author: LESLIE, Chief Justice.

text:
    AMES et al. v. HERRINGTON et al.
    No. 1934.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 23, 1940.
    Rehearing Denied April 12, 1940.

      Conner & Conner, of Eastland, L. R. Pearson, of Ranger, Cantey, Hanger & McMahon, of Fort Worth, Malone, Lipscomb, White & Seay, of Dallas, and W. D. R. Owen, of Eastland, for appellants.
    Turner, Seaberry & Springer, of East-land, for appellees.
   LESLIE, Chief Justice.

This is a suit by a former ward to collect money alleged to be due her estate by former guardians and their respective sureties. On arrival at the age of 14 years the minor, Doris Meekie Rice, selected Dr. W. Ross Hodges to be her guardian. He instituted this suit. Later she married J. P. Herrington and joined by him they were substituted as plaintiffs in this cause. They are appellees herein.

Each of the defendants denied liability and offered special defenses hereinafter considered. Trial before the court and jury resulted in a verdict and judgment against the former guardians and their respective bondsmen. These defendants appeal.

This litigation covers numerous transactions by different guardians through a term of years from September 29, 1922, until the institution and trial of this suit in 1937. So many transactions are involved and so many assignments of error presented only controlling points will be discussed.

Briefly the history of these probate proceedings and the instant suit is in substance as follows: September 20, 1922 W. H. (Ward) Rice died intestate, leaving a wife, Frona Rice, and daughter, Doris Meekie Rice, then two years of age. There was no administration of his estate, except the guardianship proceeding on the daughter’s estate. December 17, 1922, the widow, Mrs. Frona Rice, married J. B. Ames. They separated April 20, 1933, and October 13, 1933, she instituted a suit for divorce and recovery of property alleged to belong to her and said daughter. Ames died February 6, 1937.

September 29, 1922, Mrs. Rice (Ames) instituted in the “County Court at Law of Eastland County” temporary guardianship proceedings on the estate of the daughter. The probable value of that estate was estimated at $25,404. On the same date, the court appointed the mother temporary guardian, and also named appraisers for the estate. October 2, 1922, an inventory and appraisement was returned and filed in the said court, and it showed cash on hand belonging to the minor $5,904, Liberty Bonds $15,900 and individual interest in real estate valued at $3,350. The first two items aggregate $21,804. The judge approved the inventory and ap-praisement and on November 14, 1922, entered an order making the temporary guardianship permanent. The same day Frona Rice, as principal, and the American Indemnity Company, as surety, executed a guardian’s bond in the sum of $43,608.

This guardianship ran along with various expenditures by the guardian from time to time from the ward’s estate until June 8, 1923, when the guardian Frona Rice applied to said “County Court at Law” to continue the guardianship proceedings in the name of Frona Ames, she having married J. B. Ames December 17, 1922. The guardianship was so continued.

July 2, 1923, the surety, American Indemnity Company, filed a petition in said County Court at Law to be released from any further liability on the bond executed November 14, 1922. An order releasing it was entered September 24, 1923. This bond is made the basis of recovery against the American Indemnity Company.

(This action by the surety company was precipitated by the following circumstances : When the Indemnity Company became surety on the said bond there was a joint agreement between it and Frona Rice whereby said company was permitted to take possession of $15,900 in Liberty Bonds for safe-keeping during the time it was on the bond. The Liberty Bonds matured. The surety company forwarded them to a bank at Ranger where Mrs. Ames resided that she might indorse them and thereby enable the Indemnity Company to cash the bonds. While they were in the bank at Ranger she instituted suit in Eastland County for the possession of the bonds. The Indemnity Company was impleaded and a trial resulted in a judgment ordering the delivery of the possession of the bonds to the guardian, and also releasing the surety from further liability on the bond. The matters recited in this paragraph may not be material under the disposition made of this appeal, but they serve to keep in mind the events leading up to this litigation.)

After, the Indemnity Company was released on September 24, 1933, Mrs. Ames, joined by her husband, J. B. Ames, as principal, with Frank Ames and Mrs. M. F. Ames, as sureties, executed a new guardianship bond in the sum of $39,000, on October 13, 1923. Additional sureties were required, however, and Frona Ames, joined by her husband as principal and S. P. Rumph and D. S. Rumph, as sureties, executed another guardianship bond in the sum of $39,000 on October 18, 1923.

Frank Ames and Mrs. M. F. Ames were not joined in this suit, and it is alleged that M. F. Ames is dead and that in any event both were insolvent. Neither were the Rumphs made parties, but it is alleged they were both dead, that they went through bankruptcy and their estates insolvent.

After the posting of the above bonds of October 13 and 18, the guardianship proceedings continued without interruption until November 28, 1928, when the Supreme Court of Texas, passing upon the validity of the law creating the “County Court at Law of Eastland County,” held said court to be unconstitutional, and its acts and orders void. State v. Gillette’s Éstate, Tex.Com.App., 10 S.W. 2d 984.

Thereafter, Frona Ames, on February 18, 1930, again sought to be appointed guardian of her daughter’s estate. This proceeding was in the regular probate court of Eastland County, Texas. She was so appointed March 7, 1930, and March 12, 1930, she gave bond and took the usual oath. The inventory and ap-praisement offered and approved showed the value of the minor’s estate at this time to be $4,835.35. A guardianship bond in the sum of $10,000 was executed by Mrs. Ames, with J. B. Ames, S. P. Rumph and J. E. Gilbert, sureties. (There were conflicting allegations and proof as to the capacity in which Ames signed this bond. The jury found he signed as surety.)

While the ward’s estate was being administered under this last guardianship bond, Frona Ames sued J. B. Ames on October 13, 1933, for divorce, asking for division of community property, and seeking to recover from him personal and real property then held by him, but alleged to be in fact the property either of herself or of the minor daughter.

That cause, originally and primarily one for divorce, was No. 15,750, on the docket of the District Court, and will be so referred to in this opinion. Frona Ames individually and as such guardian on December 15, 1933, filed a third amended original petition in that cause. As stated, she sought to establish and recover extensive property rights on behalf of herself and her daughter, and during the trial of that case it appears that Frona Ames, or her attorney, concluded that in the capacities in which she was suing she was representing conflicting interests, in that she was asserting individual rights which clashed or conflicted with the rights and interests of her ward. Thereupon it became expedient, if not necessary, to have the interests of the ward represented by someone who could give primary consideration to the ward’s interest as they were reflected or involved in that litigation.

At that stage of the litigation the regular probate court, acting upon application therefor, entered an order January 19, 1934, discharging Mrs. Ames as guardian of said estate on the ground that she had grossly mismanaged the same. And it is alleged in the instant suit that although Mrs. Ames was also ordered to account for the minor’s estate coming into her hands she had failed to do so to the damage of the ward in the sum of $50,000.

In the same order D. L. Kinnaird was appointed guardian of said estate. January 20, 1934, he posted bond as such in the sum of $5,000 with the United States Fidelity & Guaranty Company as surety. (On May 21, 1937, he also was removed as such guardian on the ground that he had failed to obey the orders of the court directing him to file an inventory and ap-praisement of the ward’s estate, etc.)

Following Kinnaird’s appointment as guardian Mrs. Ames ceased to litigate as guardian of her daughter’s estate, dropping the ward’s interest from her petition. With the permission of the court, however, Kinnaird, as guardian, entered his appearance in that litigation, already in process of trial, and on January 19, 1934, filed in - behalf of said ward a petition in intervention. Thereupon the litigation became more or less three-cornered and antagonistic, whether viewed from the standpoint of Mrs. Ames, her husband or the ward. That trial resulted in a judgment February 1, 1934, and no appeal was prosecuted therefrom. On the whole, the judgment was favorable to Mrs. Ames and the ward (intervener) and the elements of the judgment will be presently referred to.

In the instant appeal the appellants insist that the judgment in that cause, No. 15,750, is res adjudicata of the issues presented herein. This plea of res ad-judicata is based upon the nature and scope of cause No. 15,750 as determined by the plea in intervention filed by the guardian Kinnaird in behalf of his ward.

In said petition in intervention it was alleged that Mrs. Ames, as guardian, took possession of the estate of the ward on November 14, 1922, and that it amounted at that .time to approximately $35,000. That she managed the ward’s estate with fair efficiency until she married J. B. Ames; that soon after such marriage she and J. B. Ames entered into a conspiracy to defraud and cheat the minor, Doris Meekie Rice, out of her property without 'giving her just recompense therefor. That, in the alternative, if such allegations be incorrect, then J. B. Ames by force, threats, fraud and misrepresentations induced Mrs. Ames to deliver into his hands the property belonging to the minor.

That Mrs. Ames took $5,300 belonging to the minor and put it in a lock box in a Ranger bank; that the box was in the possession of J. B. Ames who extracted the said money and used it for the erect-ion of a house on lots 5 and 6, block 19, Ranger, Texas, and also used part of the money in his business of raising and marketing cattle, hogs and goats. That later, the house was destroyed by fire and the insurance money to the extent of $1,000 was likewise used by said Ames in his business. That on a date unknown to the intervener, Mrs. Ames took $750 and bought a diamond stick pin then in the possession of said J. B. Ames; that Mrs. Ames collected $2,800 insurance in 1932 on a house in Rapger in which the minor owned a ⅜ interest. That this money was also invested in the stock business by J. B. Ames and Mrs. Ames and that their property so acquired by the use of funds belonging to' the ward is and should be impressed with a trust in favor of the minor to the extent of ⅜ of $2,800.

That Mrs. Ames as guardian came into possession of about $15,900 in Liberty Bonds belonging to the ward, converted the same into cash, deposited it in a Carbon bank, and thereafter withdrew and misappropriated substantially the entire amount. That she withdrew $316.49 with which to buy 113 acres of land in the William Frehl Survey in Eastland County, which was later sold to other parties, made defendants therein, and’ that the same was held in trust by them for the ward. That the remainder of said $15,900 was from time to time on dates and in amounts unknown to in-tervener withdrawn and used in trading, raising and marketing hogs, .cattle and other livestock and also in acquiring and caring for other property, all alleged to be claimed as, community and/or, separate property of Mr. and Mrs. J.' B. Ames, which said property was alleged to be impressed with a trust for the benefit of said minor to the extent of the amount so misappropriated and invested.

That about December 22, 1923, the guardian and J. B. Ames entered ilito á conspiracy to take from the minor $416 belonging to her by pretending that an expenditure of that amount was made for the hire of a nurse for the. care and attention of said minor for a year; that in truth and in fact the money was used for no such purpose, but expended in the cattle business.

The above cause, No. 15,750, was tried before the court and jury, and numerous special issues submitted. Among other things, the jury found that $4,250 of the money used by J. B. Ames in his cattle business belonged to the ward, and that it was procured by him from Mrs. Ames. It was also decreed that said minor should have a first and prior lien on all the community property of J. B. Ames and wife' for the collection of that amount. Under the order of the trial court, all the community property of J. B. Ames and Mrs. Ames, as established by that litigation, was placed in the possession of the court through a trustee (L. H. Flewellen) duly appointed for that purpose. This property, as will hereinafter be noticed, was later bid in jointly by Doris Meekie Rice through her guardian, Kinnaird, and Mrs. Frona Ames.

Said judgment (15,750) also established for the ward an unsecured claim against J. B. Ames and wife, the sum of $2,090 for rent on a house known as the Cherry 'Street residence, alleged to belong in part to the ward, but the court, after merely fixing such amount, denied recovery for the same, and stated that such order was without prejudice to the rights of the minor to recover the same in a specific action therefor. in a proper court. As stated, no appeal was .prosecuted from this judgment.

This same judgment also provided for recovery by Mrs. Ames against J. B. Ames of the sum of $10,377.02, by way of reimbursement for personal funds belonging to her and appropriated by him and the judgment gave her a second lien on said community property. The proceeds of the sale of said property realized by the trustee were to be applied as follows: (1) to the payment of costs, (2) to the $4,250 due the ward, • (3) $10,r 377.02 due Mrs. Ames, and (4) balance, if any, divided equally between Mr. and Mrs. Ames as their community- property.

The above judgment in 15,750 disposed of a multitude of issues involving property rights of these litigants and after specifically disposing of the' same that decree concluded in this language: “except as herein adjudged, it is ordered that the respective parties herein take nothing by reason of this suit.” The claims and counterclaims not specifically disposed of were thus disposed of in general terms.

Obviously, the instant suit, as well, as cause No. 15,750, wherein the minor intervened, were attempts to trace the affairs and fix the property rights of the minor’s estate from the very inception of the first guardianship in 1922 down to the time of these suits and the respective judgments therein, the former dated February 1, 1934, and the instant one June 4, 1938. As to the scope of the first suit (15,750) Frank Sparks, who represented Kinnaird as guardian in his intervention in behalf of the minor, testified in the instant case as follows: “Do you recall whether or not in that divorce trial it was undertaken to be established and traced every dime from every source by reason of waste or otherwise of the property or money that belonged to Doris Meekie Rice? A. Yes, that was my business in the case.” This testimony was not objected to, and it apparently reflects an interpretation of cause No. 15,750 which is believed to be in harmony with the record in that case as it appears in the statement of facts in the present one.

Summarizing briefly, cause No. 15,750, based on the plea in intervention, was essentially one for devastavit or waste and wrongful use of the minor’s estate by her guardian, Frona Ames, and J. B. Ames. The petition embraced her whole estate coming into the hands of her mother by whatever means and covered the entire time from the beginning of that administration to the date of the judgment in that cause. As to the ward, that suit was predicated upon a breach of duty upon the part of the guardian of her estate.

Further, through her new guardian, Kin-naird, she sought to recover the title and possession of property into which she alleged her money had been wrongfully invested, and in that connection she alleged that in the event her money and the assets of her estate had been so invested, mixed and commingled with the community property of J. B. Ames and wife that it could not be specifically traced, then she sought to have such property impressed with a trust in her behalf and a first lien fixed thereon to secure the repayment to her of the estate which had been thus dissipated or wrongfully invested. Having achieved that purpose as evidenced by the results of that suit and procured the sale of all community property of J. B. and Frona Ames through the trustee’s sale and said property having been dissipated, lost or appropriated by her mother or through the neglect of a subsequent guardian, such relief is not sought in the instant suit. The appellee herein now seeks to recover the value of said property.'

In her plea in intervention the appellee alleged that the value of her estate aggregated the full amount of the same as fixed at the time of her father’s death or the filing of the first inventory and ap-praisement of her estate.

In view of other conclusions presently to be expressed we here state that it is our opinion that if any items of loss to the ward’s estate or incident to that administration were left out of cause No. 15,750, or not specifically mentioned therein, such items being incident to such cause of action could and should have been embraced therein, otherwise the proceeding would have amounted to splitting up a legitimate cause of action; and a study of the record does not suggest that such was done. Discussing the legal effect of splitting up a cause of action, it is said in Stark v. Starr, 94 U.S. 477, 485, 24 L. Ed. 276: “It is undoubtedly a settled principle that a party seeking to enforce a claim, legal or equitable, must present * * * all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of 'the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.”

Attention will now be more particularly addressed to the issues of the instant suit. The appellee herein alleged the death of her father W. H. Rice September 20, 1922, and that her mother, Frona' Rice (now Ames) took the oath and gave bond with the American Indemnity Company, as surety, November 14, 1922, the same date as alleged in the intervention in the divorce suit. This and other guardianships in the estate were specifically alleged. The appel-lee alleged the value of her estate at the time of her father’s death to be $25,404, consisting of cash $8,856, approximately $15,900 in government bonds, and certain real estate. She also alleged the invalidity of the probate proceeding in the “County Court at Law of Eastland County” and especially that the discharge and release of the Indemnity Company by said court was void, (a matter deemed immaterial under the disposition made of this appeal). She also alleged the judgment in a certain suit hy Mrs. Ames against appellee to recover lot 9, block 14, Hodges Oak Park Addition of Ranger, Texas, was void and asked rentals upori the same in the amount of $30 per month from 1922 to 1932. That a house on said lot was destroyed by fire in 1932 and Mrs. Ames collected $5,000 insurance upon the same, for which the appel-lee seeks recovery.

She further alleged that Mrs. Ames qualified again as guardian of her estate in 1930 in the County Court of Eastland County, and set out the inventory and ap-praisement filed therein and that she (Mrs. Ames) was subsequently removed as such guardian on January • 19, 1934, at which time Kinnaird was appointed guardian. In conclusion the appellee alleged that she was damaged in the grqss sum of $50,000 and that since she was unable to allege what portion of the devastavit of Mrs. Ames occurred at any particular time, she made all solvent sureties upon the various bonds parties to this suit.

The appellee sought recovery against Kinnaird and his surety on the ground of his failure to collect the judgment of $4,250 secured in cause No. 15,750, and also for his failure to collect the $2,090 claim (for rents) mentioned in said judgment, but for which no enforcible decree was given, as above set out.

Further, in the instant suit recovery was sought against L. A. Hightqwer, 'administrator of the estate of J. B‘. Ames, both as surety upon the guardianship bond of Mrs. Ames and for rents upon what was known as the spring pasture, as well as for the item of $2,090. All the recovery sought against Mrs. Ames, the American Indemnity Company and J. E. Gilbert is based upon occurrences and transactions prior to February 3, (1) 1934, (date of judgment in 15,750).- The same is true with respect to Plightower, administrator, except for the period .between February 3 (1), 1934, and February 6, 1937 (Ames’ death). For this period the rents on spring creek pasture of 257 acres were found to be 25⅜5 per acre per year, and ⅜ of ½ of such amount represents the ward’s interest therein, the same aggregating approximately $64.26, an individual obligation of J. B. Ames, deceased.

Cause No. 15,750 as affected by the plea in intervention was undoubtedly a suit for devastavit of the minor’s estate and all consideration given the record in the instant case necessarily leads to the conclusion that it covers the grounds extended over by the prior suit. Res ad-jüdicata is the answer to the appellee’s suit against Frona Ames, the principal in said bonds, and it operates to exonerate her sureties from the liability asserted against them. In the absence of liability of the principal there can be no liability of the sureties.

There is no question about the effect of this rule of law .when applied to a proper state of facts and the facts here invoke the application of the rule. In Nichols v. Dibrell, 61 Tex. 539, it is stated thus: “It is well settled that the decision of a court of competent jurisdiction is conclusive not only as to the subject'matter determined, but as to every other matter which the parties might have litigated in the case and which they might have had decided. * * * Or, as differently expressed, ‘the plea -of res judicata, applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.’ ”

This rule of law has been frequently applied and was recently applied in Cain v. Balcom et ux., 130 Tex. 497, 109 S.W.2d 1044, 1045, in which it was stated thus: “This calls for an examination of the rules of law relating to the subject of res adjudicate. It is firmly established that, except as to strangers, the decision of a court of competent jurisdiction is conclusive not only as to thd subject matter determined, but also as to every other matter which the parties might have litigated in the case, and which they might have had decided. Nichols v. Dibrell, 61 Tex. 539; Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 47 Am.St.Rep. 79; 26 Tex.Jur. pp. 135, 136.”

And it is further held in that opinion that under such circumstances: “The protection of such a decision, as well as its restrictions, extend not only to the immediate parties to the suit,, but also to those who stand in privity with them. Privity, in this connection, means the mutual or successive relationship to the same rights of property; 'that is to say, all persons are privy tó a judgment whose succession to the rights of property therein adjudicated are derived through or under one or the other of the parties to the action, and which accrued subsequent to the commencement of the action. Morrison v. Cloud (Tex.Civ.App.) 13 S.W.2d 735, and authorities there cited.”

This opinion is believed to he in point on the contention here urged by the American Indemnity Company, and especially so, since that company cannot he held liable without primary liability upon the part of the principal.

Other authorities sustaining the plea of res adjudicata under the facts of this case are Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526; City of Aurora v. West, 7 Wall. 82, 106, 19 L. Ed. 42; Tonn v. Inner Shoe Tire Co., Tex.Civ.App., 260 S.W. 1078; Connellee v. Magnolia Pet. Co., Tex.Civ.App., 54 S.W.2d 577, par. 2-3; 26 Tex.Jur. p. 11, sec. 353 et seq.

The appellee takes the position that Kinnaird, her guardian, did not sue Mrs. Ames in cause No. 15,750 in her capacity as guardian, but only in her individual capacity, thereby rendering the principle of res adjudicata inapplicable. It is not believed that it was necessary to make the specific allegations in terms that she was so sued as guardian. The court is entitled to determine that question from the subject matter contained in the pleadings which, as pointed out, embraced and covered the entire administration of Mrs. Ames as guardian and also involved conspiracy and duress practiced by her husband upon the guardian during the entire guardianship period.

When Mrs. Ames took possession of the minor’s estate November 14, 1922, it was by virtue of the probate proceeding ancj as guardian. When the guardian Kinnaird in 1934 brought suit against Mrs. Ames, he, by his pleading, commenced at the very beginning November 14, 1922, and attempted to trace all the minor’s estate to the time of Mrs. Ames’ removal on January 19, 1934, and, as pointed out, if the scope of the petition in intervention needs any bolstering on this point, the testimony of attorney Sparks, above set out, may be resorted to. It is not believed that the original suit by plea in intervention against Mrs. Ames under the circumstances could be anything other than a suit against her as guardian, and involving the property rights and claims originating in that relationship and fully embracing all phases thereof.

Assuming that Mrs. Ames at that time was sued in her individual capacity only, we are still of the opinion that this suit is determined by that one as affected by the plea in intervention. Every element involved in the present suit was involved in the divorce suit or intervention, and if not could have been litigated therein under the rules above set out. We do not think it could be successfully contended that one who is a guardian can be sued individually for property of a ward, forced to pay off a judgment therefor and then be sued again for the same subject matter as guardian simply because he was not sued as guardian in the first place, or not specifically designated as such in the pleadings.

Appellee asserts that a suit against a person in his individual capacity will not bar a subsequent suit against him in his capacity as guardian with regard to the same subject matter. We think that such a rule assumes that the person has a separate and distinct legal right in his representative capacity from that which he has in his individual capacity. Hardin v. Hardin, Tex.Civ.App., 1 S.W.2d 708. Further, it is elementary that if there be no liability on the part of the principal the surety would be without liability, and that is the state of facts we have under consideration.

When the appellee intervened in the divorce suit and attempted to trace her estate into the community estate of J. B. Ames and Frona Ames (former guardian) recovered a judgment therein for $4,250 and the property of said parties cast in the judgment was actually delivered into the court by J. B. Ames in an amount ($9,415) more than sufficient to pay such judgment to her, she (the appellee) elected to look to the property of the guardian and J. B. Ames rather than to personal liability on the guardianship bonds. Mosher Mfg. Co. v. Eastland W. F. & G. R. Co., Tex.Civ.App., 259 S.W. 253; Gerard v. National Bond & Mort. Corp., Tex.Civ.App., 86 S.W.2d 74. The remedy of following the property and seeking its recovery, either in its original or different form, is inconsistent with the remedy of suit on the official bond. A person is not allowed to sue for and recover both the property and its value. Prosecution of either remedy to its logical conclusion results in an election to forego the other. The authorities just cited announce and apply the rule.

Further, the fact that the sureties were not parties in the intervention suit is immaterial; at least not controlling. Their liability as stated is only secondary aand does not exist in the absence of the primary liability of the principal. If recovery of the judgment and satisfaction thereof has been secured as against the principal, the fact that the sureties were not parties does not prevent the judgment from being a bar to a subsequent suit upon the same subject matter. The rule that the judgment against the principal will not bar ‘a subsequent suit against the sureties on the official bond, presupposes the nonsatisfaction of the prior judgment. McKee v. Price, 3 Willson Civ.Cas.Ct.App. § 335; 34 C.J. 853, note 20.

Under the facts of this case we believe that the prior judgment as to Ames was satisfied when more than sufficient property ($9,415 in value) was actually taken into possession by the trustee appointed by the court, removed from the possession of Ames, sold, and the judgment credited with the proceeds. In Cornelius v. Burford, 28 Tex. 202, 91 Am.Dec. 309, is the following holding: “It has been repeatedly held, and may be considered well settled, that a levy upon sufficient personal property to satisfy the execution is a satisfaction of the debt, if taken from the possession of the defendant in execution. The creditor, after such a levy, must look to the officer making it for his money; for, so far as the debtor is concerned, it is paid,, and he is discharged from further liability on account of it.”

Except for the $64.26 item due by High-tower, administrator, as above shown, all devastavits and wastes and other items incident thereto chargeable against Mrs. Frona Ames, J. B. Ames (Hightower, administrator), American Indemnity Company, or J. E. Gilbert, either as principal' or sureties, respectively, were due at the time of the trial of cause No. 15,750, and, as before stated, if they were not included •therein they should have been, and therefore concluded by the judgment. They were items properly to be considered in that case and they doubtless would have been paid at that time had they been adjudicated since the value of the property actually taken from Ames was considerably more than sufficient to liquidate all established claims of the appellee.

For the above reasons, the instructed verdict should have been directed in behalf of Mrs. Ames, the Indemnity Company and L. A. Hightower, administrator, except as to the $64.26 item accruing after judgment in 15,750 and before the death of Ames. As to this item of $64.26 judgment is awarded appellee against said Hightower, administrator.

We now examine the questions presented by appellants Kinnaird and the surety on his bond, the United States Fidelity & Guaranty Company. By its answer to special issue No. 15, the jury found that by the exercise of ordinary care and diljgence Kinnaird, as guardian, could have collected the entire judgment of $4250 awarded Doris Meekie Rice on her petition in intervention in cause No. 15,750. Based upon the jury’s answer to special issue No. 6, the general issue of Mrs. Ames’ mismanagement while guardian, the jury found in answer to special issues 18 and 19 that said Kinnaird could, by the exercise of ordinary care and diligence, have recovered an additional $4,250 of the loss to appellee’s estate caused by Mrs. Ames’ mismanagement thereof. The court, in his judgment in the instant case, denied the appellee recovery on the latter item. No issue is raised on the court’s failure to enter judgment for appellee for this additional amount. Therefore, the error, if any, in submitting such general issue of mismanagement by Mrs. Ames would be harmless. Further, our conclu-siqns as to res adjudicata effectively dispose of that point or supposed element of recovery.

By the first ten propositions appellants Kinnaird and United States Fidelity & Guaranty Company complain of the failure of the court to submit any issue of proximate cause complementary to the above issues. Art. 4168, R.S.1925, provides : “The guardian of the estate shall use -due diligence to collect all claims or debts owing to the ward, and to recover possession of all property to which the ward has a title or claim; provided, there is a reasonable prospect of collecting such claims or debts, or of receiving such property; and if he neglects to use diligence, he and his sureties shall be liable for all damages occasioned by such neglect.”

Except as hereinafter indicated, Kinnaird’s pleadings and his testimony in the instant case established as a fact that he did not collect any of said $4,250 judgment, but that Mrs. Ames was permitted by him to take all the property bid in except $686, and a possible interest in real estate, presently to be considered. He further alleges the “notorious insolvency” of Mrs. Ames and her sureties at all times during the period of his own adjudged liability.' He admits his inability to' recoup any of the loss from her. The trustee appointed by the court in cause No. 15,750 testified that for the property- 'in his hands (against which Kinnaird, as guardian for the appellee, had a . first lien to the extent of $4,250) he received a cash bid of. more than $4,250. The said pleadings and testimony are conclusive upon the question of the -guardian’s breach of a statutory duty, proximately resulting in the loss of this- $4,250, or the portion thereof héreinafter . specified. Heyn v. Massachusetts Bonding Co., Tex. Civ.App., 110 S.W.2d 261.

Although.the issue of proximate cause is generally-a question of fact to be submitted to the jury, the evidence may be such as to make its determination a. question of law for the court. St. L. S. W. Ry. Co. v. Missildine, Tex.Civ.App., 157 S.W. 245, error refused; Heyn v. Massachusetts Bonding & Ins. Co., Tex. Civ.App., 110 S.W.2d 261; Citizens’ Nat. Bank v. Ratcliff, Tex.Civ.App., 238 S.W. 362, Id., Tex.Com.App., 253 S.W. 253; International-Great Northern Ry. Co. v. Hawthorne, 131 Tex. 622, 116 S.W.2d 1056. Under the evidence and the pleadings, proximate cause,, if an element in the case, was established as a matter of law. , ...

. Analogous to the facts of the case last cited, it will be noted in the instant one that Kinnaird in his application to bid at said trustee’s sale “anticipated” and stated that unless s'omeone should bid $4,250 in cash, the property would be “dissipated” and the appellee “would lose her debt.” Relative to that matter Kinnaird’s attorneys were informed by the trustee that a cash bid for the property, much in excess of $4,250, would be available at the sale.

Obviously, the joint bid by Kinnaird, as guardian, with Mrs. Ames, for the property at the trustee’s sale was an unauthorized act' by Kinnaird. He held a judgment for the ward for the $4,250 with a first lien upon the property which the undisputed testimony showed to be -worth about $10,000. Upon said application he obtained permission from the probate court to bid for said property to the amount of $4,250. Had he carried out such directions he would undoubtedly have collected that amount in cash. Instead, he en-téred into an agreement with Mrs. Ames, whereby he, as guardian, contributed $4r 250 of' the ward’s property, or the judgment - (secured by the first lien) and Mrs. Ames contributed '$4,250 (a part of her judgment of $10,377.02 against Ames) secured by a second lien on same property, and with this amount aggregating $8,500, the -community property of Mr. and Mrs. J. B. Amqs was bought ⅛ at the trustee’s sale for Mrs. Ames and the appellee in. equal undivided intérests. ' That arrangement on an unequal basis passed title by an agreement with Kinnaird of only one-! half of said property to the ward, and in addition, as pointed out, he permitted Mrs. Ames to take possession and dissipate or convert (with' exception to be noted) said property insofar as the ward may have had any interest in the same. That in effect, is the -legal consequences of ryhat occurred 'as a , result of ' such transaction or non-performance of the guardian’s statutory duty. The joint' bid . under these circumstances being. wholly unauthorized, we think, the appellee had a legal right to repudiate the same..’

The United States Fidelity & Guaranty Company further objects to the judgment against it and complains that no proximate cause is shown and. that it is not bound by the pleadings of Kinnaird contained in a cross-action filed by him against, other parties, and not adopted by said company. As to it -no such pleadings are appropriated to support our conclusions. - The element -of • proximate cause with respect to the liability of Kinnaird and his surety was properly’ and definitely established. Wlíát has been said above, in effect, disposes of this question. Heyn v. Massachusetts Bonding & Ins. Co., Tex. Civ.App., 110 S.W.2d 261.

The appellants’ propositions 11 to.. 13) both inclusive, raise the question, (vyith respect to the jury’s findings in response to issues 15, 18.and ,19) first, that there was no evidence that the plaintiff had suffered damages from Kinnaird’s negligence, if any, in failing to collect the item therein involved, and,, second,, that said issues were merely 'evidentiary. The discussion in 'the preceding paragraphs answers these questions. The propositions are- believed to be without merit and are overruled.

Propositions 14 and 15 complain of issues 15 and 18 on the ground that, as worded, they assumed Kinnaird’s failure to exercise ordinary care and diligence. As stated; Kinnaird’s pleadings and the testimony are believed to establish such facts without dispute. That being so, if the form of the issues submitted was not correct, the error would be harmless. Further, we do not believe that the record supports the contention that the court made any such assumption of fact.

By proposition 16 appellants complain of the court’s submission of special issue 8, the general issue of Kinnaird’s mismanagement, because appellee pleaded specific acts of negligence and the appellants assert that for such reason said finding of the jury should have been set aside on that issue, as well as that in response to special issue 9. From the examination of the record we do not believe the point was made that the plaintiff should be restricted as stated. Further, it is true, that there is a finding (issue 9) that part of plaintiff’s estate (to the amount of $1,509) was lost as the result of Kinnaird’s general mismanagement of said estate. However, no recovery was allowed by the trial court on the issue and it is believed that no harm could have resulted to appellants by virtue of the submission of the issue. The trial court recited in his judgment that the answer to the issue (9) was “immaterial and surplusage”. The only recovery allowed as against Kinnaird was based upon one of the specific allegations of negligence, namely, his failure to collect the $4,250.

Propositions 21, 22 and 23 relating to the question of the appellee having elected to claim the judgment for $4,250, etc., are believed to be without merit and are overruled.

When the trustee, Flewellen, sold the Ames property he transferred to the purchasers, Mrs. Frona Ames and Doris Meekie Rice (appellee), along with the personal property, three tracts of real estate. In answer to issues 7, 8 and 9 the jury found the value of these respective tracts to be at the date of sale (April 5, 1934) $350, $1,695, and $10—aggregating $2,055.

By propositions 17 and 18 these appellants contend the recovery against defend'ant should have been reduced by the amount of this $2,055, and by propositions 18 and 20 they insist, in any event, such recovery should have been reduced by one-half that amount, since the trustee deeded the real estate to Mrs. Ames and appellee (the daughter) in undivided equal' interests. It is undisputed that said real estate was so deeded, and that this real estate stood in their names at the time of the trial of the instant suit. No tender of the ward’s interest in this real estate was made by her in her pleadings or otherwise. After this real estate was conveyed to them, the District Court approved the same on the basis that the purchasers had jointly paid $8,500 for the property and that the ap-pellee’s part was “* * * to be paid by crediting * * * the sum of $4250 in favor of Doris Meekie Rice, a minor, in satisfaction of her judgment lien against the community estate of J. B. Ames and Mrs. Frona Ames adjudged and described in the judgment in this cause” (15,750).

After a careful consideration of this record we are constrained to hold that there is merit in propositions 18 and 20 now under consideration. We believe the appellee is in the attitude of retaining title to a one-half interest in this real estate and recovering, at the same time, damages from Kinnaird (and incidentally his surety) because of Kinnaird’s alleged negligence and failure to secure possession of the property at the time of the trustee’s sale for the benefit of his ward. To hold otherwise would amount to a holding that a ward could keep the fruits of an unauthorized transaction on the part of a guardian and, at the same time, make demand on the guardian for the money used in acquiring such benefit. That, of course, is not the law on such state of facts. Jones v. Parker, 67 Tex. 76, 3 S.W. 222; Griffith’s Ex’r v. Bybee, 69 S.W. 767, 24 Ky.Law Rep. 666; 28 C.J. p. 1158, sec. 274. The trial court erred in not reducing the judgment by one-half the value of said real estate, namely, $1,027.50.

By propositions 24 to 29 these appellants complain of the action of the trial court in allowing interest at 10 per cent, per annum on the $4,250 item of judgment from April 5, 1934, the date of the transfer of the property by L. H. Flewellen, trustee, to Mrs. Ames and appel-lee. It is believed that any allowance of interest must be based, if at all, upon Art. 4189, R.S.1925, which reads: “If the guardian neglects to invest or loan surplus money on hand at interest when he can do so by the use of reasonable diligence, he shall be liable for the principal and also for the highest legal rate of interest upon such principal for the time he so neglects to invest or loan the same.”

Here the gist of appellee’s contention is that Kinnaird failed to collect the $4,250, and not that he failed to loan the money or invest it when he could have done so. The statute would seem to have no application to the situation here involved.

Further, it would be necessary that the pleading and proof be made tending to show that Kinnaird could have invested the money by the use of reasonable diligence; the record is completely silent on both. Also, there is neither allegation nor proof that Kinnaird converted any funds to his own use. It must be concluded, therefore, that it was error for the trial court to assess 10 per cent, interest on the $4,250 item had it been recoverable without any deductions.

The appellee cross-assigns error to the action of the. trial court in making certain deductions by way of fees, commissions and expenses, etc.

We find that Kinnaird was improperly given credit for various items of expenditures, but the following should be allowed as proper items of credit: (1) An item of $116 representing (a) bond premiums ($56) and (b) money paid to the appellee ($60), (2) a commission in an amount of $2.80 on said $56, and (3) payment to W. Ross Hodges, guardian, of $353.25, balance of principal" (or of said $686) on hand when Kinnaird was displaced as guardian. These authorized credits aggregate $472.05 and should be allowed Kinnaird.

One-half of the real estate ($1,027.50) plus allowable deductions ($472.05) aggregate $1,499.55. This amount subtracted from the item of $4,250 leaves $2,750.45, for which the plaintiff is entitled to a judgment as against Kinnaird and his surety.

As to the appellants Frona Ames and her sureties the judgment of the trial court is reversed and here rendered in their favor in accordance with the first division of this opinion, except as to the item of $64.26, which has been adjudicated in favor of the appellee against said High-tower, administrator of the estate of J. B. Ames, deceased.

The judgment of the trial court in favor of the appellee and against D. L. Kinnaird, guardian, and his surety, the United States Fidelity & Guaranty Company, will be reformed • in the respects pointed out, and as reformed affirmed, granting appellee’s recovery of and from the principal, D. L. Kinnaird, and said surety, the sum of $2,750.45, and for whatever sum, if any, the said surety United States Fidelity & Guaranty Company may pay on said judgment, it shall have a judgment over against said D. L. Kinnaird for that amount.

The conclusions herein expressed, in effect, overrule many assignments of error, and render others immaterial. For that reason they are not discussed.

In accordance with this opinion, the judgment of the trial court is reversed an’d rendered in favor of certain appellants, and is reformed and affirmed as to others in the respects pointed out. In other respects, the judgment of the trial court is undisturbed. It is so ordered.


source: Caselaw Access Project

author: LOONEY, Justice.

license: Public Domain

text:
    SHEPARD v. SHEPARD.
    No. 12869.
    Court of Civil Appeals of Texas. Dallas.
    March 23, 1940.
    Rehearing Denied April 20, 1940.

      A: H. Gist and Barnie Cantrell, both of Dallas,, for appellant. .
    Curri.e McCutcheon, Marie McCutcheon, 'and J. R. Bradfield, Jr., all of Dallas, for appellee.
   LOONEY, Justice.

Elizabeth Shepard, appellee, sued ■ Paul Shepard, appellant,; for: divorce, and the custody of their minor daughter, Mimi Pauline, alleging as ground for divorce, cruel treatment. Appearing by next, .friend, appellant controverted appellee’s allegations, and, in a cross-action, sought the dissolution of the marriage between himself and appellee on the ground that, at and before the time of its solemnization, he was of unsound mind and mentally incapable of contracting marriage; also alleged that he was not the father of appellee’s baby.

At the conclusion of the evidence, appellant moved for an instructed verdict, which was overruled, and on submission, the jury found, that appellant had been guilty- of cruelty and outrag.es toward appellee, of such a nature' ás to' render their living together insupportable;.- that appellant was the father of the child, Mimi Pauline, and that he possessed sufficient'mental Capacity to contract" and" enter 'into the marriage relation. Appellant moved for judgment non obstante, which being overruled, the court sustained appellee’s motion 'for judgment "on the verdict, and accordingly rendered judgment in her favor for divorce, awarded her custody of the minor child, and denied appellant the relief sought. The findings of the jury, -in our opinion, are' supported by evidence, and are adopted as our conclusions on the issues indicated. -

The only questions presented that, in our opinion, merit discussion, relate to the sufficiency of the evidence to sustain the verdict, and judgment.

The case is somewhat out of the ordinary. •The testimony of appellee is undisputed, and is shown by the following synopsis: She testified that she and appellant were married on June 22, 1937, agreeing beforehand that they would not live together as man and wife. At the time of the trial in March, 1939, appellee was 21 years of age, appellant 29; they first met in 1931, and .thereafter met at intervals. On December '25, 1936, they were guilty of an .act of intimacy, which resulted in appellee’s becoming pregnant, which she .discovered in April,' 1937, and, on being informed of -that fa.ct, appellant promised that he would take care .of the situation, and that later they would be married. After this, for a time, appellant wavered or vacillated in his resolution, stating at times he would do nothing, and at other times, that he .would. However, on-June 22, -1937, he took appel-lee in an automobile to the court house in the town of Rockwall, Rockwall County, Texas (about 30 miles from the City of Dallas), obtained a marriage license and-the services of a justice of the peace,-who .per- . formed the ceremony.. consummating . the marriage. Returning to Dallas- and letting appellee out of the car ..at. her place of abode,’ appellant stated she..would be taken care of, that he would see her soon, would pay all hbspital expenses,‘and that everything would be' all right. She saw him no ■more until April, 1938. - Her baby was bóm on September 15, 1937; she remained 'in the hospital two weeks. Appellee was without money to pay the bills incident -to .her confinement, but they were paid b'y ‘áp-■pellarit’s mother, and for several months 'thereafter, she gave appellee a monthly' allowance of eight to ten dollars. 'Since that time, appellee has resided with and has befen supported by her own mother. ■■ For some 'time prior to the birth, of the child, appellant gave appellee one dollar per' day. On .the occasion of their first meeting-after the marriage — in April,-' 1938,' appellant .-¡stated there was no -doubt about the; child,.'{meaning its paternity), and 'that.-he would do more for it, but, with!the„exceptipn of three .dollars given in November, 19.38, - appellant has contributed nothing additional. Before the marriage,'appellant accused.appellee of frying to' .blackmail him for money; this charge he repeated after the marriage and before the.baby was born, and again repeated the charge in November, 1938; he told appellee she would not get another cent ; however, h'e did later pay the three dollars above mentioned, stating that he would never acknowledge the baby as long as 'his mother lived. Appellant did not testify in the case.

We are of opinion that it was a matter peculiarly within the province of the jury to determine the credibility of the witness and the weight to be given her testimony ; and, obviously, in rendering the decree, the court necessarily deemed the evidence a sufficient and satisfactory affirmation of the material facts alleged.

In Dawson v. Dawson, 63 Tex.Civ.App. 168, 132 S.W. 379, 381 (quoting from the case of Golding v. Golding, 49 Tex.Civ.App. 176, 108 S.W. 496), in the concluding paragraph of the opinion, the court said: "* * * it is peculiarly a question of fact for the court and jury to_ determine after hearing the evidence whether or not defendant’s treatment to [of] plaintiff is [was] of such a nature as to render their living together insupportable. * *” To the same effect, see Arendale v. Arendale, Tex.Civ.App., 22 S.W.2d 1080, 1082, and the authorities cited.

It is immaterial that the parties did not live together as man and wife after the marriage ceremony was completed. The doctrine is settled in this state that the marital status is definitely fixed, without more ado, when the marriage is solemnized in the manner prescribed by law. See Thompson v. Thompson, Tex.Civ.App., 202 S.W. 175, 180 (concluding paragraph); also, Lopez v. Missouri, K. & T. R. Co., Tex.Civ.App., 222 S.W. 695.

We have duly considered all assignments urged for. reversal, and, 'failing to find reversible error, the judgment of the court below is affirmed.

Affirmed.


author: MONTEITH, Chief Justice.'

text:
    ANGELO v. BROWN et al.
    No. 10998.
    Court of Civil Appeals of Texas. Galveston.
    March 28, 1940.
    Rehearing Denied April 25, 1940.
    W. Ray Scruggs, of Houston, for appellant. • • ■
    Sewall Myer, City Atty., of Houston,' for appellees.
   MONTEITH, Chief Justice.'

This is an appeal from an order of á district court of Harris County refusing an application for a temporary injunction brought by Nick Angelo for the purpose of restraining L. C. Brown, Chief of Police, and E. H. Hammond, Chief of Detectives, of the Houston Police Department, and the City of Houston, from interfering with a cock fight which appellant had promoted, and from arresting him in connection therewith.

Appellant alleged that he was engaged in the business of promoting contests be7 tween fighting cocks and had arranged to stage such a contest in Houston on July 15, 1939; that said officers, acting under a mistaken .construction of Article 613 of the Penal Code of 1925, prohibiting cock fights, had prevented him from putting on said contest; that said contest as proposed by him would not constitute a violation of said Article 613; in that the fowls participating therein would be equipped with leather gloves instead of steel gaffs or naked spurs and would be otherwise protected from injury. He alleged that the proposed exhibition would be highly remunerative to him; that he had incurred considerable expense in connection therewith; and that appellees were interfering with a property right valuable to him.

In their answer appellees alleged that the contest proposed by appellant is a violation of said Article 613 of the Penal Code; that it was their . duty as peace officers to prevent a violation of the penal laws of this state; and that they should not be restrained from performing this duty.

The material facts are undisputed. They are substantially as pled.

In their last analysis, the effect of appellant’s allegations is that he is threatened by appellees with arrest and criminal prosecution for. acts which he contends do not in fact constitute a violation of said Article 613 of the Penal Code, in that it was the intention of the legislature in passing said act to prevent bloodshed and cruelty in cock fights and that, since the fowls participating in the contests proposed by him would not be injured thereby, said Article 613 does not apply.

Assuming that appellant is correct in his contention that the contest as proposed by him does not constitute a violation of said Article 613, still there is no basis in this action for the interposition of a court of equity, since the power and -authority to interpret a criminal act rests exclusively with the courts of this state exercising criminal jurisdiction. It is now the established rule that a court of equity will not, through the medium of an injunction, determine whether a given act violates the provision of a criminal statute, and that such questions must first be tested in the criminal courts before a court of equity can be called upon to intervene' through the medium of an injunction. Barkley, Cr. Dist. Atty. et al. v. Conklin, Tex.Civ.App., 101 S.W.2d 405; Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294; Ex parte Phares, 122 Tex. 104t 53 S.W.2d 297.

Further, it is well established that a court of equity will not enjoin criminal proceedings or attempt to stay the hands of peace officers in enforcing criminal laws, except in cases where the law attempted to be enforced is unconstitutional and void and where its enforcement will result in irreparable injury to vested property rights. Barkley, Cr. Dist. Atty. v. Conklin, supra; Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294; Box v. Newsom, Tex.Civ.App., 43 S.W.2d 981.

In the instant case, appellant does not attack the validity of said Article 613. He does not allege or prove facts which would establish that he had a vested right to promote said contest and there is not sufficient evidence in the record as to expenses incurred by him in connection therewith to establish that appellees had interfered with a property right valuable to him. He is therefore not entitled to the injunction sought.

For the above reasons the judgment of the trial court denying the injunction sought is in all things affirmed.

Affirmed. ■


author: BROWN, Justice.

text:
    DUGGAN ABSTRACT CO. et al. v. MOORE.
    No. 14057.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1940.
    Rehearing Denied April 26, 1940.

      W. C. Boyd and Henry Owsley, both of Denton, for appellants.
    Ed I. Key and Geo. M. Hopkins, both of Denton, for appellee.
   BROWN, Justice.

Appellee, D. L. Moore, was engaged in the occupation, or, profession, of making abstracts of title covering lands situated in Denton County, Texas, and desired, for a valuable consideration to be paid to him, to sell his equipment and good will, and to refrain from following such pursuit thereafter in Denton County. The following contract of sale was made by Moore to the appellants, Duggan Abstract Company, a private corporation, and J. W. Jagoe, Jr., doing business under the name Jagoe Abstract Company, who were engaged in the same business:

“The State of Texas
“County of Denton.
“Know All Men by These Presents:
“That I, D. L. Moore, of the County of Denton, Texas, for and in consideration of the sum of Four Hundred'-and 00/100 -($400.00) Dollars paid and secured to be paid by Duggan Abstract Company and Ja-'goe Abstract Company, in - the following manner:
“The sum of One Hundred and 00/100 ($100.00) Dollars in cash, receipt of which is hereby acknowledged and confessed, ■and the sum of One Hundred and 00/100 ($100.00) Dollars due and payable on thirty days after this date, and the remaining sum of Two Hundred ($200.00) Dollars to be paid Forty and 00/100 ($40.-00) Dollars per month, beginning the first installment on September 1st, 1932, and continuing in a like sum on the first day "of each succeeding month thereafter until the said sum shall be fully paid, said deferred payments to bear interest from -date until paid at eight per cent per ■annum, the. interest on each 'payment to .be due with the .-principal, have granted, bargained, sold, transferred and delivered, and by these presents" do grant, bargain, sell, transfer and deliver unto Duggan Abstract Company and Jagoe Abstract Company, all of the following described property situated in Denton, Denton County, Texas, to-wit:
“Alh books, records, filing cabinets, typewriters, tables and any and all other equipment of every kind and character heretofore used by me in connecr tion with the abstract business conducted under-'the trade name of Moore Abstract Company, of which--I am the sole owner, and the further consideration, which is a part of the consideration entering into this sale, of my good will and obligation that I will 'not again enter into the abstract business in any fqrm, either directly 'or indirectly, in Denton County, Texa's.
- “To have and to hold unto the said Duggan' Abstract Company and Jagoe Abstract Company, their successors and assigns forever, all of the above ' described property, and I do for myself, my heirs, .executors and assigns, hereby warrant the title thereof unto the said Duggan Ab;-stract Co. and Jagoe Abstract Company^ .their successors and assigns, against all persons claiming or to claim the same or any part thereof or any interest therein.
“Witness my hand at Denton, Texas, this the 2nd day of July, A. D. 1932.
“(Signed) D. L. Mpore.’’

Moore, after agreeing not to follow the business of compiling abstracts of title to lands in Denton County,' Texas, violated the terms of his' contract, went' back into the said business in Denton County, and the appellants ' brought - suit against him, seeking as their' principal' relief an injunction against- Moore, resttaining him from engaging in the occupation of compiling abstracts of title in Denton County.

Appellants filed an original petition . on June 7th, 1939, and on June 30th, 1939, filed their second amended original petition, on which they went to trial.

Appellee filed his, original answer, in reply to plaintiffs’ original petition, on June 15 th, 1939.

We find what to us is an unusual sitúa-, tion, insofar as the defendant’s pleadings are concerned. The defendant filed, on June 16th,. 1939, what is designated as his First Supplemental Answer in reply to plaintiffs’ “Amended Petition which was filed on June JSth, 1939”, and the first paragraph of this pleading reads: “Defendant adopts as though fully repleaded herein his original answer filed herein on the 15th day of June-, 1939, and makes the same applicable to plaintiffs’ said amended original petition”; and on July 7th, 1939, the defendant, after' the plaintiffs had filed their second amended original petition, filed what they designated as their “.Second Supplemental Answer”, and it reads: “Now 'comes the defendant in the above entitled and numbered cause and in reply to the matter and things plead by the plaintiffs in 'their Second "Amended Original Petition filed herein, adopts as though fully repleaded herein defendant’s original . answer filed herein on the 15th day of June, 1939, and defendant’s first supplemental answer filed herein on the 16th day of June, 1939, so that each and every exception and each and every allegation in said answer shall apply to the allegations of plaintiffs’' said second amended original petition.

“Wherefore, premises considered, defendant prays as in his original answer and' first supplemental answer.”

Paragraph 83 of 33 Tex.Jur. pages 513 to 515, states the rule governing amended pleadings: “It is of the essence 'of an amendment that it completely supersedes the pleading intended to be amended. Hénce what is stated in the original cannot be relied on after an amendment (other than a trial amendment) has been filed”, and specifically calls attention to the fact "that the earlier pleading is abandoned, and continues by saying: “Consequently a reference to the original cannot make it part of the amended pleading. Thus a first amended petition supersedes the original petition, and is in turn superseded by a second amended petition.”

Paragraph 84, covering “Reply to Amendment”, reads: “A party has the alternative of filing a further pleading in reply to his opponent’s amendment or of relying on his pleadings as already filed, which are deemed to be interposed to the amended pleading.”

If' we understand this rule as applied to the 'instant case, the plaintiffs stand on their “Second Amended Original Petition”, and- the defendant, must stand on his original, answer. .

We hold that the defendant’s “First Supplemental Answer” cannot be relied upon, and since his “Second Supplemental, Answer” does no more than attempt to rely upon his “Original Answer” and his “First Supplemental Answer”, we believe that the defendant must rely upon his original answer,, because the “first supplemental answer” has gone out of the record.

The last order made by the trial court and the one from which the appeal was taken is dated July 13th, 1939. This order recites that the court had before it and acted upon defendant’s exceptions to plaintiffs’ first amended original petition. This is an error and the order should have recited that the court had before it plaintiffs’ Second Amended Original Petition, as all preceding petitions were abandoned when the last amended petition was filed.

This order sustains “the defendant’s general exception and special exception”.

We do not understand, that there is any special exception before a trial court when such court sustains a general exception. A pleading may be good as against a general demurrer, and yet subject to some one or more special exceptions.

We may consider the order of the court only as it deals with the sustaining of the general demurrer, arid the dismissal of the suit.

We believe the trial, court erred in sustaining the general demurrer and in dismissing the suit.

We do not believe that plaintiffs’, petition is subject to a general demurrer- and we believe that the trial court should hear the evidence and then render judgment.

Wé do not believe that plaintiffs” petition .shows that the plaintiffs are relying upon á contract in restraint- of trade, or one violative of any of the provisions of Articles 7426, Sections 3 and 7, 7427 and 7429, Rev. Civ. Statutes, as is contended for by appellees. .

Article 7426 defines “Trusts” as combinations of capital;' skill or,.acts by two or more persons, firms, corporations or associations of persons, or either two or more of them ..for either, any or all of the following purposes: “(3) To prevent or lessen competition in the manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or the business of insurance, or to prevent or lessen competition in aids to c.om-merce, or in the preparation of any product for market or transportation”; (7) “To abstain from engaging in pr com tinuing business, or from the purchase or sale of merchandise, produce or commodities partially or entirely within the State of Texas, or any portion thereof.”

We do not believe that these provisions of the Statute have to do with the business of compiling abstracts of land titles.

• An abstract of a land- title is not an article of merchandise, produce or commodity. No person who owns one can find . a purchaser for it unless such person is interested in the land that it covers and in the title to the land.

The point we make is that the “Anti Trust” and “Anti • Monopoly” Statutes were passed to protect the general public in the manufacture, sale, distribution, etc., of merchandise, produce and commodities .in which, the .public is interested.

We do not believe that the contract under review violates any part of said Art. 7426. Clay et al. v. Richardson, Tex.Civ.App., 290 S.W. 235, writ dismissed.

Article 7427 defines a “monopoly”, and we do not believe that the said contract violates such statute. On its face it does not so show and if the proof should show that the two buyers did not in fact acquire a “monopoly”, the Statute would not apply, even though the persons who purchased the business of the seller were dealing in some “commodity, produce or merchandise”.

Article 7429 declares: “Any and all trusts, monopolies and conspiracies in restraint of trade, as herein defined, are prohibited and declared to .be illegal.”

The judgment of the trial court is reversed and the cause remanded for a hearing on the merits.

SPEER, J., not sitting.


author: JACKSON, Chief Justice.

text:
    JOHNSON et ux. v. HARRINGTON.
    No. 5129.
    Court of Civil Appeals of Texas. Amarillo.
    March 11, 1940.
    Rehearing Denied April 15, 1940.
    Lackey & Lackey, of Stinnett, for plaintiffs in error.
    Underwood, Johnson Dooley & Wilson, of Amarillo, for defendant in error.
   JACKSON, Chief Justice.

Jack Johnson and his wife, Lily Johnson, the appellants, instituted this suit in the District Court of Hutchinson County, Texas, against D. D. Harrington, the-appellee, on August 3, 1937, in the form of an action in trespass to try title to recover title and possession to the land herein described.

The appellee answered by plea of not guilty and filed a cross-action, but prior to the trial of the case he filed an amended answer in which he disclaimed the property sued for- except as to the vendor’s lien he held and the mineral rights , he reserved.

The case went to trial on October 6th, but during the trial the appellants were granted leave to file an amended petition and appellee was allowed to withdraw his answer and file new pleadings.

Appellants then filed their first amended original answer to recover damages in the sum of $750 on account of the failure and refusal of the appellee to deliver to them the possession of sections Nos. 12 and 20 in Block M-16, Hutchinson County, Texas.

They allege in substance the purchase of the surface rights of said two sections from appellee, the execution and delivery to them of a warranty deed conveying to them the surface rights, but reserving the minerals in the lands conveyed; that 900 acres of the two sections were pasture lands suitable for grazing cattle; that they desired and intended to so use such pasture for grazing cattle but charged that appellee refused and failed to deliver possession but permitted Albert Yake to hold the land, occupy it and graze his stock thereon and thereby deprived the appellants of the possession and the use. of the pasture lands for grazing their cattle and allege their damage to be the sum of $750.

The appellee withdrew all his former pleadings, answered by general demurrer, general denial and alleged that appellee, about May 29, 1937, contracted in writing to sell appellants the land described in their amended petition; that pursuant to said contract $500 of the total agreed consideration was deposited in escrow with a bank in Amarillo and on the same day the appellee' agreed in writing that appellants should have immediate possession of the land but the contract had been novated.

At the conclusion of the testimony the court directed a verdict in behalf of the appellee and on the answer of the jury in response thereto rendered judgment that appellants take nothing by their suit and it is of this action of the court that appellants complain.

We deem it unnecessary to state the terms of the contract of sale, which was in the form of a letter dated May 29th addressed to Mrs. Johnson, since in compliance therewith the appellee joined by his wife on June 1, 1937, deeded the land to appellants for a consideration of $10,000; $2,500 cash in hand paid and $7,500 evidenced by six vendor’s lien notes of even date with the deed each for the principal sum of $1,250 and due on or before two to twelve years after date, respectively, bearing interest at the rate of 7% per annum. The deed, $2,500 cash, and the notes were later placed in the First National Bank of Amarillo.

On May 29, 1937, the appellee addressed another letter to Mrs. Johnson referring to the agreement to sell the land, in which he stated:

“This will confirm our understanding that you are to have immediate possession of this land.
“It is my understanding that the present tenant, Albert Yake, does not have any growing crops whatever and I have already notified him to vacate the premises.”

In compliance with the contract of sale an abstract of title was furnished and appellants had it examined by their attorney, J. L. Lackey, who on June 7, 1937, advised the appellee by letter that the notes described in the deed had been executed by the appellants and together with a check for $2,000, payable to the First National Bank at Amarillo, left .with him to be mailed to • the bank whfere the deed and $500 of the cash consideration were in escrow.

The attorney also advised the appellee that appellants had gone out that day and found Albert Yake occupying the property and he refused to deliver possession; that as soon as “you will get Mr. Yake off of there” the appellants are ready to close.

The record shows that on June 12th the parties met at the bank in Amarillo; the entire consideration, cash and notes properly executed, were placed in the bank to be delivered to the appellee on his delivery of the deed and possession of the property. After some discussion the deed was delivered to Mr. Johnson, appellee stating on the stand he thought probably 'Mr. Johnson with the deed in his possession would be more successful in getting Mr. Yake to vacate the property than he had been. The money and notes were left in the bank to be delivered when possession of the land passed.

On June 12th the appellee wrote Mr. Yake in part as follows: “I have today closed the sale of Sections 12 and 20, Block M-16, A. B. & M. Survey, Hutchinson County, Texas, to Mr. and Mrs. Jack Johnson and warranty deed has been delivered to them. * * * I understand that Mr. Johnson wants to make some improvements on the place and as it is now his land he is entitled to immediate possession.”

The testimony shows without dispute that the appellants were continuously demanding possession; that appellee wrote some letters to Mr. Yake and sent some parties to induce him to vacate but accomplished nothing until October 28, 1937, on which date appellee paid Yake $100 for possession and a few days thereafter he vacated.

The testimony is to the effect- that the pasture land on the two sections would have grazed some seventy-five or eighty cows; that the,rental value of the land for pasturage was $1 per head per month and that the appellee failed to deliver possession of the land to the appellants for •approximately four months.

The appellee claims that by the transaction on June 12th and by having the land conveyed to both appellants instead of Mrs. Johnson, to whom the sale letter was addressed, there was a novation of the contract. There are four essential elements to novation, an existing valid obligation, the agreement of all the parties, the extinguishment of the old contract by the substitution of a new one and the validity of the new agreement. 30 Tex.Jur. 386, para. 4.

The contract confirming the sale was dated May 29th, 1937, and the deed was dated June 1st following. Had the deed conveyed the land to Mrs. Johnson according to the terms of the contract -the land would have been the community .property of the appellants. Certainly the discussion at the bank on the 12th of June did not extinguish the contract to give immediate possession to Mrs. Johnson or the appellants. 31 Tex.Jur. 398, para. 12.-The deed was delivered and the money arid notes left in the - bank because appellee thought, so he testified, that Mr.- Johnson with the deed in his possession might have better success than he had in persuading Mr. Yake to vacate. There was -no consideration for a novation. 31 Tex.Jur. 392, para. 8. The continued efforts of ap-pellee after the deed was delivered to induce .Yake to vacate, .writing him, sending parties to see him and finally on October 28th paying, him $100 for possession is, we believe, conclusive against the contention of novation, but if not conclusive obviously a fact issue to ..be determined by a jury.

The judgment is reversed and the cause •remanded.


author: BLAIR, Justice.

text:
    BONNER v. AMERICAN GEN. INS. CO.
    No. 8995.
    Court of Civil Appeals of Texas. Austin.
    March 27, 1940.
    Rehearing Denied April 17, 1940.
    W. R. Smith, Jr., of' Austin; for appellant. ■
    Hart & Brown, of Austin; • for appellee.
   BLAIR, Justice.

This case -arosé ás a workmen’s compensation' base. Appellant, Howard Bonner, was the employee; Brown & Root, Inc., and McKenzie-Construction Company, the employers; and appellee, American General Insurance. Company,.was the insurer.. Appellant’s . claim for .compensation was denied by . the Industrial Accident Board; and on, appeal to the District Court lie' alleged, in substahpe, as follows:

That .during -the-, month of November, 1936, appellant was employed by said employers .to .unload bulk; cement from railroad cars,; and -that- although he was previously fin good health, because -of the nature of his duties, “he was forced and compelled . to continually ..breath air heavily laden with dangerous cement dust, and íhát because of such' continual breathing of the cement dust of the” (employers) ■ “herein, he has suffered serious bodily injuries * * * such accidental injury being received and sustained by him while in the course of his employment.” Appellant further alleged that because of his “continually breathing” of air heavily laden with the cement dust, his throat and bronchial tubes have become irritated, his lungs have become sore, affected and irritated, and that he continually expectorates blood; that he cannot sleep and is highly nervous and suffers from extreme eczema.; and that if he has not now developed tuberculosis, he will have it; and that such injuries render him totally incapacitated to work.

Appellant summarizes his further pleadings as follows: “Appellant further alleges that Brown, Root & McKenzie Construction Company, appellee herein (1) well knew the dangers incident to the appellant continually breathing air heavily laden with cement dust and that the appel-lee failed to use that degree of caution and prudence for his safety and well-being that an employer would use under like .and similar circumstances; (2) that the said Brown, Root & McKenzie Construction Company, appellee, failed to provide the appellant herein with an adequate protection for his safety; (3) that the said Brown, Root & McKenzie Construction ■Company, appellee, .furnished to .the appellant herein a gas mask for his use,.but that the said gas mask was not the most •efficient kind and type of gas mask used for the protection of the appellant for the breathing of cement dpst; (4) that the ■said Brown, Root & "McKenzie Construe tion Company, appellee, failed.to properly -equip said gas mask given to the appellant ‘herein; (5) that the said Brown, Root & McKenzie Construction Company, appellee, failed to properly inspect and care for the •gas mask given to the appellant herein and ‘the appellant alleges and says that as a direct result of these negligent acts that 'he has suffered accidental injuries which •will totally and permanently disable him.”

The trial court sustained a- general demurrer to the petition of appellant, upon the ground- that it alleged that appellant suffered only-'an occupational disease not compensable under the statutes, and. upon his refusal to amend dismissed his suit; .hence this appeal.

Appellant states in -his brief that “it ,is to ‘ be noted that the appellant herein alleges, an occupational disease, but further alleges that the employer was negligent (as above stated.) * * * and says that as a direct .result of these negligent acts that he has suffered accidental injuries”; and that appellant “bases his case solely and purely upon these grounds of negligence and upon the rule as laid down as in the Barron case.” Barron v. Texas Emp. Ins. Ass’n. Tex.Com.App. 36 S.W.2d 464, 466.

The courts hold that the Workmen’s! Compensation Statutes do not provide for death or disability compensation resulting from an- occupational disease, which is a disease acquired in the usual and ordinary course of the employment, and incidental thereto, or- which is acquired by a gradual and slow process resulting from hazards or conditions necessarily incident to the performance of the duty of the employee.

This rule appellant concedes, but contends that it is qualified by the negligence rule announced in the Barron case', wherein the court say: “An employer will -only be permitted to avail himself of the defense that his employee’s injury resulted from -an occupational disease when he has used due diligence to prevent the employee from being subjected to hazards calculated to injure while engaged in his service. The law recognizes that there are some occupations fraught with inherent dangers, even -though the employer has used proper care and diligence to safeguard and protect those employed by him. Where the requisite degree of care has been used by the employer, and the employee is injured by .a gradual and slow process resulting from hazards necessarily incident to the performance of his duty, then the injury is treated as an occupational disease.” •

This general language of the opinion has been criticised as being dicta and as not being- in accord with the legislative intent, as expressed in-the compensation statutes, to allow compensation only for accidental injury as distinguished from negligent injury. Travelers’ Ins. Co. v. Lancester, Tex.Civ.App., 71 S.W.2d 318, writ dismissed; Salinas v. New Amsterdam Casualty Co., 5 Cir., 67 F.2d 829; Buchanan v. Maryland Casualty Co., 116 Tex. 201, 288 S.W. 116, wherein it is held .that the Compensation Law does not depend ¡upon negligence.. .

It also, clearly appears, in -..the Barron case that the employee was injured by inhaling gas, which in an unusually heavy volume was suddenly discharged upon him on the two days specified; and that the employee therefore proved accidental injury within the meaning of the statutes by pointing with reasonable certainty to' the definite time, place, and cause of his injury. This view was clearly expressed and called to the attention of the Supreme Court in the case of Travelers’ Ins. Co. v. Lancester, supra, and since it dismissed the writ of error therein, it necessarily-entertained the same view with regard to the particular facts in the Barron case as showing accidental injury.

In the instant case, appellant alleged that his injuries developed over a period of more than two years of “continually breathing” cement dust. Thus on both fact and principle the case comes clearly within the rule announced in Aetna Life Ins. Co. v. Graham, Tex.Com.App., 284 S.W. 931, 933, wherein the employee died of tuberculosis alleged to have resulted from inhaling for a period of about two years poisonous gases, fumes, and powders arising from the chemicals used in manufacturing a polish, and in the manufacture of which the employee was injured;-and wherein the court say:

“* * * Our statute has never gotten away from the central thought that the injury must be accidental in its nature. It is only upon that theory that the act itself has been held constitutional by our Supreme Court.
“It is clear to us that, so far as our Supreme Court has spoken, it has shown its approval of the rule, well-nigh universal elsewhere, that recovery cannot be had for what is termed an occupational or industrial disease. * * *”

In Odom v. Indemnity Co., Tex.Civ.App., 111 S.W.2d 1143, error dismissed, it was held that tuberculosis contracted by an employee' in an oil refinery, whose work consisted in controlling vapor pressure when the automatic control of same failed to operate, did not result from an accidental injury within the Compensation Law.

And since appellant "admitted by his petition that his injuries were the result of an occupational disease, and that they were not accidental, but were caused by the negligence of his employers, his case comes within the now settled rule, that the statutes do not provide for disability compensation resulting from an occupational disease; and “that compensation insurance protects workmen only against accidental injury” within the meaning, scope and purpose of the Compensation Law. Texas Emp. Ins. Ass’n v. Mints, Tex.Civ.App., 10 S.W.2d 220; Safety Cas. Co. v. Walls, Tex.Civ.App., 117 S.W.2d 879, error dismissed; Cunningham v. Fidelity & Cas. Co., Tex.Civ.App., 102 S.W.2d 1106 error dismissed; Traders & Gen. Ins. Co. v. Weatherford, Tex.Civ.App., 124 S.W. 2d 423.

The judgment of the trial court is affirmed.

Affirmed.


text:
    John LAKE, Appellant, v. AMERICAN GENERAL INSURANCE COMPANY, Appellee.
    No. 8996.
    Court of Civil Appeals of Texas. Austin.
    March 27, 1940.
    Rehearing Denied April 17, 1940.
    W. R. Smith, Jr., of Austin, for appellant.
    Hart & Brown, of Austin, for appellee.
   BLAIR, Justice.

This case arose as a workmen’s compensation case, and is companion to and controlled by the decision of this court this day announced in the case of Bonner v. American General Ins. Co., 139 S.W.2d 204. Suffice it to say that appellant, John Lake, was the employee; Brown & Root, Inc., and McKenzie Construction Company, the employers; and appellee, American General Insurance Company, was' the insurer. Appellant was employed on the same job with Howard Bonner, as shown in the companion case; and his claim was denied by the Industrial Accident Board upon the ground that his alleged injuries resulted from an occupational disease. Except as to a slightly shorter period of employment, his petition on appeal to the District Court alleged identical facts as to occupational disease and negligence of his employers as did Bonner’s petition.

Upon authority of the Bonner case, the judgment of the trial court is affirmed.

Affirmed.