author: PRICE, Chief Justice.

text:
    NEW AMSTERDAM CASUALTY CO. v. FIRST NAT. BANK OF GILMER, TEX., et al.
    No. 3860.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 5, 1939.
    Rehearing Denied in Part and Granted in Part Nov. 2, 1939.
    Further Rehearing Denied Nov. 23, 1939.

      Richard L. Hughston and Albert B. Hall, both of Dallas, for appellant.
    Florence & Florence, of Gilmer, and Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellees.
   PRICE, Chief Justice.

This is an appeal from the District Court of Upshur County from a judgment in favor of the defendant. Plaintiff duly perfected its appeal. Appellant’s statement of the nature and result of the suit seems to be acquiesced in by appellees, and we follow same almost literally with additional statements when necessary in the course of the opinion.

Appellant, hereinafter called plaintiff, instituted the suit whereby it seeks to recover from, appellees, hereinafter called defendants, the amount of a loss sustained by it as surety for C. W. Owen as Tax Assessor and Collector for Upshur County on account of wrongful appropriation of excess fees and for credit therefor and for taxes and trust funds. All of which it is alleged were known by said defendants to represent trust funds, and from the misapplication of which each of them received benefits.

Defendants each denied the facts alleged by plaintiff, and the defendant Farmers and Merchants National Bank asserted that the warrants received by it from Owen for assessing taxes were negotiable instruments; that he had the right to negotiate same; that Owen had, with knowledge of the Commissioners’ Court, and pursuant to custom, borrowed money from it to cover expenses of his office; that the warrants represented his private funds, which he had the right to use in paying that which he had borrowed and for his individual credit; that the County knew of their use; that it believed said warrants and their proceeds were his private property; that it received no profit except interest from the money borrowed by Owen; that the plaintiff is therefore estopped to recover anything from it. The defendant First National Bank asserted that if it was County Depository, it received no benefit, but sustained a loss therefrom; that it knew that Owen’s monthly reports for the year 1935 showed that his commissions, aggregated $13,893.90, and that in addition thereto he was entitled to charge $7,926.70 paid to delinquent tax collector, against his fees of office; that for the year 1935, he collected $8,047.89, which he did not deposit with either defendant; that it did not permit him to check against his official account more than he was entitled to as shown by his approved monthly report; that plaintiff is without equity; that the County knew during the year 1935, that Owen was issuing checks against his official account and using the proceeds thereof for the expenses of his office; that plaintiff is therefore estopped from recovering anything from it; that it acted in good faith and received only interest for money borrowed by Owen.

The case was tried to the Court and judgment was rendered for defendants, and plaintiff duly excepted and gave notice of appeal and thereafter perfected its appeal.

It might be added’that as far as the record herein shows, plaintiff did not move the Court to make findings of fact and conclusions of law and that such are not in the record.

Appellant assails the judgment rendered by assignments of error and appropriate propositions on the ground that under the undisputed evidence plaintiff was entitled to a judgment in its favor as against defendants for the sum it was compelled to pay for the default of C. W. Owen; that defendants are each liable to it in the amount that each allowed C. W. Owen to withdraw from the public moneys of Up-shur County without lawful authority. The amount the defendant First National Bank is asserted to be liable for is $4,731.23; that defendant Farmers and Merchants National Bank is liable for $3,242.34 for the same reason. Appellant contends it is entitled to recover of each of said defendants a proportionate amount of said sums sufficient to equal its loss of $6,664.23. There is a further assignment as to the rejection, over the objection of plaintiff, of a certain record book.

A statement of the evidence will be appropriate to clarify and determine the issues herein. First, let us set forth the conceded and undisputed facts. C. W. Owen was the duly elected and qualified Tax Assessor and Collector of Upshur County for a term of two years beginning January 1, 1935; that he gave proper bond ’in the sum of $34,000, with plaintiff as surety thereon, and same was duly approved, filed and recorded as required by the law. Upshur County, to the September Term of the District Court, 1936, filed a suit against C. W. Owen, the plaintiff herein and the First National Bank of Gilmer, Texas, one of the defendants here, against defendant Owen and his bondsman, and sought to recover the sum of $10,997.37, as excess fees alleged to be due the County from the defendant Owen. It was charged as to defendant First National Bank that it had on deposit to the credit of Owen in his official capacity the sum of $3,464.37, and that said sum was a part of such excess fees due from Owen to the County. Attached to said petition as an exhibit was a copy of the annual report for the year ending December 31, 1935, of'defendant Owen as Tax Assessor and Collector of current year fees of office and deductible expenses. This exhibit purports to show that the amount of earned fees were in the sum of $20,525.31. The plaintiff here filed answer to this suit consisting of general denial and various items as offsets, counter claims and credits. It further sought relief by way of cross action against the First National Bank in the event it was required to pay plaintiff anything. The defendant First National Bank filed answer to plaintiff's (County) petition setting up it held on deposit to the credit of Owen as Tax Assessor and Collector the said sum of $3,464.37; that Owen had been adjudged a person of unsound mind. The answer further offered to pay the fund as directed by the Court. The said Bank likewise filed answer to the cross action of defendant Surety Company (plaintiff here).

On the 30th day of September, 1936, the Court made an order that Leo Pres-nell be appointed guardian ad litem to represent the interests of defendant Owen. This order recited that on the 7th day of July, 1936, Owen had been adjudged to be a person of unsound mind. Thereafter Owen, acting by said guardian ad litem, filed answer to' the suit.

Thereafter the defendant First National Bank filed a motion that the controversy between it and the defendant New Amsterdam Casualty Company (plaintiff here) be severed from the suit. On said motion such severance was granted.

The case filed by the County came to trial on the 30th day of September, 1936, and resulted in' judgment that the said sum of $3,464.37 held by the defendant Bank be delivered to the County Treasurer of Upshur County; that the County recover of the plaintiff here, the surety, the sum of $6,626.03. The judgment to be without prejudice to any right which said defendant (plaintiff here) might have against the First National Bank or other persons. It further ordered that certain salary warrants in favor of Owen aggregating $500 be cancelled. Thereafter plaintiff here paid off this judgment to the County insofar as same was against it. It might be well, in the interest of clearness, to interject here that the severed suit between plaintiff and the First National Bank was consolidated with another suit filed by plaintiff against the Farmers and Merchants National Bank, and it is from the judgment in such consolidated actions that this appeal is taken.

The evidence is not clear and satisfactory as to the relationship of the two defendant Banks to the County. Suffice it to say, that each received on deposit public money belonging to Upshur County, and in fact acted as depositories for such County, the defendant Farmers and Merchants Bank of the jury fund, road and bridge fund and County bond fund; the defendant First National Bank the other funds of the County and the school funds.

Owen, as County Tax Collector, from time to time deposited tax collections in the First National Bank. Such bank received deposits and gave him credit therefor in his official capacity. A statement of his official account, as reflected from books of the Bank, was not given in evidence. The amount, date and character of his deposits are only to be arrived at from a consideration of his monthly reports and his fee account report for the year ending December 31, 1935, and sworn to on February 27, 1936. It is clear that these reports were made from time to time, but the reports, or a copy thereof, were not introduced in evidence. It is likewise clear that said reports were never approved by the Commissioners’ Court. Witness Hughston testified to conclusions based in part on these reports. He undertook, under cross-examination, to state the amount of earned commissions for each month based on these monthly reports. He did not state the amount of taxes shown by the report to have been collected. The percentage he took to arrive at the earned commission was not given, further than that it was the percentage allowed by law. Based on these monthly reports, Mr. Hughston stated that something over $6,-000 of the earned fees had not been deposited in the bank. The annual fee report does give data from which it can be determined, if the report be correct, the amount of taxes collected by the Collector, likewise commission and fees earned. It shows as total fees earned $20,525.31, authorized deductions therefrom in the sum of $9,454.92, and a balance in favor of the County in the sum of $10,470.39.

A brief discussion here of the admissibility and probative effect of the fee report may not be out of place. It, as to these defendants, was unquestionably hearsay. Unless it is admissible under some exception to the hearsay rule, it is fair to say the trial court, in entering judgment herein, probably ignored and disregarded same. It was in evidence that C. W. Owen was a person of unsound mind at the time of this trial. The report admitted liability to account to the County for the sum of $10,470.39, and hence was a declaration against the interest of C. W. Owen. We think that as such it was admissible in evidence and that its probate, force amounts to a prima facie establishment of its correctness. American Jurisprudence, Vol. 20, p. 457, Sec. 556, p. 505, Sec. 595; Griffith v. Sauls, 77 Tex. 630, 14 S.W. 230; White v. Holman, 25 Tex.Civ.App. 152, 60 S.W. 437; Smith v. Hanson, 34 Utah 171, 96 P. 1087, 18 L.R.A.,N.S., 520.

The defendant First National Bank, out of the public money of Upshur County on deposit with it, permitted C. W. Owen, on his checks as County Collector, payable to himself, to withdraw the sum of $4,731.-23. The first withdrawal was by check of March 11, 1935 in the sum of $2,500; the second in the sum of $2,231.23, dated December 10, 1935. Of the total sum of money thus drawn, Owen devoted $806 thereof to the payment of a note owed by him to said First National Bank which, at the time said payment was made, had knowledge of the source of the funds. The balance was deposited in the bank to the private account of Owen. This money was drawn out of his private account by him by means of checks given for other than official purposes. In any event, the evidence fails to show that any of the money went to the payment of expenses of his office.

The defendant Farmers and Merchants Bank received and paid out of public money belonging to Upshur County two warrants aggregating $2,872.61, and applied $1,122.25 to the payment of note owing to it by Owen. Owen was given credit for the balance in his private account. This balance, together with the sum next mentioned, was withdrawn on checks given by Owen, the proceeds of which were not shown by the evidence to have gone to the payment of expenses of his office — in fact the evidence shows, or tends very strongly to show, that it was used for purely private obligations of Owen. On November 9, 1935, it received and paid out, on deposit with it, warrants aggregating $444.73. The evidence fails to show that these warrants were drawn in payment of fees of office.

Under the undisputed evidence the defendant Banks were acting as County Depositories for the public funds of Upshur County at all relevant times during the year ending December 31, 1935. If such were the facts, the law imposes upon them all the duties of a fully qualified and regularly appointed county depository. Sullivan v. City of Galveston, Tex.Civ.App., 17 S.W.2d 478, affirmed, Tex.Com.App., 34 S.W.2d 808; Fidelity & Deposit Co. of Maryland v. Missouri State Bank, 8 Cir., 44 F.2d 19; Article 2549, R.S.1925, Vernon’s Ann.Civ.St. art. 2549; Article 2550, R.S. 1925, Vernon’s Ann.Civ.St. art. 2550.

If such was their duty, they were governed by the statutes of the State applicable to depositories.

R.S.1925, Article 7250 provides: “Except as to compensation due such tax collector as shown by his approved reports, tax money deposited in county depositories shall be paid by such depositories only to treasurers entitled to receive the same, on checks drawn by such tax collector in favor of such treasurer.”

Article 7260, Sec. 1, Vernon’s Ann.Civ. St. art. 7260, subd. 1 provides: “At the end of each month the Tax Collector shall, on forms to be furnished by the Comptroller, make an itemized report under oath to the Comptroller, showing each and every item of ad valorem, poll and occupation taxes collected by him during said month, accompanied by a summarized statement showing full disposition of all State taxes collected, provided that said itemized reports for the months of December and January of each year may not be made for twenty-five.(25) days after the end of such months if same cannot be completed by the end of such respective months.”

Article 7261, Vernon’s Ann.Civ.St. art. 7261, provides:

“1. The Tax Collector shall at the end of each month make like reports to the Commissioners Court of all the collections made for the county, conforming as far as applicable and in like manner to the requirements as to the collection and report of taxes collected for the State. The County Clerk shall likewise, within two (2) days after the presentation of said report by the Collector, examine said report and stubs and certify to their correctness as regards names, dates, and amounts; for which examination and certificate he shall be paid by the Collector Fifty (50) Cents each month, which amount shall be allowed to the Collector by the Commissioners Court * *
“2. The Clerk shall file said report intended for the Commissioners Court, together with the tax receipt stubs, in his office for the next regular meeting of the Commissioners Court.
“3. The Tax Collector shall immediately pay over to the County Treasurer all taxes collected for the county during said month, after reserving his commissions for collecting the same, and take receipts therefor, and file with the County Clerk.
“4. At the next regular meeting of the Commissioners Court, the Tax Collector shall appear before said court and make a summarized statement, showing the disposition of all moneys, both of the State and county, collected by him during the previous three (3) months. Said statement must show that all taxes due the State have been promptly remitted to the State Treasury at the end of each month, and all taxes due the county have been paid over promptly to the County Treasurer and shall file proper vouchers and receipts showing.same.
“5. The Commissioners Court shall examine such statement and vouchers, together with an itemized report and tax receipt stubs filed each month, and shall compare the same with the tax rolls and tax receipt stubs. If found correct in every particular, and if the Tax Collector has properly accounted for all taxes collected, as provided above, the Commissioners Court shall enter an order approving said report, and the order approving same shall be recorded in the minutes.
“6. The Tax Collector shall finally adjust and settle his account with the Com.missioners Court for the county taxes collected, at the same time and in the same manner as is provided in the foregoing Article in his settlement with the State.”

These portions of the statute seem to us to plainly forbid the payment to the county collector from the public money in the depository of his earned fees until his accounts are approved by the commissioners’ court. Austin v. Kiser, Tex.Civ.App., 277 S.W. 411, affirmed, Tex.Com.App., 286 S.W. 1082; Knight v. Harper, Tex.Civ.App., 279 S.W. 589, 590; Austin v. Fox, Tex.Civ.App., 297 S.W. 341, 343.

If a county depository pay an unauthorized demand out of the public money of a county, the money is not withdrawn from the depository, but is still a credit in favor of the county. State v. Tyler County State Bank, Tex.Com.App., 277 S.W. 625, 42 A.L.R. 1347, Id., 282 S.W. 211, 45 A.L.R. 1483; Watson v. El Paso County, Tex.Civ.App., 202 S.W. 126, 128; City of El Paso v. Two Republics Life Ins. Co., Tex.Civ.App., 278 S.W. 231, 235, writ refused; Reynolds v. State, Tex.Cr.App., 92 S.W.2d 458.

Money deposited with the county treasurer by the county collector for taxes in which is included the earned commissions thereon remains public money until such commissions are segregated according to law. Austin v. Kiser, supra.

The funds having never been lawfully withdrawn, same representing excess fees for which the plaintiff, as a bondsman for the collector was forced to account to the County, it is entitled to be subrogated to the rights of the County against the said banks. Fidelity & Deposit Co. of Maryland v. Farmers & Merchants Nat. Bank of Nocona, Tex.Civ.App., 121 S.W.2d 503, writ dismissed, and authorities therein cited.

At all times in our consideration of this case we have tried to bear in mind that if, in view of the evidence, the trial court’s judgment is sustained, then it is our duty to affirm in the absence of other error of a substantial character. We further have borne in mind that under the law we have not the power to reverse the judgment of the trial court and to render same unless the controlling facts are established by the evidence with that degree of certainty that the minds of reasonable men cannot differ thereon. On the other hand, if the controlling facts are established with the degree of certainty indicated, it is our duty to reverse and render, if such facts demand.

In our opinion the controlling facts' of this case are undisputed and the applica-' tion of the law thereto requires the reversal and rendition of the trial court’s judgment.

Counsel for the appellees have furnished us with a copy of the opinion of the Texarkana Court of Civil Appeals in the case of American Indemnity Co. v. Red River National Bank, 132 S.W.2d 473, 480. The case has much in common with this case. In that case, as in this, the tax collector withdrew his commissions without the approval by the Commissioners’ Court of the monthly reports. Chief Justice Johnson, in the course of the opinion, quotes Article 7250, R.S.1925 and Article 7261, Secs. 1, 2, 3, 4, 5 and 6. He cites Article 1645 and Article 1648, R.S., relative to the appointment and qualification of the county auditor. He quotes Article 1651 and Article 1654.

Article 1651 provides: “The auditor shall have a general oversight of all the books and records of all the officers of the county, district or State, who may be authorized or required by law to receive or collect any money, funds, fees or other property for the use of, or belonging to, the county; and he shall see to the strict enforcement of the law governing county finances.”

Article 1654 provides: “All reports of collections of money for the county required to be made to the commissioners court shall also be carefully examined and reported on by him. He shall at least once in each quarter check the books and examine all the reports of the tax collector, the treasurer and all other officers, in detail, verifying the footings and correctness of same, and shall stamp his approval thereon, or note any differences, errors or discrepancies. * * *”

It appears in that case, as in this, that there was a county auditor, and that it was neither averred nor approved by plaintiff that the county auditor had not approved the monthly reports of the collector before the payments.

In the course of the opinion .it is said: “We do not think that a depository is liable under the provisions of Article 7250 for having permitted the tax collector to withdraw his commissions, when such depository has in good faith permitted withdrawal of only such commissions as were shown by the tax collector’s reports approved by the county auditor.”

We cannot give our assent to the doctrine that an approval by the county auditor of the county collector’s monthly report of the collection of taxes would authorize him to withdraw his earned fees from the public money. The reports are addressed to the Commissioners’ Court, and we believe that the law expressly provides for their approval by no other agency of the county government than the commissioners’ court. In the case of American Indemnity Company v. Red River Bank, supra, there are other controlling issues upon which the judgment is held to be sustained.

It is ordered that the judgment of the trial court be reversed and judgment here rendered in favor of the plaintiff against the Farmers and Merchants National Bank in the sum of $2,511.42, and against the First National Bank of Gilmer, Texas, in the sum of $4151.44.

On Rehearing.

Appellees and appellant have each filed a motion for rehearing herein. We shall first dispose of the motion of appellees. We have come to the conclusion that we were in error in reversing and rendering the judgment of the trial court as to the Farmers & Merchants National Bank of Gilmer, Texas, and believe the judgment should be affirmed in that respect.

The ultimate responsibility of a county officer under the old fee bill with respect to excess fees was to account at the appointed time therefor. As the fees were collected the interest of the county therein was only provisional. If at the close of the fiscal year the fees collected exceeded the legitimate expenses of the office, including the compensation of the officer, he must account for the difference. This liability to account is absolute and unrestricted. Exercise of the highest degree of care with respect to the provisional interest of the county in the fund would not condone or excuse a failure to account. On the other hand, these fees as collected are in the custody of the officer. His control and custody are unrestricted. Deposit in a bank in his individual name would not amount to a conversion thereof. In short, there is given into his custody a fund as collected uncertain in amount with which to achieve certain results. It is true the county has a provisional interest in the fees; on the other hand, all of the fees collected may belong to the officer—there may or may not be an excess.

A bank receiving payment out of the fees of an officer is not bound to assume that the fees do not belong to the officer. It has no means of knowing the state of the account between the officer and the county with respect to the fees collected by the officer. The county has no present right in the specific fund. Power to control and manage all fees as collected is vested in the officer and no restriction is placed upon him as to the custody thereof. Provisionally the fees belong to the officer.

It might be argued that much of what has been said applied to the defendant, the First National Bank of Gilmer. We think, how■ever, there is a marked distinction. The money held by this defendant was public money. It paid it out without warrant of law. In our opinion the withdrawals made were ineffective to cancel the credit of the County. In short, in legal contemplation, the funds have never been withdrawn. It is true that Owen had a provisional interest in the funds. This provisional interest, so long as the funds are not lawfully withdrawn, is security for the duty of the officer to account at.the end of the fiscal year.

It is not to be assumed that the Commissioners’ Court would have approved Owen’s monthly account's unless all money collected had been given into the.custody of the depository.

The motion for rehearing of appellee First National Bank of Gilmer, Texas, is overruled.

Appellant in its motion asserts that our judgment denied it interest from the date of the payment of Owen’s shortage. The transcript shows that appellant filed its second amended original petition on January 10, 1938. It does not show the date of the filing of the original petition or the first amended original petition, if such were filed. If filed, neither of these petitions appears in the transcript. The second amended petition is the first demand shown by the transcript to have been made by appellant for reimbursement after its right had been perfected by the payment of the judgment. The County, insofar as the record shows, never made demand on the First National Bank of Gilmer for the payment of the funds in question here. If at any time the bank had paid the funds on the demand of the County its legal liability would have been discharged. Appellant’s right, after maturity by payment of the judgment, was equal to but not superior to those of the County. We do not believe it is pointed out in appellant’s brief where demand was made prior to the filing of the second amended original petition. However, after demand was made appellant was entitled to interest against the defendant bank from that date.

It is ordered on rehearing that the judgment of the trial court as to the Farmers & Merchants National Bank of Gilmer, Texas, be and the same is hereby affirmed; that as to the First National Bank of Gil-mer, Texas, our former judgment be modified so that the sum of $4,731.23 be adjudged against it, to bear interest at the rate of six per cent per annum from the 10th day of January, 1938; that one-half of the cost of the court below and on appeal is adjudged against the appellant and one-half against the appellee, the First National Bank of Gilmer, Texas, and that Farmers & Merchants National Bank of Gilmer, Texas, have judgment against appellant for all its costs.

Affirmed in part and reversed and rendered in part as above indicated.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    MIDLAND COUNTY v. TOLIVAR’S ESTATE.
    No. 3551.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1939.
    Rehearing Denied Dec. 6, 1939.
    Merritt F. Hines, of Midland, and W. R. Blain and D. E. O’Fiel, both of Beaumont, for appellant.
    Howth, Adams & Hart, and Lipscomb & Lipscomb, all of Beaumont, for appellees.
   WALKER, Chief Justice.

This appeal presents only one point— the validity of an abstract of judgment lien, asserted by appellant against land claimed by certain of the appellees. The lower court held that the abstract of judgment plead by appellant was void and created no lien against the land in controversy. The judgment was correct, on the following fact conclusion filed by the trial court: “I find that although the judgment did not bear any interest, the Abstract of Judgment as prepared by the Clerk recited that it bore interest at the rate of Ten (10%) per cent per annum, and that the amount due thereon, was One Thousand ($1,000.00) Dollars, with Ten (10%) per cent interest and cost.” Arts. 5447 and 5448 and 5449, R.S. of Texas, Vernon’s Ann.Civ.St. arts. 5447-5449; McGlothlin v. Coody, Tex.Com.App., 59 S.W.2d 819, 821; Askey v. Power, Tex.Civ.App., 21 S.W.2d 326, affirmed Tex.Com.App., 36 S.W.2d 446; 26 Tex.Juris. 362, Sec. 521, and cases cited; Magless v. State, 112 Tex.Cr.R. 646, 18 S.W.2d 669; Noble v. Barner, 22 Tex.Civ.App. 357, 55 S.W. 382; Glasscock v. Stringer, Tex.Civ.App., 32 S.W. 920; Blankenship & Buchanan v. Herring, 62 Tex.Civ.App. 298, 132 S.W. 882; Anthony v. Taylor, 68 Tex. 403, 4 S.W. 531; Willis v. Sanger, 15 Tex.Civ.App. 655, 40 S.W. 229; Wicker v. Jenkins, 49 Tex.Civ.App. 366, 108 S.W. 188, 190.

The judgment of the lower court is in all things affirmed.


author: WALTHALL, Justice.

text:
    VICTORY et al. v. STATE.
    No. 3845.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 5, 1939.
    Rehearing Denied Nov. 2, 1939.
    Motion to Retax Costs Denied Nov. 23, 1939.

      R. E. Minton, of Lufkin, for appellants.
    E. G. Aycoclc and E. S. Pritchard, both of Fort Worth, for appellee.
   WALTHALL, Justice.

The State of Texas, as plaintiff, brought this suit to recover delinquent taxes alleged to be due the State, Upshur County, Road District No. 2 in Upshur County and Common School District No. 42, in said county, for the years 1932 to 1936, inclusive. The parties sued as defendants and alleged to own in severalty the properties' upon which the delinquencies are alleged to be due and owing are A. S. Victory, Rose Dorothy Victory, individually and as ad-ministratrix of the estate of O. M. Victory, deceased, and Birdie Victory Milliron and her husband, T. H. Milliron. The suit is to recover the taxes, penalties, interest and costs and to foreclose the tax lien on each of the several pieces of real estate and mineral interest therein located in Upshur County and involved in the suit. The total amount sued for and alleged to be due and owing is $14,168.01, and itemized. .

Defendants answered jointly by demurrers, general denial and special answers.

The case was tried to the Court without a jury. The Court made and filed findings of fact and conclusions of law and based thereon rendered judgment in favor of the State and in the capacity indicated in the petition for the taxes found to be due and interest and costs, with foreclosure of tax liens, from which judgment defendants appeal.

The several tracts of land are each designated by the tract number and described by metes and bounds. For brevity we state only the tract number and the individual and representative interest of each defendant in the tract on January first of each year, as found by the trial Judge.

Birdie V. Milliron owned an undivided one-half interest in the surface and royalty in the “Homestead” 200 acres, the “middle” 50 acres of the Evans survey, and of the 44.14 acres of the Pineda, but no interest in the other 50 acres and the 100 acres in the Evans survey.

A. S. Victory and Rose Dorothy Victory owned equally the entire surface and royalty in the 100 acres and the 50 acres of the Evans, and a one-fourth interest, each, in the surface and royalty in the 200 acre “Homestead,” the “middle” 50 acres of the Evans, and one-fourth interest, each in the 44.14 acres of the Pineda survey.

The land consists of 250 acres in the E. A. J. Evans Survey, Abstract No. 151, Up-shur County, Texas, consisting of what is known as 200 acres “Victory Homestead Tract,” and 50 acres “East Middle Tract,” out of the Victory farm (and further described, which we omit) ; 100 acres in the southwest corner of the survey and a 50-acre tract described at much length, which we omit; 44.14 acres in the J. M. Pineda Survey, Abstract No. 386, known as the 44.14-acre tract out of the Victory Farm, and further described by metes and bounds.

The findings of the trial court show at much length the rendition for taxes made by the defendants of the tracts of lands indicated, in the rendition therein describing, dividing and valuing same, all of which we omit. Defendant Birdie Milliron did not render for taxes her interest in the lands for the year 1936, and all defendants failed to render their mineral interests for the year 1932.

The taxes upon the surface of the estate owned by all defendants have been paid for the year 1932.

After rendering their property for taxes for the years 1933, 1934, 1935 and 1936, the defendants, in each of said years, except as found, were notified by the Board of Equalization of the raise of their renditions, except Dorothy Victory, who was not notified of the raise for 1933. As, to her, the court found that such failure to notify “resulted in no injury.”

The court found that defendants have failed to present to the Board of Equalization “any evidence of the value of their property” for any of the years involved, and that the Board for said years found and fixed such values in accordance with evidence introduced, and equalized said values with values of other lands in said county.

The court found that the tax assessor duly listed and assessed the mineral interest of each defendant in the .lands involved; that said land was subdivided into oil and gas leases by grantees of defendants and their assignees, and that the tax assessor duly charged and extended the taxes upon such interests as levied by the Commissioners’ Court upon assessment sheets and upon the unrendered rolls, which lists and rolls were corrected and approved by the Commissioners’ Court sitting as a Board of Equalization for the year 1932.

The court found that the lands involved are situated in Upshur County and within the boundaries of Common School District No. 42, and of Road District No. 2.

The trial court made other findings, but with the above general findings stated, we will consider such other findings as they seem pertinent to the proposition discussed.

Opinion.

Appellants filed numerous assignments of error, some eighty-four in all, and present and discuss them under twenty-nine propositions, procedural and otherwise. Much of what is contended for here as to the mineral interest, both as to its rendition and as to the payment of taxes due thereon, was presented and decided in a former suit by appellants, and is reported in Victory et al. v. Hinson et al., Tex.Civ.App., 71 S.W.2d 365, and 129 Tex. 30, 102 S.W.2d 194, to which we refer, without discussing the same issues here.

Appellants submit that the court abused his discretion in permitting plaintiff to file trial amendments after announcement of ready to try had been made and proceeded to hear evidence, over objection, in support of them. The court gave defendants one hour within which to acquaint themselves with their contents and prepare to meet the issues raised. Defendants advised the court the amendments raised new issues they were not prepared to meet, an,d asked leave to withdraw their announcement of ready and to continue the case. The court permitted the filing of the amendments which sought to allocate a lump sum in the taxes charged against tracts of land not all of which were jointly owned by the several defendants. The proposition does not state that new matter was' pleaded. The court found that the trial amendment set up no new matter, and did not surprise defendants, and it was necessary, in order that justice might be served, that the amendments be filed, and the said maps filed (in connection therewith) are true and correct maps of the Victory farm of 444.14 acres.

We are of the opinion that no abuse of discretion is shown.

The record shows that a road and bridge tax was levied in Upshur County on January 1, 1932. The record does not show an apportionment to the road and bridge districts. We think the levy was sufficient, and overrule the sixth proposition asserting error in rendering judgment for road and bridge tax for want of a levy for any. year for the road district.

T. H. Milliron was served with citation as a party to the suit. He did not own or have any interest in- any property involved in the suit, nor did he render it for taxation. It was error to render a personal judgment against him for any sum, and the judgment is hereby corrected in that particular and to that extent.

We sustain appellee’s contention under the eighth proposition that no reversible error was shown, defendants having jointly rendered all their undivided interests in the lands for the years 1932, 1933 and 1934 in the separate tracts, and each having rendered separately their undivided interests in five separate tracts for the years 1935 and 1936, which five tracts comprise and make up the three tracts rendered for former years. Plaintiff was authorized to show the taxes applicable to each separate tract as rendered by defendants for 1932, 1933 and 1934, it being impossible to show the taxes applicable to the undivided interests of each defendant for those years; and further to show the taxes applicable to the three tracts so rendered for 1935 and 1936 by grouping the undivided interests of defendants, in order that a decree of foreclosure might be rendered.

We have concluded that appellants’ several propositions to the effect that the trial court’s findings of fact that none of the cash on deposit in the banks or elsewhere and none of the notes, credits, etc., were intentionally left off the tax rolls, and their omission was not the result of a fixed plan, scheme, system or practice of the taxing officials, were against the weight and preponderance of the evidence, and cannot be sustained.' Several witnesses testified to the contrary. The question of intentional omission on the part of the officers was a fact for the court, and we may not substitute our finding where there was evidence to sustain the court’s finding. The courts have held that moneys of other people deposited in a bank may not be assessed against the deposit bank.-

Appellants pleaded as a defense that the taxation of their lands in Upshur County was not uniform; that items of taxable value as money, notes, credits, etc., and oil payments were omitted from the tax rolls.

Defendant Rose Dorothy Victory complains that the valuation of her property was raised from her rendition for 1933 and 1934 by the Board of Equalization without notice to her, and without her knowledge, consent or acquiescence.

The record sufficiently shows, we think, that the Board of Equalization duly ordered that notices be given; that defendant A. S. Victory rendered the property for all parties for 1933. In 1934 Rose Dorothy Victory was out of the United States until about June 15th of that year. Notice was sent to her and was received on September 14th. It was agreed by counsel -that R. E. Minton was agent for all defendants for all years, 1932 to 1936, inclusive; that he appeared for all parties for said years except for 1933 and 1934, for which two years he did not appear for defendant Rose Dorothy Victory.

While the trial judge found the Board failed to notify Rose Dorothy Victory of the raise (possibly meaning in person), and that she was not injured by such failure, we have not found in the record that the notices of the raise in the tax values for 1933 were not received by Mr. Minton; only he did not appear to protest. The judgment indicates the finding that the notices were received.

We think the record sufficiently shows tax levies for 1935 and 1936, and overrule propositions complaining of insufficient levies for those years. The evidence is too voluminous to state the action of the Commissioners’ Court in making the levies. The orders of the court seem to be regular and sufficient to express and fix the tax rates purported to be charged. The trial court found, upon sufficient evidence, we think, that the lists and assessment rolls were duly examined, corrected and approved by the Commissioners’ Court, sitting as a Board of Equalization, for each of the years involved. Certified copies of the assessment rolls were in evidence, and Article 7326, R.C.S.1925, provides that certified copies of all delinquent records shall be prima facie evidence of the true and correct amount of taxes and costs due.

It was the duty of the court, under the record before us, to render the judgment for the sum found due. State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076.

Appellants complain of the lack of authority on the part of the attorney representing plaintiff to file the suit because of the want of authority of the Commissioners’ Court. The point seems to have been raised for the first time upon appeal. We think the point raised comes too late under Article 7329, R.C.S., and especially in the absence of a verified special plea and proof, as held by the Fort Worth Court in State v. Cage, Tex.Civ.App., 176 S.W. 928, and cases there referred to.

We have found no reversible error other than that referred to and corrected.

Other than the judgment corrected and reformed, the case is affirmed.

On Motion for Rehearing.

Appellants in their motion for rehearing call our attention to some errors appearing in the opinion, some of which we think are of minor importance and which we have corrected by slight changes in the language of the opinion, a copy of which as amended we send to the attorneys of both sides, and about which we do not think to write further.

It is-not made to appear that this suit is brought by the County Attorney of XJpshur County, but the point is made that “the pleadings in tthe case are signed by E. S. Pritchard as attorney of record for the State of Texas,” who signs the petition as “attorney for plaintiff,” and is verified by attorney Pritchard. The judgment recites that “came the plaintiff, State of Texas, by its attorney and announced ready for trial,” and came the defendants, etc. Article 7326 of the R.C.S. provides that “The county attorney, or the attorney employed by the commissioners court, shall sign such petition as attorney for the plaintiff.” Pritchard does not sign the petition as “the attorney employed by the Commissioners’ Court,” but a failure to so sign we do not regard as jurisdictional.

We think that under the condition of the record, no question as to Pritchard’s employment by the Commissioners’ Court having been raised by pleading or otherwise, we can assume that all the conditions of employment of Pritchard were complied with, and that Pritchard was employed by the Commissioners’ Court to prosecute the suit in behalf of the State.

There is some confusion in the record as to the interests severally owned by appellants in the tracts of land involved. We said in the opinion, “defendants jointly owned the surface estate in the lands and one-eighth mineral interest.” Appellants in their motion say the statement is error, and further say: “Birdie V. Milliron owned an undivided one-half interest in the surface and royalty in the ‘Homestead’ 200 acres, the middle 50 acres of the Evans survey, and of the 44.14 acres of the Pineda, but no interest in the other 50 acres and the 100 acres in the Evans survey,” and direct us to several pages of the record as establishing their statement. We accept appellants’ statement as to the individual interests of appellants, and the opinion is reformed to conform thereto.

The above correction as to the several interests of appellants in the lands in the opinion being made, other statements in the opinion referring to the interests of appellants are corrected to conform thereto.

Appellee, the State, not having by pleading or proof sustained its right to recover on behalf of Road District No. 2, the judgment in this respect is error. It is, therefore, ordered-that the judgment insofar as the recovery is for and on behalf of Road District No. 2, is reversed and here rendered in favor of appellants.

Other than some minor corrections in the language of the opinion and noted thereon, and corrections noted here in considering the motion for rehearing, the motion is overruled.

Motion granted in part and in part overruled. •


author: SMITH, Chief Justice.

text:
    BERNSEN et al. v. McLEROY et al.
    No. 10621.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Rehearing Denied Dec. 13, 1939.
    Jno. C. North, of Corpus Christi, for appellants.
    Sidney P. Chandler, of Corpus Christi, for appellees.
   SMITH, Chief Justice.

This appeal is from an order perpetuating an injunction restraining performance of the obligations of a contract executed by a majority of the Board of Trustees of Clarkwood Common School District in Nueces County on the one part, and C. C. Hinchberger on the other, providing for the construction of a' school building for the District.

The suit was brought by G. H. McLe-roy, one of the three district trustees, joined by other property tax-paying citizens, against the two other trustees, the architect who drew the plans and specifications of the building, the building contractor, and the County Superintendent of Schools, to restrain performance of the contract and prohibit the expenditure under it of the proceeds of a bond issue voted by the residents of the district for the purpose of •constructing and equipping the building.

After overruling the general demurrer ■and sustaining a special demurrer directed •by the defendants below to the plaintiffs’ pleadings, and after overruling the general •demurrer and sustaining numerous special exceptions urged by plaintiffs to defendants’ pleadings, the trial court heard evidence and without the intervention of a jury rendered judgment perpetuating a temporary injunction previously issued. The defendants below have appealed.

No errors are assigned in the briefs of appellants, who present their appeal solely upon nine propositions of law. The first of those propositions is directed at the action of the trial court in overruling their general demurrer to appellees’ pleadings, but the remaining eight propositions do not purport to serve any purpose of an assignment of error, or complain of or direct attention to any specific ruling of the court. If appellants intended by those propositions to complain of any ruling or rulings of the trial judge, such intention is not disclosed in the propositions themselves, or elsewhere in the brief, for that matter. Whether it was intended by them to complain of rulings upon exceptions to the pleadings, or of the lack or sufficiency of the evidence to support the judgment, or of the admission or exclusion of evidence, or of implied findings of the trial judge, is not apparent from the propositions themselves, or otherwise in the brief.

The ruling of the court upon the general demurrer, being appárent upon the face of the record, is fundamental', and requires consideration from this Court, even though not assigned as error in appellants’ brief. But rulings of the trial judge upon specific matters such as in his findings, or upon the admission or exclusion of evidence, or upon special exceptions, and complaints of the lack or sufficiency of the evidence, upon the case, must be presented in an appellate court by formal assignments of error, which must be incorporated in the brief of the complaining party, otherwise the appellate court is without authority or discretion to consider them for the purpose of revising the judgment appealed from. Central Power & Light Company v. Heder, 133 S.W.2d 795, this day decided by this Court. The result is that while this Court must consider appellants’ first proposition because it complains of the ruling of the trial judge upon appellants’ general demurrer and is therefore fundamental, we are without authority to consider the remaining eight propositions; accordingly, they will be disregarded in disposing of-the appeal. ■ ’

We have carefully examined and considered appellees’ pleadings in connection with appellants’ first proposition complaining of the overruling of their general demurrer. Appellees’ pleadings below cover twenty-three pages of the transcript, and it is of course impractical to undertake in this opinion to even fairly summarize the allegations therein. It is deemed sufficient to say, generally, that among many other allegations it was alleged by appellees that the trustees contracted with the architect to prepare plans and specifications for the proposed school building before the bond issue was voted, and with the contractor to construct the building before the proceeds for the sale of the bonds were available to the District, all in contravention of the law, whereby the contracts were void ab initio; that said contracts provided for the expenditure of an amount in excess of that authorized by the election, and was therefore void ab initio; -that the election was called and held for the issuance of $28,000 to be expended in both constructing and equipping the proposed building, and the bonds were actually issued, registered, approved and sold on the market for that expressed dual purpose, whereas; the contracts in question provided that the entire proceeds of the issue be expended in constructing, to the exclusion of equipping, the building, and were ■ therefore void.. Appel-lees’ pleadings contained ■ other objections-to the validity of said contracts, but it is not deemed necessary to notice those objections here. We are of the-opinion that the allegations in appellees pleadings, when liberally construed, and taken :as true, as they should be when tested by general de-. murrer, were sufficient to warrant trial thereunder on the merits, and that no reversible error is presented in appellants’ first proposition, which is overruled.

Appellees’ pleadings being sufficient as against the general demurrer and appellants not having complained of the judgment upon any other ground by assignment of error, we must assume that the evidence supported the judgment, which is therefore affirmed.


author: COMBS, Justice.

text:
    BOBBITT v. BOBBITT et al.
    No. 3528.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1939.
    Ramsey & Ramsey, of San Augustine, for appellant.
    Minton & Minton, of Hemphill, for ap-pellees.
   COMBS, Justice.

This suit by appellant, Fonzie Bobbitt, was for an injunction and upon final hearing the trial court sustained the general demurrer to plaintiff’s petition, denying the relief sought. This appeal is from that judgment. The pertinent facts disclosed by the petition, so far as necessary to be stated, were: Appellee A. T. L. Bobbitt is the father of appellant Fonzie Bobbitt. In July, 1937, prior to the filing of the present suit for injunction, a judgment was entered in the case of A. T. L. Bobbitt v. Fonzie Bobbitt, No. 3146, in the district court of San Augustine County. Appellee Anna Bobbitt was awarded title to an undivided half interest in a 218% acre tract of land consisting of two small contiguous tracts and appellant, Fonzie Bobbitt, was awarded title to an undivided interest of 69⅜ acres in said tract. A. T. L. Bobbitt was awarded money judgment against Fon-zie Bobbitt for $360' for rent on the portion of the land he had been occupying and cultivating. The judgment contained also an award of a homestead interest to A. T. L. Bobbitt, as follows: “It is further ordered, adjudged and decreed by the court that the plaintiff, A. T. L. Bobbitt, do have and recover of and from the defendant, Fonzie Bobbitt, possession of two hundred (200) of the above described tract of land, by virtue of having a homestead right in two hundred (200) of said land, for which two hundred acres of land plaintiff may have his writ of possession and as many writs of possession as may be necessary to invest him with the possession of the said two hundred acres of land.”

The petition discloses that thereafter a writ of possession issued in said cause, directing the sheriff of San Augustine County to deliver to A. T. L. Bobbitt possession of 200 acres out of the 218% acres, being all of it, less 18% acres described by metes and bounds, the writ reciting that the plaintiff, A. T. L. Bobbitt, had selected out of 218% acres of said land all of the two tracts comprising it except 18% acres which was specifically described. This suit was brought by Fonzie Bobbitt to enjoin execution of the writ on the ground that same was void, was not in conformity with the judgment in cause No. 3146, and was an attempt to partition the land. He further alleged that the 18% acres which it was proposed to leave to him by the writ was untillable, without improvements and was practically of no value as compared to the balance of the land. “That plaintiff is now occupying, cultivating and using approximately 22 acres of said 228 acres as his home, said 22 acres of land being in an improved state, being improved by plaintiff, said improvements consisting of a dwelling house constructed by plaintiff, in which he is now living with his family, the necessary barns, outhouses, cotton houses and fences, all of which were placed thereon by plaintiff at his own expense.” He prayed for an injunction against the defendants, A. T. L. Bobbitt and Anna Bobbitt, another party defendant, prohibiting them and each of them, from selecting any part of said property over and above their interest, and that the sheriff be enjoined from executing the writ of restitution “in so far as said writ directs him to dispossess plaintiff of said 22 acres of land and seize his improvements and crops thereon.”

Opinion.

We think the judgment of the trial court must be sustained. The judgment in cause No. 3146 did more than determine the ownership of the parties in the tracts of land here involved. It awarded to A. T. L. Bobbitt a homestead interest of not exceeding 200 acres, as shown by the part of the judgment above quoted. Thus it awarded to him the homestead privilege secured to him by the constitution, Art. 16, Sec. 52, Vernon’s Ann.St. He had the right to make the selection of his homestead tract out of the larger tract. Beall v. Hollingsworth, Tex.Civ.App., 46 S.W. 881. Having made his selection, he was entitled to the exclusive use and occupancy of the homestead so selected and to have the sheriff put him in possession of it under the writ provided by the judgment. The fact that the son Fonzie was occupying parts of it with his permission, and had made certain improvements thereon, did not confer upon the son any homestead interest or give him any right to interfere with his father’s exclusive use and occupancy of the 200 acre tract selected. Rettig v. Houston West End Realty Co., Tex.Com.App., 254 S.W. 765.

It follows that plaintiff’s petition stated no grounds entitling him to the injunctive relief sought.

Judgment affirmed.


author: BROWN, Justice.

text:
    LONG et al. v. METCALF.
    No. 13976.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 27, 1939.
    Rehearing denied Dec 8, 1939.

      Bromberg, Leftwich, Carrington & Go-wan, of Dallas, Marshall & King, of Graham, and Samuels, Foster, Brown & McGee and William M. Brown, all of Fort Worth, for appellants.
    Milburn E. Nutt, of Wichita Falls, for appellee W. A. Metcalf.
    Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for intervener.
   BROWN, Justice.

This is an action for personal injuries, brought by appellee Metcalf, in which he alleged, in substance, the following facts: That he was in the employ of one K. C. Gray; that Gray made an oral contract with L. A. Long and the partnership firm, composed of L. A. Long and R. J. Wolfe, •known as Long & Wolfe, whereby Gray was to “skid”, or remove, an oil well derrick from a certain location, on a lease in Jack County, Texas, to another location . on such lease; that by such contract the said defendants (Long and Wolfe) agreed to furnish the machinery and crew for pulling the derrick and a truck having machinery thereon, together with its driver, for the purpose of “snubbing”, or holding back, the derrick as it was being moved ; that the truck and equipment and driver were so furnished, and that the driver of the truck placed same near the derrick, with its rear end pointing toward the derrick, and that the place whereon the truck was stationed was an incline, sloping toward the derrick; that the driver of the truck negligently failed to apply the emergency brakes on the truck, and 'negligently failed to “scotch” the truck, so as to prevent it from rolling; that the driver negligently left the truck thus standing, with the motor running; that the brakes on the truck were in a defective condition ; that while the truck driver was out of the truck, and when Metcalf was between the truck and the derrick, inspecting the winch line which was attached to the derrick and the winch on the truck, the truck rolled back, down the incline, and caught him between the rear of the truck and the derrick and mashed his head and inflicted upon him serious injuries, from which he will never recover.

Recovery of damages was asked against L. A. Long, individually, and against L. A. Long and R. J. Wolfe, as partners, jointly and severally.

The defendant, L. A. Long, answered individually, by a general denial; that plaintiff’s, injuries were proximately caused by his own acts of negligence in, (a) not seeing that the winch line was attached securely to the rig; (b) failing to instruct the truck driver to fasten or scotch the truck to some stationary object; (c) failing to keep a proper lookout for his own safety; (d) failing to inspect the truck and to test the condition of the brakes before undertaking to use the truck to hold back the rig; (é) going to the place where the accident occurred without first ascertaining that the truck would remain stationary; (f) pulling on the winch line, thus causing the truck to begin rolling; (g) not ascertaining whether the truck was occupied by a driver at the time he placed himself in the position in which he found himself when the accident occurred.

Answering further, Long alleged that the driver of the truck was not working, at the time of the injury, within the scope of any employment for him, Long; that Metcalf, plaintiff, requested the driver of the truck to come with the truck and assist in holding back the rig; that in so doing the driver was not performing any service for Long or any defendant, but was a volunteer; that any scope of employment for any'of the defendants had terminated and was suspended when the truck driver was engaged as he was at the time of the accident and the driver was under the control and direction of the plaintiff as to all of the details of such work.

R. J. Wolfe’s answer is substantially like that of defendant Long’s.

The partnership firm, Long & Wolfe, answered by adopting the original answers of both L. A. Long and R. J. Wolfe. The answer on which Long went to trial was his “second amended”.

Metcalf collected certain Workmen’s Compensation insurance from Traders & General Insurance Company, and such company intervened, praying for a recovery against the defendants to the extent of such payment.

The cause was tried to a jury and the following findings made: (1) That the driver of the truck failed to apply the emergency brakes “full on” when he left the truck, immediately before the accident; (2) that such act of omission was negligence, and (3) was a proximate cause of plaintiff’s injuries; (4) that defendants failed to equip the truck with adequate emergency brakes, (S) same was negligence, and (6) a proximate cause of plaintiff’s injuries; (7) the driver of the truck was negligent in leaving the truck unscotch-ed and with the engine running at such time, and (8) such negligence was a proximate cause of plaintiff’s injuries; (9) plaintiff suffered damages in the sum of $17,500; (10) that under the agreement between K. C. Gray and Long & Wolfe, the latter were required to furnish power for “snubbing” the derrick while it was being skidded; (11) the truck in question and its driver were furnished by Long & Wolfe in compliance with such agreement ; (12) that the truck driver on the occasion of the injuries being suffered by plaintiff was not under the exclusive control of Metcalf. The 13th issue and answer are: “Do you find from a preponderance of the evidence that Damon Davison (the truck driver) in undertaking to use the truck to hold the rig back was for the time being acting without any instructions to that effect from either L. A. Long or the firm of Long & Wolfe, or by anyone authorized by either of them? Answer: No.” (Let us here state that no objection was made to this issue by any litigant). (14) That the truck driver was not a volunteer at such time; (15) that the jury does not find from a preponderance. of the evidence that Metcalf failed to instruct the truck driver to fasten his truck to some stationary object; (18) that Metcalf did not fail to keep a proper lookout; (20) that Metcalf was not negligent in failing to inspect the truck and test the brakes at the time in. question; (22) that Metcalf put himself in the place where the accident occurred without first ascertaining that the truck would remain stationary; (23) that in so doing he was not negligent; (25) that Metcalf did not pull on the winch line and cause the truck to start rolling; (29) that Metcalf put himself in' a position where the accident occurred without first ascertaining that the truck was occupied by a driver; (30) that this act was not negligence.

The defendants prepared and filed objections to the first eleven issues so given and to certain definitions found in the charge, but made no other objections to the charge.

On this verdict, the trial court rendered judgment for the plaintiff, Metcalf, and out of such recovery gave judgment for said intervener, for the amount paid by it under the Workmen’s Compensation claim made by Metcalf. Such judgment recites: “That the plaintiff do have and recover of and from the defendants L. A. Long, individually, and the said defendants L. A. Long and R. J. Wolfe, co-partners as aforesaid, doing business as Long & Wolfe, both jointly and severally, and in all respects, etc.”, and providing for proper payment to the intervener out of the ■first monies recovered.

The said defendants have appealed, and present twenty-four assignments of error, discussed under fifteen propositions.

The first proposition contends that' no evidence was adduced to show that the emergency brake was applied by the truck driver and therefore it was error to submit issue No. 6, asking the jury to find whether or not defendants’ failure to equip the truck with adequate brakes was a proximate cause of the injury; and the second proposition contends that, because of there being no such evidence, the finding of the jury that the failure to equip the truck with adequate brakes was a proximate cause of plaintiff’s injury is absolutely without foundation and support in the evidence.

We have read the voluminous statement of facts, and in our opinion the evidence amply supports the verdict.

The testimony of the truck driver, that of the auto mechanic, who examined the truck, and the physical facts, constituted enough evidence to raise the issue.

The third proposition contends that the' uncontradicted testimony, concerning the said brakes, being that the brakes, even though slack, were adequate to hold the truck, if pulled all the way on, there was no basis in the testimony for the submission of an issue inquiring whether or not defendants failed to equip the truck with adequate emergency brakes; and the fourth proposition contends that the evidence being as stated, the answers made by the jury to issues 4 and 5 are contrary to the evidence and are without support in the evidence.

What we have said in discussing propositions Nos. 1 and 2 applies here.

The fifth proposition contends that, since the plaintiff by his own testimony established the fact that he was the foreman or “crew pusher” in charge of the operation of skidding the derrick, and that the truck driver, during the course of the moving, was under plaintiff’s direction and control as to all the details of the work, it follows as -a matter of law that the defendants, L. A. Long and Long & Wolfe, cannot be held to be responsible for any negligent act on the part of the truck driver, on the occasion in question.

We do not find that the testimony established the fact as asserted, but, on the other hand, we find that the evidence supports the whole of the jury’s verdict.

The fact is, we believe that the agency of the truck driver, in his relation to Long & Wolfe, is conclusively established.

We do not view this case as disclosing a situation where Long & Wolfe loaned a truck and its winch equipment and driver to Gray. The contract, as established by the uncontradicted testimony, and found by the jury, was, that Gray would move the derrick for a specified sum if Long & Wolfe would clear a right-of-way and furnish the pulling power and the “snubbing” (or holding back) power. Thus, the evidence discloses that a part of the work was being done by Long & Wolfe, and a part by Gray.

We will treat the 6th, 7th, 8th and 9th propositions together.

The sixth takes up special issue No. 13 and its answer: “Do you find from a preponderance of the evidence that Damon Davison in undertaking to use the truck to hold the rig back was for the time being acting without any instructions to that effect from either L. A. Long or the firm of Long & Wolfe, or by anyone authorized by either of them? Answer: No.” And appellant contends that such answer is not an affirmative finding that Damon Davison, at such time, acted with instructions to that effect, but merely a finding that the jury did not find from a preponderance of the evidence that Da-vison acted without such instructions, and since the burden of proof was on the plaintiff to prove by a preponderance of the evidence that Davison did act under the control and direction of the defendants at such time, a judgment based on the said answer is fatally and fundamentally erroneous.

This proposition might have merit in it, were it not for the fact that, under issues submitted, the jury found the contract, as outlined by us above, in answer to issue No. 10, and in answer to issue No. 11 found that the truck and its driver were furnished by Long & Wolfe, in compliance with their contract, and further that, at such time, Davison was not acting under the exclusive control of the plaintiff (issue No. 12), and found under issue No. 14 that Davison, in doing the work, was not a volunteer.

Issue No. 13 was a defensive issue, given because the defendants pleaded that, at the time of the acts in question, Davison was not acting under their orders and instructions or as their employee.

In the first place, we believe that the evidence of defendants’ employees conclusively established the agency of the truck driver, but, be that as it may, the jury found such agency in answer to the issues noted, and found against the defendants on the several defensive issues, as noted.

The seventh proposition contends that the finding made to said issue 13 does not establish the joint and several liability of Long and Wolfe.

The answer is that such answer, together with the other answers noted, do establish such liability.

The eighth proposition contends that the answer to said issue 13 is not a finding that Davison at such time was under the control and direction of Long and Long & Wolfe, and that there being no finding that Davison was at such time acting under the control and direction of these defendants, a judgment against them is not supported by the verdict.

Our observations with reference to the next preceding propositions cover the eighth.

The ninth proposition contends that the burden was on plaintiff to plead and prove and to secure an affirmative finding that Davison, at the time and place in question, was acting under the control and direction of the defendants, and that plaintiff having failed to request an issue covering such facts, he has waived the essential element of his cause of action and the judgment based on the verdict is fatally and fundamentally erroneous.

We believe the verdict supports the judgment, and we further believe that the undisputed evidence from the lips of defendants’ employees and from defendants, established the agency of Davison, at the time and on the occasion in question.

In the case of Buick Automobile Co. v. Weaver, Tex.Civ.App., 163 S.W. 594, 596, writ refused, the following language is used: “It is well settled that the master, is liable for the tortious acts of his servant done while in the master’s service, or in the discharge of his employment, or when the acts claimed to be tortious are done in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed.” This opinion cites International & G. N. Railway Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 27 Am.St.Rep. 902, and Cooper v. Knight, Tex.Civ.App., 147 S.W. 349.

The truck driver, Davison, was the agent, servant and employee of Long & Wolfe, and of the members of such partnership firm, and his acts were had and done in the furtherance of his master’s business and for the accomplishment of the object for which he was employed. The undisputed facts- so show and the judgment rendered against each and all of the partners for the tortious acts established was proper.

Issue No. 13, as well as issues Nos. 12- and 14, presented defenses urged by the defendants.

They made no objection to the form or substance of either of the issues. They must be held to have been satisfactory to defendants.

The finding that defendants contracted to furnish the power for “snubbing” the derrick, while it was being skidded, and that in accordance with such contract they furnished the truck in question and its driver, Davison, must of .necessity establish the agency of Davison for the defendants.

The tenth proposition contends that defendants having pleaded that plaintiff was guilty of contributory negligence in failing to see that the winch line was attached securely to the rig, so that it would not come loose, and that such negligence contributed to plaintiff’s injuries, it was error for the court to refuse to give defendants’ issues predicated on such defense.

We find no error here. Even if this duty rested upon the plaintiff, the failure to see that the winch line was securely fastened could not have contributed to the accident and injuries. The winch line had nothing to do with the accident. Furthermore, the evidence discloses that, just immediately prior to the accident, plaintiff was squatting or sitting where he was looking at the winch line then attached or being attached, and the truck rolled down upon him

The' eleventh proposition contends that the trial court erred in defining the term “new and independent cause” because it refers to the “negligent act or omission of the defendants” and thus constitutes a comment by the court on the weight of the evidence and indicates that the court is of the opinion that there is negligence on the part of the defendants, and such definition should' wholly omit any reference to any negligence of either party— that the parties should not be thus singled out, but the definition should be made to apply to both parties alike.

It is further contended that the charge is harmful because there was no issue of new and independent cause present in the case, and the definition amounts to a general charge.

The only objection made to the charge and brought forward by appellants is given, in substance, by us in the first paragraph in which we are discussing proposition No. 11.

Appellants may not be heard to present any objections to the charge that were not' timely presented in the trial court. Therefore the contention that the issue of new and independent cause is not ih the case and the instruction constitutes a harmful general charge is without merit.

It will be noted that no objection is made to the charge'on “proximate cause” and it contains the element, or term, “new and independent cause”, and the definition of “n¿w and: independent cause” is the approved definition. Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60; Young v. Massey et al., 128 Tex. 638, 101 S.W.2d 809.

If-defendants had' objected to the trial court including--the"-term “new and independent cause” in the definition of “proximate cause”, prudence would have required -that the trial court omit such expression from the--'charge; if there were no- evidence tending to raise the issue.

The trial court in the instant case gave' a- charge -on unavoidable accident, which must'have met with the approval of the 'defendants, as no complaint was made of -its being-given, and, evidently, out of an -abundance of precaution the trial court included the term “new and. independent. cause” . in - the charge, and' if it were 'error,1 the- charge being ■ correct in its verbiage, such -error ,is .harmless. •

The twelfth proposition contends that the court having submitted issues Nos. 10 and 11⅜ presenting plaintiff's theory -of the case to the effect that the agreement with Long & Wolfe required them to furnish the power to snub the rig, and that the truck and driver had been furnished pursuant to such agreement, and the evidence being conflicting on such matters, the trial court erred in refusing to submit the requested issue asking the jury to find whether or not the defendants merely loaned the truck and driver on the occasion.

We find no pleading raising any such issue, neither do we find any evidence tending to support such an issue, and appellants’ brief does not point out such character of evidence.

The thirteenth proposition contends that the trial court erred in permitting the plaintiff to testify to two conversations he had with one Ben Paltron, wherein plaintiff told Paltron that plaintiff would be needing a truck to “snub” the rig back .and Paltron told him he would send one and to let him (Paltron) know when he needed it, because this was hearsay, not a part of the res gestae and pertained to a matter of which it was not shown Paltron had authority to speak or control, as a representative of the defendants.

The conversations had to do with the very work and job. on which plaintiff was. injured, and it was shown that Paltron was defendants’ day driller — the employee highest in authority on the lease where the accident occurred — and the matters were within the scope of authority of Pal-tron and connected with the work of moving the derrick.

The fourteenth proposition is in like terms as the thirteenth, and complains of the testimony of one Ben Wilmot, who said he heard the conversations of which complaint is made.

We find no merit in the • contentions.

The fifteenth and last proposition contends that the verdict is excessive.

The jury must'have believed the testimony given by the plaintiff "and physicians who examined and treated him. This testimony covers' great physical pain, mental suffering, partial paralysis of one eye and of salivary glands, almost, total loss of smell and of- taste, - severe' injury to an eye, inability to labor, etc., all suffered by a man who had just reached “middle age” and earning $12.00 per day in his particular employment.

We cannot say the jury awarded the plaintiff more than the evidence warranted.

All assignments of error are overruled, and the judgment is affirmed.


author: MURRAY, Justice.

text:
    CAMERON COUNTY WATER IMPROVEMENT DIST. NO. 1 v. CAMERON COUNTY WATER IMPROVEMENT DIST. NO. 15 et al.
    No. 10753.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Polk Hornaday, of Harlingen, for appellant.
    P. G. Greenwood, and Carter & Stiern-berg, both of Harlingen, and August Kacir, of Temple, for appellees.
   MURRAY, Justice.

Appellant, Cameron County Water Improvement District Number One (hereinafter referred to as District One) filed this suit in the District Court of Cameron County, some time early in the year 1939, against Cameron County Water Improvement District Number Fifteen (hereinafter referred to as District Fifteen), Lee M. Green, the Slavonic Benevolent- Order of the State of Texas, and C. H. Chernosky seeking to cancel a water contract entered into between District One and District Fifteen, on August 3, 1937, and in the alternative for damages in the sum of $50,-000. District One'alleged that the contract was without consideration and that its execution on the part of District One' was procured by means of duress. :

The trial was to the court, without the intervention of a jury, ‘ and resulted in a judgment that District One take nothing, from which judgment District One has prosecuted this appeal.

Appellant first complains because its motion for a continuance or, in the alternative, to take the deposition of the witness Mrs. Shannon Newma'n -was ' overruled. It appears that when this ■ cause was called for trial on June 7, 1939, all parties announced ready/fori trial ánd- that thereafter District One discovered the absence of the witness'Mrs. Shannon. New-<man, and thereupon made a motion iseeking to withdraw their announcement'-of ready and have the case-continued, or to compel the - attorneys for appellees to immediately cross the interrogatories ánd waive'‘time so that Mrs.' Newman’s deposition-might be taken at once. Mrs.-Newman was a resident of Bexar County. District One contended that it had an agreement with opposing counsel that they would waive time and voluntarily cross interrogatories should District One desire to take depositions. The trial judge in no way abused his discretion in overruling this motion. It was the duty of appellant to ascertain whether its witnesses were present or not before announcing ready for trial. Furthermore, it knew all the time that Mrs. Newman was a resident of Bexar County and that the only sure way of obtaining her testimony was to take her deposition before announcing ready for trial. It chose to gamble on Mrs. Newman voluntarily making her appearance at the trial and having taken this chance and lost, is now in no position to complain.

It will be borne in mind that this was a trial before the court without the intervention of a jury. No findings of fact or conclusions of law were made, and, apparently, none were requested by either side.

Several of appellant’s propositions deal with the question of ratification, or, rather, the lack of ratification of the contract of August 3, 1937, by District One. As far as this Court knows the trial court may have found that there was a valuable consideration to support the contract, and that the contract was not executed as a result of duress. If there was a valuable consideration to support the contract, and if there was no duress, then the question of ratification, vel non, becomes unimportant.

Appellant does not present any proposition contending that the trial court could not have properly found that there was a valid consideration for the contract, and the only proposition challenging the implied finding of the court that appellant did not establish duress in the execution of the contract is proposition seven, which reads as follows: “7. The undisputed testimony of the members of plaintiff’s Board of Directors, that they did not execute voluntarily the contract of August 3, 1937, but executed it only under the fear of losing plaintiff’s R. F. C. loan and that they were, under the circumstances, forced either to execute the said contract or that if they did not execute the said- contract, the defendants, Slavonic Benevolent Order, C. H. Chernosky and Number Fifteen would withhold the bonds controlled by them, and that being under those circumstances of compulsion under fear of the consequences of losing the loan, they executed the said contract; and the Court erred as a matter of law in holding that the undisputed facts did not constitute duress.”

Under this proposition appears a very brief statement, which we copy in full, to-wit:

“Plaintiff alleged that it did not execute voluntarily the contract to furnish No. IS water, dated August 3, 1937; but that fearing that it would lose its R. F. C. loan causing it serious financial disaster which would likely disterminate as a going concern and with that fear for its existence affecting it, it had signed under duress said contract.
“Each director sustained the allegations by his testimony; Director Wade, Director ^yle, Director Starnes.”

There is nothing in the proposition or the statement which would show duress as a matter of law. It is not shown that any of the appellees threatened to do anything to appellant. The most that can be gleaned from the entire record is that appel-lees refused to sign a commitment of the bonds which they held, so that District One might re-finance through the Reconstruction Finance Corporation and pay off these bonds at the rate of seventy cents on the One Dollar valuation. It is not contended that it was illegal for appellees to refuse to commit these bonds. As long as appellees were within their legal rights there can be no duress. 10 Tex.Jur. p. 76, § 44, reads as follows: “Threat to Exercise Legal Right. — As a general rule, a threat to do what one has a legal right to do cannot be the basis of duress; and such a threat is never sufficient to constitute duress of property. So, duress is not shown by proof of a threat by an employer to discharge an employee if he does not tender his resignation, nor by evidence of a refusal of a partner to dissolve the partnership and distribute its assets, where he has a right to continue it under the terms of the partnership contract. Also, a threat to resort to a civil proceeding which the law gives to a party for the enforcement of his rights is not duress, since it is no more than the exercise of a lawful right; and this is true although the inevitable result of carrying out the threat may be to put in motion the processes of the criminal law. But a threat to prosecute a person for a crime of which he is guilty may amount to duress.” . .

We must conclude that the trial court impliedly properly found that the contract of August 3, 1937, was supported by a valuable consideration and that it was not executed by District One as a result of duress.

This conclusion renders all other contentions made by appellant unimportant and immaterial and they will therefore be overruled.

The judgment is affirmed.


text:
    METTAUER v. WEEKS et al.
    No. 3538.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1939.
    Rehearing Denied Nov. 29, 1939.
    . J. R. Bogard, of San Augustine, and Seale & Thompson and L. B. Fowler, all of Nacogdoches, for appellant.
    Ramsey & Ramsey, of San Augustine, for appellees.
   WALKER, Chief Justice.

This was an action in trespass to try title by appellees, Nettie Weeks and her husband, Alfred Weeks, against appellant, E. T. Mettauer, to recover an undivided one-half interest in 44.4 acres of land, a part of the A. Gray survey in San Augustine county. On trial to the court without a jury, judgment was in favor of appellees, among other grounds, on their plea of limitation of ten years. In finding for the appellees on their plea of limitation, the court necessarily found against appellant on his plea of limitation. Appel-lees offered testimony to the effect that for more than ten years they had been in possession of the land in controversy, claiming, using, and enjoying it, under all the conditions of the statute of limitation of ten years. Appellant offered testimony strongly controverting appellees’ theory of the case. However, the trial court was' the judge of the weight of the testimony and the credibility of the witnesses. It follows that his judgment on the facts should be affirmed, and it is accordingly so ordered.

Affirmed.