author: BAUGH, Justice.

text:
    H. E. BUTT GROCERY CO. et al. v. SHEPPARD et al.
    No. 8983.
    Court of Civil Appeals of Texas. Austin.
    Feb. 7, 1940.
    Rehearing Denied March 13, 1940.
    Greenwood, Moody & Robertson and Herman Jones, all of Austin, for appellants.
    Gerald C. Mann, Atty. Gen., and W. F. Moore, Billy Goldberg, and Cecil C. Rotsch, Asst. Attys. Gen., for appellees.
   BAUGH, Justice.

Suit was filed by H. E. Butt Grocery Company and the SouthWest Texas Grocery Corporation, separate and distinct private corporations, against the State Comptroller, the State Treasurer and the Attorney General to recover $1,972 occupation taxes, paid under protest, and exacted by the Comptroller under the provisions of the “Chain Store Tax Statute”. Chap. 400, Acts 1st Called Session, 44th Legislature, Vernon’s Tex.Pen.Code 1936, art. lllld, §§ 1-11. The sum involved was an additional tax demanded for the four years prior - to and including 1939. In the latter year it was alleged that the plaintiff, H. E. Butt Grocery Company, owned' and operated 32 grocery stores with headquarters at Harlingen, Texas;, that Southwest Texas -Grocery Corporation owned and operated two grocery stores with headquarters at Del Rio,- Texas; and that H. E. Butt owned 83% of the stock of the former, and 75% of the stock of the latter corporation. The trial court sustained a general demurrer to their petition, the plaintiffs declined to amend and their suit was dismissed; hence .this appeal.

■ Appellants’ contention here, and alleged in their petition,' is that they are separate and distinct corporations, neither owning any stock in, nor exercising any control over, the other; that they constitute separate entities; and that each owed, under said law, only a tax on the number of stores owned and operated by it. That is, that under the “Chain Store Tax Statute”, the H. E. Butt Grocery Company owed a tax on a chain of 32 stores; the Southwest Texas Grocery' Corporation owed a tax on a chain of two stores; and that the Comptroller could not disregard the separate legal entities of the two corporations, and exact a tax of the two corporations, treating them as a single unit of 34 stores and computing the tax accordingly, notwithstanding the ownership of the majority of the stock in each by H. E. Butt.

Appellants cite numerous authorities and discuss at length the nature, character, powers and liabilities of a corporation as a legal entity, separate and distinct from its individual stockholders, and insist that in assessing and collecting the tax in question, the Comptroller ignored these distinct legal entities.

The general characteristics of a corporation as a distinct entity separate and apart from its stockholders, regardless of how and by whom its stock is held, are well settled and uniformly recognized. We refer, without discussing these distinctions here, to 10 Tex.Jur. Sec. 45, p. 639; 13 Am.Jur. Sec. 6, p. 157; and 18 C.J.S., Corporations, § 4, p. 368, for a full treatment of this subject.

Appellants also contend that, as applied to the fact situation here presented, the legislative intent, under the provisions of the law in question, is so ambiguous, obscure and uncertain, as to make applicable to them, the rule of strict construction thereof against the State and of liberal construction in favor of the tax payer. And that when so construed the additionál tax here involved was and is not due the State. The rule asserted is well recognized. See 40 Tex.Jur., Sec. 45, p. 68 and cases cited. It is also to- be noted that said Act is a penal statute (see Vernon’s Texas Statutes, 1936, Art. 11 lid, Penal Code), which generally must likewise be strictly construed. 39 Tex.Jur., Sec. 146) p. 276. But if the true intent of the Legislature is clearly reflected by the provisions of the Statute, it should be so construed as ¡to carry that intent into' effect. Thompson v. Missouri, K. & T. Ry. Co., 103 Tex. 372, 126 S.W. 257, 128 S.W. 109.

Sec. 5 of said Act requires the license fees therein prescribed to be paid by every person or “corporation * * * operating * * * one or more stores * * * within this State, under the same general management, or ownership * * Sec. 6 provides that the “Act shall he construed to apply to every person [or] * * * corporation * * * which is controlled or held with others by majority stock ownership or ultimately controlled or directed by one management or association of ultimate management * *

Sec. 6 was manifestly intended to prevent large chains of stores, which receive the benefits flowing from such system (considered and enumerated in part by the U. S. Supreme Court in State Board of Tax Com’rs v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 75 L.Ed. 1248, 73 A.L.R. 1464, 75 A.L.R. 1536, and in Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, sustaining the validity of the Act as constituting a reasonable classification), from circumventing the tax burdens imposed under the Act, by organizing separate corporations to operate them, the capital stock of which, or a majority of it, being owned by a parent corporation or holding company, or by an individual or association of individuals. Thus through a common management or control over a number of individual units or- corporations the clear purpose of the law would be defeated. While in the instant case no such condition prevailed, in that appellant corporations were organized and were operating stores separately before the Act was passed, the principle is the same, the benefits the same, and the result would be the same. This exact provision of the chain store tax law of Michigan was held valid in Smith Co. v. Fitzgerald, 270 Mich. 659, 259 N.W. 352. A similar provision of the •West Virginia Statute was upheld in Gulf Refining Co. v. Fox, D.C., 11 F.Supp. 425, wherein the Court in effect held that •majority stock ownership of such corporations was tantamount to a “control” thereof within the meaning of such law. This holding would apply with equal force whether such majority stock ownership be lodged in.an individual or in another corporation.

It-is true that the Texas Act does not undertake, 'in instances of common ownership, or control through .majority stock ownership in two or more corporations, to specifically designate who must pay such tax, whether the owner of the majority of such stock, or the corporations themselves, nor if to he paid by the latter, in what proportion it shall be allocated to such respective corporations. It merely makes “The provisions of this Act * * * ” apply to every such “person, * * ■* firm, corporation,” etc.

Manifestly the statute could have easily been made more specific in this regard. We conceive, however, that all of the contentions here made by appellants, whether actually raised in the attack upon the validity of the Act or not, were necessarily involved in the attacks made upon its constitutionality in Hurt v. Cooper, supra, which followed the decisions in the Jackson and Fitzgerald cases, supra, and Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929, 85 A.L.R. 699; in all of which cases the validity thereof, notwithstanding such indefiniteness in the respects stated, was sustained. The ownership by Butt of 83% of the stock in one corporation, and of 75% of the stock in the other, gave him such unified control of both corporations, through such stock ownership, as to bring the stores owned and controlled by such separate corporations under the provisions of the Act; and required that they be treated as one chain for tax purposes. The failure of the Legislature to specifically provide how and by whom the tax so imposed should be paid, should not, in view of the decisions upholding the Act as valid, be permitted to defeat its provisions. To sustain appellants contentions, and tax the two corporations involved only on the basis of the stores owned and operated by each, thus ignoring the majority stock ownership provision of Sec. 6, would in effect nullify Sec. 6, and so defeat the very purposes it was enacted to accomplish; and would, in effect, be in conflict with the decision in Hurt v. Cooper, supra, holding such provision valid. While we are here confronted with the application of the act to a factual situation presented, rendered difficult because of its indefiniteness, we are not at liberty to so apply it as to render it nugatory in practice.

The Act in question clearly encompassed within its terms the fact situation here presented. The additional tax was demanded by the Comptroller on the finding by him that the 34 stores constituted under said Act but a single chain under the control of H. E. Butt through his majority stock ownership of the two corporations operating them. It was paid under protest. Only the two corporations have sued. It was not alleged by whom nor in what proportion the additional tax was paid. If, as we conclude, these corporations, regardless of number, are due the tax prescribed by the Act, because of unified, control through majority stock ownership, the State is not seriously concerned with how, as between themselves, they distribute that tax burden. That is a matter that they can adjust between themselves perforce the same unified majority stock ownership, which brings them within the terms of the Act itself.

The trial court did not err, therefore, in sustaining the demurrer to the appellants petition, and its judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    HIDALGO COUNTY et al. v. JOHNSTONE et al.
    No. 1974.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 26, 1940.
    Rehearing Denied Feb. 23, 1940.

      Robert E. Kirkpatrick, of Mercedes, and A. J. Ross, Jr., of Edinburg, for appellants.
    Cameron & Hardin and Fred W. Hof-stetter, all of Edinburg, for appellees.
   FUNDERBURK, Justice.

Mrs. Lillie M. Johnstone “joined pro fo.rma” by her husband, T. P. 'Johnstone, brought this suit against Hidalgo County and officials of said county in their capacity as such, seeking to enjoin the defendants from laying out, opening or establishing a county public road over and across a 16 acre tract of land owned by Mrs. John-stone. The defendants sought to justify the action of the Commissioners’ Court and of the County Judge and Commissioners on the ground that all preliminary steps necessary to authorize such action had been lawfully taken.

Plaintiffs’ pleadings, among other things, alleged that the order of the Commissioners’ Court purporting to approve the findings of the report of the Jury of View “is illegal, if not entirely void, in that it orders a road to be laid out which is a different road than the one recommended in the said report of the Jury of View.”

Plaintiffs further alleged: “The acts of the defendants herein in attempting to open and establish the said road as described in the report of said Jury of View and/or the said road described in the said order of the Commissioners’ . Court purporting to approve the report of said Jury of View constitutes a gross abuse of discretion on the part of the defendants in that no public necessity exists for the establishment of either of such roads, but on the contrary the said road is sought to be established for the use, benefit and convenience of only a small number of private individuals and the said acts of such defendants, therefore, constitute a legal fraud upon the plaintiffs. Said road is not in fact sought to be established by virtue of any public necessity, but only in order to satisfy the 'desires of a few such individuals.” By a trial amendment plaintiff added allegations presenting the contention that “no necessity, public, private or otherwise, exists for opening the road” because there existed a road lying south of the block across the north end of which the new road was proposed to be opened, which the defendants had permitted to be closed for a number of years.

In-a jury trial only one issue was submitted. The verdict thereon purported to find “from a clear preponderance of the evidence” that “no public necessity exists, under the conditions shown by the evidence, for a road to be laid out and opened connecting the east end of the .road referred to in the evidence as the McAllen Road or Alamo Road with the south Val Verde Road.”

Before submission of said issue, the court overruled a motion of defendants for an instructed verdict for them, and after return of said verdict overruled defendants’ motion for judgment notwithstanding the verdict. Sustaining motion of the plaintiffs for judgment in their favor upon the verdict, the court rendered such judgment, from which the defendants have appealed.

Plaintiffs’ petition alleged that Mrs. Lillie M. Johnstone was the fee simple owner of the property in her own separate right and that she was served with a notice set out in said pleading, which appears to be sufficient and as to the sufficiency, of which no complaint is made, except that such notice was not served upon her husband, T. P. Johnstone, who is living with her upon said land as their homestead. It is contended by appellees that condemnation of the land was void because of lack of notice to the husband of the owner. Upon this point neither party has cited us to any authority which can be considered of any material aid, no.r have we found any. The question here is relevant only as involving the further question of jurisdiction of the Commissioners’ Court to condemn and assess damages. It is our view that notice to .the wife as owner was sufficient to confer jurisdiction within the requirement of R.S.1925, Art. 6709, providing that notice be given the owner.

The allegation of plaintiffs’ petition to the effect that the Commissioners’ Court ordered a different road laid out from that reported by the Jury of View, regardless of other questions of the sufficiency of the pleading, perhaps relieves it from the criticism that it is subject to a general demurrer. There was, however, no evidence to support such allegation. Nothing in the record indicates that the judgment was in any degree rested upon that ground.

Plaintiffs’ pleadings were insufficient, we think, to allege a cause of action for injunction based upon.the alleged fact that there was no public necessity for the road. True, the pleadings alleged “a gross abuse of discretion on the part of the defendants” and also that “said acts of such defendants, therefore, constituted a legal fraud upon the plaintiffs.” But such allegations, if not mere legal conclusions and insufficient upon that ground alone, were nevertheless limited by the more specific allegations to the effect that such abuse of discretion and/or legal fraud consisted of the alleged facts that “no public necessity exists for the establishment of either of such roads, but, on the contrary, the said road is sought to be established for the use, benefit and convenience of only a small number of private individuals * _ * * said road is not in fact sought to be established by virtue of any public necessity, but only to satisfy the desires of a few such individuals.” The more specific allegations which, of. course, control the more general are insufficient we think, as a matter of law, to state the essential elements of a cause of action for injunction. If it should be granted there was no public necessity for the road, that alone would not warrant the conclusion as one of law that the Commissioners’ Court was guilty of fraud or its legal equivalent — an abuse of discretion. So, also allegation that the .road was sought to be established for the use, benefit and convenience of only a small number of private individuals, if true, is not the legal equivalent, either that there was no public necessity for the road or that any of the defendants were guilty of fraud or abuse of discretion in determining the question of necessity to the contrary. Public roads are for private individuals, as well as others, and the fact that the road was being established for the use, benefit and convenience of only a small number of private individuals was not the legal equivalent of the fact that the road was not to be a public road. Thus it appears that the only facts alleged, only one of which was submitted as an issue to the jury, were at most merely evidentiary . facts, which, standing alone, were entirely without probative effect on the essential issue of fraud or abuse of discretion.

The questions considered and decided in Bradford v. Moseley, Tex.Com.App., 223 S.W. 171, reversing Moseley v. Bradford, Tex.Civ.App., 190 S.W. 824 (the latter apparently chiefly relied upon by ap-pellees), are deemed conclusive of the questions presented upon this appeal, unless possibly it be a question of the meaning of the term “abuse of discretion.”- The use of said term is itself much abused. In this State, however, the better view of judicial authority seems to us to be in line with the declaration of Judge Boyce that “In cases of this kind, the discretionary power conferred upon the commissioners’ court can only be interfered with by injunction where the proposed action is fraudulent.” Grayson County v. Harrell, Tex.Civ.App., 202 S.W. 160, 163; L. Waterbury & Co. v. City of Laredo, 60 Tex. 519, 523; Johnson v. Holland, 17 Tex.Civ.App. 210, 43 S.W. 71; Heathman v. Singletary, Tex.Com.App., 12 S.W.2d 150 (Good faith the test); Davidson v. Wells, Tex.Civ.App., 233 S.W. 518; Board of Road Com’rs v. Johnson, Tex.Civ.App., 231 S.W. 859. Based upon decisions, including Grayson v. Harrell, supra, Corpus Juris Secundum deduces the following: “As the term is ordinarily used, it has been said to imply not merely an error in judgment, but perversity of will, passion, or moral delinquency.” 1 C.J.S., Abuse, page 402; Bobbitt v. Gordon, Tex.Civ.App., 108 S.W.2d 234, 238. The fact if determined by an independent judicial proceeding that there was no necessity for a public road would, we think, as a matter of law, not necessarily be inconsistent with entire good faith on the part of the Commissioners’ Court in determining the same question to the .contrary.

But, if the pleadings were sufficient to present also this issue, then we think evidence in essential particulars was wholly lacking to prove it, or raise an issue of the fact.

It is, therefore, our conclusion that the judgment should he reversed and judgment here'rendered for the appellants to the effect that appellees take nothing by their suit, and that the defendants go hence. It is so'ordered.


author: YOUNG, Justice.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. RINGO.
    No. 12836.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1940.
    Rehearing Denied March 9, 1940.
    Read, Lowrance & Bates, of Dallas, for appellant.

      Currie McCutcheon and Bruce Graham, both of Dallas, for appellee.
   YOUNG, Justice.

The suit below was for damages resulting from an assault upon appellee, inflicted by one of appellant’s collection agents; the insurance company prosecuting this appeal from a jury verdict and judgment for $500, the parties being hereinafter designated as in the trial court. Plaintiff’s petition relating to the events preceding the assault, stated: That on April 5, 1938, about 7:30 P. M., one P. L. Brown (defendant’s said agent) visited plaintiff’s home for the purpose of collecting weekly premiums on policies of insurance carried by plaintiff in defendant’s company, and: “That defendant’s agent, servant and employee Brown upon coming to plaintiff’s home as aforesaid became angry at plaintiff, and accused plaintiff of being delinquent in the payment of the premiums due defendant on said policy and demanded of plaintiff that plaintiff pay defendant one extra week’s premium, claiming plaintiff was in default one extra week in the premiums due defendant Company; that without just cause or provocation, said Brown struck plaintiff in the face and over his body, and cut plaintiff with a knife, * * However, plaintiff’s narrative of what led up to the affray is somewhat different. He testified, in substance, that at the time, he was carrying four policies with defendant company, for himself, his wife, and two daughters, the premiums payable weekly; that the collecting agent, Brown, was admitted into the dining room of his home, where $1.80 was collected on the policies, being premiums for two weeks. This sum was there credited in duplicate receipt books in the possession of each party, when plaintiff began to insist that such amount paid his policies two or three weeks in advance, instead of one week as both books indicated. It is undisputed that .Brown’s prior visitation and collection of premiums was on March 22, when four weekly payments were made on each policy, being for the weeks beginning the 7th, 14th, 21st and 28th of said month.

In the ensuing altercation as to payments and correctness of the books, the agent was told to leave and not return; plaintiff indicating either that the insurance would be dropped, or other methods used in making further payments. Their dispute appeared to become more heated as the parties proceeded to the front of the house; plaintiff, as he testified, being invited by Brown to “Come on outside and we will just fight it out.” Following is the testimony of plaintiff at this point, upon cross-examination:

“Q. * * * Now, Mr. Ringo, you couldn’t settle the question of the one week being paid and not shown on the books, as you claimed, only one week in advance and you claimed it should be two weeks, you couldn’t settle that by going out in the yard in the dark, could you? A. I don’t think so.
“Q. No. What did you go out there to settle? A. I just went out there because he pulled the door open and asked me out on the porch.
“Q. Well, what were you going to settle when you went out there? A. Well, wasn’t going to settle anything when he opened the door.
“Q. Well, didn’t he say, ‘Come out and let’s settle it’ ? A. Well, he said that a dozen times.”

Then came the assault, Brown using, either offensively or defensively, a knife. Mrs. Ringo gave a similar statement of the controversy, as did the agent, who insisted, however, that throughout the affair, plaintiff was continually the aggressor.

Brown further testified that all collections were turned in to defendant’s office; that he had no interest therein, save that, if such policies lapsed, the company would charge a certain amount against him in new business; and, in connection with the dispute, he informed plaintiff that he did not have to drop the insurance, “ * * * he could pay it in to the office if he was dissatisfied with my collection.”

The principal issue submitted and jury answer thereto, was: “Issue No. 1: Do-you find from a preponderance of the evidence that at the time and on the occasion1 of plaintiff’s injury P. L. Brown was acting within the apparent scope of his authority as an employe of the defendant, The National Life & Accident Insurance Company? Answer either ‘yes’ or ‘no’. By the term ‘apparent authority’, as used in-this charge, is meant that authority which an agent appears to have by some act on the part of the principal. Answer: Yes.”

Appellant moved for instructed verdict at the close of the testimony, and for judgment non obstante veredicto after the jury-had made their several findings.

Brown had visited plaintiff’s home, making collections, for some time prior to the above difficulty. No antecedent ill-feeling is shown to have existed between them. There was no contention made on the trial that the sums paid on April S were not properly credited; or that the duplicate receipt books did not correctly reflect the status of the policies as to weekly payments. Brown’s duties as agent for the company were: To solicit business, write applications, deliver policies, and collect premiums.

Appellant’s main presentment of error is embodied in its second proposition, namely, that the evidence wholly fails to show that the agent Brown was ■ acting within the apparent scope of his authority in making the assault; likewise, the record indisputably discloses that at the time of said assault, said agent was.not acting in the accomplishment, of any purpose for . which he was employed, but was actuated solely by personal animosities, and in .resentment of supposed insults engendered by plaintiff. On the other hand, appellee submits that the authority of Brown to act for appellant in the whole of the transaction, culminating in the assault, was properly for the jury’s ' determination. We must, of course, view the evidence most favorably toward plaintiff in ‘ considering defendant’s motions for judgment, made before and after the jury verdict.

It is first to be noted that neither the pleading nor the evidence raises an issue of “apparent authority” on the part of the agent Brown. This species of agency is based on estoppel, and, to be available, must be both alleged and proven: 2 Tex.Jur. (Agency) p. 637, § 217; Continental Oil Co. v. Baxter, Tex.Civ.App., 59 S.W.2d 463. Substituting the court’s definition fon the term “apparent authority”, the jury’s finding of fact in Issue No. 1 was that, at the time and on the occasion of the assault upon plaintiff by P. L. Brown, the latter was acting under 'authority he appeared to possess, by reason-of some act on the part of the National Life & Accident Insurance Company. The record discloses that defendant had invested its agent 'with no appearance of authority on the particular visit, other' than to" collect an amount of premium and credit same in the duplicate receipt books, as on previous and regular trips. Hence no act o'f defendant company can be pointed out in the evidence on which could -be predicated the issue of apparent or ostensible authority. But plaintiff argues that the assault resulted from a quarrel which immediately grew out of the collection of weekly premiums, a duty which the agent was employed to perform. We conclude from the Texas decisions in point, that where injuries are wilfully inflicted by an agent or servant upon a third person, the liability of the master is mainly dependent upon the duties incident to the employment and the actual facts from which liability is claimed. As stated by the Supreme Court, in International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 1040, 27 Am. St.Rep. 902: “To hold the master liable for the act of his servant, it is not necessary that.the servant should have authority to do the particular act. The act of the servant may be contrary of his express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business, and for1 the accomplishment of the object for which the servant is employed. For the mode in which the servant performs the duty he is engaged to perform, if wrongful, and to the injury of another, the master is liable, although he, may have expressly forbidden the particular'act. But whether the act in question can be implied from the general authority conferred upon the servant must, 'in general, depend upon the nature of the service he is engaged to perform, and the circumstances of the particular case.”

Whether. the servant was acting within or without the scope of his employment at the time of the negligent or wilful act, is generally for the jury’s determination ; Chicago, R. I. & G. R. Co. v. Carter, Tex.Com.App., 261 S.W. 135; but, not so, we think, when the outer limits of the servant’s authority and duties are clearly shown. The rule of respondeat superior does not apply when it is evident that the servant is not engaged upon any duty for which he is employed, when corn!, mitting the assault, though the transaction, as in the instant case, be a continuing one. “When the servant turns aside, for however short a time, from the prosecution of the master’s work, and engages in the doing of an act not in furtherance of the master’s business, but to accomplish some purpose of his own, whether in doing so he is actuated by malice or ill will * * *, there is no principle which charges the master with responsibility for such action.” Hidalgo v. Gulf, C. & S. F. R. Co., 60 Tex.Civ.App. 433, 128 S.W. 683, 685, writ refused; International & G. N. Railway Co. v. Anderson, supra.

In the situation at hand, the authority of Brown, the agent, extended only to collecting premiums and crediting the amount thereof in the receipt books. This, he did, with no power to arbitrate the difference, if any existed, as to how far such moneys advanced the payment of the weekly premiums; and Brown’s proposal to plaintiff that the matter be concluded outside the house, indicated no more than the' settlement of animosities arising from a personal quarrel. As we view the facts of this record, the fight settled nothing concerning plaintiff’s insurance with appellant. An adjustment of the pending controversy, either by wager of battle, or otherwise, was not within the province of said agent, whose employment with appellant merely furnished the opportunity for the wrongful act. Although the facts are somewhat dissimilar, the reasoning of the Eastland Court, in Home Telephone & Electric Co. v. Branton, Tex.Civ.App., 7 S.W.2d 627, 629, affirmed by Commission of Appeals, 23 S.W.2d 294, is quite applicable. There, the Telephone Company had placed a pole, guy wire and anchor on plaintiff’s land, without his consent, and upon protest, the company’s local manager, Beardon, had repeatedly promised to remove the pole and attachments. Plaintiff later encountered Beardon near the latter’s office and the assault followed. Chief Justice Hickman there pertinently observed: “In what manner was Paul Beardon furthering the business of appellant when he committed the assault? According to appellee’s own testimony, he was struck by Beardon as an immediate resentment of an insulting epithet applied by him to Beardon. Bear-don was not engaged in the erection of the telephone pole upon appellee’s land, nor in the removal thereof when the assault occurred. The assault within itself was not necessary to and did not have the effect of either continuing the alleged trespass or removing it from appellee’s land. While the erection of the telephone pole was the remote cause of the difficulty, it was too remote to connect appellee with it.”

We turn to a consideration of the cases cited by appellee, which are, principally: Chicago, R. I. & G. R. Co. v. Carter, supra; Davis v. Clark, Tex.Civ.App., 78 S.W.2d 1008; Id., 129 Tex. 520, 105 S.W.2d 190; Gulf, C. & S. F. R. Co. v. Cobb, Tex.Civ. App., 45 S.W.2d 323, error dismissed; Central Motor Co. v. Gallo (Waco), Tex.Civ.App., 94 S.W.2d 821; Wells Fargo & Co. Express v. Sobel, 59 Tex.Civ.App. 62, 125 S.W. 925, error refused; New Ellerslie Fishing Club v. Stewart, 123 Ky. 8, 93 S.W. '598; 9 L.R.A.,N.S., 475. In each of the above decisions, the act (assault or injury) was committed by the servant in doing that wlhiah he was e>m-ployed to do. (Italics ours). For example, in the Cobb case, the injury followed an interference with switching duties of the engine foreman; and, in Central Motor Co. v. Gallo, supra, where the repair shop manager, authorized to adjust differences with customers, assaulted a patron while engaged in such duty, the court said [94 S.W.2d 822] : “The real test of the master’s liability is, not whether the servant’s employment contemplated the use of force or whether the act complained of was done in accordance with the master’s instructions, but whether the act complained of arose directly out of and was done in the prosecution of the business that the servant was employed to do”.

More analogous to the present record is Hidalgo v. Gulf, C. & S. F. R. Co., supra, where the facts, briefly, were: Phillips, the watchman, was employed to guard railroad property and to see that freight at the depot was carried away by authorized persons. He challenged the teamster Hi-dalgo’s right to load articles from the depot onto a wagon and, after some words, went over to an adjacent boarding house, to which the teamster also repaired after completing his load. Phillips there asked defendant’s warehouse foreman, Annear, about the freight, and was assured that same had been properly checked out to Hidalgo. A colloquy immediately ensued between the watchman and Hidalgo, in which the latter was killed. A suit against the railroad company resulted in a directed verdict for defendant. An appeal was affirmed and writ of error expressly, refused by the Supreme Court. We quote from the opinion of Judge McMeans: “The testimony in this case shows that it was a part of Phillips’ duty under his employment to ascertain whether the freight being loaded by Hidalgo into his wagon had been authorized by the proper authorities, and his approach and inquiry of Hidalgo in that regard was an act clearly, we think, within the scope of his duties and in the accomplishment of the object for which Phillips was employed. Hidalgo’s reply apparently satisfied him, for without protest he turned away, leaving Hidalgo to complete the loading. It may be true, and doubtless is, that, in speaking to Annear about the matter at Sandal’s house to satisfy himself that Hidalgo’s statement to him was true, he was still acting for the ■master and within the scope of his employment. What further passed, the colloquy between himself and Hidalgo, and the shooting of the latter, clearly was not in discharge of any duty he owed to his -employer, nor in furtherance of any object his employment was intended to accomplish, and therefore his acts were not such as to visit upon the defendant any responsibility for the consequences which ensued. The principles involved in this appeal are fully discussed in the cases ■ cited.”

Consistent with the principles just announced, we hold that no liability attached to defendant company under the circumstances of this record; by reason of which, it is not necessary to review appellant’s further assignments. The judgment of the trial court is accordingly reversed and here rendered in favor of The National Life & Accident Insurance Company.


author: GRISSOM, Justice.

text:
    McCOY v. JONES.
    No. 2037.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 26, 1940.
    Williamson & Nordyke, of Stephenville, for relator.
    Wm. Arch Jones, of Stephenville, pro se.
   GRISSOM, Justice.

This is an original proceeding in this court by which Loyd McCoy (appellant in cause No. 2028, styled Loyd McCoy v. Henry Clark), as relator, prays that a writ of mandamus be issued to Wm. Arch Jones, Court Reporter for the District Court of Erath County, Texas, wherein said cause was tried, requiring said reporter to prepare and deliver to McCoy a free statement of facts, based on McCoy’s affidavit of inability to pay or give security for the costs on appeal. See Art. 2278a, R.S.1925, as amended 1930, and Art. 2266, R.S.192S, as amended 1931, Vernon’s Ann.Civ.St. arts. 2278a, 2266.

Heretofore we determined said application for mandamus favorably to McCoy and directed that mandamus issue to said reporter requiring him to prepare said statement of facts. On motion for rehearing, it being made known to us that notice of said application for mandamus and hearing thereon was issued to and served on the appellee Henry Clark alone, and that such notice was not issued to nor served on respondent, we withdrew said order and granted respondent’s motion for rehearing.

Relator seeks to excuse his failure to proceed in the district court by a verified allegation to the effect that the time within which he might have done so was insufficient. The allegations of both parties are’ not as direct and specific as is desirable in such a proceeding.

However, disregarding other questions that might be raised, we think the cause must be determined by the uncontroverted allegation of respondent’s verified answer to the effect that McCoy has released respondent from any legal obligation that otherwise might rest on him to prepare and deliver a free statement of facts in said cause. With reference thereto respondent swears, in effect, that one of relator’s counsel informed respondent that he had instructed McCoy to go to said reporter’s “office to make a deal for' this reporter’s services in making the portion of the evidence needed to cover the matters he de-sirfed to make contention on appeal”; that McCoy did not appear at the reporter’s office and the reporter went to see McCoy; that “plaintiff immediately informed this reporter that he had decided to drop the case, and that he did not desire to have this reporter make up the record for appeal or any other purpose, that he did not believe there was much chance and did not wish to put this reporter to the trouble of doing the work for nothing; this reporter then asked him if he meant to release him from making the record up for nothing, informing plaintiff that there was a statute requiring the reporter to do so; but plaintiff stated he did not wish to carry the case any further, and did not wish to have this1 reporter do the work for nothing * * After this court had its former order, directing said reporter to prepare said statement of facts, delivered to said reporter, he again went to McCoy and this time procured a written, witnessed statement from McCoy which statement is attached to respondent’s answer, in which McCoy says : “ * * * sometime during the month of June or July, 1939, Mr. Jones came to the place where I. was working and talked to me in regard to preparing papers for appeal. I told Mr. Jones at that time * .* * that I did not wish to have him to make a statement of facts for nothing; and that I did not feel able to pay anything; and released him from his duty as court reporter to make up the statement of facts, knowing that he might be required to make it on my affidavit I had filed that I was unable to pay, or give bond for costs; and I released him from making it for nothing.” McCoy has filed a verified reply to respondent’s said answer in which he denies the truth of some parts of said answer but he does not deny that he knowingly and intentionally released the reporter from his duty to prepare a statement of facts in June or July, 1939, and that he reaffirmed said release in writing in October 1939. The record does not contain either allegations or evidence sufficient to show fraud, accident or mistake inducing McCoy to' so release the reporter.

Before a writ of mandamus will issue, relator’s right to the writ of mandamus must be clearly and certainly shown. If doubtful, it must be denied. Since relator has released respondent from any such duty as may have existed to prepare a free statement of facts that duty no longer exists: City of Richmond v. Allred, 123 Tex. 365, 367, 71 S.W.2d 233; City of El Paso v. Carroll, Tex.Civ.App., 108 S.W.2d 251, 255, writ refused.

■ The application for mandamus is, therefore, denied.


author: MURRAY, Justice.

text:
    MOORE v. NORMAN.
    No. 10704.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1940.
    Rehearing denied March 13, 1940.

      Eskridge & Groce, Dodson & Ezell, Chas. W. Duke, and Walter Groce, all of San Antonio, for plaintiff in error.
    Morriss & Morriss, of San Antonio, for defendant in error.
   MURRAY, Justice.

This is an appeal by writ of error from a final judgment of the District Court of Bexar County, 37th Judicial District of Texas, rendered in favor of the defendant in error, Genevieve Norman, for damages for personal injuries sustained in an automobile collision, against the plaintiff in error, S. J. Moore (doing business as the Midway Distributing Service), in the sum of $5,500.

For convenience, S. J. Moore will be referred to as appellant and Genevieve Norman as appellee.

The collision complained of occurred' at the intersection of Bailey and Gevers Streets in the City of San Antonio, on the night of December 1, 1937. Appellee Genevieve Norman was riding in a Ford sedan operated by one J. G. Blackman, also riding in the same car was one Lester Beauchamp. The Blackman car was proceeding in a westerly direction along Bailey Street when it collided with a truck operated by an employee of appellant, S. J. Moore. Moore’s truck was proceeding in a southerly direction along South Gevers Street. There are stop signs at the intersection of Bailey and Gevers Streets, requiring, under the provisions of an ordinance of the City of San Antonio, that all vehicles proceeding along Bailey Street shall come to a stop before crossing Gevers Street.

The cause was tried to a jury, and in response to special issues submitted by the court the jury found as follows:

“(1) The driver of defendant’s truck was operating the same just before the time of the collision in excess of twenty miles per hour, and that such rate .of speed was a proximate cause of the accident;

“(2) That the driving of the truck in excess of twelve miles per hour through the intersection was a proximate cause of the collision;

“(3) That the driver of the truck failed to keep a proper lookout just before and at the time of the collision, and that such conduct constituted negligence which was a proximate cause of the collision;

“(4) That he was not operating the truck on the wrong or lefthand side of the street;

“(5) That Blackman, the driver of the automobile in which the plaintiff was riding, did not fail to bring his car to a stop at the stop sign before entering Gevers Street; did not fail to keep a proper lookout; did not drive his car through the intersection in excess of twelve miles per hour; did not drive his car through the intersection in excess of twenty miles per hour, and that ‘as the two cars in question approached the intersection of Bailey and Gevers Streets there was not a reasonable indication of danger of collision if both cars proceeded’;” and further found that the plaintiff did not fail to keep such a lookout as a person of ordinary prudence would have kept under the same or similar circumstances, and fixed the amount of her damages at $5,500.

The term of court at which this trial was had met on the 2nd day of January, A. D. 1939, and adjourned on the 3rd day of March, A. D. 1939. The verdict of the jury was retarned on March 1, 1939, and judgment was not entered until March 3, 1939, just prior-to the adjournment of the term of court at which the cause was tried. The date upon which the trial was concluded, judgment entered, and the court adjourned, is important, since the judgment was entered just before the adjournment of the court and too late for a motion for new trial to be filed and acted upon.

During the trial T. N. Reed, a witness for appellant, in answer to the question: “He didn’t tell you anything about who he was representing?” stated, “No. He said he was representing an insurance company.” This question was propounded by counsel for appellee by way of cross-examination of T. N. Reed, who was an important witness for appellant. The question related to the first person who had talked to Reed about the case. , Appellee contends that inasmuch as Reed was a witness offered by appellant and apparently friendly to appellant, and in view of the further fact that the answer was not responsive to'the question, the instance presents no error. However, we shall assume for the purpose of this opinion that the instance did constitute error, and would have been sufficient to require the trial judge to declare a mistrial, if appellant had then and there insisted upon such action.

When this instance occurred the trial court plainly indicated to the parties that he thought there was nothing to do but to discharge the jury and declare a mistrial. Attorneys for appellee suggested that the case proceed to a verdict of the jury, and attorneys for appellant acquiesced in this suggestion. After verdict, due to the shortness of time before adjournment, no motion for a new trial was filed, thus it will be seen that the trial court was never really called upon to declare a mistrial before verdict, or to grant a new trial after verdict. If attorneys for appellant felt that irreparable damage was done by the witness’ reference to an insurance company, they should have then and there insisted upon a mistrial, which the record shows the trial judge was ready to grant. Appellant and his counsel agreeing to continue on with the trial until after verdict of the jury are not now in a position to complain of the instance. If the verdict had been favorable to appellant he would no doubt have waived the error and appellee could have shown no error, but now, since the verdict was unfavorable, appellant for the first time on appeal complains of the reference to the insurance company by the witness Reed. Such complaint comes too late. Harrison-Wright Co. v. Budd, Tex.Civ.App., 67 S.W.2d 670; Russell v. Adams, Tex.Civ.App., 18 S.W.2d 189.

Appellant next complains that the definition of “proximate cause” and “new and independent cause” was incorrect and that his rights were there prejudiced to such an extent as to ’require a reversal of the judgment.

The trial court defined “proximate cause” as follows: “By the term ‘proximate cause’ as used in this charge is meant a cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and from which cause it should have been reasonably foreseen or anticipated by a person of ordinary prudence, in the exercise of ordinary care, that the injuries complained of, if any, or some similar injuries would result therefrom, as a natural and probable consequence. There may be more than one proximate cause of an event but there may only be one sole proximate cause of an event.” and defined “new and independent cause” as follows: “By the term ‘new and independent cause’ as used in the above definition of proximate cause herein, is meant a cause or agency over which a party to the suit has no control, and which cause or agency a person of ordinary prudence under the same or similar circumstances would not have reasonably foreseen as acting to bring about the result complained of.”

The jury found that each and every act alleged to have been committed by Black-man (the driver of the car in which ap-pellee was riding), as constituting a new and independent cause of the collision, was not committed at all. Therefore, the jury was not called upon to determine whether or not such alleged acts were new and independent causes of the collision and in this respect the definition of “new and independent” cause became unimportant.

Appellant further contends that the trial court having used the term “new and independent cattse” in the definition of “proximate cause,” the definition of “new and independent cause” became a part of the definition of “proximate cause,” and being incorrect rendered the definition of “proximate cause” incorrect.

Granting this contention is true, nevertheless, appellant does not show that such incorrect definition worked a prejudice to his rights.

The definition as given was too broad and not restrictive enough. It is true that the court should have informed the jury that before a cause can be regarded as a new and independent cause it must be one sufficient to break the causal connection between the negligent act or omission of defendant and the injury complained of, and thereby become in itself the immediate cause of such injury. We are unable to see, however, how the failure of the court to thus restrict his definition of “new and independent cause” resulted in any injury to the rights of appellant. The record affirmatively shows that no such injury did result to appellant and therefore no reversible error is presented. Leap v. Braziel, Tex.Civ.App., 93 S.W.2d 1213, affirmed Tex.Com.App., 121 S.W.2d 334.

Furthermore, under the facts in this case we doubt if the acts of the driver of the car in which appellee was riding could in law be regarded as a “new and independent cause.” This matter is well discussed in Magnolia Pet. Co. v. Owen, Tex.Civ.App., 101 S.W.2d 354.

The judgment of the trial court will be in all things affirmed.


author: BOND, Chief Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. ROBERTSON et al.
    No. 12838.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 27, 1940.
    Rehearing Denied March 2, 1940.
    Lawther, Cramer, Perry & Johnson, of Dallas, for plaintiff in error.
    Burford, Ryburn, Hincks & Charlton, Logan Ford, and Hamilton, Lipscomb, Wood & Swift, all of Dallas, for defendants in error.
   BOND, Chief Justice.

This appeal involves the application of the facts to the extraterritorial provisions of the Texas Workmen’s Compensation Law (Vernon’s Ann.Civ.St. art. 8306, § 19), providing compensation for injury or death of a Texas employe, hired in Texas, whose injuries or death occur outside of Texas within one year from the date such employe left the state, and while in the course of his employment.

The evidence is undisputed, raising no controversial issue for the determination of the jury. The trial court, recognizing the probative force of the evidence, overruled plaintiff in error’s motion for instructed verdict, and sustained a like motion for defendants in error, accordingly entered the judgment; hence this appeal. For convenience, we will refer to plaintiff in error as plaintiff and, to defendants in error, as defendants.

Plaintiff assigns error for reversal, “(1) Because the court erred in refusing to sustain the motion for an instructed verdict made by the plaintiff, Texas Employers’ Insurance Association, at the con-elusion of all the testimony.”; and “(2) Because the court erred in sustaining the motion for instructed verdict of the defendants herein”. Obviously, the assignments do not present fundamental error— error apparent on the face of the record. An assignment of error which requires of the reviewing court an examination of the entire statement of facts is not that error apparent of record, which the court is required to consider. Ford & Damon v. Flewellen, Tex.Com.App., 276 S.W. 903; Needham v. Cooney, Tex.Civ.App., 173 S.W. 979, writ refused; Blackmon v. Trail, Tex.Com.App., 12 S.W.2d 967; 3rd Tex. Jur. p. 816, sec. 574, and supporting authorities. However, in deference to the briefs filed, detailing the uncontroverted evidence as the basis for the action of the trial court, thus relieving this court of the burden of going over the entire statement of facts to determine whether or not a fundamental error has been committed, we feel justified in considering the assignments.

The pertinent facts of this case are, as follows: On October 9, 1937, Garland Robertson was killed in an automobile accident in the State of Michigan, while in the course of his employment as an employe of Texas Farm & Ranch Publishing Company, a Texas corporation with its place of business at Dallas, Texas. The Texas Employers’ Insurance Association was the employer’s compensation carrier, and issued a Texas standard policy covering injury or death, under the terms and condi-' tions of the Workmen’s Compensation Employers’ Liability Law, expressing, among its provisions, liability for such injury and death of the insured’s employes, sustained in the course of their employment, and from all operations necessary, incident, or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in the policy or elsewhere in connection with, or in relation to, such work places. The provisions of the law, limiting liability to injuries occurring one year from the date the employe leaves the state, and where the employe elects to pursue a remedy and recover for such injuries in the state where such injury occurred, must be read into the compensation policy and be considered as a part thereof.

As to Robertson’s employment, the record, abridged, shows that the Texas Farm & Ranch Publishing Company, in May, 1929, employed Garland Robertson as an advertising solicitor, to sell advertising space in Holland’s Magazine, a publication of the Texas Farm & Ranch Publishing Company. Robertson’s residence and place of operation were in Texas, and the territory assigned to him, in the states of Ohio, Michigan and Indiana, where products handled by Texas retailers are manufactured. To familiarize himself with the duties to be performed, Robertson, immediately on his employment, went through a course of training, preparatory work, in the State of Texas; and, thereafter, was sent to Detroit, Mich., and other places, to contact heads of firms and to interest them in his employer’s advertising medium, depicting scope and value of their products handled in Texas. When he and his first wife, Corrie Jean Robertson, mother of minor defendant, Barbara Jean Robertson, left Texas in May, 1929, they retained their homestead and household furnishings in Texas intending to return to Texas. His contract of employment, made in Texas, was verbal, and terminable at will by the employer. His salary of $100 per week was paid by check issued by his employer in Texas. His traveling expenses in and out of Texas were paid by his employer, but he sustained his local expenses when living out of the state. Robertson’s contract required him to submit to his employer, all prospective advertising contracts for approval by its corporate officers in Texas, and, for himself, to return to Texas at intervals, preparatory to a better understanding of the needs of Texas concerns, and be better fitted to contact heads of firms in the northern states. Robertson was brought back to Texas by his employer in the fall of 1936 (as had been done many times prior thereto since the first of his employment in 1929), to attend sales meetings, make business surveys in various sections of Texas, and assay the needs and wants of the retail merchants handling goods of manufacturers located in the designated states comprising his territory. He remained in Texas three or four weeks (in November and December, 1936), doing necessary work under the direction of his employer and in the course of his employment; and then (well within one year after leaving Texas) in October, 1937, he was accidentally killed in the State of Michigan. It is conceded that the defendants, beneficiaries under the policy, did not elect to pursue any remedy and recovery in the state where the deceased was killed, and it is uncontroverted that deceased was killed in the course -of his employment as an employe of the Farm & Ranch Publishing Company of Dallas, Texas.

The facts in this cas$ are much stronger in favor of the judgment .rendered, than those related in Travelers Ins. Co. v. Cason, 132 Tex. 393, 124 S.W.2d 321; decided by our Supreme Court since this case has been here on appeal, and in which the court expressly overruled its holding in the James case, Texas Employers Ins. Ass’n v. James, 131 Tex. 60S, 118 S.W.2d 293, relied on by plaintiff. In Travelers-Cason case, the Supreme Court gave a proper construction to the extraterritorial portion of our Workmen's Compensation Law, and the application of the facts of that case to such law, deciding that the employe’s injuries, occurring outside the State of Texas, were compensable under the provision of the statute. Thus, in the light of the holdings of our Supreme Court, we deem it unnecessary to extend discussion in this opinion, -merely concluding that defendants are entitled to the compensation allowed, and the trial court did not err in respect to the assignment directed to the action of the trial court in giving and refusing the respective motions for instructed verdicts, and entering judgment for the defendants for 360 weeks’ compensation, at $20 per week.

We have fully examined the two other assignments; neither presents .reversible error, and they are overruled. The judgment of the trial court is affirmed.

Affirmed.


author: ALEXANDER, Justice.

text:
    MEADOWS v. HAYS.
    No. 2299.
    Court of Civil Appeals of Texas. Waco.
    Feb. 29, 1940.
    Bennett & Bennett, of Normangee, for appellant.
    Geppert, Geppert & Victery, of Teague, for appellee.
   ALEXANDER, Justice.

This case is before the court on motion of appellee to affirm on certificate because of the failure of appellant to file the transcript within the time provided by law. The record discloses that the trial court rendered final judgment and overruled defendant’s motion for new trial on September 22, 1939. On October 10, 1939, the appellant perfected his appeal by filing the statutory bond. The time within which the transcript should have been filed in the Court of Civil Appeals expired on November 21, 1939. ' Revised Statutes, Art. 1839, as amended in 1931, Vernon’s Ann.Civ.St. art. 1839. The transcript has not yet been filed in this court. Appellee filed his motion to affirm on certificate February 13, 1940, during the term to which appellant’s appeal was returnable.

Under the provisions of Revised Statutes, Article 1841, the appellee is entitled to have the judgment of the trial court affirmed. Beaver v. Beaver, Tex.Civ.App., 57 S.W. 2d 279, and authorities there cited.

The motion to affirm on certificate is granted, and the judgment of the trial court affirmed.


text:
    POWERS et al. v. FIRST NAT. BANK OF CORSICANA, TEX., et al.
    No. 2161.
    Court of Civil Appeals of Texas. Waco.
    Feb. 22, 1940.
    Rehearing Denied March 14, 1940.

      Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, and Burns & Hadsell, of Niles, Mien., for appellants.
    Richard & A. P. Mays, Taylor & Mc-Williams, J. S. Callicutt, Chris L. Knox, and Lawrence Treadwell, all of Corsicana, and Watkins & Mays and Ross B. Lea, all of Dallas, for appellees.
   ALEXANDER, Justice.

Mrs. Bessie I. Hofstetter bequeathed all of her property, consisting of approximately a half million dollars, to The First National Bank of Corsicana, in trust for certain charitable purposes. Her heirs are contesting the will on the grounds (1) that it is too indefinite as to the charitable objects as well as the beneficiaries to be aided thereby, and (2) because it permits the trustee to expend the funds for private as well as charitable purposes and therefore violates the rule against perpetuities. The trial court sustained the validity of the will and the heirs have appealed.

The material portions of the will are as follows:

“Fourth: After' the payment of debts ■ and- expenses enumerated in items two and three next above, and the expense of probating this will, I hereby will and bequeath and devise unto The First National Bank of Corsicana, Texas, a banking corporation organized 'under the Federal Banking Act of the United States of America, in trust for the purposes hereinafter stipulated, all of the property of which I may die seized and possessed including real, personal and mixed property, and property of every kind and description, whether in my possession or held in trust for me; and it is my will and my desire that the Trustee aforesaid, shall have the entire management and control of all of said property; * * *
“Fifth: The Trustee, aforesaid, and its successors shall hold said' property hereby devised and bequeathed to it in trust as a permanent charity fund and shall invest and reinvest same * * *
“Sixth: The net income of the public charity fund herein and hereby vested in the Trustee herein shall be expended by the Trustee for worthy objects of charity, including the support of the Christian religion as hereinafter indicated. The charity so dispensed in the relief of poverty shall be without regard to race, color, sex or religious belief, and shall be distributed from time to time in the judgment and discretion of the Trustee; the objects of such charity to be selected by the Trustee. The said Trustee is further authorized and directed to pay out of the income of said trust a reasonable amount annually for the support of the Presbyterian Church of the United States of America at Corsicana, Texas, commonly known as the Third Avenue Presbyterian Church, and also to pay annually a reasonable amount to the Board of Trustees of Reynold’s orphanage at Dallas, Dallas County, Texas, said orphanage being conducted under the auspices of the Presbyterian Church of the United States of America. And if in the judgment of the Trustee the income from said Trust shall warrant, said Trustee may make contributions from such income to the above named church and orphanage for permanent improvements.
“The Trustee shall have the power and authority and is hereby directed, out of the income only, if in the judgment of the Trustee the income of the Trust is sufficient after the contributions above provided for, to make loans to ambitious and worthy hoys and girls, who are financially unable to secure an education and would otherwise be deprived thereof. Such loans shall be in amounts and upon terms and ■ conditions, and to such boys and girls that may be determined worthy thereof in the discretion of the Trustee, but without regard to residence of the recipients.”

Before beginning a discussion of the specific questions raised by the appeal, it should be noted in the outset that charitable gifts and trusts are favorites of the courts. Voluntary gifts of this nature by those in comfortable circumstances for the relief of the poverty and distress of those less fortunate, or for bringing their minds and hearts under the influence of education and religion, or relieving their bodies of disease, suffering or restraint, evidence man’s finest qualities. Moreover, they tend to relieve the government of a part of its responsibility to a portion of its citizens and thus reduce the general tax burden on the public. They are therefore to be encouraged rather than discouraged. Consequently, in passing on the validity of such gifts, every reasonable intendment, consistent with the terms and purposes of the gift, will be made, and every presumption consistent with the language used will be indulged, and the trust will be upheld and declared to be valid where it is possible to do so consistent with the established principles of the law. Of two possible constructions, the court will adopt that one which operates to sustain the trust or gift. 14 C.J.S., Charities, page 427, § 6; 10 Amer.Jur. 657, sec. 102; Perry on Trusts & Trustees, p. 1200, sec. 709; Bogert on Trusts & Trustees, Vol. 2, p. 1129, § 369; 9 Tex.Jur. 55.

With the foregoing rules in mind, we take up for consideration the construction to be placed on the will in question. It will be noted that in the fourth paragraph of the instrument the property is willed to the bank “for the purposes hereinafter stipulated,” and by the fifth paragraph the trustee and its successors is directed to hold the property in trust as “a permanent charity fund.” In the sixth paragraph it is provided: “The net income of the public charity fund herein and hereby vested in the Trustee herein shall be expended by the Trustee for worthy objects of charity, including the support of the Christian religion as hereinafter indicated. The charity so dispensed in the relief of poverty shall be without regard to race, color, sex or religious belief, and shall be distributed from time to time in the judgment and discretion of the Trustee; the objects of such charity to be selected by the Trustee.” We think the provision of the will, as contained in the fifth paragraph thereof, directing the trustee to hold the property “as a permanent charity fund,” and the provision as contained in the sixth paragraph, authorizing the trustee to expend the ’“public charity fund” “for worthy objects of charity,” make it clear that the funds are to be expended for charitable purposes only and not for private purposes. No other conclusion can be drawn from the will as a whole than that the testatrix intended to set up a fund for use for charitable purposes only.

The provision contained in paragraph 6 to the effect that the fund “shall be expended by the trustee for worthy objects of charity, including the support of the Christian religion as hereinafter indicated,” does not contain any comma after the word “religion” and from this it is argued by appellants that the modifying clause “as hereinafter indicated” constitutes a limitation only on the authority of the trustee to use the fund for the support of the Christian religion and that as a consequence the trustee is free to select any other charitable objects to be beneficiaries of the fund. The will is, however, susceptible to the construction that the phrase “as hereinafter indicated” was intended as a limitation on “the worthy objects of charity,” to be selected as beneficiaries, and if so construed, then by reading the remainder of the will, we find that the testatrix has limited the trustee in the expenditure of the trust fund to four general charitable objects: (1) the relief of poverty, the objects to be selected by the trustee; (2) the support of' the Presbyterian Church at Corsicana, with possible contributions for permanent improvements ; (3) . the support of Reynold's Orphanage, with possible contributions for permanent improvements; and (4) loans to ambitious, worthy boys and girls to be selected by the trustee, otherwise unable to secure an education. Since the language used is susceptible of this latter construction, it is our duty to so construe it, for, as above stated, it is a well established rule that' where a will is susceptible of two constructions, one of which would render it valid and the other invalid, that construction should be adopted which would render it valid in preference to one which would nullify it. 44 Tex.Jur. 716; Neely v. Brogden, Tex.Com.App., 239 S.W. 192, par. 5; Brooker v. Brooker, Tex.Civ.App., 76 S.W.2d 180.

Appellants assert that even though the will requires the trustee to expend the funds for “worthy objects of charity,” there is nothing therein that limits the rjse of the funds for “public charity,” and for that reason the trustee could expend the funds for purely “private charity,” and therefore the trust is invalid. In the first place, we think it is hardly correct to classify charity as being “private.” If property is conveyed in trust for the benefit of certain definite individtials or individuals capable of being definitely ascertained, it is a private trust; or, if property is conveyed in trust for non-charitable objects, then the trust is not a public one. On the other hand, if property is conveyed in trust for an indefinite class for any charitable purpose, it is a charitable trust, and if the funds are expended in the accomplishment of any of the objects set forth in the conveyance, the expenditure is for charity in compliance with the public trust. If the funds should be expended for any other purpose, it would be in violation of the trust. In other words, all purely charitable trusts are public trusts. Vol. 2 Bogert on Trusts, sec. 398. The use of the term “public charity” seems to have crept into the decisions through legislative enactments exempting from taxation institutions engaged in “purely public charity.” Troutman v. De Boissiere, 66 Kan. 1, 71 P. 286 294, 300 (dissenting opinion). The term as used in such legislation was doubtless so used for the purpose of requiring exclusive charitable use and not for the purpose of recognizing a trust for “private charity.” In the second place, the will in this case expressly refers to the fund so conveyed to the trustee as “public charity fund,” and thereby makes it clear that it is to be used for a public and not a private purpose. If the objects set out in the will are charitable, a matter which will be later discussed, then and in that event, if the trustee expends the. fund in keeping with the trust, there need be no fear that the funds will be used for private purposes or for “private charity,” as that term is apparently used by appellants.

A public charity or trust is one for the benefit of the public at large or some substantial and indefinite portion of it. Charitable purposes include (a) the relief of poverty; (b) the advancement of education; (c) the advancement of religion; (d) the promotion of health; (e) governmental or municipal purposes; and (f) other purposes the accomplishment of which is beneficial to the community. Restatement of the Law of Trusts, p. 1140. sec. 368; 10 Amer.Jur. 621; 14 C.J.S., Charities; page 439, § 12; Scott on Trusts, 1972; Perry on Trusts & Trustees, Vol. 2, p. 1184. All of the charitable objects set out in the will here under consideration come within these general purposes.

The bequest for the relief of poverty reads as follows: “The charities so dispensed in the relief of poverty shall be without regard to race, color, sex or religious ' belief, and shall be distributed from time to time in the judgment and discretion of the trustee; the objects of such charities to be selected by the trustee.”

Appellants assert that this bequest is too general and indefinite both as to the charitable objects to be served as well as the beneficiaries to be aided thereby; that it wholly fails to establish a means of selection for either the charity' itself or the beneficiaries thereof, and vests in the trustee a personal discretion in this respect; and that in the event of the inability or refusal of the trustee to properly carry out the trust, a court of equity could not supervise the administration thereof because it would be unable to discern the exact intention of the testatrix as to the charitable objects to be accomplished, the particular beneficiaries to be aided, and the amount of aid to be extended to each of them. In other words, the court would he without any “yardstick” by which the particular class to be aided should be selected or the scheme to be employed in aiding them, or the will of the testatrix otherwise ascertained, and if a court of equity should undertake to carry out such a trust, it would necessarily have to substitute the will of the court for the will of the testatrix. We do not think that this contention is sound. Of course, if the courts approach the subject with an unsympathetic attitude, looking for some excuse to avoid the bequest of the testatrix, doubtless many such excuses might be found. But the subject should not be so approached. After all, it was the testatrix’ property to do with as she pleased, and if she saw fit to risk the administration of the trust to the uncertainties necessarily incident thereto, the court should suffer no unusual distress on this ground. Bequests of this kind are for the general good and should be looked upon with favor and carried out if possible. Harrington v. Pier, 105 Wis. 485, 82 N.W. 345, 346, 50 L.R.A. 307, 76 Am.St.Rep. 924; Troutman v. De Boissiere, 66 Kan. 1, 71 P. 286, 296 (dissenting opinion). Courts should not allow themselves to become static nor so hedged about with barriers of their own making, as to render themselves incapable of performing the functions for which they were created and are maintained. It was this confession of impotency on the part of the common law courts that brought about the creation of courts of equity to meet practical situations. It was this same attitude on the part of the courts of the states of New York, Michigan, Minnesota, Maryland, Virginia, West Virginia and Wisconsin toward charitable trusts that caused the legislatures of those states to enact statutes compelling the courts to recognize and administer such trusts. Scott on Trusts, Vol. 3, p. 1925, sec. 348.3.

The portion of the will last quoted, when fairly construed, directs that the funds be used for the relief of poverty, “the objects of such charities to be selected by the trustee.” By this we think it is meant that the trustee is to sele.ct the channel or devise the scheme through which the funds are to be applied for the relief of poverty, as well as the individuals to be aided thereby. Bequests of this general nature for the relief of poverty, in which discretion was vested in the trustee to select the method to be followed or the scheme to be employed in the accomplishment of the purpose as well as the particular beneficiaries to be aided have been sustained by numerous courts and text writers. 14 C.J.S. Charities, page 500, § 47; 10 Amer.Jur. 621, 634; Perry on Trusts & Trustees, Vol. 2, p. 1183, sec. 698; Scott on Trusts, p. 1978, sec. 369; Pomeroy’s Equity Jurisprudence, 4th Ed., Vol. 3, p. 2287, sec. 1025; Bogert on Trusts & Trustees, Vol. 2, p. 1138 sec. 371; Palmer v. Oiler, 102 Ohio St. 271, 131 N.E. 362; Darcy v. Kelley, 153 Mass. 433, 26 N.E. 1110; Wood v. Paine, C.C., 66 F. 807; Scudder v. Security Trust Co., 238 Mich. 318, 213 N.W. 131; Miller v. Teachout, 24 Ohio St. 525; See Note 14 L.R.A.,N.S., 49-155. Scott on Trusts, Vol. 3, sec. 369.1, reads as follows: “In creating a trust for the relief of poverty, the settlor may specify the manner in which the poor are to be assisted. A trust for the relief of poverty, however, is valid as a charitable trust although no method of relief, is specified. Thus a trust ‘for the poor,’ or ‘to aid the poor,’ or to ‘help the needy,’ or ‘for the relief of poverty’ is charitable. In such cases if it appears that the trustees were to have discretion as to the manner of assisting the poor, they may adopt any reasonable method for effectuating this purpose. If this discretion is not conferred upon the trustees, the court will frame a scheme for the application of the property to the purpose.”

The fact that the. testatrix has vested in the trustee a discretion to be exercised in selecting the scheme to be employed in expending the money for the relief of poverty and in selecting the beneficiaries to be aided does not invalidate the bequest. In discussing the subject, Bogert on Trusts & Trustees, Vol. 2, p. 1117, sec. 366, says: “It has occasionally been held that a charitable trust is too vague for enforcement, unless the settlor expressly gives the trustees power to select the cestuis and expressly prescribes the manner of administering the trust in detail. Most decisions manifest a much more liberal attitude toward the attempted charity. They imply an authorization to the trustees to choose the beneficiaries and to decide upon plans for carrying out the settlor’s benevolence. They hold that a charitable trust, with authority in the trustee to fix a scheme for trust execution, is sufficiently certain to enable the court to enforce it. Chancery can merely order the trustee to enter upon the administration of the trust. It can supervise his work from time to time and give him advice. If he can frame no scheme for bringing to pass the stated charitable results, the court may remove him and appoint a more efficient trustee, or may refer the problem to a master for the invention of a plan in a jurisdiction where the cy pres power exists.”

On page 1139 of the same volume, the author says:

“Patently a trust for charity in general is extremely broad. The human beings to he aided may consist of all humanity, or any part of it in any country. There are thousands of acts which may be done which would be declared ‘charitable’ by a court of equity. Does the extremely wide choice and broad discretion vested in the trustee create a vice in the trust which makes it impossible or undesirable of enforcement by the court?
“It is believed that there is no objectionable uncertainty about such a general charitable trust. The trustee of it is under a duty to select any one of the hundreds or thousands of means open to him to benefit mankind in such a way as to bring about a charitable result. The court can order him to make such a selection. The decisions of the courts in England and in this country can be studied and will guide the trustee to a decision as to what is and what is not charitable. When he accounts to the court and states what he has done with the money, chancery can decide according to well-fixed standards whether the act was in fact a charitable act or not, and so whether there has been a performance or breach of the trust. There need be no doubt or ambiguity in the trustee’s mind as to his duty, if he studies the precedents or takes good legal advice. If he will not perform the trust, the court does not have to perform it for him and so choose between contending charities. It can merely remove the recusant trustee and appoint another.” See also Restatement of Law of Trusts, p. 1193, sec. 397(d)

While the will vests in the trustee the discretion of framing the scheme by which the funds are to be applied to the relief of poverty and of selecting the beneficiaries to be aided thereby, it does not appear that this power of selection was intended to be personal in the sense that the trust was to fail in the event the named trustee refused or was unable to carry out the trust. Restatement of the Law of Trusts, sec. 397, comment (c), lists the following circumstances to be considered- in determining whether the power of selection provided for in the trust agreement was intended to be limited to the trustee named therein: “(1) whether and to what extent the intended charitable purposes are indicated by the terms of the trust; (2) whether the principal is to be immediately applied or whether the income is to be applied for an indefinite period; (3) whether the trustee was selected because of his peculiar knowledge of the wishes of the settlor; (4) whether the trustee is an individual or a corporation; (’5) the relation between the settlor and the trustee; (6) whether by the terms of the trust provision is made for the selection of successor trustees.” If these tests be applied to the will under consideration, it will clearly appear that the power of selection was not intended to be limited to the original trustee named in the will. Here, the trustee named in the will is a corporation and not an individual. The will vests the title to the property in the trustee and its “successors” as “a permanent charity fund” with authority to use the income only for the objects named in the will.

The fact that the beneficiaries to be aided are indefinite does not mitigate against but is essential to a public trust. “When the class which is to receive the benefit of a charitable trust has been fixed, vagueness and uncertainty as to the individuals and numbers composing that class are not only permitted, but are absolutely essential elements in the creation of a valid charitable trust. It has been truly said that charity begins where certainty in beneficiaries ends, for it is the number and uncertainty of the objects, and not the ' mode of relieving them, which forms the essential element of a charity. Whenever the beneficiary is designated by name, he has a right which he can exercise, and his merit alone is to be considered; the bequest is private, and not public, and ceases to have the peculiar merit of a charity.” 10 Amer.Jur. 605, sec. 28. See, also, Scott on Trusts, p. 2018, sec; 375; Pomeroy’s Equity Jurisprudence, 4th Ed., p. 2287, sec. 1025; Bogert on Trusts, 1093, sec. 362; 14 C.J.S., Charities, page 474, § 39; Restatement of the Law of Trusts, p. 1165, sec. 375.

Much stress is placed on the fact that the testatrix did not fix any territorial limits from which the beneficiaries should be selected. This, however, was not essential. The testatrix was not so limited in her views. She desired the whole world to have the benefit of her charity and vested in the trustee the discretion of selecting therefrom the individuals to be so benefited. The trustee could select them as well from a large territory as it could from a more limited field. It is true that the trustee will not be able to give aid to the poor of the whole world and for that reason will likely select beneficiaries from nearby points and not from remote places, but, nevertheless, the testatrix will have accomplished her purpose of relieving the poverty of the world as far as is possible for her limited means to do so.

Appellants cite many cases in support of their contention that the bequest for the relief of poverty is too general and indefinite as to the objects to be sub-served and the beneficiaries to be aided. In the case of Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, 228, our Supreme Court said: “If a testator leaves his estate to charity generally, but authorizes his executor to determine for what charitable purposes it shall be used, and to select the beneficiaries thereof, and the will contains no other definite manner of selection, the trust is a personal one, and a court of equity does not have jurisdiction to determine the purpose or select beneficiaries.” This statement is not controlling in the case at bar for two reasons. In the first place, the will there under consideration did not require the trustee to use the funds exclusively for charitable purposes but left it to the discretion of the trustee and the testator’s sister as to whether the funds should be used for “charity or for any other purpose they may consider worthy.” See 84 S.W.2d page 229 of the opinion. Therefore, the court did not have before it a will in which the testator had left his property exclusively for charity generally. There is quite a difference between a will that leaves funds exclusively for charitable purposes and one that leaves such funds for charity or other worthy objects. Scott on Trusts, Vol. 3, sec. 389.1. Consequently, the statement of the court above quoted was not necessary to a decision of that case. In the second place, the will here under consideration did not leave the funds for the relief of charity generally but designated certain specific charitable objects to be served. The cases of Tilden v. Green, 130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am.St.Rep. 487, and Read v. Williams, 125 N.Y. 560, 569, 26 N.E. 730, 21 Am.St.Rep. 748, cited by appellants, were decided at a time when charitable trusts were not recognized in the state of New York. It was in response to’ the holding of the court in Tilden v. Green, supra, that the legislature enacted a statute requiring the courts of that state to recognize charitable trusts. Scott on Trusts, Vol. 3, pp. 1925-1927, sec. 348.3. Likewise, the holding of the Supreme Court of Maryland in Gambel v. Trippe, 75 Md. 252, 23 A. 461, 15 L.R.A. 235, 32 Am.St.Rep. 388, was followed by legislation legalizing trusts in that state. Id. In the case of Hadley v. Forsee, 203 Mo. 418, 101 S.W. 59, 60, 14 L.R.A., N.S., 49, the property was willed to testator’s wife on condition that the balance, after certain dispositions, “will be given to advance the cause of religion, and promote the cause of charity, in such manner as my * * * wife may think will be most conducive to the carrying out of my wishes.” The court in that case correctly pointed out that the testator had not willed the remainder of his estate to anyone for any purpose but had left its subsequent disposition to his wife. Likewise, in the case of Johnson v. Johnson, 92 Tenn. 559, 23 S. W. 114, 22 L.R.A. 179, 36 Am.St.Rep. 104, the will authorized the trustee to appropriate the income from the property in any way that he might elect. There was in that case no designated object nor class of beneficiaries and no limitation on the purpose for which the property could be used. The same is true of most of the other cases cited and relied on by appellants. In this connection, it will be noted that these cases co'me from states in which, according to Pomeroy, charitable trusts were not then recognized at all or where they now exist only under a somewhat modified and restricted form. Pomeroy’s Equity Jurisprudence, 4th Ed., Vol. 3, sec. 1029, p. 2314. Under the same author’s classification, Texas is placed among the states exercising the most liberal view toward charitable trusts. Id. See, also, Bogert on Trusts & Trustees, Vol. 2, sec. 322, p. 1020. The adjudicated cases in Texas seem' to bear out Mr. Pomeroy’s classification in this respect. See Bell County v. Alexander, 22 Tex. 350, 351, 73 Am.Dec. 268; Paschal v. Acklin, 27 Tex. 173, 174; Scott v. Logan, 122 Tex. 636, 64 S.W.2d 141; Inglish v. Johnson, 42 Tex.Civ.App. 118, 95 S.W. 558; 9 Tex.Jur. 63; Banner v. Rolf, 43 Tex.Civ.App. 88, 94 S.W. 1125; Gidley v. Lovenberg, 35 Tex.Civ.App. 203, 79 S.W. 831. We hold that the will here under consideration is sufficiently definite in this respect.

Appellants insist that the bequest in favor of Reynold’s Orphanage is invalid because, even though the undisputed evidence shows that the orphanage is operated without profit and supported exclusively by contributions from the Presbyterian Church and extends its benefits to needy orphan children of all creeds, yet since, according to the evidence, the board of trustees of the institution may, if it sees fit, limit the right of entrance thereto to children of Presbyterian parentage only, the bequest is, for that reason, not a public charity. Appellants cite and rely on the case of Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, 227, wherein Associate Justice Critz, in speaking for our Supreme Court, said: “A charity for the orphan children of a'state is a public charity, but a charity for the orphan children of deceased Masons, Odd Fellows, Baptists, Catholics, etc., of a state is not a public charity. Philadelphia v. Masonic Home, 160 Pa. 572, 28 A. 954, 23 L.R.A. 545, 40 Am.St.Rep. 736; Troutman v. De Boissiere, etc., 66 Kan. 1, 71 P. 286.” We have carefully considered that case' and have reached the conclusion that the statement just quoted was not necessary to a decision thereof. In that case the testator had not willed his property to anyone or placed it in trust for any purpose. The question of whether a charity for the orphan children of deceased members of any particular church or - other organization was a public charity was not before the court. For that reason, it is possible that neither Associate Justice Critz, nor the court as a whole, gave their usual and customarily careful consideration to that particular part of the opinion. Only two cases were cited in support of its holding. In the first one, City of Philadelphia v. Masonic Hoipe, supra, the issue was not whether a trust for the maintenance of an orphanage was valid as a public trust, but whether a home maintained for aged Masons was exempt from taxation as a public charity. The majority opinion held that the property was not exempt from taxation because the benefits of the home were limited to Free Masons. There was a strong dissenting opinion in which numerous cases to the contrary were cited. Our own Supreme Court, in the case of City of Houston v» Scottish Rite Benevolent Association, 111 Tex. 191, 230 S.W. 978, speaking through Associate Justice Greenwood, cited with approval the dissenting opinion in the case just referred to. In the other case, Trout-man v. De Boissiere, supra, the Supreme Court of Kansas, by a four to three opinion, held that a bequest to a trustee for the maintenance of a home for the children of deceased Odd Fellows was not a gift for the purposes of a public charity so as to take it out of the rule against perpetuities. In that case there were likewise strong dissenting opinions. The majority opinion in that case stands alone, except for the support which it received from Philadelphia v. Masonic Plome, supra, which, as above stated, was expressly disapproved by our own Supreme Court in City of Houston v. Scottish Rite Benevolent Association, supra. Bogert, in his work on Trusts and Trustees, Vol. 2, sec. 363, at page 1106, questions the soundness of the holding of the majority opinion in the Troutman case, and says: “The decisions generally support trusts for a portion of the members-of a lodge or society where charitable benefits are to- be conferred and the recipients-will derive advantages from the trust.” Numerous decisions are cited in support of the text. Restatement of the Law of Trusts, p. 1162, sec. 375, says: “A trust for the relief of poverty or advancement of education or religion or promotion of health may be a charitable trust although the class is sufficiently narrow so that a trust for the general benefit of members of the class, would not be a charitable trust. Thus, a trust for the general purposes of a fraternal organization which is not a charitable organization is not charitable. On the-other hand, a trust for the relief of poor members of such an organization or for needy members of their families is charitable. Thus, a trust for the support of needy widows and orphans of members of the Masonic order or of a particular lodge of the Masonic order is charitable, as is also a trust to establish or maintain a home for needy members of the organization.” It is-not essential to its validity that the charity be universal. Its beneficiaries may be limited to the poor of a particular religious body, or to the needy of a particular fraternal order. To the extent that it thus relieves the distress of a particular class and. keeps them out of the alms-house or off of the relief rolls, it relieves the general pub-lie burden and is therefore of public bene- . fit! As said by the Supreme Court of Kentucky in Widows’ & Orphans’ Home v. Commonwealth, 126 Ky. 386, 103 S.W. 354, 358, 16 L.R.A., N.S., 829: “What good purpose is subserved in attaching the word ‘private’ to the. charity of Catholics for Catholics, Presbyterians for Presbyterians, Masons for Masons, or Odd Fellows for Odd Fellows? Are the poor and helpless of these various bodies and organizations any less worthy, or any less a part of the public, because they are also members of the particular church or society to which they belong? Are not all charitable institutions necessarily limited to the relief 6f only a small part of the destitute public? ■Can any one institution administer to the wants of all? And, if this be true, is it necessary to brand as ‘private’ a charity which, by its terms, marks out a particular part of the public field in which it is to be administered ?”

Our own Supreme Court, we think, has definitely settled the question in this state foy the use of the following language in City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 191, 230 S.W. 978, 981, as follows:

“The contention is vigorously stressed that the association was not an ‘institution of purely public charity,’ because those to whom it extended aid were confined in the main to the voluntary members of the Masonic order and their relatives.
“In our opinion, the Legislature might reasonably conclude that an institution was one of ‘purely public charity’ where: First, it made no gain or profit; second, it accomplished ends wholly benevolent; and, third, it benefited persons, indefinite in ' numbers and in personalties, by preventing them, through absolute gratuity, from becoming burdens to society and to the state.
“Looking either to the purpose for which the Scottish Rite Benevolent Association was formed or to the philanthropies which it practiced, it seems to fulfill the requirements just specified for an institution of purely public,charity. Charity need not be universal to be public. It is public when it affects all the people of a community or state, by assuming, to a material extent, that which otherwise might become the obligation or duty of the community or the state. The care of those unable to provide for themselves certainly may devolve on those of the same community or state. It is to lose sight of actual results not to see the public benefit in reasonable provision for the needs of large and indefinite groups of individuals, no matter what may have been the basis, if lawful, on which the groups were formed.”

The opinions in numerous cases support the conclusion that a bequest for the relief of the poor or needy of a particular church, creed or fraternity is a valid charitable trust, even though the gift is limited to those of the particular class, so long-as the number to be benefited thereby is indefinite. Masonic Education & Charity Trust v. Boston, 201 Mass. 320, 325, 87 N.E. 602; Norris v. Loomis, 215 Mass. 344, 345, 102 N.E. 419; Minns v. Billings, 183 Mass. 126, 129, 66 N.E. 593, 5 L.R.A., N.S., 686, 97 Am.St.Rep. 420; Grand Lodge v. Board of Review, 281 Ill. 480, 483, 117 N.E. 1016; State v. Packard, 35 N.D. 298, 160 N.W. 150, L.R.A.1917B, 710; Widows’ & Orphans’ Home v. Commonwealth, 126 Ky. 386, 103 S.W. 354, 16 L.R.A., N.S., 829, 842; Green v. Fidelity Trust Co., 134 Ky. 311, 120 S.W. 283, 20 Ann.Cas. 861, 863; Lightfoot v. Poindexter, Tex.Civ.App., 199 S.W. 1152, par. 9. Based on these authorities, we hold that the bequest in favor of Reynold’s Orphanage is valid.

Since the trust was a charitable one, it does not come within the constitutional ban against perpetuities. 9 Tex. Jur. 52; 48 C.J. 986; Paschal v. Acklin, 27 Tex. 173; Lightfoot v. Poindexter, Tex. Civ.App., 199 S.W. 1152.

The judgment of the trial court, is affirmed.