R. Hastings, of Tulsa, Okl., Lacy, Price & Williams, of Longview, Bla-lock, Blalock, Lohman & Blalock, of Houston, Read, Lowrance & Bates, of Dallas, Bramlette, Levy & Dotson and Richard B. Levy, all of Longview, and H. S. Garrett, of Fort Worth, for defendants in error.
   WILLIAMS, Justice.

Appellants, T. E. Buford and others, filed this suit July 26, 1935, alleging in statutory form a trespass to try title action, specially pleading that they jointly claimed and owned as tenants in common an undivided ¾0 interest in Judson M. Meador H. R. Survey in Gregg County. Defendants, Cole and wife, sued as fee owners, answered with general demurrer, denial, not guilty, and specially pleaded in defense title under the 3, 5, 10 and 25 year (Articles 5507, 5509, 5510, 5519, 'Vernon’s Ann.Civ.St.) statutes of limitation. Defendants oil companies, not necessary to name, sued as leaseholders for appropriation of oil produced, urged same defenses in addition to others, including improvements made in good faith. Each defendant also pleaded a cross action. Upon affirmative findings by the jury that defendants had actual, peaceable' and adverse possession of the survey of land under the 5 and 10 year statutes of limitation (no other issue being submitted), the court entered judgment that plaintiffs take nothing by their suit.

The survey was patented in 1863 to the heirs of W. M. Simpson, as assignees of a 'land certificate issued to Judsqn M. Meador. In a suit originated by some of the Simpson heirs against other heirs and parties, one Gaines Turner intervened, and in a judgment rendered in 1904 Turner recovered title and possession of the survey. Ara Buford, an heir, was not a party-to this judgment. Plaintiffs claim as heirs of Ara. Under a deed containing a general warranty clause, dated in 1907, recorded in 1911, Turner purported to convey the survey in its entirety, describing it by metes and bounds, to Mrs. Nannie Walker, a stranger to the title. Under a deed dated March 14, 1918, filed for record May 4, 1921, containing a general warranty clause, Mrs. Nannie Walker and husband for a recited consideration of $25,000 conveyed to defendant Cole a body of land, composed of various surveys and tracts, as. reflected by the following map: boundary line of .the Brooks and Bradshaw Surveys to Bradshaw’s S. W. corner; Thence East with South boundary line of Bradshaw, Duncan and Johnson Surveys to Sabine River; Thence with meanderings of Sabine River upstream to place of beginning.”

The tract is further described: “And containing 2092.6 acres of land, more or less, being all the E. L. Walker Survey, the A. Park Survey, the Andrew Park Survey, the Samuel Brooks Survey, the Judson M. Meador Survey, the J. W. Bradshaw Survey, the Thomas Johnson Survey, and all the J. A. Duncan Survey, except the Ben Greer tract of 29½ acres,

The deed does not describe each tract separately. Instead, the land conveyed is described as an. entity. Omitting the distance calls, witness trees, and meanders of Sabine River as contained in the deed, the boundary of the land • so conveyed is as follows: “Beginning at the Sabine River at the S. E. .corner of the John Tate Sur; Thence South to the North boundary line of Samuel Brooks Survey; Thence West with Brooks’ North boundary line to its N. W. corner; Thence South with West and all the interest of E. L. Walker and Mrs. Nannie Walker, or either of them, in the G. F. Penn Survey.”

Between 250 and 300 varas of the North line of the Meador Survey fronted on Sabine River. With this exception, the Meador Survey was surrounded by land owned by Cole.

The Walkers in 1912 enclosed the above-described body of land, together with other lands situated to the Northwest then owned by them, by erecting fences to connect with fences of adjacent landowners, some partnership, and through use of Sabine River as a natural fence barrier. Walkers and their lessees used the lands so enclosed on which to keep and pasture stock from 1912 until their sale to Cole in 1918. Cole began in the spring of 1919 to segregate the land he purchased from the original body by erecting a division fence beginning at the Northwest corner of the Brooks survey to point “A” on the map, and thence on North to Sabine River. When he completed this fence in the spring of 1922, his body of land was enclosed with fences and Sabine River, and so remained until drilling operations for oil began in 1931.

At least 1500 acres purchased by Cole was overflow land and valuable only for pasturage purposes and for its timber. From 250 to 300 acres of the Meador Survey were subject to overflow, not over 40 acres above highwater. In the language of a witness, “There might have been a part off the North end, some patches there, suitable for farming.” From 1903 until 1934, a period of 32 years, taxes on the Meador Survey were rendered and paid each year, before becoming delinquent, by Cole from 1918 to 1934; by Walker from 1908 to 1917; and by Turner from 1903 to 1907. Plaintiffs and those under whom they claim, have never rendered for or paid taxes on any part of the Meador Survey.

Defendant Cole, a dairyman and stock-man by trade, and his family, with two carloads of cattle, moved to this land in the summer of 1918. He moved into an old house on the Northeast corner of the Park Survey and there built a dipping-vat for his cattle. Later that year he erected a saw mill, cut lumber and built a house to live in; and still later he built tenant houses, a larger home, and cleared some 200 acres and enclosed same with fences. This improvement was all on the Brooks Survey, He and his tenants continued to reside on and cultivate the land continuously from 1918 to 1931. During this same period Cole used all the body of land except that in cultivation, to pasture goats, hogs, cattle and other live stock. In 1924 or 1925, Cole divided his body of land into two pastures by building a fence running East and West, indicated .by the line “AB” on the map. This fence ran across the Meador and Park Surveys. This fence was kept up by Cole until 1931. The fence was built out of tie siding, all lumber, making a pretty solid wall, goat-proof, and about five feet high.

From 1918 until 1931, Cole and those to whom he sold timber operated a saw mill and sawed timber into lumber and ties off the body of land, including the Meador Survey. This operation continued at intervals during this period of time. None of the mills or any houses were erected on the Meador Survey. When Cole’s leaseholders, the oil companies, began their operations to drill for oil Cole and his family moved off. Since that time his leaseholders have continuously remained on the Meador Survey in their development of the survey into oil-producing property. Plaintiffs and those under whom they claim have never been in actual possession of any part of this survey.

In a very able brief plaintiffs contend that the possession of the Brooks Survey by Cole did not constructively extend to and include the Meador Survey, citing and relying upon Simonds v. Stanolind Oil & Gas Co., Tex.Sup., 114 S.W.2d 226, and the decisions therein discussed by the Commission of Appeals. We pretermit a discussion of the holding in the Simonds case as applied to some of the facts in this record, for the judgment here rendered is founded upon the affirmative answers of the jury upon the question of actual peaceable and adverse possession of the Meador Survey.

Plaintiffs further assert that “in the entire record, from beginning to end, there is no evidence whatsoever that Cole ever made any actual use of any part of the Meador Survey for any definite period of time whatsoever, much less that he continued any such use for the full uninterrupted period of the statutes (Articles 5509, 5510) for the completion of a title by limitation.” This record does not support such a position. From 1924 or 1925 until 1931, a period of six or seven years, a five-foot blind fence, erected by Cole remained upon and split the Meador Survey. In 1931, the oil companies, leaseholders under Cole, entered upon the survey and built derricks and outhouses thereon in the drilling for and production of oil. They have continuously so remained. The board fence and the acts of the oil operators were continuous, visible and hostile. There was evidence upon the ground that timber had been cut and was being cut at intervals. During this time and for several years prior thereto, Cole used the survey and adjacent lands to pasture'his goats, hogs and other livestock. Being mostly overflow, the land was not suitable for cultivation. Taxes for five consecutive years before delinquency had been paid. Cole at all times claimed title to the whole survey. The deed to Cole wherein Walker purported to convey the Meador Survey in its entirety with general warranty of title had been recorded in 1921., Such deed with its recordation, together with Cole’s entry thereunder, payment of taxes, and possession by him, amounted to a disseisin and constituted .constructive notice to plaintiffs of. a repudiation of the alleged relationship of tenants in common. Jones v. Siler, 129 Tex. 18, 100 S.W.2d 352. The facts under this record, at the least, .presented a question of fact on the issues of the 5 and 10 year limitation titles. Brown v. Fisher, Tex.Civ.App., 193 S.W. 357, 360; 2 Tex.Jur. 323, Sec. 184.

Special Issue No. 1 submitted by the court reads: “Do you find from a preponderance of the evidence that M. T. Cole and wife and other co-defendants and those under whom all the defendants hold and claim, have held peaceable and adverse possession of the land described in plaintiffs’ second amended original petition (the land described being all the Meador Survey by metes and bounds), cultivating, using or •enjoying the same and paying taxes thereon .and claiming under a deed or deeds duly registered for any period of 5 consecutive years before July 26, 1935 ?”

Similar inquiry was made regarding the 10 year statute of limitation. In connection with these issues the court within the terms ■of Articles 5514 and 5515 defined “peaceable possession” to mean “such possession as is continuous and not interrupted by adverse suit to recover the estate”; by “adverse possession” to mean “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of the real owner. The use and enjoyment of the land necessary to make its possession adverse under our limitation statutes is only that to which the .land is adaptable and capable of being used”; and the court further instructed the jury that the word “hostile” means a holding out with intent to claim it as his own to the exclusion of all others. No exceptions were taken to the charge. Each of the special charges requested by plaintiffs which the court refused to submit to the jury gave particular cogency or weight to particular factual elements and would have constituted a general charge.

The judgment is affirmed.


author: STOKES, Justice.

text:
    HUGHES v. DOPSON.
    No. 5078.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1939.

      J. E. Brown, of Brownwood, and M. F. Billingsley, of Munday, for appellant.
    H. A. C. Brummett, of Dickens, for ap-pellee.
   STOKES, Justice.

Appellant, S. W. Hughes, brought this suit against appellee, James Coy Dopson, upon three promissory notes, the principal of which aggregated the sum of $357. The notes were payable to the City National Bank of Spur. They bore date of May 1, May 31 and June 21, 1930, and matured respectively on October 1, October 15 and October 16, 1930. After the notes were executed, the bank ceased to transact business and went into liquidation under the supervision of the Comptroller of the Currency of the United States about June 1, 1931. On the 20th of August, 1934, while the bank’s affairs were in process of liquidation, the receiver procured from ap-pellee contracts of extension by which the notes were extended so as to mature on demand and on June 30, 1937, the notes in suit, together with a large number of other notes and securities held by the receiver, were purchased by appellant and duly assigned to him by the receiver. The suit was filed on December 24, 1937, less than four years after the extension contracts had been executed by appellee.

Appellee answered by general demurrer, general denial, a plea of non est factum as to the extension contracts, and pleaded the four years statute of limitation in bar of appellant’s right to recover upon the notes. Vernon’s Ann.Civ.St. art. 5527.

The case was submitted to a jury upon a single special issue under which the jury found that appellee did not execute the extension contracts attached to the notes and offered in evidence by appellant. The court entered judgment against appellant upon the verdict and appellee’s plea of limitation, decreeing that appellant take nothing by his suit and pay the costs. Appellant duly excepted to the judgment and has perfected an appeal therefrom.

Appellant complains, first, that the court committed reversible error in the admission of certain testimony over his objections and, secondly, he assigns error to the action of the court in overruling his motions for a peremptory instruction and for judgment notwithstanding the verdict.

Other assignments of error are presented but we think a discussion of those mentioned will dispose of all of the contentions made by appellant.

Appellant took the witness stand and testified that he had purchased the notes and that nothing had been paid upon them. Upon cross-examination counsel for appellee questioned appellant concerning his purchase of the notes and other securities owned by the bank and over appellant’s objection he was required to testify as to the amount -of money he paid for all of the securities purchased by him. His testimony was that he purchased securities of the face value of approximately $100,000 and that he paid therefor a total sum of $3300. Over further objection of his counsel appellant testified that the consideration he paid for all of the notes and securities purchased amounted approximately to 3½⅜⅝' on the dollar of their face value. This evidence was not admissible and error of the court in admitting it over appellant’s objection requires a reversal of the case. • The notes had been duly assigned to appellant by the receiver of the bank and he had a right to bring and maintain suit thereon regardless of the amount of consideration paid by him or, in fact, whether or not he had paid anything at all as consideration therefor. By virtue of the assignments he became the legal owner and holder of the notes. There was neither pleading nor evidence tending to question the validity of the assignments and the law is well established that, by virtue of the assignments, regardless of whether he paid a valuable consideration for the notes or not, appellant had the right to maintain the suit and the question of whether he paid a valuable consideration was wholly immaterial. Durst v. Swift, 11 Tex. 273; Continental Oil & Cotton Co. v. E. Van Winkle Gin & M. Works, 62 Tex.Civ.App. 422, 131 S.W. 415.

Moreover, .the testimony was highly prejudicial. The jury was not informed as to the amount of the securities purchased by appellant that may have been uncollectible and testimony in that regard would not have been admissible. The testimony placed appellant in the attitude of one seeking to reap extensive profits without a meritorious basis therefor when, as a matter of law, his dealings were perfectly legitimate. There can be no question, it would seem, that these immaterial admissions wrongfully placed appellant in a highly unfavorable light before, the jury and unduly influenced them in answering the special issue. The error was, therefore, not a harmless one.

The only testimony offered by ap-pellee consisted of paragraphs 3, 4 and 5 of his answer which were introduced as evidence. Paragraph 3 consisted of .-his sworn denial that he executed the extension contracts. Paragraphs 4 and 5 constituted his pleas of limitation. Although the pleading was sworn to, it was not admissible as evidence. The pleadings were properly before the court and occupied their proper place as pleading, but they could not -be introduced as evidence on behalf of the party who filed them and the fact that they were sworn to by him does not change the rule. Robertson v. Du Bose, 76 Tex. 1, 13 S.W. 300; Pullman Palace Car Co. v. Nelson, 22 Tex.Civ.App. 223, 54 S.W. 624; Reo Motor Car Co. v. Barnes, Tex.Civ.App., 9 S.W.2d 374; Justin McCarty, Inc. v. Ash, Tex.Civ.App., 18 S.W.2d 765.

Appellant introduced in evidence the notes and extension contracts, the latter of which were acknowledged before a notary public and contained his certifi-. cate of acknowledgment and notarial seal. Under the provisions of Art. 3723, R.C.S. 1925, all declarations, protests and acknowledgments taken by notaries public are receivable as evidence of the facts therein stated in the courts of this state. The certificate of acknowledgment is prima facie evidence of the execution of the instrument and renders the instrument admissible without other proof of its execution. The denial of its execution tinder oath by the alleged maker does not alter the statutory provision. When appellee filed his sworn plea of non est factum, he sliifted the burden of establishing the execution of the extension contracts to appellant and it became his duty to do so by legal and competent evidence. By the plain provisions of the statute the certificate of acknowledgment executed by the notary public containing his seal of office constituted such proof and while the burden of proof remained upon him throughout the trial, the weight of evidence shifted immediately to the appellee and it became his duty to support his plea of non est fac-tum by admissible testimony. The only evidence offered by appellee in discharge of his burden in this respect was the three paragraphs of his own answer which we have held were not admissible as evidence. Steiner v. Jester, 86 Tex. 415, 25 S.W. 411; Norris v. Lancaster, Tex.Com.App., 280 S.W. 574; Smith v. Dozier Const. Co., Tex.Civ.App., 66 S.W.2d 744; Thane v. Dallas Joint Stock Land Bank, Tex.Civ.App., 129 S.W.2d 795; Romer v. Conter et al., 53 Minn. 171, 54 N.W. 1052; Aurelius-Swanson Millwork Co. v. First Nat’l Bank, 107 Okl. 203, 231 P. 471.

The extension contracts were executed and acknowledged by appellee on the 20th of August, 1934. By their tei-ms the notes sued on by appellant became due on demand. Limitation of four years therefore began to run on that day. Eborn v. Zimpelman, 47 Tex. 503, 26 Am.Rep. 315. The suit was filed by appellant on the 24th of December, 1937, which was three years, four months and four days after the period of limitation had its inception. Unless the' extension contracts are made nugatory under appellee’s plea of non est factum supported by proper evidence, or in some other legal manner, appellee’s plea of limitation would not apply and appellant, in so far as that phase of the matter is concerned, was entitled to recover the amount due on the notes.

For the eri-ors pointed out, the judgment must be reversed and as the record indicates the case was not fully developed upon the trial, the cause will be remanded to the trial court.

Reversed and remanded.


author: WALKER, Chief Justice.

text:
    CITY GROCERY CO. v. MOORE GROCERY CO.
    No. 3563.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 7, 1939.
    Rehearing Denied Dec. 20, 1939.
    Adams & McAlister, of Nacogdoches, for appellant.
    Ramsey & Ramsey, of San Augustine, and Butler & Price, of Tyler, for appellee.
   WALKER, Chief Justice.

The controlling facts in this case are decided in our opinion, Parker et al. v. Moore Grocery Company, Inc., Tex.Civ.App., 107 S.W.2d 1083, 1084, reversing the judgment of the lower court entered on an instructed verdict, on the ground that F. K. Parker’s authority to execute the note “was a question of fact for the jury.” On return of the mandate, appellee dismissed its cause of action on the docket of the district court, and filed this suit in the ■county court of San Augustine county upon the note and letter set out in our opinion cited above. On trial to a jury, judgment was again entered in favor of appel-lee on an instructed verdict. Again we must say that the authority of F. K. Parker to execute the note and letter was a fact Issue for the jury.

By a plea in abatement, appellants allege that at 'the time appellee dismissed its suit on the docket of the district court there was pending in answer to appellee’s ■cause of action appellants’ cross action, -putting in issue the facts in controversy in this case, and their liability to appellee. .Appellants’ proof did not sustain their plea in abatement. That issue can be developed further on another trial.

For the reasons stated, the judgment of the lower court is reversed and remanded.