text:
    TEXAS INDEMNITY INS. CO. v. GODSEY.
    No. 3955.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1940.
    Rehearing Denied Sept. 19, 1940.

      C. G. Condra, of Fort Worth, James D. Willis and Henry Russell, both of Pecos, and A. T. Folsom, of Wink, for appellant.
    H. L. Roberson, of Wink, and Kennemer ■& Armstrong, of Dallas, for appellee.
   PRICE, Chief Justice.

The nature and result of this case is ■stated by appellant with admirable clearness and brevity, and our statement thereof almost literally follows same. Appellee’s statement in no way conflicts with that of appellant.

This is an appeal from a judgment entered by the District Court of Winkler County, Texas, in a compensation case. This case was filed in the trial court by the present appellee, J. T. Godsey, as plaintiff, against the present appellant, Texas Indemnity Insurance Company, as defendant, seeking to recover compensation for an alleged back injury.

The appellee, as plaintiff, went to trial upon his original petition filed on the 18th day of April, 1939, against the appellant. Plaintiff sought to set aside an award of the Industrial Accident Board and recover judgment for total and permanent disability. Appellant’s trial answer included a general demurrer and several special exceptions, a general denial, and an affirmative allegation that if plaintiff suffered any disability it resulted from disease, and that such disability had already accrued to him prior to the time of the alleged accident.

The trial was by jury upon special issues. A verdict was returned and the court entered judgment thereon in favor of plaintiff, and awarded a lump sum settlement of the compensation. The Insurance Company has perfected appeal from the judgment entered.

At the threshold of this appeal we are confronted with two propositions urged by appellee:

First. “Appellant’s assignments of error Nos. 1 to 16, inclusive, are insufficient in that assignments 1 to 12, inclusive, do not point out, within themselves, any specific error, and assignments 13 to 16, inclusive, are too general, and do not point out any specific error.”

Second. “Appellant’s proposition based on assignments of error 1 to 6, inclusive, and 8 to 22, inclusive, are insufficient, in that they are abstract propositions of law, and point out no particular error committed, by the court, and are too general.”

It will be observed that the first proposition of appellee attacks the- assignments of error as not pointing out any specific error. The assignments, perhaps, are in a measure subject to the criticism leveled at them. However, the action of the trial court assailed is in each case specified, although same is not verified by reference to the transcript. The propositions are general, and likewise, perhaps, subject to the criticism of asserting merely abstract propositions of law.

Under each assignment briefed appellant has set forth the ruling or action complained of with aptness and brevity, and same is verified by reference to the record. In our opinion appellant’s brief is sufficient to raise all of the questions urged for reversal. We overrule the contention that same should not be considered. In our opinion, taking the brief as a whole, a consideration is due as a matter of right. The alleged error is readily apparent from the brief.

One of the grounds urged for reversal of this case is that the evidence is insufficient to sustain the verdict of the jury. Appellant urges that the evidence fails to show any connection between injuries pleaded, submitted and found, and the incapacity of plaintiff 'to work. A proper consideration of this assignment renders a consideration of the evidence necessary.

From the testimony of .appellee it appears that on the date of the alleged injury, the 21st of January, 1939, he was an employee of the Stanolind Oil & Gas Company. The appellant was the insurance carrier for that Company. He was employed as pumper and roustabout, a part of the time as a relief pumper. He had been employed by his then employer since about 1933. On January 21, 1939, while in the course of his employment, he went to descend from a rod walk on a structure surrounding one of the wells of his employer. The bottom step turned and he fell, striking his back, hip and shoulder; it seems he fell in a sitting position. This fall, according to his testimony, occasioned him great pain in his" back. The accident occurred about nine o’clock in the morning. Shortly after the accident plaintiff went in his car to look for Mr. Jones, his immediate superior, could not find him, and around ten thirty or eleven o’clock returned to his home, remaining there until about twelve o’clock; at twelve o’clock he reported his injury to Mr. Jones, who caused him to be sent to the doctor for treatment. He went to the Robinson Clinic, where Dr. McClure X-rayed him, and from there he went home. The 22nd of January, 1939, was Sunday. Plaintiff returned to his work the following Monday, and he continued to work thereat until the 13th day of February, when, on account of the pain, he was compelled to quit work. At sometime during the period elapsing between January 21st and February 13th, his employer assigned him to do light work. That the condition as to pain in the small of his back has continued with slight improvement from February 13th to the present time. Plaintiff was treated or examined by Drs. McClure, Robinson, Lyle, Camp, Wilson, Wright and Garrett.

Drs. Garrett, Robinson and Camp testified on the trial. Dr. Garrett made a physical examination of him two or three months after his injury; made another about five or six months before the date of the trial; said at that time plaintiff had a considerable muscular swelling and muscular rigidity of all the spinal muscles, and any mo.tion, either forward or backward or laterally, produced extreme muscular spasm and caused these muscles to contract; the swelling was more pronounced about the lower third of the lumbar spine; also that there was some atrophy on one side of the spine; that at the time of these examinations, in his opinion, plaintiff was suffering from arthritis; further, “that the plaintiff might live always, but he would always be so disabled in his spine as to be unable to do hard work, or any work that requires moving, stooping and lifting.” Further, that an injury to the back would have a tendency to aggravate an arthritic condition thereof.

Dr. Robinson testified with reference to the X-ray photographs taken on January 21, 1939. He said these photographs showed a spur formation (in proximity to or on the joints, we presume)'. These spur formations had been produced by arthritis. Arthritis may be produced by infection. If the infection was eliminated the arthritis would perhaps be considered cured. The objective manifestations of its former existence (the spur formations, we presume), even though the’ infection had been eliminated, would persist. That spur formation indicated that the arthritis had existed for a long time. Arthritis might exist throughout life and not be noticed; that it may or may not disable. Further, there were no objective signs of traumatic injury to plaintiff’s back. The only thing aside from what plaintiff told him that would account for the disability was the arthritis, which would account for plaintiff's disability. That plaintiff 'jvas not disabled at the time he treated him; that pain and disability from arthritis might come on suddenly, and an injury might aggravate an existent arthritic condition.

Dr. Camp made an examination of plaintiff on June S, 1939, and on that date took X-rays of his hack. His testimony was that spur formations were shown by the photographs, and that thereby the persistence for a long time of an arthritic condition was evidenced; that he was of the opinion that that condition had existed prior to January 21, 1939; that arthritis was slow in its development. In his opinion the arthritis had developed to such an extent in plaintiff to disable him; injury or the effects thereof would ordirtarily he aggravated by arthritis.

Now from this testimony it cannot be said that it was a demonstrated fact that on January 21, 1939, progressive arthritis existed. Neither Dr. Camp nor Dr. Robinson so testified. Their opinion was that it did so exist. As far as the testimony went in this respect was that it was a demonstrated fact that at some prior time a progressive arthritic condition existed.

There was testimony of some of the other employees of the Stanolind Oil & Gas Company that plaintiff had trouble with his back prior to January 21, 1939. One testified as to an apparent improvement after the extraction of plaintiff’s teeth.

Plaintiff had been continuously employed by the Stanolind Oil & Gas Company for five years prior to the date of his alleged injury. He testified he had never had any other injury; he had not, prior to this injury, lost any time. In this last statement he was corroborated by the testimony of his wife. Immediately after the accident he complained thereof to his superior, stating he had severe pain in his hip, back and arms, and went to the doctor for treatment.

We have carefully read and studied the entire statement of facts, and believe a jury question was raised as to the' cause of plaintiff’s disability. There is no .question that the evidence tends strongly to show that disability did not exist prior to the injury, and that same followed the injury. The doctors to whom he had been sent for treatment evidently did not consider the arthritic condition disabling, for he was certified as fit for duty. Even though arthritis existed, if the injury aggravated same to the extent of producing incapacity, this does not preclude recovery of compensation. This is true even though in time, uncontributed to by injury, the arthritis would have caused incapacity. Texas Employers’ Ins. Ass’n v. Parr, Tex.Com.App., 30 S.W.2d 305; Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356; Travelers Ins. Co. v. Johnson, Tex.Civ.App., 84 S.W.2d 354.

In the case of Safety Casualty Co. v. Walls, Tex.Civ.App., 117 S.W.2d 879, urged by appellant as strongly supporting its position that the evidence fails to show a causal connection between the injury and incapacity, the proposition above asserted is recognized. We believe that case is clearly distinguishable from the instant case. In that case incapacity did not ensue'for more than two years after the date of the injury. Here the incapacity was from the injury or within a very short time thereof.

Error is assigned as to the overruling of a special exception of appellant addressed to-part of paragraph two of plaintiff’s petition wherein it was alleged that "plaintiff is untrained and unlearned in medicine and medical terms, and is • therefore unable to more fully describe the nature and extent.of his injuries other than as heretofore set forth.”

The exception was, “because said allegation is irrelevant and immaterial and too general to admit proof of an injury not alleged, and is not a sufficient allegation to authorize the introduction of proof of injuries not specifically set out.”

We fail to see how in any way the allegation broadened the proof admissible under the other allegations. Even if the exception should have been sustained, the court’s refusal to do so in no way harmed the defendant. It was complained that the petition was not sufficient to support the'theory of a flare-up of arthritis, that is, the aggravation of a preexisting arthritic condition. Plaintiff’s petition was rather full in describing the manner of sustaining the injury complained of and its effect; bruising of his spine is alleged, and the result of same on his person. Among other allegations is that an arthritic condition was caused. In our opinion the averment as to arthritic condition being caused is sustained by proof of the aggravation of a prior arthritic condition. Travelers’ Ins. Co. v. Lancaster, Tex.Civ.App., 71 S.W.2d 318.

In a compensation case the pleadings are entitled to a liberal construction. Bankers Lloyds v. Pollard, Tex.Civ.App., 40 S.W.2d 859; Southern Surety Co. v. Weaver, Tex.Com.App., 273 S.W. 838. The substance of an issue is all that need be proved.

Under this record it clearly appears that appellant was in no way misled by this allegation. A variance between allegation and proof, if it does not mislead, is not reversible error. Allegations are sufficient if they apprise the opposite party what evidence' will be produced and he will be called upon to meet it. Kleber v. Pacific Ave. Garage, Tex.Civ.App., 70 S.W.2d 812; Ware v. Shafer & Braden, 88 Tex. 44, 29 S.W. 756.

Even under a strict construction this pleading notifies the defendant that an arthritic condition was relied upon as contributing to cause the disability alleged.

The assignment is overruled.

Special Issue No. 1 read as follows: “Do you find from a preponderance of the evidence that plaintiff, J. T. Godsey, sustained an accidental personal injury to the lower part of his — as alleged by him — back on or about January 21st, 1939?”

Defendant’s objection thereto was as follows: “The accidental personal injury is not limited in said question to the injury sustained in the manner alleged in plaintiff’s petition and established by evidence, but would justify an affirmative answer even though the jury did not believe plaintiff suffered an injury by striking his back in falling from a step.”

Appellant’s assignment and proposition can be no broader than its ground of objection. The objection goes to the failure to submit the manner in which the injury was sustained and not as to its character and kind. In truth and in fact an injury occurring in any other manner than as alleged by plaintiff could not be found from the evidence or a preponderance thereof. The only evidence of any injury was that-alleged .by plaintiff in falling from the last step of the rod walk on January 21, 1939. This allegation was supported by proof. We do not think the -assignment presents error. Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738; Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409; Maryland Casualty Co. v. Jackson, Tex.Civ.App., 139 S.W.2d 631; Texas Employers’ Ins. Ass’n v. Burnett, Tex.Civ.App., 72 S.W.2d 952.

A further objection was made to special issue No. 1, as follows: “By reference to plaintiff’s allegations the court submits • to the jury a petition which alleges many accidents and resulting injuries not established by any evidence, and would authorize a -finding thereon in the absence of proof.” We do not think the issue is subject to the objection. One accident only was submitted or alleged, and injury to the lower portion of his back was alone submitted. The injury submitted was further identified by giving the date thereof. One injury only was in evidence.

We find no merit in the assignment of error based on the objection to special issue No. 2.

Appellant assigns error on the refusal of the court to give special issues Nos. 1, 2 and 3, reading as follows:

' “No. 1: Do you find from a preponderance of the evidence that plaintiff, J. T. Godsey, was totally and permanently disabled prior to January 21, 1939, as a result of arthritis?

“No. 2: Do you find from a preponderance of the evidence that J. T. Godsey was permanently and partially disabled prior to January 21, 1939 from arthritis?

“No. 3: Do you find from the evidence that plaintiff, J. T. Godsey, is suffering from such a diseased condition of his body, to-wit, arthritis, that he would be totally and permanently disabled, independent of any injury sustained by him on January 21, 1939?”

The issue requested in charge No. 2 is certainly not an ultimate issue of fact. Even though, prior to January 21, 1939, J. T. Godsey was permanently and partially disabled, his right to full compensation would not be affected thereby. Texas Employers’ Ins. Ass’n v. Parr, supra.

A perusal of No. 3 we think demonstrates that it does not present an ultimate issue in the case. Even though a pre-existing disease would in time bring about disability, if it is a concurring cause with an injury, compensation may be recovered. The issue is somewhat confusing, and it is hard to tell exactly what was sought to be submitted thereby.

The refusal of special issue No. 1 presents a somewhat different situation. Appellant pleaded that prior to the time of the accident appellee was totally and permanently disabled as the result of diseases and conditions independent of his employment.

In response to apt issues on behalf of the plaintiff, the jury found that as a natural result of the injury plaintiff suffered total and permanent disability.

Defendant’s pleaded defense was sought to be submitted by special issue No. 18, which was as follows: “Do you find from a preponderance of the evidence that the plaintiff’s disability, if any, is not solely the result of arthritis?”

The jury’s response thereto was: “It is not solely the result of arthritis.”

The only way the defendant sought to account for plaintiff’s disability was the result of arthritis. Beyond any question the issue submitted by the court was broad enough to include a result prior to January 21, 1939.. Had requested issue No. .1 been given as requested, it certainly would have covered part of the same ground included in 18. It cannot be gainsaid if plaintiff was totally and permanently incapacitated prior to January 21, 1939, he was not entitled to compensation.' There was no working capacity existent if that was the case. However, we have some doubt as to the sufficiency of the evidence to justify the submission of the issue. Defendant’s witness, Dr. Robinson, said that he was not disabled from work on that day. The Robinson-McClure Clinic pronounced him able to work. He was working at the very time of the alleged accident. He continued to work for some fifteen days thereafter. At no time prior to January 21, 1939, was there evidence that he was disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment. He was at the very time of the injury performing the usual task of his employment — performing such task, according to some of the testimony, in about the same manner he had performed same for two or three years before the alleged injury.

In our opinion, the issue was. not raised by the evidence. Further, in the event we are in error as to this, that it was adequately covered by issue No. 18.

Complaint is made of a statement of one of appellee’s counsel in the opening argument, which was as follows: “I don’t know much about arthritis myself, and I heard more about it today from medical authorities than I ever heard about it; what I base my opinion on is what I heard it on when I talked to Jack along in March, and I base my opinion on Jack Godsey’s appearance, and I sincerely believe that he is injured.”

Part of this argument is somewhat unintelligible. It does not appear unqualifiedly that his stated opinion was based on conversation with Godsey in March. Godsey was present in court, and an inference might be drawn in connection with his appearance. The court instructed the jury to 'disregard the argument, and warned counsel to confine himself to the evidence. We are not inclined to think that Mr. Roberson’s statement in reply to that of the court was intended as any infringement on the ruling of the court. It occurred in the opening argument, and we do not see why the court’s prompt instruction in compliance with the request of appellant was not sufficient correction of the matter.

A careful consideration of the entire record in the case convinces us that reversible error is not shown. A question of fact was presented, and same, on sufficient evidence, was found against appellant.

It is ordered the case be affirmed.


source: Caselaw Access Project

author: ALEXANDER, Justice.

license: Public Domain

text:
    OGLE v. JONES et al.
    No. 2225.
    Court of Civil Appeals of Texas. Waco.
    Sept. 26, 1940.
    Rehearing Denied Oct. 17, 1940.

      Shelby S. 'Cox, of Dallas, for appellant.
    A. R. Eidson, of Hamilton, and J. A. Johnson, of Stephenville, for appellees.
   ALEXANDER, Justice.

The only question involved'in this appeal is the right of a surviving widow, upon the partition of the estate of herself and deceased husband, to recover for advancements made out of her separate estate and the community estate of herself and ■ deceased husband, during their marriage, to make valuable improvements on the separate property of the deceased husband. The improvements here involved are alleged to consist of houses, barns, wells, windmills and others of a permanent nature. The ap-pellee, the only child-of the deceased husband, contends that the surviving widow, the appellant, should not be allowed to recover for such advancements because, admittedly, all Of the improvements in question were placed on that portion of the deceased husband’s separate property which was set aside to the widow in the partition as a rural homestead.

It is fundamental under our decisions, where the funds of a wife, either separate or her interest in the community, have been used to permanently improve the husband’s separate real property, that upon partition of the community estate the wife is entitled to reimbursement therefor. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, par. 16, and authorities there cited. Such right is based upon equitable principles and the amount of the recovery is limited to the amount of the enhancements of the property by virtue of the improvements placed thereon. 32 Tex.Jur. 175; Pynes v. Pynes, Tex.Civ.App., 225 S.W. 777.

Appellees suggest that the widow’s right of recovery in such case cannot be determined until the expiration of her homestead right in the property, because the estate of the deceased husband should be held liable only to the extent of the enhancement in value as of the time it receives possession of the property. The general rule, however, is that the extent of the enhancement in value and the consequent measure of the widow’s recovery is determined as of the time of the partition. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, par. 28; Clift v. Clift, 72 Tex. 144, 10 S.W. 338; Hillen v. Williams, 25 Tex.Civ.App. 268, 60 S.W. 997; Lynch v. Lynch, Tex.Civ.App., 130 S.W. 461, writ refused; Branch v. Makeig, 9 Tex.Civ.App. 399, 28 S.W. 1050; 31 C.J. 222; 32 Tex.Jur. sec. 27. The above rule necessarily applies because the deceased husband’s estate is allowed to recover title to the land with the improvements thereon as of the date of the partition and by the same standard the widow should be allowed to recover for the improvements as of the same date. It would be inequitable to allow the heirs of the deceased husband’s estate a full recovery of all their right and at the same time postpone until the expiration of the homestead claim the right of the widow to recover on her claim for the improvements made with her funds, for as said by the Supreme Court in Moore v. Moore, 89 Tex. 29, 33 S.W. 217, 219, “it is the policy of our law to settle in one suit all litigation with reference to the subject-matter, and to adjust the rights of all the parties thereto, in so far as it can be done in accordance with our liberal rules of proceeding. It would be simply multiplying suits to send the defendants into the same court, in another action against the same parties, in order to establish their rights with reference to the property then being litigated.”

The fact that the widow in this instance was awarded a homestead right in that portion of the land upon which the improvements were placed and will therefore be entitled to occupy the property for the remainder of her natural life, if she so elects, in nowise alters the case. It is true that under the rule here announced, she will receive from the husband’s separate estate compensation for the enhancement of the property as of the time of the partition and, in addition, will have the benefit of using the improvements so placed on the land with her funds and for which she will have been compensated. But she would have had the same right to have so used the improvements if the husband had paid therefor during his life, and the fact that payment to her for such improvements was postponed until partition took place does not change her rights. The husband selected the homestead and the exemption' thereof accrued by virtue of the Constitution and statutes and the surviving widow is entitled thereto regardless of the extent of the improvements thereon. Any other rule would require the widow to waive her right to compensation for improvements made with her funds on the separate lands of the husband as a condition precedent to her right to continue to occupy it as the family homestead. The Constitution prescribes no such conditions. Constitution, art. 16, sec. 52, Vernon’s Ann.St.

It follows from what has been said that' the trial court erred in refusing to allow the widow the right to establish her claim •for the improvements.

The judgment of the trial court is reversed and the cause remanded for a new trial.


author: GRISSOM, Justice.

text:
    SMITH v. HOOD.
    No. 2036.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 20, 1940.
    R. W. Webb, of Snyder, for appellant.
    C. F. Sentell, of Snyder, for appellee..
   GRISSOM, Justice.

Plaintiff has appealed from a judgment dismissing his case. The case originated in the' justice court and plaintiff’s pleadings were oral. The record reveals defendant demurred to plaintiff’s petition. The court deferred action thereon. After conclusion of the evidence and argument, but before rendition of judgment, plaintiff asked permission to amend his pleadings. The court, refused plaintiff permission to amend, sustained the general demurrer and dismissed plaintiff’s cause of action. Such action was erroneous. When the demurrer was sustained, plaintiff had the right to amend his petition and plaintiff’s case should not have been dismissed unless he failed or refused to do so. Polk v. Almindinger, Tex.Civ.App., 243 S.W. 682, 684; Houston Transfer & Carriage Co. v. Whitcomb, Tex.Civ.App., 147 S.W. 358, 359; Western Union Telegraph Co. v. Ashley, Tex.Civ.App., 137 S.W. 1165; Hunt v. Ziegler, Tex.Civ.App., 267 S.W. 332, 333; Stevens-Etter Co. v. Grain Juice Co.,. Tex.Civ.App., 285 S.W. 667, 669; Harris v. Higden, Tex.Civ.App., 41 S.W. 412; Boren v. Billington, 82 Tex. 137, 18 S.W. 101; Gulf, C. & S. F. Ry. Co. v. Preston, 74 Tex. 181, 11 S.W. 1108; 33 Tex.Jur. 595. Also see, Crazy Water Co. v. Cook, Tex.Civ.App., 140 S.W.2d 878, writ refused.

The judgment is reversed and the cause remanded.


text:
    ALEXANDER et ux. v. FULLWOOD et al.
    No. 2383.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1940.

      J. S. Simkins and Claude Milburn, both’ of Corsicana, for appellants.
    J. S. Callicutt and Donald Marr, both of Corsicana, for appellees.
   ALEXANDER, Justice.

The appellants have filed herein a sworn motion to strike from the transcript ,in the above cause a certain bill of exception. In the motion it is asserted that the bill of exception in question, with the trial, judge’s qualifications thereto, was filed in the lower court and brought up as a part of the transcript in this cause without the appellants’ knowledge or consent.

It is a well settled rule that an appellate court has no jurisdiction to alter, change or correct a record of the court from which the appeal is prosecuted. 3 Tex. Jur. 759; Foxworth-Galbraith Lbr. Co. v. Realty Trust Co., Tex.Civ.App., 110 S.W.2d 1164; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946.

The proper practice in such case is to apply to the trial court for an order striking out the objectionable matter, or otherwise correcting the record, and then apply to the appellate court for a writ of certiorari to bring up the order of correction or other new matter that has been inserted in the record in the lower court. 3 Tex. Jur. 759, 761; Boggess v. Harris, 90 Tex. 476, 39 S.W. 565.

When applying to the appellate court for a writ of certiorari to bring up such new matter, the application should, where possible, be accompanied by a properly certified copy thereof.. When this is done, the appellate court, upon the granting of the application, may order the certified copies that are so attached to the motion filed in the appellate court as a part of the record and thus avoid the circuitous route of actually issuing the writ of certi-orari and requiring the clerk of the lower court to send up the new matter. Such practice not only reduces the cost but greatly simplifies the procedure to be followed in the appellate court.

Appellants’ motion to strike the bill of exception from the record now on file in this court is overruled.


author: WALKER, Chief Justice.

text:
    TEXAS & N. O. R. CO. v. FORD et al.
    No. 3714.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1940.
    K. W. Denman, of Lufkin, and Woodul, Arterbury & Folk, of Houston, for appellant.

      Collins, Williams, Hatchell & Garrison, of Lufkin, for appellees.
   WALKER, Chief Justice.

On the 26th day of September, 1940, this case was regularly submitted on briefs and oral argument. On this the 14th day of October, 1940, the parties, appellant and appellees, have filed an agreement settling all issues in the case and apportioning the damages on the agreed settlement among the minor plaintiffs. All other plaintiffs were denied recovery by the judgment of the lower court, from which they did not perfect their appeal.

The prayer of appellant and appellees that this agreed settlement be approved is hereby granted, and it is ordered that judgment be duly entered as per the agreement on file in this court, duly executed by all parties at interest.


author: TIREY, Justice.

text:
    SOUTHLAND LIFE INS. CO. v. GREENWADE.
    No. 2212.
    Court of Civil Appeals of Texas. Waco.
    June 27, 1940.
    Rehearing Denied Sept. 26, 1940.

      Carpenter, Carpenter & Allison, of Dallas, for appellant.
    Martin & Allred and Morrow & Calvert, all of Hillsboro, for appellee.
   TIREY, Justice.

This is a suit on two insurance policies tried before the. court without a jury. The defense was non-receipt of quarterly premiums within the grace period, and consequently the lapse of the policies. Plaintiff alleged payment of the premiums by means of mailing a check. The check was never presented to the bank on which it was drawn for payment. Therefore, the major question is whether the mailing of the check within the grace period constituted a payment of the premiums, so as to prevent a forfeiture of the policies. Judgment was rendered for plaintiff, and defendant appeals.

The policies in suit were issued and delivered on September 9, 1936, and premiums were payable in quarterly installments of $4.46 on each policy, which sum was payable on the 9th days of March, June, September and December of each year. The premiums that matured on the 9th of June, 1938, were not paid on the due date, and on July 5, 1938, the company, through its vice-president, wrote the insured, in part, as follows: “I notice that you have not sent in your remittance for the current premium which is now considerably past due. The end of the grace period is at hand and I trust that you will make prompt payment in order that your valuable protection and investment contract may be properly continued. If the present premium paying schedule is more than you can conveniently handle at this time, let us hear from you, as it is the sincere desire of myself and the management of this company to render every assistance possible in helping you to continue with your excellent life insurance program.” The grace period expired July 10, 1938, which was on Sunday. The insured died on July 18, 1938. The record shows that the assured had been paying the premiums by check. The quarterly premiums that matüred on December 9, 1937, were paid by the check of the insured dated January 7, 1938, which check was cleared through the Federal Reserve Bank at Dallas on January 12, 1938, two days after the expiration of the grace period. The quarterly premiums that matured on March 9, 1938, were paid by check of the insured, dated April 8, 1938, and was cleared through the Federal Reserve Bank on the 13th o.f April, 1938, which was three days after the expiration of the grace period. The January check above was actually paid by the bank on which it was drawn on January 13th, three days after the expiration of the grace period; and the April check above was actually paid on the 14th day of April, four days after the expiration of the grace period. The plaintiff introduced evidence to show that the check for the amount of the premiums was actually drawn by the insured on the 9th day of July, 1938, payable to defendant company for the amount of both premiums, and that it was deposited in the mail at Whitney, Texas, approximately 75 miles from the home office. The defendant offered detailed testimony showing the way in which its mail was handled. The record discloses that the postal authorities at Dallas securely tied defendant’s mail in packages and delivered it to defendant’s employee, who placed it in a sack and carried it to the home office where it was carefully opened and inspected under the supervision of the head of the premium accounting department. Checks received were clipped to the envelopes in which they came and these checks were registered in a book before the envelopes were taken off. The pages in this book were dated for each day’s receipts and contained the number of the policy, the date of the check, and the name of the person signed to the check. These records were then checked with the premium cards of the company before the checks were turned over to the cashi'er. The records of the company from June 10th to July 18th, 1938, inclusive, disclosed that the company did not receive any check or cash from the assured. According to defendant’s testimony, the envelope bearing the check was never received by the defendant company. The evidence was uncontradicted to the effect that defendant accepted checks to apply on premiums and issued its receipt, with the understanding that if the check was not paid the receipt was a conditional receipt.

Assignment of error No. 2 contends, in effect, that the evidence adduced failed to show that the quarterly premiums maturing June 9, 1938, were paid in advance at the home office, a requirement of the contract between the parties, and further that the evidence wholly failed to show that said premiums were paid within the grace period of the thirty-one days, and that there was no evidence that the premiums were paid at all and that the policies lapsed according to the terms of the contracts. Much has been written on the point at issue. In Texas the rule seems to be that “where the insurance company authorizes remittances of the premium' by mail, that the payment is made when the letter containing the remittance is deposited in the post office.” Travelers’ Protective Ass’n v. Roth, Tex.Civ.App., 108 S.W. 1039, point page 1042. The plaintiff plead that the insurance company waived the provisions of the policies which provided for the payment of the premiums in advance at the home office of the defendant, and had authorized the insured to make payment of the premiums by sending his personal check through the mail. The record discloses that the two previous payments of the premiums had been made by check drawn by the insured on the bank at Whitney, and that each of these checks were received and accepted by the company, and that payment of these checks in each instance was actually made by the bank on which they were drawn after the grace period in each instance had expired. Our Supreme Court, in the case of Equitable Life Assurance Ass’n v. Ellis, 105 Tex. 526, 147 S.W. 1152, 1157, said: “The waiver was completed by the act or conduct of the company that constituted it.” But the insurance company contends, in effect, that since it has fully accounted for the way its mail was received, and since defendant’s evidence discloses that the envelope containing the check was not received by it, plaintiff’s evidence merely raised the presumption of its receipt and that, under all the evidence, this presumption vanished. The rule in Texas is that where it is affirmatively shown that a letter, communication or notice has been properly stamped and addressed to a party, a presumption of fact arises that it was received by such party, and evidence of such mailing will support a finding of such receipt. Davis v. Petroleum Cas. Co., Tex.Civ.App., 13 S.W.2d 981, point page 982. Moreover, it has been held that “the presumption of the receipt of a letter from proof that it was mailed * * * does not stand merely until evidence comes in to then disappear. It continues as evidence, to be considered in the light of all the facts and circumstances adduced on the trial and to be given such weight as the triers think it entitled to in determining the fact at issue, whether the mailed let-er was received.” Atlantic Dredging & Construction Co. v. Nashville Bridge Co., 5 Cir., 57 F.2d 519, point 4, page 521; Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395; East Texas Fire Ins. Co. v. Perkey, 89 Tex. 604, 35 S.W. 1050; Western Union Tel. Co. v. McDavid, 103 Tex. 601, 132 S.W. 115, page 116; American National Life Ins. Co. v. Callahan, 125 Tex. 222, 81 S.W.2d 504; Roberts v. Wichita Southern Life Ins. Co., Tex.Com.App., 221 S.W. 268; Hartford Life & Annuity Ins. Co. v. Eastman, 54 Neb. 90, 74 N.W. 394; Wichita Valley Ry. Co. v. Davis, Tex.Civ.App., 275 S.W. 169, writ refused. We think, under the above authorities, the evidence was sufficient 'to raise a fact issue, and therefore the foregoing assignment must be overruled.

The first assignment of error complains of the failure of the trial court to sustain general demurrer to plaintiff’s original petition and her first supplemental petition. Each of the policies provided that the policy was the entire contract between the company and the insured, and each further provided: “Premiums are payable in advance at the home office of the company or to any designated collector upon delivery of a receipt signed by the president or secretary of the company and countersigned by said collector.” Defendant contends that, in order for plaintiff to recover, she would be required to allege and prove the payment of the premiums in accordance with the stipulations in the policies and failure to make such allegations renders the pleading subject to a general demurrer. Defendant further contends that the general allegation as to payment in plaintiff’s original petition is destroyed by the amendment in the plaintiff’s supplemental petition, wherein plaintiff alleges the method of payment, and that such allegations fail to showthat payment of the premiums was actually made, but that a check was mailed to defendant which should have been received by defendant within the grace period. Paragraph 3 of the plaintiff’s original petition alleged, in substance, that the insured complied with the contract of insurance, and that he paid in advance on each and every quarter the premiums that he had contracted and obligated himself to pay. Defendant’s amended answer, among other things, contained a general demurrer to the plaintiff’s original petition, and which answer specially denied paragraph 3 of plaintiff’s original petition and averred that the policies in suit, prior to the date of the death of the insured, were forfeited by reason of the failure of the insured to pay the quarterly premiums that matured on June 9, 1938, and within the thirty-one days of grace provided for in the policies. Plaintiff filed what she denominated her first supplemental answer to the defendant’s amended answer, in which plaintiff alleged, in substance, that defendant had, by custom well established between defendant and insured, authorized him to make payment of the premiums by check deposited in the United States mail, and that the insured, relying on the custom and on defendant’s letter of July 5, 1938, drew check for the amount of. the premiums due on the policies in suit and deposited same in the mail on July 9, 1938, in the post-office at Whitney, Plill county, Texas, and that same should have been received in due' course of mail by defendant on July 10, 1938, which was a legal holiday and which date was within the grace period, and that the defendant had waived the provisions of the policies as to the payment of the premiums at the home office, and that it was estopped to deny that the policies had been forfeited for non-payment of premiums. The record fails to show that the defendant filed any pleading in answer to the above pleading filed by the plaintiff; however, the record does show that the court overruled the defendant’s general demurrer to the plaintiff’s original petition and the plaintiff’s first supplemental petition. The question therefore arises, did the trial court err in its failure to sustain the general demurrer contained in the defendant’s amended pleading? The general rule is that the petition on which plaintiff goes to trial must contain all of the affirmative grounds on which a recovery is sought, and that any omission or error in this respect can not be supplied by a supplemental petition. St. Louis S. W. Ry. Co. of Texas v. Larkin, Tex.Civ.App., 34 S.W.2d 693, point page 698. However, there is an exception to the general rule to the effect that, in the absence of an exception, the supplemental petition may be considered as an amendment to the cause of action as alleged in the original petition. See: Citizens Mutual Life & Accident Ass’n of Texas v. Ragle, Tex.Civ.App., 81 S.W.2d 264; Crow v. First National Bank of Whitney, Tex.Civ.App., 64 S.W.2d 377, 378; Glenn v. Dallas County Bois D’Arc Island Levee Disk, 114 Tex. 325, 268 S.W. 452, 453. We believe that this record brings this case within the exception announced in the foregoing decisions, and, for that reason, we overrule the above assignment.

The third assignment of error complains of the action of the trial court in the admission of certain declarations made by the insured out of the presence of the opposite party. These declarations fall within two groups. In the first group we have a conversation between deceased and his wife on the morning of July 8, 1938, wherein he stated that he did not have sufficient money to take care of the insurance premiums in question and that it would be necessary for him to sell a calf in order to get the money to pay the premiums, and the conversation that deceased had with his brother on the same day, wherein the deceased said, in effect, that it was necessary for him to go to Hillsboro to sell a calf to get money to pay the insurance premiums. In the second group we have declarations made by deceased to various other witnesses on July 9, 1938, to the effect that he had written a check payable to the defendant for the amount of the insurance premiums on the policies in question and had mailed it to the defendant. We have carefully considered the evidence complained of and the authorities cited, and we are inclined to believe that the declarations are admissible under the authority of Prater v. Traders & General Ins. Co., Tex.Civ.App., 83 S.W.2d 1038. It is true that the declarations made by the deceased on July 8th. were made several hours prior to the time the evidence disclosed that the insured drew the voucher for the premiums and deposited same in the mail, but it occurs to us that such declarations were statements made by him in a natural manner with reference' to the purpose of his efforts to carry out his mission and would be a circumstance to indicate that the insured was definitely engaged in complying with the company’s letter of July Sth to make remittance to it for the amount of the premiums. Moreover, we think the declarations complained of became harm-, less due to the fact that the defendant adduced testimony by one of its assistant executive officers who testified to a conversation he had with Mrs. Greenwade, the plaintiff, after the death of her husband, rat his office in Dallas, Texas, wherein he quoted Mrs. Greenwade as saying to him, “ T am positive that Mr. Greenwade did send in that payment.’ She didn’t tell me whether it was in cash or by check, but she said he had mailed it, said the reason she knew that was that he had sold — the last day of grace was on the 9th, I believe —that he had sold some hogs or a calf or something like that, to get the money to pay this premium and that he told someone on the street that he had paid his policy up for another three months and had gone to the postoffice and mailed in the amount necessary.” The case was tried before the court without a jury, and if there was error in the admissions of any of the declarations complained of, we do not believe it would be such error as would require a reversal of the case. We think the declarations complained of come under the general rule that when a cause is tried before the court without a jury, the admission of illegal evidence is not cause for reversal when there is sufficient legal testimony to justify the court’s finding. See Schleicher v. Markward, 61 Tex. 99, point page 102; Ferguson v. Ferguson, Tex.Com.App., 23 S.W.2d 673. We think the evidence is sufficient to support the judgment. This assignment is overruled.

Defendant complains of the action of the trial court in permitting plaintiff to re-open the case and adduce evidence after the plaintiff and defendant had rested and after all parties had submitted their written briefs and argument. The motion to re-open the case was granted about thirty days after the original hearing and the court permitted plaintiff to prove that the insured made a deposit in the bank (on which the check was drawn) on the 12th day of July, 1938. Article 2181 of our Revised Civil Statutes, 1925, is controlling on this question. Our courts have uniformly held that this statute is necessarily directory, and a party complaining of its infraction, in order to obtain a reversal of the judgment, must show that he has been injured. Prescott-Phoenix Oil & Gas Co. v. Gilliland Oil Co., Tex.Civ.App., 241 S.W. 775; Texas & Pac. Ry. v. Smith, Tex.Civ.App., 115 S.W.2d 1238, points 4 and 5, page 1242; Western Union Telegraph Co. v. Roberts, 34 Tex.Civ.App. 76, 78 S.W. 522, writ refused. We have carefully considered this assignment, and, in our opinion, the defendant has not been deprived of a substantial right, the trial court has not abused its discretion, and the defendant has in nowise been injured. Moreover, the defendant gave its consent to the trial court to interrogate the witness, who testified to the effect that the insured had on deposit in the bank in question on July 12, 1938, the sum of $22.74 and that if a check for $8.92 had been presented on that day, it would have been paid. This assignment is .overruled.

Each of the remaining assignments have been considered and each is overruled.

The judgment of the trial court is affirmed.


author: COMBS, Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. HADNOT.
    No. 3720.
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 26, 1940.
    James F. Parker, of Kpuntze, and Bat-taile & Burr, of Houston, for appellant.
    J. Austin Barnes, of Beaumont, and Glenn Faver, of Jasper, for appellee.
   COMBS, Justice.

This cause is reversed and remanded to the trial court upon agreement of the parties. This order is subject to payment of costs of this appeal which are taxed against the appellant.


text:
    UNITED EMPLOYERS CASUALTY CO. v. McGEE et al.
    No. 2286.
    Court of Civil Appeals of Texas. Waco.
    Sept. 26, 1940.
    Rehearing Denied Oct. 17, 1940.
    Will R. Saunders and Claude Williams, both of Dallas, and Norton Fox, of Groes-beck, for plaintiff in error.
    Reed & Cannon, of Groesbeck, and Johnson & Oliphant, of Dallas, for defendants in error.
   ALEXANDER, Justice.

This cause was attempted to be removed to this court by writ of error. The defendants in error have filed motions to dismiss the appeal because the writ of error was not perfected in time. The case was tried in the lower court on August 18, 1939. The plaintiff in error participated in the trial. Petition and bond for writ of error were filed in December, 1939, but citation in error was not issued nor served until after January 1, 1940.

In the case of United Employers Casualty Company v. Skinner, 141 S.W.2d 955, we had before us a state of facts almost identical with those found in this case and we there held that the writ of error was not perfected prior to January 1, 1940, and that under the provisions of Acts 1939, 46 Leg., p. 59, Vernon’s Annotated Civil Statutes, art. 2249a, the defendant who had participated in the actual trial of the case in the lower court could not have the judgment of the lower court reviewed through writ of error proceedings. The Supreme Court refused writ of error in that case. Based on the hqlding therein, we here hold that this court is without jurisdiction to review this case on writ of error.

The appeal is therefore dismissed.


author: FUNDERBURK, Justice.

text:
    CITY OF ABILENE v. FRYAR, County Clerk.
    No. 2044.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 4, 1940.

      Kirby, King & Overshiner, of Abilene, for appellant.
    Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Pat M. Neff, Jr., Ocie Speer, and Geo. W: Barcus, Asst. Attys. Gen., for ap-pellee.
   FUNDERBURK, Justice.

The City of Abilene (hereinafter referred to as the City) having determined to issue bonds and to secure same in part by instruments to serve both as: chattel mortgages and deeds of trust, and having agreed to sell part of the bonds to the Mercantile National Bank of Dallas, as trustee, and another part to the Citizens National Bank in Abilene, and still another part to Farmers & Merchants National Bank of Abilene, purportedly obligated itself by ordinance to have said liens filed and recorded in the office of the County Clerk. In pursuance of said undertaking said City, prior to completed sale and delivery of the bonds, presented to Miss Vivian Fryar, County Clerk of Taylor County (hereinafter referred to as the Clerk), said instruments with the request that each be filed as a chattel, mortgage and recorded as a deed of trust. Said instruments not being stamped as .provided by Vernon’s Ann.Civil Statutes, Art. 7047e, the Clerk refused to file them, unless they were so stamped. The City, although protesting that no stamps were required, in order to procure the requested filing and record of said instruments immediately, issued and delivered to the Clerk city warrants covering the amount of stamps claimed to be necessary; whereupon the Clerk filed and recorded said instruments.' Thereafterwards the bonds were sold.

The City brought this suit against the Clerk as sole defendant, alleging in detail and with amplification the foregoing facts; and particularly that “in order to secure the prompt registration of said instrument [there was similar allegation with reference to another instrument] the said City deposited with said Clerk its warrant or check for the sum of $300 [the other being for $299.80] being the amount necessary to buy the stamps to be affixed to said deed of trust in case it was finally determined by proper authority the same were taxable under the provisions of said Art. 7047e and not exempt from taxation as was contended by said City at the time it presented said deed of trust to said clerk as aforesaid; and the said Clerk agreed to hold said warrant pending the final determination of the question by proper authority as to whether or not said deed of trust was exempt from 'said stamp tax and said warrant is now being held by said Clerk for the purpose, aforesaid.”

The suit, as its nature appears from the prayer of plaintiff’s petition, was one for temporary and permanent injunction “enjoining and restraining the said defendant Vivian Fryar, County Clerk, from cashing said warrants and from buying said revenue stamps from the proceeds thereof; from affixing said stamps to said deeds of trust; that said bonds and deeds of trust be adjudged not subject to said stamp tax and that said defendant be ordered to return said warrants to said city.-” This was supplemented by the usual prayer for general and special relief.

The only alleged wrong (not righted by the deposit of the warrants) charged to the Clerk was “that the defendant is threatening to cash said warrants which were made payable to her order and to buy stamps with the funds received therefor for the purpose of affixing same to said deeds of trust as a tax on said bonds and will do so unless restrained by your honor’s most gracious writ of injunction.” It was further alleged that “plaintiff will suffer irreparable injury for which it has no adequate remedy at law, unless the defendant is restrained from collecting the said tax.”

The defendant answered by the Attorney General of Texas and certain of his assistants as her attorneys. The defenses urged were: (1) A plea to the jurisdiction on the ground that exclusive jurisdiction was in a “court of competent jurisdiction in Travis County, Texas, under the terms and provisions of Senate Bill No. 247, Acts Regular Session, 45th Legislature, being Art. 7047j, Vernon’s Ann.Civil Statutes.” (2) That plaintiff had an adequate remedy at law in the provisions of “the Protest Statute”. Vernon’s Ann. Civil Statutes, Art. 7057b. (3) The non joinder of the State Treasurer (Charlie Lockhart) as a necessary party. (4) That the right of action attempted to be asserted had been superseded by statutory procedure in the provisions of Vernon’s Ann.Civil Statutes, Art. 7047j. These pleas were followed by general and special demurrers and general denial.

In a non jury trial the court in its judgment recited “that the law and facts are with the defendant and that plaintiff is not entitled to the relief sought but this cause should be in all things dismissed at the cost of plaintiff.” It was accordingly “ordered, adjudged and decreed that plaintiff take nothing by its suit and that this cause be and the same is in all things dismissed from the docket of this court”, etc. The plaintiff has appealed.

The judgment imports a contradiction. It purports to determine the merits of the case by decreeing “that plaintiff take nothing by its suit.” It also decreed “that this cause be and the same is in all things dismissed from the docket of this court.” An action cannot be dismissed and yet leave in effect a judgment determining the issues in the case on their merits. The City construes the judgment as determining the merits, as shown by its insistence that the Clerk’s pleas to the jurisdiction, demurrers, etc., were waived by the failure to have the court act upon them. The Clerk construes the judgment as one of dismissal, as shown by the contention that such a judgment was the only proper one under said pleas.

Under our conclusions reached in this case it is of little practical importance whether the case was dismissed or determined against the plaintiff upon its merits. Under these circumstances we feel justified in assuming that such pleas and demurrers were impliedly overruled and judgment rendered upon the merits, which is to say the judgment determined that the deeds of trust were under the law required to be stamped before they were properly to be filed and recorded. This was clearly the legal question which the City by its suit sought to litigate.

We are of the opinion that the City had no right to litigate the question of its liability to pay the tax imposed by the provisions of Vernon’s Ann.Civil Statutes, Art. 7047e, under the allegations of its pleadings, especially with the Clerk as sole defendant.

In the first place, if the law imposed the tax in question it vested no authority in the Clerk to file or record the deeds of trust without being stamped; but to the contrary, expressly prohibited the Clerk from doing so. If the law did not impose said tax, under the circumstances, it was the ministerial duty of the Clerk to file and record the instruments without being stamped. The Clerk’s duty was not affected by any mistaken understanding or construction of the law. The Clerk charged with a ministerial duty is presumed to know the law, and if she makes a mistake as to such question there is a plain and adequate legal remedy for requiring performance of the duty. Matlock v. Smith, 96 Tex. 211, 71 S.W. 956. Such remedy is an action of mandamus. We think the facts alleged in the City’s petition show that only questions of law were involved, or sought to be litigated. There was no claim that any facts apart from questions of law were not known to the Clerk. Under these circumstances we think that as a matter of law the City had an adequate legal remedy by an action of mandamus in which we also think the Clerk would have been the only necessarj' party.

In the next place, we are of the opinion that no legal injury was shown, actual or threatened, of a nature calling for equitable relief. The utmost that could be claimed by the City against the Clerk was the asserted right to have the deeds of trust filed and recorded without being stamped. The deeds of trust were so filed and recorded. The City had not been required to purchase stamps or- have the instruments stamped. True,-the City had deposited its warrants to cover the amount of stamps claimed by the Clerk to be necessary; but according to its allegations it had protected itself by an agreement of the Clerk to hold said warrants pending the final determination of the question by proper authority as to whether or not said deeds of trust were exempt from said stamp tax. It was alleged that “said warrant [similar allegations as to another warrant] is now being held by said clerk for the purpose aforesaid.” Could the City under such allegations merely by the further averment that the Clerk “is threatening to cash said warrants which were made payable to her order and to buy stamps with the funds received therefor for the purpose of affixing same to said deeds of trust * * * and will do so unless restrained”, etc., show an injury entitling it to litigate the question of its liability to pay the tax? We think not. Even if the pleadings were sufficient we would presume in favor of the judgment that there was no evidence that the clerk was threatening to, or would, cash the warrants in violation of her alleged agreement not to do so.

The City contends that the tax in question is a'property tax upon the bonds which it was the purpose of the City to sell; that until sold said bonds were the property of the City and exempt to it as a municipal corporation from taxation under Constitution Art. viii, sec. 1, and Art. xi, sec. 9, Vernon’s Ann.St. In our opinion, the tax is not a property tax, but one not inappropriately designated as a privilege tax; that it is not levied upon the maker of notes or other obligations nor upon the owners thereof merely as such, but upon the privilege of such owners to have the specified liens filed and/or recorded under the registration laws. The tax, we think, is properly to be classified with those designated by Corpus Juris, as a “mortgage recording tax” or in similar terms. 61 C.J. secs. 2270-2305, inclusive.

In our opinion, an undelivered note, bond or other written promise to pay money or thing of value, is not property subject to taxation under the Constitution and laws of this State, and, therefore, of course, not within tax exemption provisions. Such only become property upon delivery and then, of course, the property of the obligees and those claiming under them and not of the obligors. This is a proposition which appeals to us as so self-evident that we deem it unnecessary to cite authorities, or extend the opinion by further comment, upon this point.

While there is language in said Art. 7047e which imports the levy of the tax “on all notes and obligations”, same being further described as “secured by chattel mortgage, deed of trust, mechanic’s lien contract, vendor’s lien, conditional sales contract and all instruments of a similar nature which are filed or recorded in the office o.f the County Clerk under the Registration Laws of this State”, nevertheless, we think, the statute is properly to be construed as levying the tax not upon debts or evidences of debts, but upon the privilege of the lien holder to acquire the benefits of the registration'laws. An essential to the liability of anyone for payment of the tax is that the lien be “filed or recorded in the office of the County Clerk.” If the tax was levied upon notes or other obligations rather than the privilege of having the liens securing same filed and recorded, the statute imposing the tax, would, we think, be unconstitutional and void as making an arbitrary distinction between such debts as property and others of the same character similarly secured by instruments evidencing such security but not filed or recorded. Further, notes, bills, bonds, etc., are property of the owner and subject to the constitutional provision that “taxation shall be equal and uniform” and “be taxed in proportion to its value.” Const. Art. viii, sec. 1. If, therefore, only notes or other obligations secured by liens which are filed and/or recorded were taxed an additional 10‡ per $100 that also would involve an arbitrary discrimination and double taxation. In the interpretation of .the statute to determine whether it imposes a property tax or privilege tax it is highly significant that the statute declares no exemption of the “notes and other obligations” from the property tax to which they are already liable. Besides, any such exemption would be unconstitutional as not embraced within the exemptions declared by the Constitution. These and perhaps other reasons seem to us to require the indicated construction of the statute. The Legislature has so construed it in an amendment of the Act as originally passed. The original Act contained .the provision that: “No tax shall be levied on instruments for an amount of Two Hundred Dollars ($200) or less.” Acts 1936, 3d Called Sess., c. 495, art. 4, § 9. That provision was amended to read that “No tax shall be levied on instruments securing an amount of Two Hundred ($200.00) Dollars or less.” (Italics ours) Corpus Juris says: “There is authority for the view that, in determining the nature of a tax in respect of mortgages and similar instruments which is computable on the amount of the debt and payable on or before the recording or registration of the instrument hereinafter referred to as the ‘mortgage recording tax’ or in similar terms, the court will look through the form of the statute providing for the tax, to the substance, and that a characterization of the tax contained in the statute will not necessarily control.” 61 C.J. p. 1540, sec. 2270. We think that principle may be applied here and, in connection with the rule that if a statute under one construction would be unconstitutional and void and under another valid it will be given, if possible, the construction which will give it effect, amply justifies the construction we have indicated. Under this view the reference to “notes and other obligations” in terms as though the levy was made thereon was only for the purpose of adopting the measure of the tax levied upon the privilege of the owners of such notes and other obligations to have the specified securities therefor filed and recorded under the registration laws.

The City contends that the statute levying the tax is unconstitutional because of the $200 exemption. We incline to the view that there is no merit in this contention. The statute levies the tax in such terms that the express exemption provision was wholly unnecessary. The tax is so imposed that it only applies to the security for debts exceeding $200 and therefore the provision purporting to exempt $200 can only serve to emphasize the intention not to tax the first $200. We find it unnecessary, however, to definitely decide this point; because we agree that the lam does not impose the tax on the City under the circmnstances disclosed by the undisputed facts in this case, and hence the City is not entitled here to urge the unconstitutionally of the statute. “The validity of a statute will not be inquired into.unless necessarily involved in the case before the court.” 59 C.J. p. 621, sec. 179.

The statute does not name those liable for the tax. Concerning taxes of such general nature the authority before cited says: “Some statutes specifically provide for payment of the mortgage recording tax by the mortgagee while others do not make specific provision as to who shall pay the tax, but even though such provision is not made the view has been taken it is the duty of the mortgagee to pay the tax.” 61 C.J. p. 1553, sec. 2291. Such view appeals to us as the correct one. The question here suggests itself: If the statute does not levy the tax upon a person executing a note, or upon a city executing a bond, etc., but does levy it upon the owner of the note or bond, was the Cle.rk in this case authorized to file and record the deeds of trust without payment of the tax by anyone, or one not the owner, just because the City had acknowledged in an ordinance its agreement to have such liens filed and recorded? We certainly do not think so. Those legally liable to pay the tax could no more be exempted in that way than a city or other municipal corporation could sell its exempt property to an individual and transfer to the latter its exemption merely by agreeing to pay future accruing taxes. It was a matter of indifference to the Clerk who paid for the stamps or from whom they were purchased or by whose hand they were attached to the deeds of trust. Her sole duty, other than to supply the stamps if requested, was to obey the statutory prohibition not to file or record the instruments unless they were stamped.

The only means of enforcing payment of the tax were provided in the terms and effect of the statute. As said, the statute prohibited the Clerk from filing or recording the instruments if they were subject to the tax. If that duty be discharged then one liable to pay the tax will in the absence of its payment be penalized by being deprived of the- benefits of registration. Even if the Clerk disobeyed the prohibition, we doubt if the recorded instruments would constitute constructive notice. If an instrument is not proved or acknowledged so as to entitle it to registration, it is our understanding that its record will not constitute constructive notice. Upon principle, it would seem that an instrument filed or recorded in violation of an express statutory prohibition would not constitute constructive notice. It would not be an instrument duly filed or recorded. But manifestly if before any debt comes into existence but merely in contemplation that it may or will do so, an instrument securing such debt only if and when it does come into existence, may be filed or recorded without being stamped, the only means provided for by the statute to enforce payment of the tax will be rendered utterly futile. If the City by its contract with potential purchasers of its bonds has the authority and undertakes to relieve such purchasers of the tax due only by them if and when they become owners of the bonds, and agrees to procure the filing and registration of the deeds of trust securing same, and if that agreement includes the obligation to pay the necessary taxes, it is wholly immaterial that the City was not rendered by law liable for the taxes but the duty of the Clerk not to file or record the instruments is wholly unaffected by such agreement.

It is our conclusion that the judgment of the court below should be affirmed and it is accordingly so ordered.


author: LESLIE, Chief Justice.

text:
    TEXAS CONSOLIDATED THEATRES, Inc., v. SLAUGHTER.
    No. 2027.
    Court of Civil Appeals of Texas. Eastland.
    July 15, 1940.
    Rehearing Denied Sept. 20, 1940.

      Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellant.
    John F. Evans, of Breckenridge, and Levy & Evans, of Fort Worth, for ap-pellee.
   LESLIE, Chief Justice.

Hiram B. Slaughter filed this suit against Texas Consolidated Theatres, Inc., to recover damages sustained by him and alleged to be the proximate result of defendant’s negligence. The defendant entered a general denial and alleged special defenses. The cause was tried before the court and jury, and, upon the jury’s answers to many issues judgment was rendered for the plaintiff. The parties will be referred to as in the trial court.

The correctness of the judgment is challenged by various assignments of error, but the first two are believed to be controlling. These are to the effect (1) that the- court erred in not granting the defendant’s motion for a peremptory instruction in its favor, and (2) thereafter refusing to grant the defendant’s motion for judgment notwithstanding the verdict. A consideration of the assignments of error requires a statement in substance of the nature and origin of the litigation.

The plaintiff alleged that about night on the evening of September 19, 1938, he, in company with his wife and small child, attended the defendant’s motion picture show in Breckenridge; that at the end of the show and while proceeding out through the east exitway of the defendant’s theater building he stumbled and fell on a wooden ramp or runway which was lying upon the floor in the center .of the exitway, thereby seriously and permanently injuring himself in many ways. On this point the plaintiff in his trial pleading (second amended original petition) alleged: “In this connection plaintiff alleges that said wooden runway in which plaintiff stepped was owned by the defendant and was placed by an employee of the defendant, acting in the course of his employment and in the scope of his employment with the defendant, on the floor of said east exit way after plaintiff and his wife and child entered said theater and before the plaintiff stepped into same-while leaving said theater.” There are other grounds of negligence alleged, such as insufficient lighting and the failure of some employee of the defendant to guard “the east exit way of the 'theater during the operation of putting up said pop corn machine.” The above excerpt from plaintiff’s pleading reflects the real basis of plaintiff’s alleged right of recovery. Since he seeks to establish such right largely, if not altogether, by circumstantial evidence, we have found it necessary to study the testimony as a whole.

The plaintiff was accustomed to attending this picture show and was familiar with the building. The ramp over which he stumbled was used as a “rest for the pop corn machine” when the latter was stored away and not in use. Its real purpose was to protect the rug or linoleum on which the pop corn machine would otherwise have rested. The ramp was about 30 inches long, about 25 inches wide on the outside, and the two runners were connected with three 1 x 4’s. Exhibit 8 in the evidence reflects a picture of the ramp. When not in use it was kept in á little closet to the west of the exitway. When in use it was in a north-south direction with the pop corn popper rolled upon it. The popper was so stored away each night about 9:30.

On leaving the picture show on the night of the alleged accident, the plaintiff started out' the east exitway. His testimony is that no employee of the show, or anyone else, was standing about; that on his way through the exit he fell; that the fall was due tOi his stumbling onto or getting his feet tangled up in said ramp or runway then lying in the center of the exit and which he did not at first discover; that he stumbled practically to his knees and for some distance toward the pop corn machine then at its usual place near the sidewalk; that he recovered himself within a foot or two of the pop corn machine; that at that point his wife helped him up and he looked to see who it was rendering him that assistance; that he then looked back and could see all but one side of the ramp over which he had stumbled; that he also saw a man out on the sidewalk but that he would not say that he was an employee of the defendant.

The plaintiff further testified that he never told Mr. Hughes, the manager of the show, that he had had an accident and that he never told anyone connected with the theater that he had fallen in the exitway as he retired therefrom. That ' he did not know who put the ramp or runway in the exitway or how it came to be in that position; that he did not mean to tell the jury that any employee put the runway there; that he did not know who put it there; that he did not see anyone take it out of the closet and put it down at the point where he stumbled over it. That while he did not see’who put it down, nevertheless he had alleged in his petition that an employee of the defendant placed it at the point where he stumbled over it. He also testified that he did not try to find any employee of the theater the night of the accident and notify him that he had had an accident. That there .was no one there to see; that while he did look around, he did not go back on the inside and look' for an employee and that he had not tried to do so from the time of the accident until the time of giving this testimony.'

It is the testimony of Mr. Hughes, the manager of the theater, that his first information that the accident of September 19, 1938, had occurred was received about October 30 from plaintiff’s doctor who was teasing him. about some phase of" it at a luncheon.

The plaintiff’s wife testified, in substance, the same as her husband. She stated that she followed her husband out of the theater; that she did not stumble over the ramp and did not see it. That after he had stumbled she turned around and looked back and saw the ramp “partly in the lobby and partly in the exitway”; that she was right immediately back of him; that she did not go back to examine the nature of the lights, etc. That when she got out of the show' there was a boy standing out on the sidewalk close to the pop corn machine, but that she did not see any employee of the theater around there at the time, and she did not know whether the boy standing on the sidewalk was an employee of the theater company or not. There was also introduced in evidence the following allegation from the plaintiff’s (abandoned) original petition: “The plaintiff alleges that the defendant, its agents, servants and employees were guilty of negligence in placing said lattice runway at a place where the same would fall to the floor of said exitway or be knocked to the floor of said exitway by some employee of the defendant or patron of its theater.” According to the plaintiff’s testimony the runway, at the time of the accident, was not in the position to serve the purpose for which it was intended or invariably used by the employees, but was out in the exitway turned in an east-west direction, the opposite direction to which it would have been had it been in the usual place, and in proper position to be used as a rest for the pop corn machine. Further, the machine could not have been conveniently rolled upon the runway turned in the east-west direction, according to the testimony.

The plaintiff and his wife testified that, on entering the show, they did not see the ramp or any obstruction in the entrance or exitway. Sometime after the accident he and his .wife and lawyer went to the theater and personally saw where the ramp or runway was kept in a little closet on the west wall of the exitway.

The plaintiff called a number of witnesses, among them practically all of the employees of the defendant at the time. They were closely interrogated upon the issues of alleged primary negligence. Viewing all the testimony from the standpoint of the plaintiff, we are of the opinion that there is no evidence that the ramp or runway was placed in the exit of the, theater by the defendant, or any of its employees, as alleged by the plaintiff, or that they knew of its presence in the exitway. There is no evidence as to who placed the ramp in the exit, or how long it had been there. Certainly there is no evidence that the runway had been in that position long enough to justify any inference that a failure to discover and remove same was due to a want of proper care on the part of the defendant or its employees. If there b® any statement tending to establish the negligence alleged, we are quite certain that it amounts to no more than a scintilla of evidence, and, therefore, must 'be regarded as no evidence at all. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

The closet was not kept locked and persons and patrons other than the employees had access to it. Such persons commonly deposited parcels, traveling bags and sometimes groceries in the closet while they were looking at the picture. Having such access to the closet it is just as inferable that some person, other than defendant’s employees, carelessly moved the ramp or accidentally knocked it from its leaning position in the closet adjacent to the' exitway, as that an employee or servant of defendant did so, or intentionally placed it where the plaintiff alleges he stumbled over the same.

It is a well-recognized rule of law that negligence can only be predicated upon knowledge, actual or constructive, and under our interpretation of the testimony bearing upon the points under consideration we think the 'case is ruled by the following well-known authorities, some of which are by this court: Great A. & P. Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470; Texas & P. Ry. Co. v. Howell, Tex.Civ.App., 117 S.W.2d 857; Safeway Stores, Inc. v. Miller, Tex.Civ.App., 110 S.W.2d 927; Burke v. State Fair of Texas, Tex.Civ.App., 93 S.W.2d 765; Osborne v. Loew’s Houston Co., Tex.Civ.App., 120 S.W.2d 947; Montfort v. West Texas Hotel Co., Tex.Civ.App., 117 S.W.2d 811, writ refused; Vernon Cotton Oil Co. v. Jones, Tex.Civ.App., 137 S.W. 424; Knowles v. Great A. & P. Tea Co., 287 Mass. 400, 192 N.E. 2; Winslow v. Missouri, K. & T. Ry. Co., Mo.App., 192 S.W. 121, and the authorities cited in said opinions.

Further, and on the other issues of negligence, namely, insufficient lighting and failure to guard the exit, etc., while the pop corn machine was being put up, we find the record equally lacking in testimony to support the same. Bearing in mind the nature of the defendant’s business and the proper lighting incident to the entrance and exit of a picture show, we do not believe that the testimony taken as a whole puts the defendant in default in that respect as regards any duty then owed the plaintiff or a patron of the show. ■ The lighting was necessariy graduated and the testimony does not show tha.t the construction of .the theater building departed in any way. from that which is usual and’ proper in such structures. According to the testimony of the plaintiff and his wife, the pop corn machine was out on, or near, the sidewalk of the street, or at the usual place of operation during business hours and was not in the process of being put up. Neither the plaintiff nor his wife identified any employee of the defendant thereabout, nor did they endeavor to call attention to anyone to the fact that an injury had been sustained by plaintiff. These assignments are also overruled for the same fundamental reasons as those first' stated above and on that authority.

Perhaps this is all that should be said in the disposition of this appeal, but we are further of the opinion that the fourth assignment of error should also be sustained. That, assignment is based upon, the action of the trial court in overruling an exception to the charge or manner of submitting an issue. The exception is as follows: “The defendant objects to the submission by the court to the jury of special issue No. 32, because thfe evidence-raises the issue that a part-, of the plaintiff’s mental and physical suffering, if any, was attributable to some prostate trouble,. and a congenital condition of his back, or a lateral curvature thereof, .which had no connection with the accident in question, and the court should instruct the jury in connection with special issue No. 32 not to consider nor allow plaintiff anything for physical or mental suffering, or loss of earning capacity in the past, because of so much of the prostate trouble and congenital deformity, or condition of his back, if any, that the plaintiff had, which was not an aggravation by the accident in question.”

The testimony is that the pain, suffering and injury attributable to the prostate trouble and the congenital condition are in no way attributable to the injuries sustained by the plaintiff in the alleged accident. The pain in his back attributable to the prostate trouble, etc., is similar and possibly of like severity to that attributable to the injury sustained in the accident. We have carefully read the testimony and we think the injury and suffering, if any, sustained by the plaintiff when he stumbled and fell is so intermingled with the suffering and pain that might well be due to pronounced prostate trouble and congenital condition that the court should have told the jury to -eliminate from the verdict and disregard suffering, pain, etc., due to such prostate gland trouble or congenital condition. The defendant was entitled to an affirmative exclusion of such elements of damage, if any. In failing to do so, we think the court committed the same error dealt with in Dallas Ry. & T. Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (pts. 7 and 8); and Texas Coca-Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 138 S.W.Zd 254 (pts. 6, 7, and 8), writ refused. Upon these authorities and those cited in each opinion, the judgment of the court would have to be reversed in any event.

The appellee has presented an excellent brief but under the interpretation we give the testimony his authorities are not controlling.

Under the circumstances of the case we have concluded that the ends of justice will be better subserved by reversing the judgment and remanding the cause, and it is so ordered.

On Rehearing.

In the light of the motions for rehearing by both the defendant and plaintiff, the various contentions presented by the appeal have been re-examined. We are still of the opinion that we correctly sustained the propositions requiring a reversal of the judgment of the trial court; but a further study of - the record convinces us that the judgment of the trial court should not only be reversed but that the judgment should be here rendered for the defendant rather than a remand of the cause for another trial. Such order will be substituted for the closing sentence and order of the original opinion.

We are moved to render the judgment for the following reasons: (1) This case has been fully developed and the plaintiff himself makes no contentions t'o the contrary. (2) The case was not tried upon any erroneous theory, sometimes spoken of as “excusable error”, under some state of the authorities apparently accepted by the court of last resort. (3) In the instant case no ruling of the trial court on exceptions to pleadings, admission of testimony, etc., misled the plaintiff in matters of pleading or caused him to forego the offering of any available material testimony essential to a full development of the cause in the trial below. In other words, no such considerations render it necessary that the cause be remanded, that the pleadings be amended, or for the ascertainment of any matter of fact.

Such being the record a rendition of the judgment is believed to be required in obedience to such authorities as Williams v. Safety Cas. Co., 129 Tex. 184, 102 S.W.2d 178; Fowler v. Hardee, Tex.Civ.App., 16 S.W.2d 154; 3 Tex.Jur. p. 1215, sec. 852; p. 1218, sec. 853.

For these and the reasons assigned in the original opinion the judgment of the trial court is reversed and the judgment now rendered in favor of the defendant. The judgment heretofore entered June 21, 1940, will be s.et aside and this one entered therefor. Accordingly the judgment is reversed and rendered in favor of appellant.