author: TIREY, Justice.

text:
    MARTIN v. CAGE et al.
    No. 2178.
    Court of Civil Appeals of Texas. Waco.
    Dec. 21, 1939.

      Howard & Reinhard and L. Sanford Schwing, all of Houston, for plaintiff in error.
    Boone, Henderson, Boone & Davis, of Corpus Christi, for defendants in error.
   TIREY, Justice.

On February 3, 1930, W. T. Cage and wife conveyed to Cage’s brother, T. C. Cage, a tract of land in Nueces county, for a recited consideration of ten dollars cash and the assumption and agreement to pay a valid loan against the land in the sum of $12,000. About the same date W. T. Cage and M. E. Ruby, contractors operating under the name of Cage & Ruby, made a bill of sale of various road building equipment to T. C. Cage for a recited consideration of $8,600. Thereafter during the same year Wm. H. Martin filed suit and recovered judgment against Cage & Ruby for approximately $15,000 for personal injuries sustained by him during the year 1929. Martin caused execution to be issued and levied on the tract of land previously conveyed by W. T. Cage and wife to T. C. Cage, it being Martin’s contention that the land had been conveyed to T. C. Cage in defraud of creditors. T. C. Cage brought this suit against Wm. H. Martin to remove cloud from title and to enjoin sale of property under said execution. A trial before the court without a jury resulted in judgment in favor of T. C. Cage. The defendant Martin sued out this writ of error.

There is no statement of facts in the record. The trial court filed findings of fact in which it was found that at the time W. T. Cage and wife conveyed the land in question to T. C. Cage, the firm of Cage & Ruby was indebted to T. C. Cage in the sum of approximately $30,000, which was far in excess of the value of the property covered by the bill of sale and the value of the equity of W, T. Cage in the real estate involved herein. The court further found the deed from W. T. Cage and wife and the bill of sale from Cage & Ruby to T. C. Cage were executed and delivered in good faith for the purpose of partially reimbursing T. C. Cage for the indebtedness owed him by Cage & Ruby and without any intention or purpose of hindering, delaying or defrauding creditors, and said deed and bill of sale were not given because of any fear 01\ apprehension that Wm. H. Martin might file suit or recover judgment against Cage & Ruby. Under these findings, we think the trial court properly entered judgment for the plaintiff T. C. Cage. The rule in this respect is announced by the Commission of Appeals in Adams v. Williams, 112 Tex. 469, 248 S.W. 673, 676, wherein the court said:

“It is settled law in this state that a creditor may receive payment of an honest debt in property of his debtor, though he may know at the time that the debtor’s intent in making the payment is to prefer him and to place the property beyond the reach of other creditors, provided that no more property is taken than is reasonably necessary to pay his debt. Every payment .of a debt by an insolvent, whether the payment be made in money or property, tends in a popular sense to hinder, delay or defraud other creditors in the collection of their respective debts. In the absence of a law declaring preferences invalid, every debtor has the legal right to pay one or more of his just debts with any money or property he has. The intent to hinder, delay, or defraud creditors i'n the sense inhibited by above statutes cannot exist when the purpose and effect of the transfer of property is to apply it at its fair value to the satisfaction of a just debt and it is so received by the debtor. * * * ”

See also Schmidt v. Greenwade, Tex.Civ.App., 129 S.W.2d 324; Frees v. Baker, 81 Tex. 216, 16 S.W. 900, 13 L.R.A. 340.

The plaintiff in error in his objections to the findings of fact and conclusions of law filed by the trial court also asked for additional or amended findings. Under Article 2247a, Vernon’s Ann.Civ.St., plaintiff in error’s request for additional or amended findings came too late and the trial court properly overruled such request. See Hillert v. Melton, Tex.Civ.App., 64 S.W.2d 991. However, we have carefully considered them in connection with the court’s findings and are unable to sustain any of them in the absence of the statement of facts. In the case of Stevenson v. Fisk, Tex.Civ.App., 65 S.W.2d 507, 510, the court said: “The court is not required to find the-evidence, but only his conclusions from the-evidence, and we cannot presume, in the absence of a statement of facts, that, when the court refused to find on certain issues, there was evidence in the record upon such issues.”

There is no error pointed out by plaintiff in error and the judgment of the trial court, will accordingly be affirmed.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    TEXAS PLAINS BUILDING & LOAN ASS’N et al. v. COLONIAL CORPORATION.
    No. 5142.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1939.
    Rehearing Denied Dec. 11, 1939.

      Simpson, Dorenfield & Fullingim, of Amarillo, Gerald C. Mann, Atty. Gen., and Lloyd Armstrong, Geo.- W. Barcus, and Judge Ocie Speer, Asst. Attys. Gen., for appellants.
    Bryan, Stone, Wade & Agerton and B. G. Mansell, all of Fort Worth, for appellee.
   STOKES, Justice.

The appellant, Texas Plains Building & Loan Association, was organized under the laws of Texas as a building and loan association in the year 1-926. In 1930 it sold to appellee, Colonial Corporation, its “permanent” capital stock of the par value of $66,000 and from time to time issued other classes of its capital stock to investors and borrowers as provided by its charter and the law under which it operated. During the year 1929 the Association encountered financial difficulties which continued to grow worse and in 1934 it had a large number of borrowers who were unable to pay the notes and discharge real estate liens which it held upon property owned by them. In consequence of this condition the Association was forced to acquire by foreclosure a-nd otherwise title to a large number of tracts or parcels of real estate consisting of town property located at Amarillo and neighboring towns and in the fall of that year its holdings of real estate amounted approximately to $255,000 of its total assets of approximately $795,000. This condition precluded the Association from pursuing its normal operations and on November 16, 1934, the stockholders held a meeting at which it was decided to reorganize the Association by bringing about the incorporation of a new building and loan association with a capital stock equal to one-half of appellant’s capital stock. The ultimate purpose of the reorganization and creation of the new corporation was to establish a building and loan association under a Texas charter which would possess assets of such nature as would be approved by the Federal authorities so that the new association could itself reorganize and take advantage of the benefits of the Federal statutes enacted by Congress for relief of building and loan associations whose assets, by reason of the general economic depression, had assumed stalemate proportions.

The new association that was organized as a result of the action of the stockholders of appellant took the name of Great Plains Building & Loan Association and appellant transferred to it approximately one-half of its assets, such half, however, consisting of notes, liens and securities that were in good standing and not delinquent, retaining those notes, liens and securities that were delinquent and retaining also the real estate which it had been forced to acquire. The capital stock of the Great Plains Building & Loan Association was issued to the stockholders of the. Texas Plains Building & Loan Association in lieu of one-half of their stock in the latter concern and their holdings in the Texas Plains Building & Loan Association were thus reduced in amount to one-half of what they formerly had been. Soon after the organization of the Great Plains Building & Loan Association, it also was reorganized under the corporate name of First Federal Savings & Loan Association of Amarillo!

Appellant, Texas Plains Building & Loan Association, continued to encounter difficulty in collecting the amounts due and continually maturing upon its outstanding-loans, and likewise it encountered great difficulty in disposing of its vast amount of real estate holdings. The State Banking Commissioner was dissatisfied with these conditions and insisted upon the sale and disposition of the various items of real estate so as to adjust appellant’s assets in such manner as would be safe and in keeping with the general purpose of the law under which it was operating. The record shows there was little or no market for real estate such as that owned by appellant and that it could be sold only if offered at prices materially below its book value as shown on appellant’s books, which book value consisted of the amount of money appellant had invested in it.

• Under the law and its charter appellant was permitted to exchange its real estate for its capital stock, the real estate to bring not less than its book value and the capital stock to be acquired at not more than its withdrawal value. In an effort to extricate the Association from this pressing situation, Wm. Oliver, its president, acquiesced In by a majority, if not all, of its directors, ■evolved a plan by which the amount of purchase price offered by a prospective purchaser of an item of its real estate, which usually was considerably less than its book value, would be received by Oliver and deposited in a special account in a bank other than the one in which appellant kept its deposits, under the name of Wm. Oliver, trustee, the money to be used by him in the purchase from other stockholders of capital stock in appellant owned by them to an amount sufficient to equal the book value of the real estate being sold and then exchanging the real estate desired by the purchaser for the capital stock which had thus been acquired. The prospective purchasers being unwilling, however, to part with their money upon an indefinite and uncertain contingency, the plan finally devolved into one whereby the president of appellant would take the purchaser’s money and immediately deliver to him a deed to the property being purchased by him, deposit the money in the trustee account, proceed then to acquire with it a sufficient amount of the capital stock of appellant from other stockholders to equal the book value of the item of real estate sold, and cancel the certificates of stock thus acquired. A form of written contract was prepared for Oliver’s use in these negotiations and the first few 'of them were closed by the use of the written contract. Through carelessness or a lack of appreciation of the necessity of using the written form of contract, however, as the negotiations proceeded, these transactions became entirely oral, the purchaser paying to Wm. Oliver such an amount of money as he would agree to pay as consideration for the item of real estate being purchased by him and immediately receive from Oliver a deed to the property. The money would then be deposited to the trustee account arid in some instances it would be several weeks or months before a sufficient amount of the capital stock of appellant association could be acquired with the money paid by the purchaser to offset the book value of the property sold. The stock was acquired principally through brokers and at prices materially below its withdrawal value.

On the 20th of April, 1938, after an exhaustive examination and audit of the books and affairs of appellant Association, the Banking Commissioner addressed to the Association a lengthy communication in which he complained bitterly of the conduct of appellant’s president and directors in disposing of its real estate and acquiring its stock in the manner described and requested the removal of Wm. Oliver as president and of all of its directors. He requested also' “That those shareholders who were induced to sell their stock at figures far below its actual worth through the Wm. Oliver trustee account be allowed to recall their certificates of shares by returning to the association the amount paid to them through the Wm. Oliver trustee account.” Other requests and orders were made but these constitute the principal ones which are involved in this litigation. In compliance with the requests and orders of the Commissioner, the president and all of the directors resigned except S. G. Dye and M. L. Dye who, by agreement, were retained as directors on account of the fact that they represented the Colonial Corporation which held the $66,000 of the permahent capital stock- of appellant Association. Other directors consisting of H. E. Fuqua, P. L. Reppert and E. A. Simpson were elected. On November 4th and Sth, 1938, soon after this election, a meeting of the new board of directors was held at which a representative of the Banking Commissioner and his attorney were present. At this meeting, by vote of a majority of the directors, viz., Fuqua, Reppert and Simpson, a resolution was passed providing for the tender to those persons who had sold and delivered their capital stock to the former president, Wm. Oliver, and had received in payment therefor from the Wm. Oliver trustee account amounts below the withdrawal value of their stock so sold of an offer to reinstate their capital stock upon condition that they return to the association the amount received by them therefor from the Wm. Oliver trustee account. At this meeting a resolution was also adopted providing' that a liquidating dividend of 75% should be paid to the record investment shareholders, this dividend to include also those shareholders whose stock had been purchased through the Wm. Oliver trustee account and had been reinstated under the proposed plan.

After the meeting of the board of directors and the passage of the resolutions above mentioned a letter was prepared by the directors to be mailed to the stockholders who had parted with their capital stock and which had been purchased by the Association through the Wm. Oliver trustee account, inviting them to avail themselves of the opportunity contemplated by the resolution, pay back to the association the amounts received by them from the Wm. Oliver trustee account and have their capital stock reinstated by the issuance to them of new certificates in the amount of the former capital stock which had thus been sold and acquired by the association.

Before the mailing of the letter to the former stockholders by the directors of appellant association, appellee Colonial Corporation filed this suit and obtained from the trial judge a temporary restrain-, ing order restraining the appellant, Texas Plains Building & Loan Association, P. L. Reppert, H. E. Fuqua and E. A. Simpson, as directors, and H. M. Beverley, as manager and secretary, from observing or enforcing- the resolution adopted by them reinstating the former stockholders and from mailing, delivering, or transmitting to such stockholders the proposed letter or any other form of communication advising them of their supposed right to be reinstated.

The rights asserted by appellee, Colonial Corporation, in its petition were, substantially, that it was the owner of the $66,000 of permanent capital stock of appellant association which could not participate in' the ordinary dividends of the association nor in any of its assets until all of the obligations, including the investment capital stock, had first been discharged and that, if the appellants were permitted to reinstate the stockholders who had parted with their capital stock through the Wm. Oliver trustee account, such reinstatement would increase the liabilities and obligations of the association and thus destroy the value of its permanent capital stock.

Appellants filed their answer on January 12, 1939, and, in addition to the general issue, alleged, among other things, that from and after November 16, 1934, it had been the full intention of the stockholders of appellant association and of all of its directors that the association should be a liquidating concern; that since that' date it had been in a process of voluntary liquidation and, therefore, it was subject absolutely to the orders and directions of the State Banking Commissioner. It alleged that the whole course of conduct involving the sale of its real estate and purchase of its own capital stock in the manner detailed was improper and unauthorized by law; that the capital stock purchased through the Oliver trustee account had been purchased at prices ranging from 18⅜ to 85^ on the dollar and the method used in purchasing it had therefore, created a preference in favor of certain stockholders and a discrimination against others. They alleged that these transactions amounted to purchases of its own stock by the Association with its own cash at prices below the withdrawal value and also amounted to a sale of its real estate at prices prohibited by law and constituted legal fraud upon those stockholders who had sold their capital stock. They set up the orders of the Banking Commissioner and alleged that they were, under the law, required to observe his orders, especially so in view of the fact that appellant association was in course of voluntary liquidation.

Appellants Texas Plains Building & Loan Association and the three directors made defendants in the suit impleaded Z. Gossett, the State Banking Commissioner, who answered by alleging, among other things," that appellee held the $66,000 of permanent stock of the association and was not entitled to receive any dividends thereon or any portion of the assets of the corporation until all of the expenses and the maximum dividends provided for other classes of stock had been paid. He adopted the pleadings of the association and its directors and prayed for judgment affirming and establishing the validity of the orders that had been issued by him to the directors of the association.

The case was tried before the court without the intervention of a jury upon the prayer for a perpetuation of the injunction. The trial resulted in the rendition of a judgment by the court in favor of the appellee, enjoining and restraining the appellants from recognizing, obeying and enforcing the order of the Banking Commissioner to reinstate the former stockholders of the Association and from mailing, delivering or transmitting to the former stockholders the letter or notice from the directors inviting the former stockholders to repay the amount that had been paid to them for their capital stock and become reinstated as stockholders of the Association.

The Texas Plains Building & Loan Association, its three directors who were defendants in the suit, and the State Banking Commissioner, constituting all of the defendants, duly excepted to the judgment, gave notice of appeal, and the case is now before this court for review. /

A number of assignments of error are presented by the various briefs but we think the controlling issues in the case may be disposed of by answering the following two questions: First, does the State Banking Commissioner possess, under the law, the authority to enforce by order to the directors the reinstatement of stockholders who have sold their capital stock which has been acquired by the association in the manner and under the circumstances detailed in the foregoing statement ? Secondly, do the directors of the association, regardless of the order of the Banking Commissioner, have the right under the law to reinstate such former stockholders?

It has been said by the courts that all executive and administrative officers are enjoined and required to perform certain duties under certain circumstances and conditions and in the performance of these duties they frequently are put to the necessity of performing what the law terms quasi-judicial functions.. Manifestly they could not perform these functions without first ascertaining the facts upon which their actions must be based. Shaw v. Lone Star Bldg. & Loan Ass’n, 123 Tex. 373, 71 S.W.2d 863. It has never been the purpose of the Legislature, however, to ensconce executive or ministerial officers into a situation wherein they would be permitted to usurp those functions delegated by the constitution to the judicial branch of the government. Texas Const. Art. 2, Sec. 1, Vernon’s Ann.St.; Rochelle v. Lane, 105 Tex. 350, 148 S.W. 558. In performing their ■ duties as quasi-judicial officers, they are confined to the authority conferred upon them by the law and are not permitted to pass’ beyond the realm in which exists their authority to function in this respect. The Banking Commissioner of Texas draws his authority in matters such as are here involved from Art. 88.1a— 13, Vernon’s Annotated Civil Statutes. Eliminating those provisions not applicable to the questions here involved that act provides that “In case the Banking Commissioner of Texas shall find, upon examination or from other evidence, that any building and loan association is conducting its business, in whole or in part, contrary to law, * * * the Banking Commissioner of Texas shall, by an order in writing addressed to the president of such association, direct attention thereto and order compliance with the law * *

Upon such an examination, therefore, if the commissioner finds that a building and loan association is conducting its business in a manner contrary to law his right and duty are to issue an order to such association, directing its attention thereto and ordering it to comply with the law. Nowhere in the law governing such associations is the commissioner given authority to go behind the course of conduct which he finds the association to be pursuing at the time, assume the function of a court and enter a decree or order requiring the adjustment of rights that have accrued or become vested in those who have theretofore dealt with the association through its local officers. Undoubtedly, the commissioner had the right and authority to order a discontinuance of the course of dealing in which the officers of the association had been engaged. Such right and authority existed because the association was not authorized by the statute or otherwise to sell its real estate for less than its book value, nor to retire its capital stock at less than its withdrawal value unless, perhaps, such a course may become necessary in a process of liquidation. In this case, however, the order of the commissioner demanded not only that the president and directors be removed and the former course of dealing be discontinued, but that the association under the new management should go behind the transactions which had been consummated by the former directors, rescind the contracts under which the former stockholders had sold their stock, reinstate those stockholders on the books of the association, and place them in the same condition in which they were before they sold their stock. The record shows that those transactions were consummated by Oliver’s dealings directly with the owners of the stock and also, on a number of occasions, through brokers. The president of the association testified that he kept informed as to the market value of the capital stock and, when negotiations for the sale of a tract of real estate was begun, he fixed the price at not less than the approximate amount that would be necessary to purchase at the market price sufficient capital stock to off-set the book value of the real estate. If the transaction was closed, he would take the purchaser’s money, deliver to him a deed to the property and deposit the money in a separate bank to his own credit as trustee. He would then take up negotiations with the stockholders who wished to dispose of their stock, assuming a kind of agency for the purchaser of the property, and, in some instances, with brokers who seemed to be in touch with such stockholders, and procure a sufficient amount of the stock to off-set, at its par value, the book value of the real estate sold. When the transactions were completed through brokers, the certificates of stock were endorsed by the owners in writing and assigned in blank or to the brokers and delivered to them. The brokers then would take the certificates to the president of the association and deliver them to him upon being paid the amount called for in the transaction, together with a small brokerage fee. To comply with the order of the commissioner it would have been necessary to ascertain whether or not these sales and assignments to the brokers by the stockholders were bona fide transactions, based upon valuable considerations paid by the broker and therefore completed as between the stockholder and the broker, or whether the assignments were merely made to the broker as a matter of convenience and a method by which the money would be received by the broker from the president of the association and thereafter delivered by him to the stockholder who was selling his stock. The order made no provision for these investigations but, whether it did or not, they necessarily would have been the exercise of judicial functions and encompassed the duty of ascertaining the validity of each transaction, including questions of fraud, misrepresentation, agency and other legal questions that may arise, and applying the law in such manner as to determine who would be entitled to the consideration that had been paid for the capital stock. These necessarily were judicial functions and extended far beyond -the realm of judicial ascertainment conferred upon the banking commissioner by the statute which limited his powers to those only of a quasi-judicial officer.. The provision of the statute which gives to the commissioner authority to direct the attention of the association’s officers to the unlawful manner in which its affairs are being conducted and order compliance with the law extends no further than to enable him to put a stop to the irregular conduct and require that the affairs of the association thereafter be conducted in accordance with the law. Any rights or obligations that may have arisen between the acting parties to these transactions or any advantages or disadvantages that may have accrued to them by virtue thereof constituted bases upon which suits could be filed and essentially were matters that could be adjusted only by the orderly processes of investigation and adjudication observed by the courts which constitute the judicial branch of the government.

Appellants seek to justify the order of the commissioner and the inclination of the directors of the association to comply with it by the contention that the Texas Plains Building & Loan Association was at the time in a process of voluntary liquidation. We cannot accede to this contention. Art. 881a — 55, Vernon’s Ann. Civ.St., directs the manner in which such associations may enter upon a process of voluntary liquidation. It provides that such process shall be instituted by vote of the shareholders owning two-thirds of the voting shares. Further provision is made that before such resolution shall take effect, a copy thereof, certified to by the president and secretary of the association, together with an itemized statement of its assets and liabilities, sworn to by a majority of its board of directors, shall be filed with the Banking Commissioner. It provides furthermore that when the Banking Commissioner has approved such resolution it shall thereafter be unlawful for the association to issue stock or make loans and that all of its income and receipts in excess of actual expenses of management shall be applied to the discharge of its liabilities. Further provision is made by the statute to the effect that the plan of liquidation, including contemplated expenses and sale of any or all of its assets, shall have the approval of the banking commissioner or his authorized representative before any expenses are' incurred or any sales are made. As far as is shown by the record before us no such vote had been taken among the shareholders nor had two-thirds of the voting shares enacted any resolution of the nature required by the statute. In fact the record does not show that any step required by the statute had been taken by the shareholders or officers of the association looking to its liquidation. It is indicated by the record that some of the directors and officers entertained the assumption that the association was in a process of voluntary liquidation. No new loans were made during th.e period between the reorganization and the issuing of the order by -the commissioner to reinstate the former stockholders and these conditions are presented by appellants as evidence of the fact that the association was, as a matter of fact, in a process of voluntary liquidation. While these conditions probably would have existed if the association had complied with the law and entered into a process of voluntary liquidation, it does not follow that because of them the association necessarily was in such a process. Its failure to make new loans is readily accounted for by its financial condition. It was already overburdened with a large number of tracts of real estate which the commissioner was continually insisting should be sold and these conditions probably warranted the assumption that the association inevitably was drifting into liquidation, but no steps provided by the law for such a course had been taken and we cannot agree with appellants that by virtue of the conditions shown, in the absence of the processes provided by the statute, the association was in a state of voluntary liquidation to the extent that the Banking Commissioner acquired over it authority greater than that which he held under normal conditions.

The most that can be said of the transactions conducted by the directors, whereby the capital stock of the association was purchased for a consideration below its withdrawal value in derogation of the provisions of the statute and its charter, is that they were ultra vires. It cannot be said they were illegal. They involve nothing more than irregular transactions by which the stock was procured in a manner not authorized by law. Moreover, they were in all respects completed and closed transactions. The title to the certificates of capital stock passed in each completed sale and the consideration therefor had been paid. They were, therefore, executed and not executory transactions. There is no provision in the charter of the association which prohibits the purchase by it of its corporate stock and no such prohibition is found in the statutes. Under such conditions, by the great weight of authority in this and other jurisdictions, such transactions constitute merely ultra vires acts. There is nothing in the record to-indicate they were not made in good faith nor does the record contain a suggestion that either the president or the directors-of the association were actuated by any evil or impure motives. Upon the completion of the purchases of the capital stock,, the stock became the property of the association and fixed the rights of those holding interests in it. San Antonio Hardware Co. v. Sanger, Tex.Civ.App., 151 S.W. 1104; Hesse Envelope Co. v. Addison, Tex.Civ.App., 166 S.W. 898; Koch v. Val Verde Merc. Corp., Tex.Civ.App., 4 S.W.2d 662; Howe Grain & M. Co. v. Jones, 21 Tex.Civ.App. 198, 51 S.W. 24; Alabama Consol. Coal Co. v. Baltimore Trust Co., D.C., 197 F. 347.

In the Sanger case, supra, the Court of Civil Appeals of the Fourth District, speaking through Justice Fly, said [151 S.W. 1105] : “There is no provision in the charter prohibiting the purchase of its stock by the corporation, nor is such action prohibited by the statutes of Texas, and in the absence of such provisions in charter or statute the general rule, as applied to corporations by the weight of authority, seems to be that a solvent corporation has the authority to purchase its own stock, where the purchase is made in good faith.”

A writ of error applied for in that case was denied by the Supreme Court. The question is thoroughly discussed and the court fortifies the holding by the citation of a large number of decisions from this and other jurisdictions. The rule announced, the essence of which we have quoted, is, we think, well established and under it there can be no question, it seems to us, that upon the completion of the sales transactions the Texas Plains Building & Loan Association became the owner of the capital stock which it purchased. The rights of appellee, Colonial Corporation, as owner of the permanent capital stock, therefore, became fixed and vested and it had the right to complain as it did in its petition in this case. Under the law and the charter of the association, the stock classed as “permanent” capital stock was permitted to participate in the assets of the association only after all of its other obligations had been discharged, including the value of, and dividends upon, its other capital stock. It is not difficult to see, therefore, that if the capital stock that had been purchased by the association of the par value of approximately $156,000 for an aggregate consideration of about one-third of that amount were reissued and the original stockholders reinstated, the liabilities of the association would have been materially increased and perhaps to the extent, as alleged by appellee, that it would have destroyed the permanent capital stock held by it. Unless, therefore, the purchases of the investment stock in the manner in which it was purchased was illegal and void and of such nature that the title to such stock did not pass to the association, the association became the owner thereof although it had been acquired in an irregular manner and under circumstances which are held to constitute ultra vires.

From what we have said it follows that in our opinion the Banking Commissioner does not have the authority 'to enforce by order to the directors of such an association the reinstatement of stockholders who have sold their capital stock to it in the manner and under the circumstances shown by the record in this case. The judgment entered by the trial court enjoined the appellant association and its directors and officers from in any manner recognizing, observing or enforcing that portion of the resolution adopted by them in their effort to comply with the order of the Banking Commissioner and which undertakes to restore the former shareholders of the association to their original status as such. In our opinion, the judgment was warranted by the facts and was in keeping with the law governing the matters involved. Appellant’s assignments of error in respect thereto are, therefore, overruled.

The remaining question which presents itself from the record and the discussions in the briefs, and which we deem pertinent, relates to the authority of the directors of the association to reinstate the former stockholders, independent of any order that may have been entered or delivered to them by the Banking Commissioners. Slaughter Cattle Co. v. Potter County, Tex.Civ.App., 235 S.W. 295; Potter County v. Slaughter Cattle Co., Tex.Com.App., 254 S.W. 775. Obviously, if they possessed that authority, the judgment would be wrong whether the commissioner had the authority to issue and enforce the order or not. As we have shown, ,the consideration for the capital stock that was purchased by the association had been paid. The certificates of stock had been endorsed by their former owners and delivered to the association. The transactions were, therefore, executed on both sides and were completed and closed transactions. Even though they constituted ultra vires acts they are recognized as unassailable and are permitted to stand as the foundation of rights acquired under them. This being true the capital stock thereafter belonged to the association and constituted a portion of its assets. The “permanent” capital stock owned by appellee was thereby enhanced in value. If the directors had the right to redeliver it to those who formerly owned it, and reinstate them as investment stockholders in the association, such right would be an arbitrary one and empower the directors arbitrarily to enhance, reduce in value, or completely destroy the value of the permanent stock held by appellee without reference to its interests or its rights. In our opinion the directors possessed no such authority. It may be that the directors entertained the altruistic thought that the former stockholders had been imposed upon; that they had been induced to part with their stock at a price far below what it was, or ultimately would have been, worth and that a legal fraud had thus been perpetrated upon them. Indeed, they make such contention here. Their purpose seems to have-been to correct the supposed wrongs and injuries that had been imposed upon the former stockholders and undo that which the directors felt had wrongfully been done. While such a course may contain the elements of conscientious and equitable principles, yet the moral maxim that “one should be just before being generous” still prevails. Regardless of any commendable sentiments of restitution that may have actuated the directors in their efforts to correct what they conceived to be an injury, the transactions involved had resulted in placing in the association the title and possession of the capital stock purchased and paid for by it. The rights of appellee as the owner of its permanent capital stock immediately accrued and the directors were without authority to deprive it of those rights without its consent. To return the capital stock and reinstate the former shareholders would have resulted in the material reduction, if not the complete de-. struction, of the value of the permanent capital stock held by appellee. This the directors had no right to do.

We have considered all of the assignments of error presented by the briefs of appellants and, in our opinion, none of them reveals error. The judgment will, therefore, be affirmed.


author: SMITH, Chief Justice.

text:
    UNITED SERVICES AUTOMOBILE ASS’N v. ZELLER et al.
    No. 10513.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 30, 1939.
    Rehearing Denied Dec. 30, 1939.

      Russell, McMillan & Russell, of Sa,n Antonio, for appellant.
    Eskridge & Groce and Russell Talbott, all of San Antonio, for appellees.
   SMITH, Chief Justice.

This action was brought by Monica Flanigan Zeller, joined .pro forma by her husband,. John Batiste Zeller, and her mother, Pearl K. Flanigan, against United Services Automobile Association, to subject the proceeds of a policy of automobile insurance issued by it to Captain Homer Chandler to the payment of a judgment rendered by the Superior Court of San Diego County, California, in favor of the plaintiffs against Captain Chandler’s son, Homer Chandler, Jr. The cause was tried to a jury upon whose findings judgment was rendered in favor of plaintiffs in the amount of $6,326, being the limit of liability under the policy. The defendant Association has appealed.

Captain Homer Chandler will be referred to hereafter as Captain Chandler, and his son, Homer Chandler, Jr., who was twenty years of age at the time of the transaction under inquiry here, will be referred to as Junior. When the accident hereinafter mentioned occurred and the judgment based thereon was rendered by the California court, the appellee, Monica Flanigan Zeller, was a single woman, her maiden name being Monica Flanigan. She will be referred to herein as Monica Zeller.

The appellant, a reciprocal insurance exchange organized under the laws of Texas, and being engaged principally in writing automobile insurance for warrant officers and officers of the United States army and navy, with its home office in San Antonio, Texas, issued its policy of insurance to Captain Chandler, then stationed at Rockwell Field, Coronado, near San Diego, California. Under the terms of the policy, which designated Captain Chandler as “the subscriber,” the appellant agreed to indemnify the assured for “loss resulting from claims or suits arising from bodily injuries or death accidentally suffered or alleged to have been suffered by any .person or persons, based on the operation or maintenance of the automobile insured hereunder * * as the result of an accident occurring while this policy is in force * * * ”. The policy further provided: “The liability of the exchange is extended to cover as additional assureds * * * though not subscribers, any persons riding in or legally operating said automobile, * * * provided that such use * * * is with the permission of the Subscriber dr an adult member of his household * * and that “the Exchange will indemnify the Subscriber against loss incurred in connection with any final judgment against the Subscriber * * * and the Exchange will defend at its cost, but in the name of and on behalf of the Subscriber, all suits for damages alleged to have been suffered by reason of an accident during the contract period, even though such suits are groundless, false or fraudulent.”

The policy also required the Subscriber to forward to the appellant “every notice, summons, citation or other process delivered to or served on the Subscriber on behalf of third persons,” as well as the names of witnesses to the accident, and to render to appellant all requested aid “in securing information, effecting settlement' and prosecuting suits, defenses and appeals,” and prohibited the Subscriber from assuming or admitting any liability, and from compromising, adjusting or settling any claim, without the written consent of appellant.

The policy contained, in effect, the familiar “no action clause”, providing that appellant shall not be liable unless suit be brought against it “by the Subscriber in his own name for monies actually paid out by the Subscriber in satisfaction of a final judgment of a court of competent jurisdiction after trial of’ the issues of liability and amount.”

The automobile covered by the policy was owned by Captain Chandler, and on July 20, 1934, this car, while being driven by Junior, was involved in an accident in the City of San Diego, California, resulting in personal injuries to appellee, Monica Zeller (then Monica Flanigan), who was riding as a guest therein and who thereafter instituted suit in the Superior Court of San Diego County, California, against Junior and Captain Chandler to recover damages for said injuries. The appellant insurance company, through its attorney, John Coker, took complete charge of the defense of that suit, filed answers for both Junior and Captain Chandler, took depositions of witnesses, and conducted the defense of Junior in the trial of the case, until a final judgment in excess of $15,000 was rendered against him on March 20, 1935, Captain Chandler having been dismissed from the case at the close of plaintiffs evidence. Coker abandoned the defense after judgment, which thereupon, and by reason of that abandonment, became final.

A writ of execution was issued on said judgment and returned “nulla bona”, Junior being insolvent and having no assets out of which the judgment could be satisfied; and the judgment not having been paid, this action was brought in a district court of Bexar County, Texas, against appellant by Monica Zeller, the injured party, joined pro forma by. the other appellees, to subject the proceeds of the policy to the payment of the judgment, with the result stated.

Appellant contends that the injured party, Monica Zeller, had no right of recovery under the policy for the following reasons:

1. That Junior was not an additional assured under the policy, because he drove the automobile without the permission of the subscriber, Captain Chandler, or of an adult member of the subscriber’s household, and therefore did not come within the provisions of the policy covering additional assureds.

2. That the “no action clause” of the policy provided that the appellant shall not be liable unless suit be “brought by the subscriber in his own name for monies actually paid out by the Subscriber in satisfaction of a final judgment,” the policy being a contract of indemnity against loss actually suffered by such subscriber and not one of indemnity against liability imposed against the subscriber.

3. That the policy contained no “bankruptcy or insolvency clause” giving the injured third party a right to bring suit thereon in the event the judgment in favor of such party be unsatisfied by reason of the insolvency or bankruptcy of the assured; and that under the terms of the policy, no right of recovery thereon could inure to anyone other than the named subscriber.

4. That said injured party’s recovery in the California suit being based solely on “willful misconduct” of Junior in operating the automobile in question, the injuries suffered in that case were willfully inflicted and therefore not covered by the policy, which insured the subscriber against loss resulting from suits arising from bodily injuries accidentally suffered as a result of an accident, this contention being based on the theory that injuries resulting ’from “willful misconduct” under the California Guest Injury Statute, St.Cal.1929, p. 1580, § 141¾, as amended by St.1931, p. 1693, as defined by the trial court in that suit, are not the result of an “accident”.

5. That the policy, by reason of its provisions obligating the insurance company to defend suits on behalf of the assured, was a contract to practice law on the part of the insurer, which was not a licensed attorney) and was therefore void as against public policy.

In response to special issue No. 11, the jury found that Junior had “implied permission” of Captain or Mrs. Chandler to drive the Hudson automobile on the night of the accident. Junior’s mother, Mrs. Chandler, was an “adult member” of the subscriber’s household, within the contemplation of the policy. Appellant complains of the action of the trial court in submitting this-issue and in not giving a peremptory charge in its favor on the grounds that there was no evidence, or the evidence was insufficient, to warrant the submission of such issue or to support the jury’s -finding in response thereto. Wé overrule that contention, being of the opinion, after careful study of the record, that the evidence was sufficient to take that issue to the jury, whose finding thereon is binding upon this Court as it was upon the court below

Appellees contend that the evidence was not only sufficient to support the jury’s finding on the issue of implied permission, hut that appellant is estopped to deny non-coverage, because it took complete charge of the defense of Junior in the California suit throughout the litigation, with full knowledge of all the facts and without raising any question as to liability or non-coverage. While we are of the opinion that appellant is estopped to deny coverage, as appellees contend, we need not definitely so hold as a basis for this decision, since the issue of coverage is settled by the jury finding of implied permission to Junior to drive the car on the occasion of the accident.

Appellant contends that under the “no action clause” of the policy it should not be held liable unless suit be “brought by the Subscriber in his own name for monies actually paid out by the Subscriber in satisfaction of a final judgment,” and that the policy was a contract of indemnity against loss and not one of indemnity against liability. The policy provided that “the Exchange will defend at its cost, but in the name of and on behalf of the Subscriber, all suits for damages alleged to have been suffered by reason of an accident during the contract period, even though such suits are groundless, false or fraudulent,” and required the Subscriber to forward to appellant all notices, summons citations and other process served on the assured and the names of all witnesses to the accident, to render to- appellant all requested aid “in securing information, effecting settlement, and prosecuting suits, defenses and appeals,” and prohibited the Subscriber from assuming or admitting any liability and from compromising, adjusting or settling any claim, without "the written consent of appellant.

In pursuance of the above provisions of the policy, appellant, through its attorney, John Coker, took complete charge of the defense of Junior in the suit for damages brought by appellee, Monica Zel-ler, in the Superior Court of San Diego County, California, and controlled, directed, maneuvered and in all its details managed Junior’s defense from the institution of the suit until judgment was rendered against the twenty year old boy for more than $15,000, whereupon the attorney abandoned the defense and by his conduct caused the judgment to become final by failure to advise or prosecute an appeal therefrom. It is true that a few hours before actual entry into the trial the appellant’s attorney denied liability to Junior (upon a stated' ground which he knew had existed all the while before) but, without any sort of reservation of rights, continued in the defense of the obviously bewildered boy, whom it was obligated, under its policy, to defend throughout the case. If it assumed to withdraw from that defense on the eve of the trial, it thereby not only violated the provisions of its policy, but every canon of good faith as well, in view of all the circumstances of the case. It is well established that by its course of conduct appellant waived the “no action clause” of the policy and became unconditionally bound and obligated to pay, to the extent of the limits of the policy, the judgment rendered against the additional assured, Homer Chandler, Jr., American Indemnity Co. v. Fellbaum, Tex.Civ.App., 225 S.W. 873; Id., 114 Tex. 127, 263 S.W. 908, 37 A.L.R. 633; Automobile Underwriters’ Ins. Co. v. Murrah, Tex.Civ.App., 40 S.W.2d 233, writ refused; Automobile Underwriters’ Ins. Co. v. Long, Tex.Civ.App., 39 S.W.2d 1102; Id., Tex.Com.App., 63 S.W.2d 356; Indemnity Co. of America v. Pitts, Tex.Comm.App., 58 S.W.2d 53.

Appellant contends that Junior “agreed” that he was not covered by the -policy as an additional assured and that its attorney, John Coker, in conducting the defense of Junior in the actual trial of the case in California, did so as Junior’s personal attorney and not as an attorney representing the interests of appellant. The entire record belies this claim and we overrule that contention on the facts.

Appellant contends that Monica Zel-ler, the injured third party, had no right of recovery under the policy because there was no contractual relationship between her and the insurer and the policy contained no “bankruptcy or insolvency clause” giving said injured party a right to bring suit thereon in the event the judgment in her favor be unsatisfied by reason of the insolvency or bankruptcy of the assured. In Ohio Cas. Ins. Co. v. Beckwith, 5 Cir., 74 F.2d 75, 78, this same question was presented, and the court held that the injured third party had the right to bring action upon the policy against the insurance company to recover the amount of the judgment. In passing on this question the court said: “The conclusion is inescapable, as it seems to us, that appellant’s policy confers a benefit upon an injured person who recovers a judgment against the assured in an action for damages coming within its provisions. If appellant had agreed to pay a debt which the assured owed to appellee, the latter would have had a clear right to enforce the contract. There is no difference in principle in the obligation assumed by the policy. ‘A promise to discharge thes promisee’s duty creates a duty of the promisor to the creditor beneficiary to perform the promise.’ Restate-, ment, Contracts, § 136. See also note in 81 A.L.R. at page 1279, where this is stated to be the majority American rule, and where decisions of the courts on the subject are cited and reviewed.”

In Sanders v. Frankfort Marine, etc., Ins. Co., 72 N.H. 485, 57 A. 655, 659, 101 Am.St.Rep. 688, the court held that the injured party, after recovering judgment against the assured, may bring action against the insurance company, and that “because they assumed — in legal effect, agreed to pay — the assured’s liability to this plaintiff to the extent of $5,000, equity requires them to perform their agreement by payment to him,” and that “the facts-that the plaintiff is in no way a party to the contract of indemnity, that he paid no part of the consideration, that the contract was one • exclusively between the paper company and the insurance company for the protection of the former, upon which reliance is placed, are not decisive in equity.”

We agree with the rule announced by the above authorities, and hold that appellee, Monica Zeller, had the right to bring this action.

Said appellee was also entitled to bring this action by virtue of a statute of the State of California, which, as alleged and proved by her, provides, in part, as follows: “No policy of insurance against loss or damage resulting from accident to, or injury suffered by another person and for which the person insured is liable * * * shall be issued or delivered to any person in this state by any domestic or foreign insurance company, authorized to do business in this state, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injuries sustained or loss occasioned during the life of such policy and stating that in case judgment shall be secured against the insured in an action brought by the injured person * * * then an action may be-brought against the company, on the policy and subject to its terms and limitations, by such injured person * * *' to recover on said judgment.” St.Cal.1919, p. 776.

The record is silent as to whether or not appellant was authorized to do business in the State of California, but the record shows conclusively that it was actually doing business in that state on a comparatively large scale when the policy was delivered by it to Captain Chandler in California, and if such authorization did not exist appellant would be estopped to set up its own dereliction in not obtaining authority to do business in that state, and in operating in the state in defiance of the law, as a defense to this action. 24 Tex.Jur. p. 662; Millers’ Indemnity Underwriters v. Patten, Tex.Civ.App., 238 S.W. 240, affirmed, Tex.Comm.App., 250 S.W. 154.

The appellant failed to incorporate in its policy the provision prescribed by the above statute, giving the injured party a right of action against the insurer, but under a well-settled rule of law, the statute became a part of the contract and such provision will be read into the policy as if actually incorporated therein. Occidental Life Ins. Co. v. Jamora, Tex.Civ.App., 44 S.W.2d 808.

The suit against Junior in the Superior Court of San Diego County, California, was brought under the Guest Injury Statute of that state, which prohibits recovery by a guest as against a host for injuries resulting from an automobile accident, except for “willful misconduct” or intoxication of the driver; and appellant contends that since appellees’ recovery in that case was based solely on “willful misconduct” of Junior in operating the automobile, the injuries suffered were willfully inflicted and therefore not covered by the policy, which insured against loss resulting from an “accident.” This contention is based on the theory that under said statute injuries resulting from “willful misconduct” are not the result of an “accident.” In support of this proposition, appellant relies upon the written instructions of the trial court to the jury in that case, in which “willful misconduct” was defined. We shall not attempt to set out the lengthy instructions given by that court on this point, but a typical portion thereof is as follows:

“As contrasted with negligence, willful misconduct is something different from and more than negligence, however gross. A person is guilty of willful misconduct if he intentionally does an act which causes an injury to his guest or with knowledge of the situation creating a peril he intentionally does an act which he should not do with a wanton or reckless disregard or indifference to the consequences and with the knowledge that such act will probably result in injury to his guest.”
* * * * * . *
“Willful misconduct depends upon the facts of a particular case and necessarily involved deliberate, intentional or wanton conduct in doing or omitting to perform acts with knowledge or appreciation of the facts on the part of a culpable person that danger is likely to result therefrom.”

In other parts of the trial court’s charge in that case, the collision involved was referred to several times as “the accident,” and the jury was instructed that “if you find * * * that the defendant, Homer Chandler, Jr. was guilty of willful misconduct proximately contributing to the accident * * * then it would be proper for you to bring in a verdict in favor of the' plaintiffs.”

It is evident that the trial court in that case considered the collision to be “an accident,” and we do not construe its charge defining “willful misconduct” to restrict recovery in that case to injuries willfully or intentionally inflicted. We find no evidence in the record that Junior, on the occasion of the accident, was motivated by an intent and purpose to injure the appellee, Monica Zeller, and it is our opinion that her injuries resulted from an accident within the meaning of the policy.

Appellant’s contention that the policy, obligating the Exchange to defend suits brought against the assured was a contract to practice law, and therefore void, is obviously without merit and is overruled accordingly.

Appellant complains of the action of the trial court in compelling Max Wier, appellant’s general counsel, to testify as to contents of “confidential communications from appellant’s local counsel, Mr. Coker, to the effect that Mr. Wier thus learned from Mr. Coker in January, 1935, that Junior was operating the car at the time without Senior’s consent.” If this were a matter of privileged communication, which it is not necessary for us to decide, its admission in evidence was harmless error, for it appears from other competent evidence in the case that appellant through its attorney and duly authorized representative, John Coker, had such knowledge as early as August 17, 1934, when he filed answers in the California case on behalf of Junior and Captain Chandler, in which he denied under oath that Junior drove the car on the occasion of the accident “with the consent, express or implied,” of Captain Chandler. The disposition of this case does not depend upon the question of estoppel to deny non-coverage, involving the testimony as to appellant’s prior knowledge of the facts upon which it later denied liability.

In a number of assignments and propositions, appellant complains of the admission of evidence and the submission of special issues on the excepted, risks of the policy, all of which are overruled as without merit.

The judgment is affirmed.

On Motion for Rehearing.

In the third ground of its motion for rehearing appellant for the first time makes the contention that, because the policy involved was delivered to the insured within territory previously ceded to the United States Government by the State of California, the relevant laws of that State cannot be applied in the enforcement of the terms of the policy. The contention, raised for the first time on motion for rehearing, comes too late for consideration in this Court. Moreover, even if the contention had been timely made, and were good, it is not -decisive here, since the judgment must be, and has been, affirmed for other reasons.

Under its eighth ground in its motion for rehearing, appellant presents for the first time its proposition that Junior was not an additionally assured under the policy, because he violated a penal code of California in driving the car on the occasion of the accident without a driver’s license, and therefore was not “legally operating” the car within the provision of the policy extending coverage to any person “legally operating said automobile with the permission of the subscriber.” No statement of fact or reference to this matter was made by appellant under any appropriate assignment of error or proposition in its brief, as required by rule 31 for the Courts of Civil Appeals, and therefore, this proposition made for the first time in appellant’s motion for rehearing presents no question for consideration of this Court.

Under appellant’s ninth ground m its motion, it complains that the court erred in not holding inadmissible the testimony of Max Wier as to confidential communications. The proposition in appellant’s brief presenting this question was not supported by an appropriate assignment of error. The proposition is found on page 34 of appellant’s brief, and though it was stated that this was germane to assignments 3 and 19, an examination of those assignments discloses nothing pointing out this specified error, and therefore, even if the proposition presented error, it would not require reversal.

Appellant’s motion will be overruled.


author: YOUNG, Justice.

text:
    F. C. CRANE CO. v. CHAS. C. BELLAR CO. et al.
    No. 12922.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1939.
    Rehearing Denied Dec. 16, 1939.
    Guthrie & Guthrie, of Dallas, for appellant.
    Milburn E. Nutt, of Wichita Falls, for appellees.
   YOUNG, Justice.

F. G. Crane Company, plaintiff below, has appealed from an order sustaining venue pleas of certain defendants, and transferring the entire cause to the District Court of Chambers County. The suit in the Dallas County District Court was by appellant against Chas. C. Bellar Company, a partnership composed of Chas. C. Bellar, E. L. Nolte and F. H. Carpenter, Jr., the two first mentioned residing in Chambers County and the latter in Hardin County; the other and principal defendant being A. V. Gunn, a resident of Morris County, Texas.

Chas. C. Bellar Company, contractors, on February 21, 1939, were awarded, by the Texas State Highway Department, the job generally of constructing an overpass in Dallas County, on U. S. Highway No. 75, the location being on Greenville Avenue and M. K. T. Railroad tracks. Previously, about February 14, 1938, the Bellar Company had accepted a contract signed by A. V. Gunn for detailed excavation and salvage work on the general project. Gunn’s undertaking and bid is referred to in the testimony as an equipment and rental contract, a copy thereof being on file with the State Highway Department and the main contract of construction. Later, in February, 1939, F. C. Crane Company entered into a series of equipment rental agreements with A. .V. Gunn under which heavy tractor machinery was rented by the latter, and material and supplies purchased, resulting in a debt due to plaintiff in excess of $3,400. There was testimony that all of said machinery and material rented or sold to A. V. Gunn were used by him in performance of his contract with Chas. C. Bellar Company, and in connection with the main project of constructing and completing the overpass.

As already stated, plaintiff sued for the amounts remaining unpaid under its written agreements with A. V. Gunn, which were payable in Dallas County, alleging said defendant to be a subcontractor; and alternatively plead that, if .A. V. Gunn was not the subcontractor of the Chas. C. Bel-lar Company, he. was their agent and foreman; that in making the rental contracts and purchases with plaintiff, said Gunn was acting for his undisclosed principal, the Bellar Company, who had accepted the benefits of plaintiff’s contracts, and used its machinery and material in carrying out the Bellar Company contract with the State Highway Department; also pleading ratification and acceptance of benefits by the other defendants through their alleged agent, A. V. Gunn, - and praying for judgment against the partnership of Chas. C. Bellar Company and Gunn, jointly and severally. Plaintiff further alleged the filing of its itemized claim against all ■defendants, in the Mechanics’ Lien Records of Dallas County, presumably in compliance with Art. 5160, R.'S.; also in evidence was a letter to R. J. Hanks, of the 'Texas Highway Department, notifying said State agency of plaintiff’s claim for moneys due on the particular work, and requesting a withholding of disbursements to Chas. C. Bellar Company until payment of plaintiff’s said claim, or furnishing of bond as provided by statute.

A. V. Gunn, defendant, filed answer and •cross action in the suit; Messrs. Bellar, Nolte and F. H. Carpenter, Jr., defendants, and partners in the Chas. C. Bellar Company, asserting their aforesaid pleas of privilege. Plaintiff’s controverting affidavit to each of said pleas made the original petition.a part thereof and predicated ■venue on subdivisions 5 and 29a of Art. 1995, Vernon’s Ann.Civ.St. art. 1995, subds. 5, 29a. In connection with the claim of venue under the last mentioned subdivision (29a), plaintiff’s affidavit stated: “That in the suit filed against A. V. Gunn and each of the partners of the Charles C. Bellar Company, the plaintiffs are seeking to subject funds due Charles C. Bellar Company, a copartnership, to the claim of the F. C. Crane Company, and, in order to reach such funds, it is necessary and proper that the copartnership, Charles C. Bellar Company, and each of the partners of that partnership, to which the funds are due from the State Highway Department, be made parties to this suit.”

As we view the salient features of plaintiff’s prima facie case, venue over the particular defendants, if maintainable at all in Dallas County, must be perforce of subd. 29a, the provisions of which are familiar and need not be quoted. Although from the whole of plaintiff’s pleading, joint and several judgments are sought against all defendants, it is evident that, as against the Chas. C. Bellar Company, only the funds due such general contractor in the hands of the State Highway Department are in controversy. In other words, plaintiff is asserting the rights of a material-man, for items and articles furnished on a public improvement, and the establishment of a lien on the moneys due or to become due the public contractor under the terms of Arts. 5472a, 5472b, R.S., Vernon’s Ann. St. arts. 5472a, 5472b. Appellant’s brief candidly admits that its allegations of a cause of action against Chas. C. Bellar Company are simply to the extent of the funds in custody of the State Highway Department, which would otherwise be due the general contractor. The statutes above mentioned provide: art. 5472a, R.S., “That any person, firm or corporation, or trust estate, furnishing any material, apparatus, fixtures, machinery or labor to any contractor for any public improvements -in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such contractors for such improvements; provided, such person, firm, corporation, or stock association, shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay such contractor of his claim.” art. 5472b, “That no public official, when so notified in writing, shall pay all of said moneys, bonds or warrants, due said contractor, but shall retain enough of said moneys, bonds or warrants to pay said claim, in case it is established by judgment in a court of proper jurisdiction.”

At the time of hearing on these venue pleas (July 21, 1939), the overpass project was in course of completion, and, from defendant Gunn’s ancillary contract, an undetermined amount was owing to him by the Bellar Company and presumably constituting a part of the funds retained by the State Highway Department to the credit of the general contractor, pending completion of the work. The testimony discloses, and Art. 6674m, Vernon’s Ann. Civ. St. art. 6674m, requires, that such amount be at least ten per cent, of the particular bid or contract. The remedy plaintiff is seeking to enforce, by the above statutory notice in writing, has been termed a species of garnishment; Huddleston & Work v. Kennedy, Tex.Civ.App., Eastland, 57 S.W.2d 255. (The opinion following answers by Commission of Appeals to certified questions, Id., 122 Tex. 182, 53 S.W.2d 1009.) Whether plaintiff’s notice ultimately results in the establishment of a lien against all the moneys of Chas. C. Bellar Company on hand with the State Highway Department at date of notification, Huddleston & Work v. Kennedy, supra, or merely to the extent of a lien on the unpaid balance due defendant Gunn, Smith v. Texas Co., Tex.Com.App., 53 S.W.2d 774, it seems to us that defendant Bellar Company must, of necessity, be a party to any judgment determining the rights of plaintiff or of defendant Gunn (and inci- . dentally its own rights) in and to the subject matter impounded. The State Highway Department could hardly be required to pay out to plaintiff any part of the fund under the judgment contemplated by the statute, without the presence therein of every one whose interest is directly affected by such recovery. Chas. C. Bellar Company is.therefore a necessary party to the remedy plaintiff is prosecuting relative to the aforesaid fund, in order to afford effective relief; the suit being concededly maintainable in Dallas County against defendant Gunn. Pioneer Building & Loan Ass’n v. Gray, Sup.Ct. adopted, 132 Tex. 509, 125 S.W.2d 284; Jones-Yates Co. v. Harrison, Tex.Civ.App., Dallas, 96 S.W.2d 238. “All parties having or claiming an interest in the debt or property due or held by the garnishee should be made parties to the garnishment proceedings, in order that the judgment obtained against the garnishee may be a complete defense in his behalf to subsequent actions to recover the same debt or property.” 28 C.J. p. 207, Sec. 259.

We conclude that the trial court erred in sustaining the venue pleas under discussion and in transferring the cause to Chambers County. Said order is therefore reversed and judgment is here rendered, overruling the pleas of privilege heretofore filed by Chas. C. Bellar, E. L. Nolte and F. H. Carpenter, Jr.

Reversed and rendered.


text:
    WILSON v. BARBOUR.
    No. 5081.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1939.
    Rehearing Denied Dec. 11, 1939.

      Dennis Zimmermann, of Tulia, for appellant.
    Works & Bassett, of Amarillo, for ap-pellee.
   STOKES, Justice.

Appellee instituted this action for damages against appellant alleging that appel-lee was the lessee of a gasoline filling station at Tulia and owned the equipment; including a Wayne electric gasoline pump., He alleged that on or about the 18th of. June, 1937, appellant was driving.his car. in a westerly direction on Broadway Street which crosses State Highway No. 9 at or near his filling station and that, instead of stopping at the stop sign located on the east side of the highway, appellant proceeded at a high and dangerous rate of speed in an attempt to cross the highway in disregard of a truck approaching from the north.’ He alleged that a collision ensued between appellant’s car and the truck as a result of which appellant’s car was precipitated over against appellee’s filling station and resulted in the destruction of the Wayne gasoline pump, together with its concrete foundation, and inflicted other damages upon the building.

Appellant answered by a general demurrer, general denial, and specially alleged that the injuries and damages complained of by áppellee were not caused by any act of appellant’s but were the result of acts of negligence on the part of Guy J. Thomas, the driver of the truck. He alleged numerous acts of carelessness and negligence on the part of Thomas, some of which were that Thomas was driving at an excessive rate of speed exceeding eighteen miles an hour; that he failed to have his truck equipped with proper brakes, failed to keep a proper lookout, and that Thomas discovered appellant’s peril in time to have avoided the injury by the use of means within his control.

The case was submitted to a jury on special issues and upon their verdict judgment was entered by the court in favor of appellee in the sum of $220.

Appellant insists that the judgment is erroneous and should be reversed because, first, the witness Wadley, who testified for appellee as an expert concerning the value of the pump, was not qualified to testify as an expert; that he had not seen the pump before it was damaged and there was no basis for a hypothetical question to be propounded to him. Secondly, he alleges error in the charge of tbe court as to the measure of damages and, thirdly, that certain special issues were so framed as wrongfully to place upon him the burden of proof.

As to appellant’s first contention the witness, Wadley, testified that, at the time of the trial he was employed by Phillips Petroleum Company at Amarillo, where he had been working for three or four months prior to the trial. For two or three years before taking employment at Amarillo he was employed by a firm at Lubbock who handled" the Wayne electric pump. That he had sold and installed a considerable number of such pumps and that the pump of appellee had a cash market value “in this territory” both before and after it was damaged in the collision. He said that from his experience in selling, handling and installing the same kind of pumps he knew the value of the pump in question and that its cash market value before being damaged in the collision was from $190 to $200. He said that after it was damaged it was valuable only as junk and was worth from $15 to $20 as such. Upon cross-examination the witness stated that his estimate was only a guess, whereupon appellant objected to his testimony as being 'incompetent and only a guess. His objection was sustained and the jury instructed not to consider it. Upon further examination by counsel for appellee the witness again testified as to his experience in handling, selling and installing Wayne electric pumps ■ and again stated he knew the cash market value “in this territory” of the pump in question and that before it was damaged its cash market value was from $190 to $200. Appellant again objected to his testimony upon the ground that he was not shown to be qualified to testify as to the cash market value of the pump and his objection was overruled. Appellant insists that, after the witness had stated on cross-examination that his estimate was only a guess, ⅛ court should not have permitted him again to testify concerning the value of the pump. We cannot agree with appellant in this contention. When the witness was again examined by counsel for appellee, he stated positively that he knew the cash market value of the pump and that such value was from $190 to $200. The court sustained appellant’s objection to the testimony of the witness wherein he said that his estimate was only a guess and if the witness had not thereafter strengthened his testimony by stating positively that he knew the cash market value of the pump, his testimony, composed of a guess only, would not have been admissible. The rule is well established that when a witness gives evidence that he is acquainted with the market value, he is prima facie qualified to testify concerning the value. He may give his opinion although he does not show himself to be an expert in the matter about which he testifies, the reason being that according to his testimony he knows the market value. If he knows it, he may testify concerning it and his testimony is entitled to be considered even though he is not shown to be an expert. Foster v. Burgin, Tex.Civ.App., 244 S. W. 244; City of Waco v. Roberts, Tex.Civ.App., 12 S.W.2d 263; El Paso & S. W. Ry. Co. v. Smith, 50 Tex.Civ.App. 10, 108 S.W. 988. These authorities and many others hold substantially that when a witness states that he knows the market value'of items of property involved in the controversy he becomes prima facie qualified to testify as an expert. His testimony is admissible as such and it then becomes a question of the weight that may be given to it by the jury.

Further complaint is made by appellant of the action of the court in admitting the testimony of the witness Wadley ■because, it is urged, the witness was not shown to have known the extent to which the pump was damaged in the collision and there were no sufficient facts adduced upon which to base a hypothetical question. The witness first testified as to the value of new pumps of the kind in question. This testimony was stricken upon objection of appellant and the witness was excused from the stand. Appellee took the witness stand and testified concerning the condition of the pump immediately before it was damaged, stating that it was in good condition and had never given him any trouble. He then introduced H. E. White as a witness. White testified that he sold the pump to appellee; that he had purchased the pump ■eleven months before the collision and it was then a new pump, never having been used; that the pump was in good condition at the time he sold it to appellee and had never given any trouble. After these witnesses had testified as to the condition of the pump, R. J. Wadley was recalled to the witness stand and upon being informed as to the condition of the pump, the length of time it had been used and that it had never given any trouble, he then testified as to its value at the time of the collision, stating that its cash market value was from $190 to $200. There is, therefore, no merit in the contention of appellant that the witness was not shown to have known the extent to which the pump had been used and that no sufficient facts were adduced upon which to base a hypothetical question. The witness was shown to be thoroughly qualified to testify concerning the value of the pump and the testimony ■of appellee and the witness, H. E. White, furnished ample basis for a hypothetical ■question.

Further complaint is made of the •court’s action in admitting the testimony of the witness Wadley because, it is urged, his testimony concerning the value of the pump was not confined to its market value at Tulia. The witness testified repeatedly as to the market value of the pump “in this territory”. The record does not disclose the limits of the territory so designated and in the absence of a showing that he meant otherwise, we must assume that he referred to the territory embracing Tulia and its environs. We conceive of no error committed by the court below in any of the respects contended for under the assignments of error embraced in appellant’s first contention and they are, therefore, overruled.

The next contention made by appellant is that the court erred in submitting to the jury special issue No. IS, in connection with which they were instructed that the measure of appellee’s damages, if any, was the difference in the value of the pump immediately before it was damaged and immediately thereafter, the contention being that the jury should have been instructed that the measure of damages was the difference in the “market” value immediately before and immediately after the collision.

The matter here complained of is not contained in the special issue. It is incorporated in the instruction given to the jury by the court following the special issue and is to the effect that the measure of appellee’s damages, if any, was- the difference between the value of the pump immediately prior to being struck by appellant’s car and its value immediately thereafter. The obj ection made in the trial court was wholly insufficient to call the court’s attention to the feature of the instruction in the charge about which appellant was complaining. It nowhere pointed out to the court the alleged vice but left the court to conjecture as to what particular phase of the entire matter appellant deemed erroneous. An objection to a charge which merely states that the charge is erroneous in submitting a certain special issue because the same presents the incorrect measure of damages without pointing out wherein the measure of damages, presented to the jury is incorrect, is not sufficient to preserve the point upon appeal. The trial judge has the right to be supplied by counsel with the objections which counsel wishes to urge so as to give the court an opportunity to correct it in the particulars wherein it may be erroneous. The purpose of Art. 2185, R.C.S. 1925, is to secure the proper presentation and submission of the special issues and it is the duty of counsel to point out in clear and specific language the error of which complaint is made. As stated by Justice Martin in expressing the opinion of this court in the case of Fort Worth & D. C. Ry. Co. v. Rowe, 69 S.W.2d 169, 174: “The statute requiring exceptions to the court’s charge would become a meaningless thing unless the courts so interpret it as to compel a litigant to fully and intelligently point out any alleged error therein.” See also Southwestern Bell Telephone Co. v. Ferris, Tex.Civ.App., 89 S.W.2d 229; Abilene & Southern Ry. Co. v. Herman, Tex.Civ.App., 47 S.W.2d 915.

Waiving all this, however, we do not find any merit in the assignment of error. The gravamen of the complaint is that, instead of instructing the jury that the measure of damage was the difference in the “market value” he instructed them that the measure of damage was the difference in value of the pump immediately before and immediately after it was struck by appellant’s car. In other words, appellant contends that the court erred in omitting the word “market” as a qualification to the word “value”. The record shows that every witness who testified concerning the value of the pump either before ■or after it was damaged referred to it as the market value. The pleadings all refer to the market value and as far as the record shows no other value except the market value was contemplated or discussed during the trial. The testimony showed unequivocally that the pump had a market value and no other value, such as its real value, intrinsic value, or its special value to appellee, was referred to at any time during the trial. Appellant did not request a special issue specifying the market value as distinguished from the mere value •nor did he make any request that the designation incorporated by the court be ■changed so as to specify the market value as distinguished from mere value. If he had done so, the trial judge, no doubt, would have made the change which could have been done by a simple interlineation •of one word. In view of the record, in our opinion, no reversible error is shown. Furthermore, we conceive no possible likelihood that the jury was in any manner misled by the form of the special issue. Appellant’s second contention and his assignments of error in reference thereto will be overruled.

The third and last contention presented by appellant and supported by a number of assignments of error relates to the forms of special issues Nos. 9 to 13 in-clusive. It is contended that the forms in which these special issues were drawn and presented to the jury erroneously placed upon appellant the burden of establishing by a preponderance of the evidence that Guy J. Thomas was, at the time of the collision, driving his truck at an excessive rate of speed and that he was guilty of other acts of negligence specified in the special issues. Appellee did not make Guy J. Thomas a party defendant to the suit. In his first amended original petition ap-pellee did not negative elements of negligence in the acts and conduct of Thomas as driver of the truck nor was it necessary for him to do so. These matters were brought into the case by appellant himself. In his first amended original answer appellant alleged specifically that the damage to appellee’s filling station and pump were not caused by any negligence of appellant but that they were caused by the negligent acts and conduct of Guy J. Thomas in the manner in which he operated his truck upon the highway. He alleged that Thomas was operating the truck at a speed in excess of eighteen miles an hour; that he failed to have his truck equipped with brakes so that it could be stopped within 45 feet after applying them, and all other alleged acts of negligence that were incorporated in the special issues. Appellant having alleged acts of negligence on the part of Thomas, it became the duty of the court to submit special issues in an affirmative manner in order to have the jury pass upon the contentions of appellant as revealed by his pleading. It was not necessary for appellee to exonerate Thomas from negligence in order to recover of appellant, if appellant likewise was negligent, but granting that under the pleadings and evidence such was necessary, the court was under no duty to submit the same issues in both an affirmative and a negative form. Having submitted the special issues in an affirmative manner in response to appellant’s pleading and the evidence adduced thereunder, it was not necessary under any rule established for the submission of cases upon special issues to submit the same issues in a negative form. There is, therefore, no merit in this contention and appellant’s assignments of error in respect thereto are overruled. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314, and authorities there cited.

We have examined all of the assignments of error presented by appellant and, in our opinion, no error is revealed by any of them.

The judgment of the trial court will be affirmed.


author: GRAVES, Justice.

text:
    ESTHAY et al. v. SHERMAN.
    No. 10911.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 7, 1939.
    Rehearing Denied Jan. 4, 1940.
    A. W. Marshall, of Anahuac, for appellants.
    Bradford Pickett and P. C. Matthews, both of Liberty, for appellee.
   GRAVES, Justice.

This concededly correct statement — interpolated only to the extent of the quoted recitation from their answer — is taken from the appellants’ brief:

“This is a personal injury suit. Arthur G. Sherman, appellee, instituted this suit in the District Court of Chambers County, Texás, against D. Esthay, T. Esthay, and J. N. Simon, appellants, individually and as a partnership, for personal injury sustained by him while engaged in gathering logs for sawmill purposes. The specific allegations of negligence alleged by appellee against appellants were:

“a. That defendants were negligent in failing to exercise ordinary care to provide plaintiff with the reasonable safe place and premises on which to perform his services.
“b. That defendants were negligent in failing to exercise ordinary care and prudence to provide a reasonable safe log skid-der.
“c. That defendants were guilty of negligence in that they furnished and required plaintiff to operate and handle the log skid-der without being properly fastened and stationed.
“d. Defendants were guilty of negligence in furnishing plaintiff with a chain upon said log skidder which was defective and insufficient.
“e. That defendants were guilty of negligence in failing to go upon the ground and properly supervise in the tying and fastening of said log skidder.
“Appellee further alleged that while engaged in operating and performing services for appellants in getting out logs, and as an employee of appellants, while engaged in such work, because of the negligence above set forth and alleged, that he sustained permanent injury as alleged and set forth in the petition of the plaintiff below.
“The appellants answered in said case by general denial and plea of not guilty. And by further plea that the plaintiff below was not an employee of the defendants ‘nor had any sort of contract whatever with the said defendants. These defendants further say .that they had a contract and agreement with E. H. Sherman, the father of Arthur G. Sherman, whereby and wherein the said E. H. Sherman, acting as an independent contractor, agreed to cut and deliver saw logs ■on the banks in the vicinity of Lake Charlotte, in Chambers County, and that for such logs so delivered the defendants agreed to pay the said E. H. Sherman so much for each thousand feet delivered.’ Defendants further plead that they had nothing whatever to do with the cutting of said logs, did not know who owned the timber that the plaintiff was getting the logs from, and that they had no supervision whatever over the work and had nothing whatever to do with the method of performing the work, and that their only duty was to pay for said logs so delivered on the hank of the bayou when procured and placed there by the plaintiff. Defendants further alleged that this contract was originally had with E. H. Sherman, father of Arthur G. Sherman, and that E. H. Sherman. ■abandoned said contract to his son, Arthur G. Sherman, who advised defendants that he was going to take up his father’s contract and carry it through.
“Upon trial of the case with the jury and on answers to the special-issues submitted to the jury by the court, the court rendered judgment in favor of the plaintiff, Arthur G. Sherman, for the sum of Seven Thousand Five Hundred Dollars ($7,500.00). A motion for new trial was duly made and by the court overruled, and appellants have duly perfected their appeal to this court.”

The material substance of the jury’s findings was this: (1) That appellee was not performing the duties of the work in which he was engaged when injured either as an independent contractor or 'for his father, E. H. Sherman, -but as an employee of the appellants; (2) that appellants were not negligent toward him in having failed to provide the appellee either a reasonably safe place on which, or a reasonably safe log-skidder with which, to perform his work; (3) that they were guilty of negligence toward him that proximately caused his injuries, both in failing to safely fasten and station the log-skidder in question, and in actually furnishing him with a defective chain with which to fasten and station such log-skidder, as well as in having failed to go upon the ground and observe the tieing and fastening of such log-skidder.

It is thought the controlling question the appeal presents is whether or not the pleadings and evidence were sufficient to support the theory upon which the challenged judgment was rendered; that is, that the appellee was properly found to have been an employee of the appellants in the work he was doing for them when injured, rather than acting in the capacity of an independent .contractor toward them; the appellee questions the sufficiency of appellants’ pleadings to raise the specific issue the trial court submitted under inquiry No. 1 as to whether he was an independent contractor, in that, as he contends, they-only alleged that his father, E. H. Sherman, was an independent contractor — not that he himself was one; this is deemed to be hypercritical, however, since, as the quoted statement supra has shown, appellants went further and specifically averred that, while the original contract for the work had been made with appellee’s father as an independent contractor, the appellee had succeeded his father therein and had “advised defendants he was going to take up his father’s contract and carry it through.” Thus was a sufficient predicate laid for the appended claim that'the son also had been an independent contractor in so executing the work. :

This question then gets-back tó whethér or not the jury’s finding that the appellee was such an employee rather than an independent contractor had sufficient support in the evidence; while it is not incumbent upon this court to restate the evidence on the subject, this brief résumé of it is thought to plainly support the verdict and judgment rendered to the effect that appel-lee was such an employee, rather than an independent contractor, and in consequence to definitely classify this cause within the appended line of holdings :

“* * * the timber being cut and removed by appellee - and his co-worker, Fred Fontenot, was that of appellants; all machinery and tools used in connection with the job belonged to appellants and was by them furnished and delivered on the ground to appellee and his co-worker, at a place arid point of appellants’ selection, with full instructions as to how to station same, as well as operate it. The oil and gasoline necessary for the operation of the log-skid-der was furnished by appellants, as well as the axe and the saw; appellants directed the kind and length of timber, to be cut and snaked to the bank, ás well as, while on the ground on one' occasion, directed appel-lee and’ his co-worker to cut a particular tree' out. of. the lowlands,- which tree was situated upon the banks of the marsh near the location o'f the log-skidder; and further, appellants held appellee out as their employee and so considered him as such — or at least until they ascertained that their Louisiana Compensation Insurance did not cover the operations in .question-. There was very little left in the way of control, detail, or matters, to- be- bossed or directed. Appellee was an experienced log-cutter and sawyer; hence, it was unnecessary to have some one on the ground telling him how to fell and saw the trees, he having already been directed by appellants as to the lengths of each cut. After the log-skidder had.been set up and stationed, its operations in the particular involved, were evidently simple; and-needed no instructor of appellants on the ground for the purpose of directing its operation. The fact that appellants, or one of them, only visited the scene of operations orie time, cannot be considered especially significant of a contrary relationship to that of employer 'and 'employee, since th'e accident .occurred On the third day after the beginning of the work.” Alexander Film Co. v. Williams, Tex.Civ.App., 102 S.W.2d 514; Blankenship v. Royal Indemnity Co., 128 Tex. 26, 95 S.W.2d 366; Glazier v. Roberts, Tex.Civ.App., 108 S.W.2d 829; 23 Tex.Jur., sec. 8, p. 550; James A. Dick Co. v. Yanez, Tex.Civ.App., 55 S.W.2d 600; Jones v Fann, Tex.Civ.App., 119 S.W.2d 735.; King v. Galloway, Tex.Com.App., 284 S.W. 942; Knight v. Lewis, Tex.Civ.App., 283 S.W. 542; Northern Texas Traction Co. v. Bruce, Tex.Civ.App., 77 S.W.2d 889; West Lumber Co. v. Smith, Tex.Civ.App., 283 S.W. 1104; Western Weighing & Inspection Bureau v. Armstrong, Tex.Civ.App., 281. S.W. 244.

Under these facts and the cited holdings of our courts in like or similar-situations, especially .those in the Blankenship, Glazier, Fann, Galloway, and West cases, it seems. obvious that appellants’' major contention, to the effect that the undisputed evidence showed appellee to have' been acting as an independent contractor cannot be sustained; indeed, rather would it be more consonant with the trend of judicial decisions to hold that a presumption of the relationship of employer and employee arose .out of these dealings and circumstances that appellants in no manner overcame — the burden to do so being thereby plainly cast upon them.

Neither is the assignment against the trial court’s definition of “the term employee” well taken; in the first plate, it fails to point out in what 'particular the-definition is improper, nor does it suggest what would have been a proper one, the definition given being as follows: “By the term ‘employee’, used in the foregoing special issue, is meant .every person in the service of another under any contract of Hire, express or implied, oral or written, where the employer has the power or right to control and 'direct the employee in the material details as to how the, wofik is to be. performed.”

¡This court finds no fault with the-declaration, but regards it -as coming well, within our authorities on the subject, especially that enunciated in King v. Galloway, Tex.Com.App., 284 S.W. 942.

There áre other questions discussed in the; briefs, but under the dominating influence of the one fact issue, as to whether or not the appellee was an erhployee or an in-' dependent contractor, • they seem to this. court to have related to evidentiary details, rather than ultimate issues of fact — such, for instance, being the special issues requested by appellants under their Nos. 4, 5, 6, and 7; these tendered inquiries merely split up the ultimate issue of whether the appellee was an independent contractor into the inconclusive details of whether he had control over the minutiae of his work, whether the appellants only had the right to control the result of his undertaking, whether he had control of the details of actual operation of the winching machine and log-skidder, and, finally, whether he himself had control of the selection and felling of particular trees cut.

Under what has been said, it seems obvious that these inquiries at most only sought to elicit evidentiary matters, hence their refusal did not constitute reversible error.

These conclusions require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.