author: FUNDERBURK, Justice.

text:
    ÆTNA CASUALTY & SURETY CO. v. BLOCK.
    No. 1998.
    Court of Civil Appeals of Texas. Eastland.
    June 21, 1940.
    Rehearing Denied July 19, 1940.
    R. H. Ratliff and Thomas R. Smith, both of Colorado City, for appellant.
    Smith & Smith, of Anson, and Eli Gold-stein, of San Antonio, for appellee.
   FUNDERBURK, Justice.

Aaron L. Block, employee of L. Zweig doing business under the name of Hub Dry Goods Company, sustained an accidental injury on or about March 1, 1937, in Jones county, Texas. Said employer was subject to the Workmen’s Compensation Laws, and the Aetna Casualty & Surety Company was his compensation insurance carrier.

This suit, following the usual preliminary proceedings, before the Industrial Accident Board, was brought by said employee against said insurance carrier to recover compensation for alleged total and permanent disability resulting from said injury and for expenses for medical and surgical aid, treatment and hospitalization. The issues being duly joined by the pleadings, the case was tried by the jury. A verdict upon special issues was returned in favor of plaintiff. From the judgment thereon the defendant has appealed.

Block will be referred to by name, or as “employee”; the Aetna Casualty & Surety Company as “insurer” and L. Zweig and/or Hub Dry Goods Company as “employer.”

Appellant’s fourth proposition is as follows : “The uncontroverted evidence showing that plaintiff Block was injured while engaged in buying scrap iron and junk for L. Zweig and not while engaged in the retail dry goods business plaintiff was not covered by the policy issued to Zweig upon his employees in a retail dry goods store, and the court erred in not granting defendant’s motion for an instructed verdict.” This proposition was asserted under the 17th assignment of error, reading as follows: “The court erred in overruling and not sustaining the defendant’s motion for an instructed verdict in this case as requested by the defendant in his requested special charge No. 1.”

■ In appellant’s brief the above proposition is grouped with the first, second and third propositions and the principal reason urged in support of all of them is to the effect that there was no liability because the employee at the time of his injury was not employed in the usual course of the trade, business or occupation of his employer, as provided in R.S.1925, Art. 8309, sec.' 1, prior to the amendment of 1937, Vernon’s Ann. Civ.St. art. 8309, § 1. Said statute was as follows: “ ‘Employe’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of, or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of trade, business, profession or occupation of his employer.” (Italics ours.) It was established, without dispute, that the employer, at the time the insurer issued to him its policy of compensation insurance, was engaged in the retail dry goods business. The fact was likewise conclusively shown that later, and prior to the time of the injury, said employer engaged in the junk business, meaning the purchase, shipment and sale of scrap iron. The employee was injured while in the course of his employment in the junk business.

In an opinion herein delivered March 22, 1940, which will be withdrawn and this opinion substituted therefor, covering these four propositions, considered together, we said: “The undisputed evidence showed that a part of the employer’s business, or one of his businesses, was that of purchasing scrap iron and junk and that the employee received his injury while performing the duties of his employment, in that business, or part of the business, of the employer. The law in force at the time of the accident (since amended) excepted from the statutory definition of employee any ‘one whose employment is not in the usual course of trade, business, profession or occupation of his employer.’ R.S.1925, Art. 8309, sec. 1. The quoted provision did not have the effect, we think, as seems to be assumed by the insurer, of restricting the benefits of the compensation law only to cover an employee ‘in the usual course of’ one ‘trade, business, profession or occupation of his employer.’ If an employer had móre than one ‘trade, business, profession or occupation’ the employees in each, the necessary conditions existing, would be protected, or not, according to the provisions of one or more policies of the same, or of different insurance carriers. Barron v. Standard Acc. Ins. Co., 122 Tex. 179, 53 S.W.2d 769; United States F. & G. Co. v. Bullard Gin & Mill Co., Tex.Civ.App., 245 S.W. 720; Employers’ Ind. Corp. v. Felter, Tex.Civ.App., 264 S.W. 137; Commercial Standard Ins. Co. v. De Hart, Tex.Civ.App., 47 S.W.2d 898. In cases where the employer had more than one business, each within the terms of the compensation laws, the question is not which is the main or principal trade, business or occupation of the employer, or in which of them an employee who received an injury was the most usually engaged. In all such cases the important inquiry is whether the injured party received his injury in the course of his employment ‘in the usual course of [a] trade, business, profession or occupation of his employer’ as to which the compensation law was applicable and the employer had provided compensation insurance. If the employer is engaged in different trades, business, etc., their relative importance, magnitude, or duration would seem to be immaterial.”

In said opinion we further expressed the view that the insurer by said four propositions had not presented the real question which its argument suggested was intended to be presented, namely: that the policy involved in the suit by its terms applied exclusively to a trade, business or occupation different from, and not connected with, that of the junk business, namely, the retail dry goods business.

It is to be observed that said fourth proposition and the assignment of error under which it is urged, is not dependent upon the validity of the reason given to support the others, namely, that the employee was not engaged at the time of his injury “in the usual course of trade, business, profession or occupation of his employer.” It presents the single question whether an employee in a business protected by compensation insurance applicable' alone to that business, may recover compensation for an injury received in the course of his employment at the particular time of injury in another and different business of the same employer, but as to which the employer has provided no compensation insurance.

After a thorough re-consideration we have reached the conclusion that said fourth proposition should be sustained. It was shown conclusively that for many years the employer had but one business, which was the retail dry goods business, conducted, however, first at one and later at two or three different places. The compensation insurance carried upon the employees of that business was at a comparatively low rate, based upon the relatively little hazardous character of the business. The evidence leaves no escape from the conclusion that the business designated “store risks retail N. O. C.”, to which the insurance applied, was the retail dry goods business, which had been the employer’s only business for so many years. The evidence showed that a different an.d much higher rate was exacted for compensation insurance applicable to the junk business. The employer carrying compensation insurance for his employees in the dry goods business, upon engaging in the junk business, was of the impression that he would require other and different insurance and staked his defense largely upon the contention that the local agents of the insurer had authority to bind the insurer by a declaration alleged to have been made and relied upon that the policy covered the junk busi-. ness. It Is deemed unnecessary to cite authority to support the proposition that any employer may procure compensation insurance protecting the employees of a particular business which will be confined to the employees engaged in that business, with the result that if he engages in another and different business and particularly one in which a different rate of premiums is exacted, without procuring compensation insurance for the employees in that business, an employee injured while in the course of his employment therein will not be protected. We have concluded that such is shown to be the situation here involved. Unless the employer became estopped by the representations of its agents to the effect that the policy covered the employee-while discharging his duties in the other employment no liability is shown.

In the former opinion upon the last mentioned point we said: “If the policy as a matter of fact or law did not include liability for the injury to the employee under the circumstances shown by the evidence most favorable to the employee’s right to recover compensation, or according to the verdict of the jury, then we are inclined to> the view that no liability was shown-based upon estoppel, or, what is the same thing; apparent authority of the agents of the insurer.” It is our conclusion that the undisputed evidence showed that the local' agents of the insurer upon whose representations the claim of estoppel was predicated were mere soliciting agents without authority to bind the insurer by their representations as to the coverage of the policy of insurance then in effect and' protecting solely the employees in the dry goods business.

These conclusions render other questions raised by appellant unnecessary to be determined.

The former opinion of March 22, 1940s and the judgment rendered in connection therewith, as well as the opinion on rehearing dated April 26, 1940, and the order entered in accordance therewith, are all set aside. It being our conclusion that the judgment of the trial court should be reversed and judgment now rendered for the appellant to the effect that the employee Block take nothing by his suit, it is accordingly so ordered.


source: Caselaw Access Project

author: WALTHALL, Justice.

license: Public Domain

text:
    BURTON-LINGO CO. v. LAY.
    No. 3946.
    Court of Civil Appeals of Texas. El Paso.
    May 30, 1940.
    Stubbeman, McRae & Sealy, of Midland, for plaintiff in error.
    J. P. Williams, of Andrews, for defendant in error.
   WALTHALL, Justice.

This suit was filed on- or about the 15th day of October, 1938, in the County Court of Andrews County, Texas, by Burton-Lingo Company, a corporation, as plaintiff, complaining of Katie T. Lay, Individually and as Executrix of the Estate of W. J. Lay, deceased, seeking judgment upon a promissory note executed February 15, 1935, by the said W. J. Lay, deceased, to the order of Burton-Lingo Company in the principal amount of $301.60, payable on or before June 1, 1935, with interest at the rate of eight per cent per annum, said note showing credits in the arrio,unt of $100. The case was set down for trial on December 14, 1938. Plaintiff failed to appear until late in the afternoon of said date, and, although defendant’s answer on file in said cause contained no cross action, discovered that default judgment had already been entered by the court, decreeing that plaintiff take nothing.

The court overruled plaintiff’s motion for a new trial and plaintiff seasonably filed its petition for writ of error, bond and citation and the case is properly before us for review.

By assignment of error and proposition thereunder plaintiff submits error of the trial court in rendering judgment that plaintiff take nothing by its suit; that the only judgment the court could properly have rendered, defendant having filed no cross action or action for affirmative relief, was a dismissal of plaintiff’s suit.

The judgment rendered that plaintiff take nothing was a trial on the merits. The case, on the facts stated, was not before the court for a trial on the merits. The court was without jurisdictional power to render any judgment other than a dismissal of plaintiff’s suit for want of prosecution.

The judgment rendered was fundamental error.

The following cases clearly sustain plaintiff’s contention: R. B. George Machinery Co. v. City of Midland, Tex.Com.App., 29 S.W.2d 966, and the cases there referred to by Judge Harvey; Burger v. Young, 78 Tex. 656, 15 S.W. 107; Parr v. Chittim, Tex.Com.App., 231 S.W. 1079; Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172; Short v. Hepburn, 89 Tex. 622, 625, 35 S.W. 1056.

The case is reversed and remanded.


author: PRICE, Chief Justice.

text:
    CERCY et al. v. TRADERS & GENERAL INS. CO.
    No. 3953.
    Court of Civil Appeals of Texas. El Paso.
    May 30, 1940.
    Rehearing Denied June 20, 1940.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, H. A. C. Brummett, of Dickens, and L. D. Ratliff, Jr., of Spur (R. A. Wilson, of Amarillo, of counsel), for appellants.
    Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Henry Russell, of Pecos, for appellee.
   PRICE, Chief Justice.

This is a proceeding under the Workmen’s Compensation Act, Vernon's Ami. Civ.St. art. 8306 et seq., filed by the legal beneficiaries of C. S. Cercy, deceased, before the Industrial Accident Board, seeking to recover compensation for the death of said Cercy. The decision of the Board' was in favor of the insurance carrier, and suit was filed in due time in the District Court of Winkler County to set aside the action of the Board and recover compensation. Trial ‘in the District Court was to the court and resulted in a judgment in favor of the insurance carrier. Appeal was duly perfected from this judgment, and the case is here for review.

On motion of appellants the court filed findings of fact and conclusions of law. These findings reflect fully and fairly the nature and result of the suit, and will be here set out in full, save that parts having no material bearing on the issues involved on appeal will be omitted.

“Findings of Fact

“1. C. S. Cercy was shot to death on the 26th day of June, 1938. He was killed by O. G. Hardman at a point on the public highway leading from Kermit, in Winkler County, Texas, to Jal, New Mexico, which point was about two miles north of the town of Kermit.

⅝ ⅜ ⅜

“3. I find that the' deceased at the time of his death was employed by two companies, the Uscan Drilling Company and the R. Olsen Oil Company, such companies both being incorporated and having a common president, and common superintendent, maintaining a single office with many identical employees. Prior to the 1st day of May, 1938, the said C. S. Cercy had been regularly working for the W-K Royalty Company, a separate and distinct concern with no relationship to either the Uscan Drilling Company or the R. Olsen Oil Company; but had been doing some additional work for the R. Olsen Oil Company in connection with the maintenance of one of its leases, but this connection between Cercy and the R. Olsen Oil Company had not been by virtue of any employment by Blount, the. superintendent of said Uscan Drilling Company and R. Olsen Oil Company, but had been under correspondence directly between Cercy and the Oklahoma City office of the R. Olsen Oil Company. About May 1st, 1938, however, C. E. Blount, the said superintendent, employed Cercy to work for each of said companies, upon terms that the Uscan Drilling Company should pay to Cercy a monthly salary of $135.00 per month and the R. Olsen Oil Company should pay to Cercy a monthly salary of $115.00 per month, the terms of such employments for said two companies being duly reported to the Oklahoma City office of ■ the two companies and by them tacitly, if not expressly, approved. At the time of such employment, the Uscan Drilling Company was actively engaged in the drilling of one or more wells for oil production in Winkler County, Texas, and similarly was either engaged or had in contemplation that it would become engaged in the active drilling of one or more wells immediately to the north of Wink-ler County, Texas, but across the line at Jal, New Mexico. At the same time, the R. Olsen Oil Company was the owner of four separate and distinct producing properties, also in Winkler County, Texas, three of these properties being located slightly to the north and west of the town of Kermit, and the fourth of them being located to the south and east of the town of Kermit, each of these properties having, in addition to the producing well, storage tanks and such other equipment as was necessary to the producing and running of the said wells. Cercy’s employment was oral; Superintendent Blount, at the time of employing Cercy to work for each of said companies, imposing on Cercy these duties : that, on behalf of the Uscan Drilling Company, he should be an assistant superintendent under Blount, doing, in connection with Blount, whatever work was necessary in connection with the drilling of the wells; and that, on behalf of the R. Olsen Oil Company, he should look after the management and producing of its four properties.

“4. The Uscan Drilling Company furnished the deceased a Ford pickup truck, which Cercy was supposed to use to perform its work. The deceased, in addition, owned his personal car, which he had on some prior occasions used when his wife accompanied him to the wells. The wife of the deceased, at the time in question, was on a visit to her parents in Louisiana, and during her absence the deceased lived with W. O. Nash, whose house was located about four miles from Kermit between Kermit and Jal, New Mexico. The Nash home was located on the road upon which the deceased Cercy was later killed by Hardman. The point of this fatal difficulty was between the Nash home and the town of Kermit. This road likewise was the road used by the deceased to go to the well near Jal, New Mexico, whether he started from the Nash home or the town of Kermit. On Saturday, June 25, 1938, the Uscan Drilling Company had two wells in process of drilling, one of those wells being in Winkler County. The well at Jal, New Mexico, was approaching the point of setting casing. In the morning of Saturday, June 25, 1938, Cercy left the house and place of business of Nash, located as aforesaid by the side of the road four miles to the north of the town of Kermit, and went to the well at Jal, spending some time there and returning about noon. In the afternoon, Cercy and Nash devoted themselves to their own pursuits, attending a rodeo in the town of Kermit which had no relation to either of his employments. Following the rodeo in the afternoon, Cercy again returned to the Uscan well which was drilling at Jal, spending some additional time there, and getting back to the Nash residence and place of business about 9:00 o’clock in the evening. At this time Cercy reported by telephone to his superintendent, Blount, in the town of Kermit, the progress of the well; and, upon inquiry by Blount as to when the well would be ready for the setting of casing, made reply in substance that, in his judgment, it could not be ready until after 4:00 or 5 :00 o’clock the following morning; and in this connection Blount instructed Cer-cy to pick up some tools and return to the Jal well after 4:00 or 5:00 o’clock in the morning, which would require Cercy to go about three miles west of the Nash home, pick up the tools in the pickup, retrace his steps to the Jal road and then go north to the well. • The following morning would have been Sunday, but the drilling of the well had reached the point that delay would have been attended by both hazard and extra expense, not contemplated by the drilling contractor, so that, viewing all of the circumstances, the setting of the casing the following day would have been a work of necessity within the meaning of the compensation law. For approximately an hour Cercy remained with Mr. and Mrs. Nash at their home; but then expressed himself to the effect that since he had to be back at the well so early the following morning, he would not go to bed but would again visit the rodeo in the town of Kermit instead, which, accompanied by W. O. Nash, he then did. He did not at this time refer to any necessity of visiting either of the producing Olsen wells; but, having reached the town of Kermit, and after spending some time at the rodeo, he expressed himself as desiring to go to the Olsen well which lay south and east of the town of Kermit, and, in company with Nash, he did in his own private automobile traverse the paved public highway south and east from the town of Kermit to the producing Olsen well, and there spent approximately two minutes, following which, and traversing the same paved road back northward to the town of Kermit, he returned in his automobile to the town of Kermit, and there again took up his personal pursuits at a dance hall in the town of Kermit. Ccrcy’s trip to the Olsen well was in the performance of his duties with the R. Olsen Oil Company.

“5. I further find that the deceased Cercy and W. O. Nash went to Kermit to spend the night visiting the rodeo and local dance halls until time for deceased to return to Jal, New Mexico. The deceased had no duties to perform in the town of Kermit in connection with the work of the Uscan Drilling Company or the R. Olsen Oil Company, and this trip was solely for the pleasure of deceased during the hours intervening before he returned to work.

“6. I find that about 3:00 o’clock in the morning on the 26th day of June, 1938, the deceased and Nash had already spent some time dancing at a dance hall near the town of Kermit, and at such time determined to return home, where the deceased was to leave Nash and change cars and return to his work in Jal, New Mexico. W. O. Nash went to sleep.

“7. The Tascosa Club, where Cercy had been spending these hours which had no relation to his duties for either employer, was located on the main street of Kermit, approximately four or five blocks to the west of the signal light where Cercy would have made his turn north had he returned directly from the Olsen well to the Nash residence. In his own car after leaving the Tascosa Club he traversed this four or five blocks back to the signal light and then turned north, at which point he was placed back on the same stretch of road on which he would have been initially if, returning from the Olsen well without interruption, he had gone back to the Nash residence and place of business. Traversing this direct road north he had about reached the city limits, approximately a mile to the north of the signal light, when another car bumped into his car from behind. Cercy, expressing himself as wondering who it was, brought his car to a stop on the highway. The driver of the other car, subsequently identified as one Hardman, walked up and commenced saying in substance to Cercy that his, Cercy’s car had come too close to the other car at some point back towards, or in, the town of Kermit. In this conversation, Hardman was complaining only of the manner in which Cercy had operated his car. Cercy made reply in courteous tones, trying, to use the witness Nash’s language, to smooth the matter over. Nash, who was sitting on the right side of the Cercy car, got out and started backwards toward the other' car to see what had happened. Hardman had in the meantime gone back so that he was closer to his own car, which was approximately thirty feet to the rear of the Cercy car, with Nash some distance to the rear of the Cercy car. At this time, Cercy, then getting out of his own car, suddenly called to Nash that Hard-man had a gun. Nash grappled with Hardman for the gun and was knocked down by Hardman, who then shot Cer-cy. Cercy never recovered consciousness, dying in the hospital at Kermit the next morning from his bullet wounds Sustained on this occasion. The place where the two cars stopped and the shooting occurred was in Winkler County, Texas, as was also the hospital in Kermit where Cercy later died on that same morning, and the place on the road where the two cars stopped and the shooting occurred was on the same direct paved road which Cercy would have traversed, had he, on his return from the Olsen well earlier in the evening, driven directly to the Nash residence and place of business instead of stopping in the town of Kermit, to divert himself until it was time to return to the Uscan well at Jal.

“8. There was no evidence as to whether the supposed passing of the two cars had been between the Tascosa Club and the signal light, or whether it had been on that portion of the north highway between' the town of Kermit and the Nash residence; nor was there any testimony that any such thing had actually occurred save the testimony that Hard-man was saying to Cercy that it had occurred. There was no evidence of any ill will, animosity or differences between Hardman and Cercy save as to the matter of driving of which Hardman was complaining. In such complaint neither Hardman nor Cercy referred to the property or work of either company.

* * *

"10. I find that the defendant, Traders & General Insurance Company, prior to the time of the death of deceased, had issued to the Uscan Drilling Company a policy of Workmen’s Compensation Insurance covering its work near Jal and in Winkler County, Texas, and including the work of the deceased while engaged thereon. I find that the defendant, Traders & General Insurance Company, issued a separate and distinct policy to the R. Olsen Oil Company, which policy covered the work that deceased performed when working for the R. Olsen Oil Company immediately preceding and at the time of his death. These policies were outstanding and in full force when deceased was killed.

“11. I further find that it was necessary for the deceased to use the public highway in going from the Nash home to his work in Jal, New Mexico, for the Uscan Drilling Company, and to use the public highway in going to his work from the home of Nash to the other wells being drilled by the Uscan Drilling Company, but to reach either of said wells from the Nash home it was not necessary to pass through the town of Kermit, or over the part of the highway where he was killed.

“12. I further find that the deceased used the public highway in going from his home to the leases maintained by the Olsen Oil Company, and on such trip he could use one or two roads, one of which ran through the town of Kermit and over the road on which he was killed, but neither of which roads ran by the dance hall where deceased was dancing just prior to his return to the Nash’home.”

“Conclusions of Law

“1. I find as a matter of law that at the time of the death of C. S. Cercy there was outstanding and in force a policy of workmen’s compensation insurance covering C. S. Cercy while working for the Uscan Drilling Company, which policy of compensation insurance was issued by the defendant, Traders & General Insurance Company.

“2. I find that at the time of the death of C. S. Cercy there was outstanding a policy of workmen’s compensation insurance issued under the laws of the State of Texas to the R. Olsen Oil Company, which included the said C. S. Cercy while working for the R. Olsen Oil Company.

“3. I find that C. S. Cercy at the time of his death was employed by both the R. Olsen Oil Company and Uscan Drilling Company, working at different times for each of said companies.

“4. I find that the compensation rate in this case is $20.00 per week.

“5. I further find that when the deceased reached home at nine o’clock P. M. the day of his death, and left his employer’s car and went to Kermit in his own car to see a rodeo, he was engaged on a personal mission of his own, and was not engaged in the performance of any duty or work or the furtherance of the affairs or business for either R. Olsen Oil Company or Uscan Drilling Company.

“6. I find that at about 11:00 o’clock P.M. of said June 25, 1938, when the deceased,. together with Nash, went to the lease of the R. Olsen Oil Company that such trip was made in the course of his employment for the R. Olsen Oil Company, hut when the deceased returned to the town of Kermit, and again took up the pursuit of his personal pleasure, he abandoned said employment and from the time of said return to Kermit was not engaged in or about the furtherance of the affairs or business of either of such employers. ■

“7. I find that at the time deceased was killed he was on a public highway in Winkler County, Texas, returning home from said personal trip to Kermit, but had not yet reached home, from which point he intended to go to work for the Uscan Drilling Company, and I therefore find that at the time deceased was killed he was not in the course of his employment for either the R. Olsen Oil Company • or Uscan Drilling Company, and was not engaged in or about the furtherance of the business of such companies, but was returning from a trip of his own in his own car, and was not entitled to the protection of the Workmen’s Compensation Act of Texas on account of said policy issued to either the Uscan Drilling Company or the R. Olsen Oil Company, and plaintiffs cannot recover herein.

"8. I find that said deceased was killed by- O. G. Hardman, who pursued him from the town of Kermit to a point on the Jal highway north of Kermit for the .purpose of having an altercation with him on account of the previous differences over the passing of the automobiles, and that such fatal shooting was not directed against C. S. Cercy as an employee of either the Uscan Drilling Company or R. Olsen Oil Company because of his employment, but was the act of O, G. Hardman, who killed the deceased because of reasons personal to him and to deceased, and that for such reason the plaintiffs herein are not entitled to recover.

“9. I find the deceased was killed as a result of a shooting which did not grow out of or constitute a risk incidental to his employment, and it is my opinion the plaintiffs cannot recover herein.”

It will be observed that it was found that at the time of his death deceased, first, was not working in the course of his employment; second, that the deceased was slain by Hardman because of reasons personal to deceased and to Hard-man, and the act was not directed against Cercy as an employee or because of his employment.

As we interpret the finding that deceased was not in the course of his employment when slain, it is based upon two theories: First, that, even though, at the time he met his death, deceased was engaged in performing acts for his employers contemplated by the employment, the act by which he was slain was on account of reasons personal to him and not as an employee or on account of his employment; second, that in truth and in ■ fact he was performing no acts in the course of his employment for his employers at the time he was slain.

Art. 8309, R.S.1925, as applicable here, provides: “The term ‘injury sustained in the course of employment,’ as used in this law, shall not include: * * * An injury caused by an act of a third person intended to injure the employe because of reasons personal to him and not directed against him as an employé, or because of his employment.” This provision renders an injury inflicted under the enumerated condition non-compensable, even though at the time of the injury the employee be engaged in the work of his employer.

Compensation under the law is conditioned upon the employee’s injury being sustained while he is “engaged in or about the furtherance of the affairs or business of his employer.” Art. 8309. First, then, let us consider the issue as to whether or not deceased, at the time he was killed, was engaged in or about the furtherance of the affairs or business of his employers, or either of them. In this consideration the exception made by the statute above quoted . from will be ignored. •

It is well established that where the employment, as an incident to its prosecution, requires the traveling along the streets or highways, that while so. engaged the employee is acting in the course of his employment; further, that injuries caused by the risk of such travel are compensable. Also, that the employee is protected while returning without material deviation to his place of abode, or to the place of performing other work for his employer.

With the exceptions made by the law, the one involved here having been quoted above, the protection is broad and comprehensive, and covers all risks incident to such travel. Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791, and authorities there cited.

On the other hand, even though the prosecution of the employer’s business requires travel, it is only while traveling in the futherance of his employer’s business that the policy of insurance protects. When driving on the streets in the business of his employer the policy covers; but when driving for other purposes not incident to the employment, same does not cover.

In the instant case, if at the time of the shooting, deceased was acting in the course or scope of his employment for either of his employers, it, is not material to determine for which one he was working. However, a consideration of his acts on the night preceding and the morning of his death in relation to his two employers may aid in the determination of the ultimate issue of whether or not at the time of his death he was acting in the course of his employment for either.

Under the findings, amply sustained by the evidence, in leaving the Nash residence after nine o’clock P.M. on the evening of the 25th of June, and going to Kermit to attend the festivities attendant on the rodeo held there, he was not acting for either of his employers. So as to the time spent in Kermit preceding the trip to the Olsen well. In making this trip and returning to Kermit a fair construction of the findings is that he was acting for the Olsen Oil Company. It was not reasonably contemplated that any duties should be performed for the Uscan Company until he started in its truck from the Nash residence to collect and deliver the casing tools. He did not go to Kermit on business of the Uscan Company, and it follows, in returning therefrom he was not on its business. The trip to the Olsen well southerly from Kermit was in the interest of the Olsen Company. The return to Kermit was incidental to the trip, and during these times he was engaged in the business of the Olsen Company. On his return to Kermit from this trip he went to the Tascosa Club and remained there pursuing his own pleasure until about three A. M. of the morning of June 26th. When he left, concededly to go to the Nash residence, obtain the truck, collect the tools, and go to the drilling operations of the Uscan Company near Jal, the road on which he was traveling just before he was killed was the same road he would have traveled had he returned immediately from his trip, to the Olsen well to the Nash residence. On leaving the Tas-cosa Club, however, it was necessary to get on this road to travel about five blocks.

It is clear that his stopping at the Tas-cosa Club was a deviation from his employment with the Olsen Company. After inspecting the well and returning therefrom he resumed the pursuit of his original intention when he left the Nash home to go to Kermit. It does not appear whether or not at the time he left the Nash residence for Kermit it was his intention to visit the Olsen well. However, be that as it may, we do not believe it is controlling here.

In our opinion when he returned from the Olsen well and elected to remain at Kermit until the time to depart for the Nash home in order to begin his duty for the Uscan Company, he had abandoned his employment with the Olsen Company. His purpose in returning to the Nash home was to get the truck and proceed with the work of the Uscan Company. Southern Casualty Co. v. Ehlers, Tex.Civ.App., 14 S.W.2d 111.

The question we .have to answer here is, whether, as a matter of law, at the time the deceased met his death, he was acting in the course of his employment for either of his employers. If the question be answered in the affirmative, then, the finding of the trial court is incorrect. On the other hand, if the question be answered in the negative, the finding and the judgment are correct.

The trip to the Olsen well was not the occasion of his return from Kermit. When he returned to Kermit all duties for the time being owed to the Olsen Company had been discharged. In our opinion when he left Kermit at three A.M. to go to the Nash home, it was not a return to the employment of the Olsen Company. As stated, this employment, for the moment, was at an end, and was never resumed. Southern Casualty Co. v. Ehlers, supra.

If we are incorrect in the holding that the deceased was not acting in the course of his employment, as a matter of law, at the time he met his death, in any event, there was an issue of fact presented, which was decided against appellants.

under the record there is no question but that Hardman designedly shot the deceased. The evidence is not as clear and satisfactory as to all the details of the shooting as it might be. Gathered from the testimony of Nash, deceased’s companion at the time of the homicide, they had reached the road leading to Jal and Nash’s residence, and proceeded for something like a mile along that road. A car bumped -into the rear of deceased’s car. Deceased stopped his car and the other car stopped in about thirty feet of the rear of deceased’s cat. Up to this time Nash had been asleep. The occupant of the car came to deceased’s car and engaged the deceased in conversation. It was asserted by Hardman that at some time or some point in passing, deceased’s car had passed too near his car. According to the finding deceased spoke mildly to Hardman. Hardman then returned toward his car. Nash got out of deceased’s car, went back toward Hard-man’s car to see if it had been in any way damaged. Deceased was still in his own car when he called out to Nash that Hardman had a gun. Nash grappled with Hardman, or attempted to. The deceased got out of his car and started toward Hardman and Nash. Hardman then shot him. According to the testimony, as claimed by Hardman, the colloquy between deceased and Hardman had its inception in the deceased driving his car in relation to that of Hardman. When, how, or where this initial incident, if it did take place, took place, the evidence does not disclose. There may have been a basis in fact for it, or there may not. The initial incident may have taken place on the Jal road, may have taken, place between the Tascosa Club and the Jal road. If the incident occurred at a time when deceased was not acting in the course of his employment, clearly the acts of Hardman were directed personally against the deceased and not against him as an employee or on account of his employment.

Further, while it was an understandable, natural, gallant and courageous act, if the circumstances be as narrated by Nash, for deceased to go to the aid of his companion, it was not necessarily an action connected with or in furtherance of his employers’ business.

The case of Erwin v. Texas Employers Ins. Ass’n, 63 S.W.2d 1076, writ refused, in this respect bears some analogy to this case. There, the plaintiff, in his capacity as a driver on the milk route, was on the streets in the early hours of the morning. Two negroes drove up in a car and addressed plaintiff in a manner which aggrieved him, but which had no relation to the employment of plaintiff. Plaintiff approached the car with a milk bottle in his hand, when one of the occupants wantonly and brutally shot him down. It was there held, as a matter of law, that the compensation policy did not cover. The act was directed against the plaintiff for reasons personal to him or personal to the slayer, and was not one of the risks incident to his employment.

The car in which deceased was driving was his personal property, the presence of Nash therein by no stretch of imagination had anything to do .with the performance of the duty of deceased’s employment.

Under the evidence it is, at best, an issuable question of fact whether the act of Hardman' had its inception in some prior conduct on the part of deceased when acting in the course of his employment. If there was ill feeling on the part of Hardman toward deceased prior to the immediate occasion of the killing, it does not satisfactorily appear what the reason of it was. Ostensibly, it was some prior incident on the roads. This may or may not have been the fact. Hard-man was armed at the time. When or why he armed himself does not appear.

We do not mean to hold, and do not hold, that an employee traveling on the roads in his employers’ business accidentally or undesignedly killed is not covered by the workmen’s cpmpensation policy. We think he is. Further, even though he be designedly killed, if his death was brought about, by some act connected with his employment, or by an act directed against him as an employee or on account of his employment, the policy would cover. But here, at least, it does not appear beyond an issuable fact that his employment, if it be granted he was working at his employment just before his death, had anything to do with his death.

The case has been fairly and ably tried, and judgment entered called for by the evidence.

The case is affirmed.


author: GRISSOM, Justice.

text:
    STANDARD OIL CO. OF TEXAS v. STATE.
    No. 2100.
    Court of Civil Appeals of Texas. Eastland.
    June 14, 1940.
    Rehearing Denied July 19, 1940.
    L. L. Moore and Frank J. Kockrits, Jr., both of San Francisco, Cal., and Burges, Burges & Scott, of El Paso, for appellant.
    Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Billy Goldberg, and Cecil C. Rotsch, Asst. Attys. Gen., for appellee.
   GRISSOM, Justice.

The State of Texas filed this suit against the Standard Oil Company of Texas for the purpose of collecting “chain store taxes” on twenty gasoline “filling” stations. (For convenience, plaintiff will hereafter be referred to as State, or plaintiff, and defendant as Standard, or defendant.) The cause was tried to the court upon an agreed statement of facts, under Art. 2177, R.S.192S. The court held defendant liable for said taxes and entered judgment therefor. Defendant has appealed.

At defendant’s request, the court filed its conclusions of law, which are in part as follows:

“(1) All of the twenty filling stations in question are stores within the meaning of the Texas Chain Store Tax Act (Acts 1935, 44th Legislature, First C.S., p. 1589, ck 400 [Vernon’s Ann.P.C. art. lllld]). They all come within the definition set out in Section 7 of the Act, which reads as follows:
“(2) ‘The term “store” as used in this Act shall be construed to mean and include any store or stores or any mercantile establishment or establishments not specifically exempted within this Act which are owned, operated, maintained, or controlled by the same person, agent, receiver, trustee, firm, corporation, copartnership or • association, either domestic or foreign, in which goods, wares or merchandise of any kind are sold, at retail or wholesale.’
“(3) The Act provides for certain exemptions; but none of the twenty filling stations in question come within any of the exemptions, and none of them are exempt from the license fee and taxes provided for in the Act. Section 5 of the Act provides that ‘any place of business engaged exclusively in the storing, selling, or distributing of petroleum products and servicing of motor vehicles’ is not included in the terms of the Act. This is really an exemption, which permits two things, (1) ‘storing, selling or distributing’ of a certain kind, and (2) ‘servicing.’ The only selling included in this exemption is the selling of petroleum products; and therefore when any article of merchandise such as tires, batteries, or anything else that is not a petroleum product, is sold by a place of business, that sale is more than is allowed by this exemption, and consequently the place of business does not come within the exemption. This exemption uses the word ‘exclusively’, which means ‘solely’ or ‘only’, and therefore, in order for a place of business to be within the terms of the exemption the only ‘selling’ it can carry on is the selling of petroleum products. The 'fact that the article sold is put on a motor vehicle at the time of the selling does not alter the case, because it is still a sale and selling is still going on. If an article other than a petroleum product is sold, even though it is put on an automobile at the time, the seller is not engaged ‘exclusively’ in the sale of petroleum products, and consequently is outside of the exemption. As the facts show that merchandise, other than petroleum products, including tires, batteries, and automobile accessories, and other articles, were sold at each of the twenty filling stations in question, all of the stations are therefore stores subject to the terms of the Act, and are not within the terms of the exemption, regardless of the fact that said merchandise was placed-on the motor vehicle at the time of the sale in the case of some of the stations.
“(4) The first eight filling stations described in the plaintiff’s petition, and referred to in the evidence as Group A and Group B, during all of the times involved in this suit, were each owned, operated, maintained and controlled by the defendant, Standard Oil Company of Texas. Each of said eight stations and all of their equipment were owned by the defendant, and the defendant’s agents were in charge and control of each of said stations.
“(5) The remaining twelve filling stations described in the plaintiff’s petition, and referred to in the evidence as Group C, Group D, Group E and Group F, during all of the times involved in this suit, were operated and maintained under the same general management and controlled by the same person and corporation, to-wit, Standard Oil Company of Texas, the defendant herein, by virtue of the contract, referred to as a ‘distributor’s agreement’ between the Standard Oil Company and each of the persons in physical charge of said twelve filling stations, and also by virtue of the acts in evidence by which the Standard Oil Company of Texas actually exercised control and management over each of said twelve stations.”

The applicable provisions of the Texas Chain Store Tax Statute, Art. lllld, Vernon’s Ann.P.C. (Acts 1935, 44th Leg., First C.S., p. 1589, ch. 400), are as follows:

“Sec. 5. Every person, agent, receiver, trustee, firm, corporation, association or copartnership opening, establishing, operating or maintaining one or more stores or mercantile establishments within this State, under the same general management, or ownership, shall pay the license fees hereinafter prescribed for the privilege of opening, establishing, operating or maintaining such stores or mercantile establishments. * * * Provided that the terms, ‘store, stores, mercantile establishment or mercantile establishments’ wherever used in this act shall not include: wholesale and/or retail lumber and building material businesses engaged exclusively in the sale of lumber and building material; and/or oil and gas well supplies and equipment dealers; or any place of business engaged exclusively in the storing, selling, or distributing of petroleum products and servicing of motor vehicles; or any business now paying an occupation tax measured by gross receipts; or any place or places of business used as bona fide wholesale or retail distributing points by manufacturing concerns for distribution of products of their own manufacture only; or any place or places of business used by bona fide processors of dairy products for the exclusive sale at retail of such products. * * *
“Sec. 6. The provisions of this Act shall be construed to apply to every person, agent, receiver, trustee, firm, corporation, copartnership or association, either domestic or foreign, 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. 7. The term ‘store’ as used in this Act shall be construed to mean and include any store or stores or any mercantile establishment or establishments not specifically exempted within this Act which are owned, operated, maintained, or controlled by the same person, agent, receiver, trustee, firm, corporation, copartnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind are sold, at retail or wholesale.”

The twenty filling stations in question were referred to upon the trial and are referred to in the briefs, in groups substantially as follows:

Group A consists of six stations, admittedly owned and operated by Standard, through its agent Standard Stations, Inc. (Both of said organizations are corporations.) These stations sell petroleum products. They also sell automobile tires, tubes, batteries, spark plugs, light globes and antifreeze liquid, etc. Such accessories are installed on the customers’ automobiles at the time of sale.

Group B consists of two statiQns owned and operated by Standard, through said Standard Stations, Inc. They sell the same products as is sold by Group A. However, the agents in charge of said stations, in two instances, sold accessories without installing them on their customers’ automobiles, contrary to defendant’s instructions.

Group C consists of three stations which sell petroleum products and automobiles accessories. These stations are not operated by Standard Stations, Inc., as are Groups A and B, but are operated by persons designated as “Distributors.” Automobile accessories are sold by these stations and some of the articles sold are not installed upon automobiles, but are carried away by the customers. Standard owns, or leases from a third person, these stations and the land on which they are located. Standard and the Distributors have entered into a contract called “Distributor’s Agreement” under which, among other things, the distributor agrees to sell only Standard’s petroleum products and only Standard’s tires, tubes and batteries.

Group D consists of two stations. The facts with reference to said Group are the same as in Group C, except in addition to the selling of petroleum products and automobile accessories, they also sell merchandise not connected with an automobile, such as gloves, bath mats, etc.

Group E consists of five stations. The facts relative to this Group are the same as in Group C, except the station and the land on which it is located is 'owned, or leased from a third person, by the Distributor, instead of Standard. Otherwise, the “Distributor’s Agreement” is the same as in Group C.

Group- F consists of two stations. The facts relative to this GrouP are the same as in Group E, except in addition to petroleum products and automobile accessories sold by the stations in Group E this group sells merchandise not connected with an automobile.

We understand Standard’s contention to be that the exception, or exemption, from payment of the tax, found in section 5, Art. lllld, Vernon’s Ann.P.C., authorizes it to sell something in addition to petroleum products; that is, that it may sell anything necessary to the servicing of a motor vehicle if it installs the article sold at the station where petroleum products are also sold, stored or distributed. In other words, Standard contends that the sale and installation of automobile accessories at the filling stations is permitted by the last phrase of the exemption clause, to-wát, “servicing of motor vehicles.”

The trial court construed this exemption to permit two things: (1) “selling” of only one certain kind of product, to-wit, petroleum products, and (2) “servicing” of a limited kind, that is, of motor vehicles. The trial court concluded that the selling permitted by the exemption was that of petroleum products only, and that when merchandise other than petroleum products is sold such sale is without the limits of the exemption. It concluded that the sale and installation of tires, tubes, batteries and other accessories at the station did not make such transaction a service only, but that such transaction constituted. a sale, and a sale of something other than petroleum products, and, therefore, was without the limits of the exemption.

We think the twenty filling stations are stores within the foregoing statutory definition. They are certainly mercantile establishments at which goods, wares and merchandise are sold. (We shall hereafter consider whether or not they are controlled by defendant.) The real question is whether or not these stations come within the exemption of section 5, reading: “Provided that the terms, ‘store, stores,- mercantile establishment or mercantile establishments’ wherever used in this act shall not include: * * * any place of business engaged exclusively in the storing, selling, or distributing of petroleum products and servicing of motor vehicles *

The Supreme Court of Texas, in passing upon the constitutionality of Art. lllld, Vernon’s Ann. P.C., in Hurt v. Cooper, 130 Tex. 433, 447, 110 S.W.2d 896, 904, in an opinion by Judge Hickman, said: “The statute having defined the word, we are not concerned with its usual meaning. Under that definition a mercantile establishment at which goods, wares, or mer-, chandise of any kind, except those exempted, are sold is a store and is taxable as such * *

The Supreme Court of the United States in Fox v. Standard Oil Company of New Jersey, 294 U.S. 87, 95, 55 S.Ct. 333, 336, 79 L.Ed. 780, in construing the definition of “store” in the West Virginia chain store tax law (which definition is essentially the same as that in section 7 of Art. 111 Id, Vernon’s Ann. P.C., supra) said: “There is no doubt that goods, wares and merchandise of a kind, i. e., gasoline and other petroleum products, and even tires and other automobile accessories, are sold by the complainant and its agencies at its plants and service stations. This satisfies the test of the statute, and subjects the seller to the tax.”

In Midwestern Pet. Corp. v. State Board of Tax Commissioners, 206 Ind. 688, 187 N.E. 882, 191 N.E. 153, the Supreme Court of Indiana, construing its statute in which “store” is defined essentially the same as it is in the Texas statute, held that filling stations were stores.

Each of the stations in question in this case sold merchandise other than petroleum products. Therefore, the stations were not engaged “exclusively in the * * * selling- * * * 0f petroleum products and servicing of motor vehicles.” We need give no citation of authority nor discuss a statement that exemptions are strictly construed against a person claiming the exemption. We are of the opinion that when the legislature used the language in the exemption clause “engaged exclusively in * * * selling * * * petroleum products” the word “exclusively” was used synonymously with “only” and “purely.” Benevolent & P. O. E. Lodge v. City of Houston, Tex.Civ.App., 44 S.W.2d 488, 493; Little Theatre of Dallas v. City of Dallas, Tex.Civ.App., 124 S.W.2d 863, 865; Red v. Johnson, 53 Tex. 284, 289; Santa Rosa Infirmary v. City of San Antonio, Tex.Com.App., 259 S.W. 926, 931.

In 23 C.J. 275 “exclusively” is defined as “To the exclusion of all others; without admission of others to participation; in a manner to exclude.”

Standard contends that “exclusively” means “principally.” We think the term as used and intended by the legislature means “only”, or “to the exclusion of all others.” Such interpretation comports with the action of the Senate in the enactment of this law in rejecting a priof provision in the exemption clause which would have exempted persons engaged “principally” in the business of selling, storing and distributing petroleum products, and in substituting the word “exclusively” for the word “principally.” If the selling permitted is “exclusively” petroleum, or “only” petroleum, or “to the exclusion of all others”, than petroleum products, then certainly the legislature did not intend to permit (by using the words “and Servicing of motor vehicles”) the sale of a type of merchandise denied and excluded by the language used in the first part of the same sentence. Under Standard’s construction of the exemption clause it would be permitted to sell, in addition to petroleum products, all of the automobile accessories and other merchandise customarily sold at Automobile Parts Stores and Tire Stores and yet not suffer the tax liabilities of such stores, simply by virtue of the fact that such accessories were placed on the customers’ automobiles at a place where petroleum products were sold, distributed or stored.

In Hurt v. Cooper, 130 Tex. 433, 446, 110 S.W.2d 896, 904, the Court said:

“The fact that the merchants not taxed, or those exempted from the tax, sell a different kind of goods from those which are taxed, is an all-sufficient justification of the classification or exemption. * * *
“The contentions with reference to most of the so-called exemptions may be disposed of by the mere statement that the kinds of goods sold by the exempted stores are different from those sold by the taxed stores. This is true of lumber yards, oil and gas well supply houses, service stations, and places used by bona fide processors of dairy products. The exemption of oil and gas well supply dealers is expressed in broad terms. Literally it seems to state that the exemption is not alone to businesses dealing in certain commodities, but is one personal to the dealers. However, it is reasonably susceptible of the construction that it covers only the oil and gas well supply business, and that persons engaged in that business are not exempted when engaged in other taxed businesses. It is our duty to give it that construction in passing u,pon its validity.” (Italics ours.)

Certainly, if the exemption in section 5, immediately preceding the exemption in question, to-wit, “and/or oil and. gas well supplies and equipment dealers” should be construed, as the Supreme Court says it should be, and persons engaged in such business bring themselves, or their businesses, outside the exemption “when engaged in other taxed businesses”; under the exemption now in question a place of business engaged in selling automobile accessories is not engaged “exclusively in the * * * selling * * * of petroleum products” and brings itself outside the exemption when it engages in selling products distinct and different from petroleum products. Since a basis, or justification for such a classification, or exemption, is the fact that the business exempted “sell[s] a different kind of goods from those which are taxed” we should avoid, if possible, a construction of such exemption, that would cause an' automobile tire and accessory business to be exempt when conducted in connection with the selling, storing or distributing of petroleum products, but subj ect to the tax if the connection with petroleum is lacking. If Standard’s interpretation is adopted then the Tire and Automobile Accessory chain- stores may bring themselves within the exemption with very little addition to, or change of, their present systems.

It is a cardinal rule of statutory construction' that every part of a statute should be given effect and that a construction should be avoided that will render any part of an act inoperative, nugatory or superfluous. 39 Tex.Jur. 208, This rule of statutory construction would be violated should we adopt Standard’s construction of the statute to the effect that “servicing of motor vehicles” includes selling of “not only petroleum products but * * * gadgets of various kinds. * * * and all of those things necessary to the use of automobiles.” If Standard’s construction of the exemption provision is correct, the legislature did a needless thing, and its language was superfluous, in the first part of the exemption clause wherein it permitted the sale of petroleum products, because under Standard’s construction of “servicing” it includes the selling of petroleum products and all other things necessary to the use of automobiles. Such construction makes the phrase “servicing of motor vehicles” include the prior phrase “selling * * * of petroleum products”, thus making the phrase “selling * *■ * of petroleum products” superfluous, contrary to the established and recognized rules of construction of the. statutes: If the language exempting only those engaged exclusively in selling petroleum products is given effect, a place that sells only petroleum products remains within the exemption and a place of business that engages in the selling of something more than petroleum products steps outside the exemption. The inclusion of the phrase “servicing of motor vehicles” in the exemption may well be explained by fear that the inhibiting language that precedes it might be construed so as to prohibit such a place of business from rendering; the service (as distinguished from sale), usually rendered at such a place of business, such as the furnishing of air and water and washing and greasing of automobiles. Citizens’ Nat. Bank of Hillsboro v. Graham, 117 Tex. 357, 4 S.W.2d 541; Lufkin v. City of Galveston, 63 Tex. 437; Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597; Henderson v. United States F. & G. Co., Tex.Com.App., 10 S.W.2d 534; Dobie v. Scott, Tex.Civ.App., 188 S.W. 286; Roedenbeck Farms, Inc. v. Broussard, Tex.Civ.App., 124 S.W.2d 929, 935.

The defendant says that service stations are exempt from chain store taxes and gives three reasons why it contends they are and should be exempt. First, service stations are inherently different from chain stores and are, therefore, not properly a part of anti-chain store legislation. As heretofore pointed out, the Supreme Court in Hurt v. Cooper, supra, in passing upon the constitutionality of the chain store tax statute, gave as a basis, or justification, of the exemption of certain businesses from such taxes, and the taxation of others, that those exempted “sell a different kind of goods from those which are taxed.” Defendant’s first reason, therefore, is not applicable to the stations in question because they sell the same kinds of merchandise which other businesses not exempt from the tax sell.

The second reason given is that such taxes “fall particularly, harshly upon gasoline dealers since they are already subject to numerous taxes.” As “gasoline dealers” the stations in question are not subject to the tax. It is the fact that they are engaged in selling products other than petroleum that keeps them without the exemption and subjects them to the tax.

The third reason given by the defendant is: “Every State favors its home industries.” We recognize the correctness of the statement. We recognize that the petroleum business is one of the greatest businesses of the State of Texas and that the legislature, in the exemption heretofore discussed, intended to exempt from the chain store tax businesses engaged in selling, storing and distributing petroleum products. But, the automobile tire and accessory business is not a home industry.

As illustrative of the situation, the record shows that the gasoline used in these stations was produced and refined in Texas, whereas its tires, tubes and batteries and automobile accessories were obtained by Standard outside of Texas.

We shall next consider whether or not the stations are operated under the same general management, or are controlled by the Standard Oil Company of Texas. The eight filling stations included in Groups A and B are admittedly owned, operated and controlled by defendant through its agent, Standard Stations, Inc. We shall, therefore, confine our attention to the filling stations designated as Groups C to' F, inclusive. Relative to Group C and D the control exercised by the defendant is identical. The Standard entered into a contract known as “Distributor’s Agreement” with the stations in Groups C to F.

(A) Said contract calls for the sale by Standard to such distributors of the Standard’s petroleum products. It provides for sale or consignment by Standard to said stations of its Atlas brand tires, tubes and batteries. The merchandise so sold by Standard to the distributors, the contract provides, is to be such as is currently sold at service stations operated by Standard Stations, Inc., in distributors’ vicinity. The contract does not call for the sale of any specified commodities, but the merchandise to be handled by the distributors is dependent upon the will of Standard, in that, the distributors are to buy from Standard and sell, or are to receive on consignment from Standard and sell, merchandise which is currently sold by the defendant’s agent, Standard Stations, Inc., in distributors’ vicinity.

(B) The contract is for a period of years. It provides, however, that either party may terminate the agreement at the ■end of the first six months of any contract year, or at the end of said contract year, by giving the other party thirty days’ notice. It is provided, however, with reference to the stations to which it is applicable, that the contract shall terminate immediately upon the termination of any lease which the Standard has upon the premises used by the distributor. The stations in Group C and D are either owned or leased by Standard.

(C) Standard agrees to furnish to the distributor the authorized type of distributor’s signs and to “supply such advertising signs and manuals as in the opinion of the company will assist distributor in the proper marketing of merchandise hereunder.” Standard does not agree to supply any certain amount of advertising signs or any particular type, ■other than the authorized distributor’s signs, but the advertising to be supplied the distributor depends upon Standard’s opinion as to the type and amount of signs and manuals that will assist the distributor in the marketing of its merchandise.

(D) Standard agrees to use the same care in establishing other distributors as it uses i-n establishing admittedly company operated stations. In other words, the determination of the number of stations to be opened in the distributor’s vicinity rests with Standard.

(E) Standard agrees to sell and the distributor to buy from Standard all of distributor’s requirements of petroleum products. The distributor agrees to use only Standard’s petroleum products, and he is prohibited from using the petroleum products of any other company. The contract provides for no certain petroleum products and the determination of what petroleum products are to be. sold by the distributor is dependent upon the' discretion of Standard, in that the contract calls for sale and delivery by Standard to the distributor of those products which are currently used by defendant’s agent in distributor’s vicinity. The distributor agrees that the products covered by the contract are to be sold to the public as Standard’s products and under its trade marks and brands.

(F) The contract provides that the distributor’s requirements shall be delivered by or upon the order of Standard to the distributor at the distributor’s location.

(G) The price to be paid by the distributor to Standard for its petroleum products is to be Standard’s posted price to its dealers in distributor’s vicinity.

(H) Standard agrees to sell or consign, and the distributor to buy or receive as consignee, all of distributor’s requirements of tires, tubes and batteries. The distributor is prohibited from selling- any other line of tires, tubes and batteries. The agreement provides that the tires, tubes and batteries are to be the regular line of Atlas tires, tubes and batteries currently sold in defendant’s stations in ■ distributor’s vicinity. In other words, the type of Atlas tires, tubes and batteries to be sold by the distributor rests within the discretion of the Standard because the distributor agrees to sell the same type as is sold by Standard through its own stations in that vicinity.

(I) Standard agrees to deliver to distributor such other Atlas merchandise as distributor wishes to handle in quantities necessary, in the opinion of Standard, to meet the distributor’s trade requirements. It would appear that the amount of such accessories necessary to meet the distributor’s requirements is to be determined by Standard.

(J) Whether the accessories are to be sold or consigned to distributor depends on Standard’s current policy. But Standard agrees to allow distribute the commissions, or their equivalent, in differentials below Standard’s authorized or suggested selling price as set forth in a schedule made a part of the contract. It is agreed the schedule may be modified from time to time by Standard. The purpose of this provision is to guarantee to the distributor a profit on the sale of accessories whether sold or consigned to him. The price list furnished by Standard on consigned goods gives the authorized price and on merchandise sold giyes the suggested selling price. The schedule may be modified at the will of Standard. This provision concerning accessories appears to vest great discretion in Standard, in that its current policy is to be followed and the company is to prepare the price list, which it may modify at will.

(K) Distributor agrees to paint the stations, at distributor’s expense, in a manner approved by Standard. This provision certainly gives Standard the right to control the physical appearance of distributor’s station.

(L) Standard is given the right to arrange, replace, and remove signs, or other advertising matter, in such manner as, in Standard’s opinion, will mutually benefit the parties. The type and amoimt of advertising to be used by distributor is dependent upon the will of Standard.

(M) Distributor agrees to diligently promote the sale of products and merchandise delivered under the distributor’s agreement and to use his best efforts to increase the sales of Standard’s products.

(N) The sales to distributor are for cash on delivery, unless Standard waives its right to cash payment. If distributor fails to make payments when due he breaches the contract and it may be canceled, at the option of Standard.

(O) The distributor’s agreement provides that if taxes are imposed by any governmental authority upon or measured by the products or manufacture of the goods, which is the subject matter of the contract, or incidentally as a result of the transaction,- and if such taxes are payable by Standard, such taxes shall be added to the price of the merchandise purchased by distributor from Standard.

(P) The contract provides that Standard is bound to supply petroleum products purchased by distributor, so long as its supply of crude oil is sufficient; otherwise it is not bound under the agreement. Distributor is bound to accept the merchandise delivered under the terms of the agreement.

(Q) Distributor agrees to conduct his business so as to preserve Standard’s property, further sales of its products, and to promote good-will toward Standard and its products.

(R) Distributor agrees to maintain Workmen’s Compensation Insurance. The contract provides that Standard may at any time request distributor to furnish it with evidence that the distributor is carrying Workmen’s Compensation Insurance.

As stated by plaintiff, if Standard is not actually operating and controlling the distributor’s station it is hard to understand why Standard should require that distributor carry such insurance. We think it may reasonably be deduced from such provision that Standard feared distributor’s station would be held to be Standard’s station, or the distributor the agent of Standard, and that Standard might be held liable for injuries to distributor’s employees.

(S) The distributor’s agreement provides that if distributor fails to perform any obligation imposed upon him under the contract, Standard may, at its option, terminate the contract. It is further provided that a waiver of one breach does not constitute a waiver of further breaches of distributor’s obligations under the contract.

We think it is true, as contended by the State, if the distributor failed to carry out his obligation to promote goodwill toward Standard and its products, and failed to promote sale of its products and sell certain of its products exclusively, and as much of its products as possible, the company might terminate the agreement at its option. We agree with the State that “This big stick which the company wields over the distributor * * gives said company practical control over the operation of the distributor’s stations.”

We ’will now briefly call attention to some of the facts disclosed by the agreed statement of facts, or stipulations, which, in our opinion, show, or tend to show, control of the stations by Standard.

(1) Every four to six weeks Standard’s representative calls at said stations, inspects the equipment and other facilities and makes such suggestions as he sees fit to the distributor. Such representative after each visit and inspection makes a written report thereof to Standard. Such representative also makes an audit of the stock consigned, by Standard to the distributor. Standard furnishes the distributor with a merchandise manual and an accounting manual which contains suggestions as to the manner of conducting the station’s business. Standard sends letters from time to time to the distributors giving them information and suggestions as to the operation of the business. Standard furnishes distributors with charts for their guidance. These charts contain information concerning credit cards which will be honored by Standard.

(2) Standard, at all times in question, advertised its products in the territories where they were sold by means of newspaper advertisements and by large billboard posters, and, in 1938 and 1939, advertised its products by radio.

(3) Standard owned the gasoline pumps, under ground tanks and advertising signs used by the distributors.

(4) All tires, tubes and batteries sold by distributors were guaranteed by Standard. The guarantee was issued by the distributor who sold the article, the distributor signing the guarantee for Standard. Purchasers could obtain adjustments due under Standard’s guarantee at any of said stations.

Other matters indicating control of the distributors by Standard may be found in the “Distributor’s Agreement” and the agreed statement of facts. We are of the opinion that a fair and careful analysis of the distributor’s contract and the agreed statement of facts show that the distributors’ stations are under the control of Standard within the meaning of the Chain Store Tax Statute. Gulf Ref. Co. v. Fox, D.C., 11 F.Supp. 425, 429; Ashland Ref. Co. v. Fox, D.C., 11 F.Supp. 431; Midwestern Pet. Corp. v. State Board of Tax Commissioners, 206 Ind. 688, 187 N.E. 882, 889, 191 N.E. 153; Maxwell v. Shell Eastern Pro. Inc., 4 Cir., 90 F.2d 39, 41; Belk Bros. Co. v. Maxwell, 215 N.C. 10, 200 S.E. 915, 122 A.L.R. 687; Bedford v. Gamble-Skogmo, Inc., 104 Colo. 424, 91 P.2d 475, 478. We quote from the opinion in the last cited case the following extracts which we consider in a large degree applicable to the facts of the instant case:

“We are compelled to believe that on the one side there is an intimacy of regulation and on the other a fullness of submission which imports ultimate control in the company. * * *
“Under chain store tax statutes similar in principle to the Colorado act, the courts have determined that ‘control’ in the strict legal sense is not a requisite to, this liability for the tax. * * *
“Each agency store, like a satellite traveling in its independent orbit, primarily is guided by the planetary influence of the company.”

We are of the opinion that the trial court’s conclusions of law are correct; that the stations involved are stores because they sell merchandise other than petroleum products; that the stations do not come within the exemption of Section 5 of Art. lllld, Vernon’s Ann. P. C., because they are not “engaged exclusively in the storing, selling, or distributing of petroleum products” and servicing of motor vehicles, in that they sell merchandise other than petroleum products, petroleum products being the only articles that may be sold by a business within the exemption. We are of the opinion that these stations 'are operated under the same general management and are controlled by the Standard Oil Company of Texas. From all of which it results that defendant is liable for the Chain Store Taxes on the stations in question.

The judgment is affirmed.


text:
    REYNOLDS v. SANDEL.
    No. 3968.
    Court of Civil Appeals of Texas. El Paso.
    July 5, 1940.
    T. H. Neel and James H. Starley, both of Monahans, for appellant.
    J. B. Ogden, of Kermit, for appellee.
   WALTHALL, Justice.

Appellee has not filed a brief in this court.

This case was originally filed in the Justice of the Peace Court and prosecuted to final judgment in November, 1938. In the Justice’s Court, on a jury verdict, judgment was rendered that plaintiff Sandel take nothing by his suit, and that defendant Reynolds recover of plaintiff on his cross-action $50 for wrongful garnishment, and for interest and costs of suit. The case was, appealed to the County Court where it was again tried to final judgment.

At the succeeding May term of the County Court the court sustained Sandel’s motion to dismiss defendant Reynolds’ cross-action, and at the May term the court overruled each of two motions of Reynolds, filed one in February and one in May, to strike from the docket Sandel’s appeal and to issue the court’s order of procedendo to enforce the judgment of the Justice’s Court.

At the August term of the County Court the parties proceeded to trial on Sandel’s suit, his suit being based on an assigned account to him from Gus Woods for $47.90. The case was tried to a jury upon special issues. Judgment was entered in favor of plaintiff Sandel and against defendant Reynolds for $38.70 and costs. The court overruled Reynolds’ motion for a new trial, and he duly prosecutes this appeal.

At the February term of the County Court, 1939, succeeding the judgment of the Justice’s Court in November, 1938, no transcript from the Justice’s Court had been filed in the County Court, but the original papers filed in the Justice’s Court had been delivered to the clerk of the County Court, but no true and correct copy of all entries made on the docket of the Justice’s Court; nor was there a certified copy of the bill of costs taken from the justice’s fee book, as provided by Article 2459 of the Revised Civil Statutes, 1925.

Of this Reynolds complains.

The transcript was filed on May 18, 1939, when the case was tried and final judgment rendered.

Article 2460, R.S.1925, provides for a writ of certiorari on appeal to bring up the absent papers. The record does not show that any effort was made to have the transcript and certified copies, other than a request to the justice.

It seems to us to be appellant’s duty to have the proper papers brought'up from the Justice’s Court.

The court was not in error in overruling the motion.

Appellant complains of the action of the court in dismissing his cross-action.

The cross-action was based upon an alleged wrongful issue of a writ of garnishment, in that it impounded money alleged to be owing appellant in the hands of the garnishee. The garnishee acknowledged the indebtedness to appellant.

In the absence of any evidence on the fact tendered we are unable to decide the question with any degree of certainty. The damage would be determined by the loss sustained. We think it would be better practice to hear the evidence. The damage may prove to be speculative only. Loss of profits are not damages which can reasonably be anticipated as a natural and probable result of the suing out of the writ, and so are not recoverable. Stafford v. Patterson & Nelson, Tex.Civ.App., 184 S.W. 1095.

In view of the disposition we must make of the case under the succeeding proposition we think it best to overrule this proposition and let the court hear the evidence on the cross action.

The bill of exception approved by the court shows that after the case had been heard upon its merits and submitted to the jury upon special issues, and after the jury had retired to the jury room to consider their verdict, the court was informed by the bailiff that the jury desired to communicate with the court for further instructions; that the judge thereupon retired to and within the jury room; counsel, upon the judge’s return to the court room, called the court’s attention to the court’s failure to comply with the provisions of the law in regard to communications between the court and the jury after the jury’s retirement for deliberation and with reference to further instructions to the jury after retirement.

Appellant embraced the above action of the court in his motion for a rehearing. The court overruled the motion, to which appellant duly excepted, and assigns error.

It is hardly necessary to discuss the assignment. Articles 2197 and 2198 of the Revised Civil Statutes, 1925, clearly provide that the communication between the court and jury must be in open court and with the jury’s foreman.

The above action of the court is cause for reversal of the case. Holman Bros. v. Cusenbary, Tex.Civ.App., 225 S.W. 65.

For reasons stated, the case is reversed and remanded.


text:
    ALLISON v. GROPPENBACHER et al.
    No. 3960.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.
    Rehearing Denied July 13, 1940.

      Hughes, Hardeman & Wilson, of San Angelo, for appellant.
    T. M. Milam, of Fort Stockton, for ap-pellees.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Pecos County. The statement of the nature and result of the action as contained in the brief of appellant is admirable in accuracy, clarity and brevity, and we almost literally follow same.

Five suits were filed in the 112th Judicial District Court of Pecos County, Texas, to recover 280 acres of lan'd, said suits being numbered 775 to 779, inclusive, on the docket of said court. The suits were consolidated by agreement of the parties and given the number 775, styled Wm. Groppenbacher et al. v. John S. Allison. They are suits to try title as well as for damages. The consolidated causes proceeded to trial on July 27, 19.39, before the court without the intervention of a jury, upon appellees’ petitions, in which it was alleged that appellees were the owners and in possession of certain lands in Pecos County, Texas, on January 1, 1938, and still owned the same, and that appellant on said date unlawfully entered upon and dispossessed appellees of the lands and withholds possession to appellees’ damage; that appellant used and occupied the lands for grazing purposes for two years prior to filing suit. Appellant answered this petition by general demurrer, plea of not guilty, general denial and by plea of the three, five and ten year statutes of limitation in each case.

Upon the conclusion of the evidence and the argument of counsel the court rendered judgment in favor of appellees and against appellant, that appellees do have and recover of and from appellant the various tracts of land described in their petitions. Appellant thereupon excepted to the court’s ruling, in open court, and gave notice of appeal to this court, and filed his appeal bond in proper form, which was approved and filed on August 2, 1939, in the District Court of Pecos County, Texas.

Five separate tracts of land were involved in the five suits, each containing approximately forty acres; each a part of Survey 1, Block 2, Abstract 2007, Certificate 31/2623, in Pecos County. The issues were, for all practical purposes, the same as to each tract of land.

Findings of fact and conclusions of law were not demanded and do not appear in the record. This being the case all issuable facts under the evidence are presumed to have been found in a way to support the judgment rendered. If sustained under any theory of the evidence, it is our duty to affirm the judgment.

The first paragraph of the statement of facts is as follows: “1. Defendant admitted that title to all the lands involved in this suit had passed out of the state and that plaintiffs were the record holders of such title and were entitled to recover unless defendant prevailed under his pleas of 'limitation as set out in his answer.”

The issue on appeal is further narrowed by the fact that appellant in his brief abandons his claim under the three years’ statute.

The question, then, is: Did the evidence establish beyond issue title in the defendant under either the five or ten years’ statute of limitation? Vernon’s Ann.Civ.St. arts. 5509, 5510.

Appellant claims under the following written instruments :

General Warranty deed from Max Mayer to George S. Allison, J. S. Allison and G. C. Allison, conveying, among other lands, Survey 1, Block 2, Abstract 2007, the deed dated January 12, 1918, and filed for record and recorded in Pecos County September 14, 1926;

Warranty deed from G. C. Allison and wife to defendant J. S. Allison, purporting to convey, among other lands, an undivided one-third interest in said Survey No. 1; this deed dated September 21, 1926, filed for record October 15, 1926, and duly recorded in Pecos County;

Warranty deed from George S. Allison to J. S. Allison, conveying, among other lands, an undivided 13/48 interest in and to said Survey No. 1, Block 2, dated August 15,1933, and recorded in Deed Records of Pecos County August 16, 1933.

These three deeds were all properly indexed in the index to the Deed Records of Pecos County, and the record thereof introduced in evidence.

On the said section in question all taxes have been paid before same were delinquent for the years 1926 to 1938, inclusive. The defendant Allison testified that while he owned an undivided interest in the land he paid his proportionate part of these taxes and his co-tenants paid their proportionate part; that after he acquired the interest of his co-tenants he paid all the taxes. This was the only evidence as to the payment of taxes.

The only witness testifying as to facts to sustain the pleas of adverse possession of the land in controversy was defendant J. S. Allison. In substance, his testimony was that he owned a ranch about thirty-five miles south of Fort Stockton; a part of this ranch is Survey 1, Block 2, H. & T. C. Ry. Co.; the lands in controversy are included in this section or survey; from the date of the Max Mayer deed, that he, jointly with his father and brother, held exclusive possession of said land, no one else having at any time possession thereof, and the lands were used for grazing and pasturage purposes; that when his brother deeded to him he and his father continued such use and possession; on the 15th day of August, 1933, his father conveyed his interest to defendant, from which time defendant used and possessed the lands and claimed title thereto; that the land was only suitable for grazing and pasturage purposes, and was so used by defendant; .that the lands involved are enclosed in a pasture of about 4,000 acres, more or less, and that all of the lands in the enclosure are owned by said defendant; the fence around said land is a net wire fence and is wolf proof.

On cross-examination defendant admitted having, on October 11, 1928, written a letter to Honorable .W. C. Jackson, an attorney then representing plaintiffs, in which letter the following sentence occurs: “Of course, I would like to own these lands for the reason if I should ever sell I could sell them with the other lands.”

Judge W. C. Jackson testified that the correspondence between him and Allison was in reference to the lands in controversy, and that he was representing plaintiffs in 1928.

It will be observed that the extent of the use made by defendant of the lands is not stated by him. The character of the use is said to be grazing and pasturage purposes. It does not appear from his testimony when the fence in question was constructed enclosing the lands in controversy with the other lands defendant testified he owned; it does not appear whether or not the erection of this fence constituted a trespass on the lands of plaintiffs; it does not appear whether or not the other lands in the enclosure claimed by defendant entirely surround the lands claimed by plaintiffs.

In 1936, defendant Allison executed a deed of trust covering 45,324.4 acres of land. Included in this deed of trust was the northwest quarter and the southwest quarter of the southwest quarter of Survey 1, Block 2; said portions of land of the said survey being no portion of the land involved in this suit, the lands involved are a part of this same section.

We think it clear that the letter of October 11, 1928, to Judge Jackson justifies, if it does not compel, the finding that on that date defendant was not asserting claim to the land involved adverse to the title of plaintiffs. Warren v. Fredericks, 83 Tex. 380, 18 S.W. 750; Houston Oil Co. v. Pullen, Tex.Com.App., 272 S.W. 439, and authorities there cited; R. W. Weir Lbr. Co. v. Eaves, Tex.Com.App., 296 S.W. 481; Johnson v. Martinez, Tex.Civ.App., 18 S.W.2d 925.

The only use defendant testified as to having made of these lands was grazing and pasturage. It seems such a use alone is insufficient for the acquisition of title, if such use is not accompanied by some other visible manifestation of appropriation of the land. Mason v. Stapper, Tex.Sup., 8 S.W. 598; De Las Fuentes et ux. v. Macdonell, 85 Tex. 132, 20 S.W. 43.

The only other visible appropriation of the lands appearing in defendant’s testimony is the fact that same were enclosed with other lands ■ by a fence. He stated, “The lands are now enclosed by a wire fence, wolf proof.” Conceded that this is a substantial fence, ample to give notice of possession, the question still remains: How long has such fence been maintained? 'A careful perusal of the statement of facts does not answer the question. The statement of the witness that he held possession is in the nature of a mere conclusion; as is likewise his statement that he made use of the land, with this qualification of the latter statement: that use as to pasture and grazing was a statement of fact. We are unable to determine from his evidence that the lands in question were- ever enclosed by a substantial fence for a period of five or ten years, coupled with, during said period, a continuous and unbroken use of the land for grazing and pasturing. In addition to continuous assertion of claim of right there must be cultivation, use or enjoyment for the prescribed period. The mere fencing of the land and maintaining such fence for five or ten years would be insufficient, in and of itself, to give title by limitation. Under the facts of this case the mere use of the land for grazing and pasturage without enclosure' would be insufficient to give such title. Under the facts as made by this case both the fence and the pasture for one of the required periods were essential. 2 Tex.Jur. p. 91, sec. 47.

The evidence, in our opinion, does not show beyond an issuable fact that the land involved was ever enclosed for a period of either five or ten years. In fact, we have grave doubts as to its sufficiency to even raise the issue.

It is true, as asserted by defendant here, that his testimony with reference to the use and possession was uncon-tradicted. Defendant, however, was an interested witness. The facts as to which he testified were not necessarily within the knowledge of' plaintiffs. . The burden was certainly upon him to show how' and in what manner he acquired the title of plaintiffs. In our opinion, even though his testimony had unqualifiedly been as to facts sufficient to satisfy the requirement as to the law of limitation, there still was an issue of fact for determination by the court. This issue was found against the defendant. 41 Tex.Jur. 172.

Part of the vital essential facts as to adverse possession are peculiarly in the knowledge of the claimant. He alone may absolutely know whether or not he has at all times claimed the right of possession to the land.

A disputed question of fact under the evidence has been found against the defendant by the trial court. This finding forecloses the matter.

We find no error in the record.

It is ordered that the case be affirmed.


author: MONTEITH, Chief Justice.

text:
    AMERICAN NAT. INS. CO. v. FRESS.
    No. 11001.
    Court of Civil Appeals of Texas. Galveston.
    July 3, 1940.
    Rehearing Denied July 25, 1940.

      Frank S. Anderson, of Galveston, and Williams, Lee, Sears & Kennerly, of Houston, for appellant.
    A. B. Wilson and Allan H. Kottwitz, both of Houston, for appellee.
   MONTEITH, Chief Justice.

Appellant, American National Insurance Company, issued an insurance policy dated March 23, 1936, for the face amount'of $414 on the life of George P. Fress. His wife, Mary P. Fress, appellee herein, was named as beneficiary in said policy. The policy provided for the payment of double the face of the policy in the event the death of insured resulted solely through accidental means, and provided further that in the evenf of the death of the insured from suicide within two years from the date of the policy, the liability of the Company should be limited to the return of the premiums paid on the policy.

After the death of the insured from gunshot wounds on August 31, 1937, ap-pellee brought this action for double the face of the policy, claiming that insured met his death through accidental means.

Appellant answered by general demurrer and general denial. It alleged that it was not liable under the terms of said policy for the reason that the insured had committed suicide. It tendered beneficiary the amount of the premiums paid in full settlement and satisfaction of the policy.

In answer to special issues submitted, the jury found that the death of insured was due to accidental means and not to suicide. Based upon the answers to said special issues judgment was rendered in favor of appellee and against appellant in the aggregate of $1,258.09.

It was stipulated by the parties that said policy had been issued and delivered to insured; that all premiums had been paid; that the insured had died on August 31, 1937, while the policy was in force; and that proofs of death of the insured- under the policy had been made out and delivered in the manner and form as required by the policy.

The record shows that the insured was alone in a rear room of his home on the morning of August 26, 1937, when a shot was heard by members of the family; that on going to his room he was found lying on the floor bleeding from a bullet wound which had gone from beneath his chin through the top of his head. A pistol was found on a near-by bed. He died in a hospital on August 31, 1937.

While other assignments are presented, as we view; the record, appellant’s assignment of error in the action of the court in permitting the introduction, over proper objections, of a verified ex parte certificate as to the death of the insured made out by Dr. J. Wade Harris, the attending physician, to the effect that the physician did not know the cause of insured’s death, is determinative of this appeal and renders the remaining assignments immaterial.

A statutory death certificate required under Article 4477, Vernon's Ann. Civ. St., Rules 40a and 54a, had been made out by the same physician and filed with the State Department of Health on September 11, 1937. It stated that the death of insured was the result of suicide. This certificate Was introduced in evidence by appellant without objection.

The certificate on which this assignment is based was dated September 23, 1937. It was sent to appellant Insurance Company under the terms of said policy of insurance. In this certificate Dr. Harris stated that he did not know whether the death of insured was due to accidental means or whether it was suicide.

While said statement was provided for in said insurance policy and was sent to appellant under the terms thereof, we know of no exception to the hearsay rule that would make the contents of the statement admissible in view of the fact that the proof of the death of insured had been admitted by appellant and it had been stipulated that due proof of death had been furnished.

No rule is better settled than that statements offered as evidence of the truth of a fact asserted must be subjected to two tests: (1) The person making' the assertion must be subjected to cross-examination, i. e., must make it under such circumstances that the opponent has an adequate opportunity, if desired, to test the truth of the assertion by questions which the person is compelled to answer; and (2) the person making the assertion must be confronted with the opponent and with the tribunal when making the assertion and giving his answers. Wigmore’s Code of Evidence, Rule 157, pp. 259 and 260.

In the instant case the statement • complained of was inadmissible in that it was an ex parte statement not made in the presence of a representative of appellant. Appellant was given no opportunity to cross-examine Dr. Harris and no excuse was given why he was not produced on the trial of the case. Phoenix Refining Co. v. Walker, Tex.Civ.App., 108 S.W.2d 323; Duree v. Ætna Ins. Co. et al., Tex.Civ.App. 66 S.W.2d 764; Hobart Mfg. Co. v. Joyce, Tex.Civ.App., 22 S.W.2d 955.

The error above pointed out requires, ■in our opinion, a reversal of the judgment of the trial court. The judgment is ■reversed and the cause remanded.

Reversed and remanded.