author: HIGGINS, J.

text:
    WATSON, Tax Collector, et al. v. EL PASO COUNTY.
    (No. 799.)
    (Court of Civil Appeals of Texas. El Paso.
    March 9, 1918.)
    1. Schools and School Districts <§=^106— County Tax Collector — School Taxes— Liability to County.
    A county cannot sue the county tax collector for taxes collected for either independent or common school districts under Rev. St. 1911, arts. 2767, 2822, 2836, 2861, 2862, giving school districts power to sue or be sued, and providing that school taxes be paid to or deposited to the credit of the school districts.
    2. Drains <®=>90 — County Tax Collector-Drainage Taxes — Liability to County.
    Although drainage districts are the owners of funds and may sue and be sued under Rev. St. 1911, art. 2584, the county may sue the county tax collector therefore, in view of Rev. St. 1911, arts. 2533, 2540, 2541, 2603, 2605, 2606, providing for handling and disbursing of such funds, but a county cannot recover under allegations that such funds belonged to the county.
    3. Taxation <®=>5G8(2) — County Tax Collector-Bonds.
    Collected taxes ill hands of the tax collector arc secured by his general county bond and not the bond required by Rev. St. 1911, art. 2605, “to secure the collection of said taxes.”
    4. Taxation <©=3917 — Payment to County •by Check.
    ■ A county treasurer is not authorized to accept a check from the tax collector for the taxes, but, where the amount of the check has come under the control of the county, the right of action against the collector is extinguished. 5; Depositaries @^9 — County Depositary —Charging Back Dishonored Checks.
    Where a county depositary credits to the county the amount of a cheek drawn by the county tax collector and deposited by the county treasurer, it cannot be charged back to the county upon dishonor of the check, under Rev. St. 1911, arts. 1485, 1505, 1509, 2440-2444, 2447, 2449, providing methods for withdrawing funds from the depository, no matter what the understanding with the treasurer, because the county is not a party to any such transaction.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by El Paso County against Will I. Watson, Tax Collector, and others as his sureties. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Prank Judkins, J. P. Woodson, and Thornton Hardie, all of El Paso, for appellants. C. W. Croom and W. H. Pryer, both of El Paso, for appellee.
   HIGGINS, J.

At the November election in 1914, Will I. Watson was elected tax collector of El Paso county. He gave the bond required by article 7610, R. S., payable to the county judge and his successors in office, conditioned that he would faithfully perform and discharge all of the duties required of him by law as tax collector. Watson entered upon the. discharge of his duties and continued to act as tax collector until July 15, 1916. El Paso county brought this suit against Watson and the sureties upon his bond.

It was alleged that as collector there came into his possession the total sum of $567,728.-65, for and on behalf of and for the use and benefit of El Paso county, and that it was his duty to account for said money belonging to El Paso county, and to pay same to the county treasurer; that he had failed to so pay the same except the sum of $539,493.21, and the further sum of $337.33, then on deposit in the Texas Bank & Trust Company and available for the use of El Paso county, leaving the net amount óf $27,898.11, which Watson failed and refused to pay to the county treasurer.

A further cause" of action was set up in paragraphs 10 to 13, inclusive, of the petition. This cause of action has no relation to that heretofore stated, but relates to the right of Watson to retain certain fees and commissions. Upon trial a peremptory instruction was given to find for the county against Watson and his sureties in the sum of $15,675.19. Verdict was returned and judgment rendered in accordance with this instruction. Watson and his sureties appeal.

The evidence discloses that Watson had collected current and occupation taxes amounting to $563,557.15; costs, $3,481.00; unreported occupations $690.50; making a total of $567,728.60. The evidence further shows that included within the item of $563,-557.15 so collected was $37,014.55 for school districts and $3,657.82 for a drainage district. There is no evidence that Watson has not paid to the drainage and school districts the taxes collected for them.

1. The contention is made that the county is not entitled to receive or sue for the taxes collected for school districts. If this be sustained, the judgment rendered cannot be upheld upon the pleadings and evidence presented by the present record. For if the school tax collections be deducted from Watson’s total collections, the balance will be $530,714.05, and it was,alleged and proven by the county that Watson has paid its treasurer the' sum of $539,493.21. It would thus appear under the pleadings that he has already paid .more than the county is entitled to.

The record is not clear whether the school districts are independent or common, but it makes no difference to which class 'they belong.

As to independent school districts, it is plain the county has no authority to receive or sue for taxes collected by the county tax collector belonging to such districts. Such taxes are payable to the treasurers of the districts. Articles 2861, 2862, and 2891. Those districts are the ones to sue for any moneys belonging to them collected by the county tax collector and not accounted for by him to their respective treasurers. House v. Dallas, 96 Tex. 594, 74 S. W. 901; Moody v. Chesser, 173 S. W. 917; Connor v. Zachry, 54 Tex. Civ. App. 188, 115 S. W. 867, 117 S. W. 177; Miller v. School District, 26 Tex. Civ. App. 495, 63 S. W. 894.

As to common school districts, the same rule applies. Their trustees are bodies corporate with power to sue and be sued. Article 2822, R. S. Article 2836, R. S., requires the tax collector to pay all common school district taxes to the county treasurer, and that said treasurer shall credit each school district with the amount belonging to it and pay out the same in accordance with the law. And article 2767 provides that the term “county treasurer,” as used in all provisions of law relating to school funds, shall be construed to mean the county depositary.

It thus appears that no part of common school district taxes are even payable to the county treasurer of El Paso, but were payable by Watson direct to the county depositary, whose duty it was to credit the funds to the respective districts. The county did not own the funds collected by Watson for common school districts, and had no authority to recover same. The trustees of the various districts were the proper parties plaintiff. Possibly the depositary also might maintain the suit. See cases cited above and the following: Bank v. School District, 185 S. W. 589; Jernigan v. Finley, 90 Tex. 205, 38 S. W. 24.

We are aware that in Poole v. Burnet County, 97 Tex. 77, 76 S. W. 425, and Kempner v. Galveston County, 73 Tex. 216, 11 S. W. 188, suits were maintained by counties against their treasurers to recover school funds. But the funds involved in those cases were the available fund and the permanent school fund. The permanent fund of course belongs to the county. So does the available fund until it has been apportioned and set aside to the different school districts. This is the distinguishing feature of these, and possibly some other cases appearing in the reports.

2. As to the item of $3,657.82 taxes collected for drainage districts, it appears that drainage districts, by and through the drain commissioners, may sue and be sued. Article 2584, R. S. Such districts are the owners of funds collected by taxation for its benefit. They could properly sue to recover any funds belonging to it, but in view of statutory provisions the county, through its commissioners’ court, is charged with such duties and responsibilities respecting such funds that it too may sue to recover the same in order that it may discharge its duties.

A consideration of these provisions discloses that under the subject of “Drainage,” article 2533, R. S., makes it the duty of the tax collector to collect drainage taxes and to report to the county treasurer the amount of taxes collected, and it is the duty of the treasurer to keep a separate account of all taxes so paid over to him. Article 2510 provides that the commissioners’ court shall pay the drainage contractor, or persons constructing. the drain, out of any fund in the county treasury collected as aforesaid, etc. Article 2541 provides that it shall be the duty of the commissioners’ court to audit all claims against the county for work and expenses under the provisions of that chapter, and for all claims allowed said court shall, by an order duly entered upon its minutes, direct the clerk of the county to issue a warrant payable out of the drainage funds and directed to the county treasurer for the amount allowed by the court.

“Under chapter 4, on subject of drainage by districts, article 2603, it is provided: ‘That in the assessment and collection of taxes authorized by this act, said assessor and collector shall have the same powers and shall be governed by the same rules, regulations and proceedings as are provided by the laws of this state for the assessment and collection of taxes for state and county purposes, and as otherwise provided for in this act.’
“Article 2605 provides: ‘The tax collector of the county shall be charged by the commissioners’ court with the assessment rolls of the drainage district, and he shall be allowed such compensation for the collection of such taxes as he is now allowed for the collection of other taxes. The county commissioners’ court shall require the tax collector of the county to give an additional bond or security, in. such sum as they [may] deem proper and sufficient to secure the collection of said taxes.’
“Article 260'6 provides: ‘It shall be the duty of the tax collector to make a certified list of all delinquent property upon which the drainage tax has.not been paid, and return the same to the county commissioners’ court, which shall proceed to have the same collected by the sale of such delinquent property, in the same manner as now provided for the sale of property for the collection of state and county taxes,’ etc.”

It thus appears that the commissioners’ court is charged with duties and responsibilities respecting funds belonging to drainage districts which imperatively demand and authorize the county to sue for the recovery of funds belonging to such districts which have been collected by the tax collector and for which he has failed to account. Unless it have this authority, the commissioners’ court cannot discharge the duty imposed upon it. However, such recovery cannot be had upon an allegation that such funds belonged to, and had been collected for, the county.

But in this connection, it is contended by the sureties that the payment of the taxes collected by the collector is secured, not by the general county bond upon which they are sued herein, but upon the bond which article 2605 requires to be given by the tax collector. The bond mentioned in this article is required to be given by the tax collector “to secure the collection of said taxes.” It is not to secure the payment of the taxes by the tax collector to the county treasurer after he has collected the same. The general county bond secures such payment, and for that reason there is no merit in this contention. Kempner v. Galveston County, supra.

S. It is contended that Watson cannot be charged with commissions allowed him on state collections, as there is no valid law authorizing a county to collect as money belonging to it any part of such commissions. Article 3, § 48, of the Constitution, provides that the Legislature shall not have the right to levy taxes or impose burdens upon the people except for certain purposes there enumerated. Section 51 of the same article provides as follows:

“The Legislature shall have no power to make any grant or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporation whatsoever.”

It is asserted that, since commissions on state collections are part of the state taxes, the Legislature could not lawfully make a gift of these commissions to the county; that it is a giving of a part of the state taxes, a part of the public moneys, to the county, prohibited by the constitutional provisions cited. The question involved becomes academic and unnecessary to be decided in view of the fact that the amount of Watson’s commissions on state collections is less than the salaries of his office to which he was properly entitled. Clark v. Finley, 93 Tex. 171, 54 S. W. 343.

4. J. D. Ponder was the treasurer of El Paso county. Watson kept his funds in the Texas Bank & Trust Company. This bank will hereafter be referred to as the Texas Bank. The Union Bank & Trust Company (hereafter referred to as Union Bank), was the county depositary. About May 15, 1916, Watson delivered to Ponder his check in the sum of $11,082.73, drawn upon the Texas Bank to cover county tax collections. This check with its indorsements reads:

“Will I. Watson, Tax Collector. No. 628. El Paso, Texas, May 1st, 1916. Pay to the order of X D: Ponder, Co. Treas., $11,082.73 eleven thousand eighty-two and 73/ioo dollars. Will I. Watson, Tax Collector. To the Texas Bank & Trust Company, El Paso, Texas.”
Indorsed on back:
“J. D. Ponder, Co. Treas.”
Also has stamped on back:
“Paid — 6—July 1, 1916. Union Bank & Trust Co. Through El Paso Clearing House.”
Also:
“Paid — 6—July 3, 1916. Union Bank & Trust Co. Through El Paso Clearing House.”
Upon receipt of the check, Mr. Ponder receipted Watson for $11,082.73 by instrument which reads:
“No. 696. $11,082.73. The treasurer of El Paso County, Texas, will receive from Will I. Watson, the sum of $11,082 & 73/ioo dollars, and credit to account of funds named in reverse hereof. E. B. McClintock, County Clerk, by John T. Cain, Deputy. El Paso, Texas, 5— 8 — 16.”
On back:
“Treasurer’s Office El Paso County, Texas. El Paso, Texas, 5 — 8, 1916. Received in the treasury the amount on reverse hereof to be credited to the following funds:
“Available:
General .$2,294.58
Road and bridge. 1,349.87
Jury . 5,614.19
“Sinking funds:
Road and bridge special bonds. 575.82
Poor farm bonds. 57.56
Courthouse and jail addn. bonds. 17.92
Road and bridge imp. and maint. bonds 355.09 Courthouse and jail refunding bonds.. 20.48
Courthouse addition No. bonds. 67.16
Jail addition No. 2 bonds. 31.35
Courthouse and jail (new) bonds..... 673.09
Road district No. 1 bonds.
Road district No. 2 bonds.
Poor farm No. 2. 25.62
Total ...$11,082.73
“J. D1. Ponder, County Treasurer.”

Credit to Watson for the amount of the check was entered and carried on the treasurer’s books until October 17, 1916. Every payment which had been made by the collector to the treasurer was by the same cheek method.

At the time the check was delivered, Watson had ample funds in the Texas Bank to pay same. Ponder held the check until June 30, 1916, when he presented it to the Union Bank. Upon its presentation the Union Bank gave Ponder credit therefor on his treasurer’s book. Ponder kept the funds deposited with the Union Bank in the name of “El Paso county,” ánd the county received credit for this cheek from the Union Bank. While the check was held by the treasurer from May 15th to June 30th, Watson’s funds in the Texas Bank had been checked out for other purposes, and upon presentation of the check to the Texas bank its payment was refused. Thereupon the Union Bank charged back to the county the amount of the check, and notified Ponder to that effect by letter dated July 7, 1916. There is no evidence to show that this check was taken by the Union Bank for collection, and Mr. Ponder testified that his bank always accepted cheeks deposited by him as .so much cash. Upon this state of facts, the question arises as to the right of the county to recover of Watson and his sureties the amount of the check.

In passing upon this question, it will be well to first consider some statutory provisions. It is the duty of commissioners’ courts to select some banking corporation, association, or individual as the depositary of the funds of the county. It selects as the depositary of all the funds of the county the one offering to pay the highest rate of interest. When selected, the depositary gives a bond conditioned for the faithful performance of all the duties and obligations devolving by law upon such depositary, • and for the xsayment upon presentation of all checks drawn upon said depositary by the county treasurer of the county, and that said county funds shall be faithfully kept by said depositary and accounted for according to law. When this bond is given and approved, such banking corporation, association, or individual is selected as tbe depositary of the county funds, and it thereupon becomes the duty of the treasurer to transfer to the depositary all the funds belonging to the county, and upon the receipt of any money thereafter to deposit same with the depositary to the credit of the county. (Italics ours).

It is the duty of the depositary to provide for the payment, upon presentation at the county seat, of all checks drawn by the treasurer upon the funds of the county as long as funds of said county treasurer shall be in the possession of the depositary subject to such checks. No money belonging to the county shall be paid by the depositary, except upon check of the treasurer. Articles 2440-2444, 2447, 2449, R. S. It is the duty of the county treasurer to receive all moneys belonging to the county from wnatever source they may be derived, and to pay and apply the same as required by law, in such manner as the commissioners’ court of his county may require and direct. He shall not pay any money out of the county treasury except in pursuance of a certificate or warrant from some officer authorized by law to issue the same. Articles 1305 and 1509, R. S. In all counties having an auditor, all warrants on the county treasurer, except warrants for jury service, must be countersigned by the auditor. Article 1485, R. S.

Taxes are payable to the collector in currency or coin, except county ad valorem taxes, . which may be paid in county script When collected, the taxes, at the end of each month, must be paid by him to the proper authority, who is the county treasurer. Articles 7358, 7614, and 7619. When the tax rolls are delivered to the tax collector, he is charged up with the amount assessed and due the county. One of the ways in which he can discharge this indebtedness is by filing the receipt of the county treasurer for the money paid into that treasury. Articles 1408, 1409. All deposits made in the county treasury shall be upon a deposit warrant issued by the county clerk in triplicate, authorizing the treasurer to receive the amount named, for what purpose, and to which fund the same shall be applied. The treasurer shall not under any circumstances receive any m'oney in any other manner than so stated. Article 1478.

Appellee contends that the treasurer was not authorized to receive from Watson anything but cash in settlement of tax collections. This is correct. Upon this premise it is further contended that the check received was not cash, and since Ponder had no authority to receive the same from Watson the county can recover the amount thereof from the latter and his sureties. If the cash which this check represented never came into the custody and control of the county, this contention would be well taken. On the other hand, it is not well taken if the amount of the check came into the custody and control of the county. This, so far as the county was concerned, would constitute a payment and extinguish any cause of action against Watson and his sureties.

Let us examine this question. While it is true the collector must pay in cash to the county treasurer the moneys in his possession belonging to the county, and while the treasurer must deposit such moneys in the depository, yet there is no law which undertakes to prescribe the manner in which these settlements shall be made between the collector, the treasurer, and the depositary. They may adopt such methods as may be convenient to them, provided the niecessary funds are placed in the county depository to the credit of . the county. The law does not contemplate that the identical money of the county placed in the depository shall remain there. The county simply gets credit for such deposits. This court considers that whenever a fund due the county has been credited to the county by the depositary, such fund has come into the possession of the county, and is subject to the control of the county, and it constitutes payment to the county; that such fund cannot he withdrawn from the county depositary except upon checks of the treasurer, drawn by authority of lawful warrants, and countersigned by the auditor; that when the depositary of El Paso county credited the amount of Watson’s cheek to the credit of the county treasurer, it in law constituted a payment to the county of the amount of the check and that the depositary became liable to the county for the amount thereof,- and the charging back of the check was an unauthorized withdrawal of county funds.

In this transaction, the Union Bank occupied a dual position, viz.: (1) As a banking institution, and (2) as the county depositary. As a banking institution, it makes loans, receives deposits, issues bills of exchange, and does various other things common to such an institution. As the depositary, it does not do these things, but takes funds belonging to the county, and assumes responsibility therefor, giving bond to the county to protect against loss. When funds of the county are placed in the depository, the county has in no case more than a credit secured by bond; the identical money deposited does not remain there.

Suppose Mr. Ponder had cáshed this cheek at the First National Bank on his indorsement and placed the money to the credit of the county in the depository, and the payment of the check upon presentation to the Texas Bank had been refused. Could it be said that the county would still have a cause of action against the collector on his bond? There would have been a cause of action,, not by the county,' because it had received the money, but by the First National Bank against Ponder as indorser, and Watson as drawer, and the suit would have been on the check.

Suppose, in settlement of the ipil,082.73 indebtedness, Watson had executed a note to Ponder which Ponder negotiated at the Union Bank and deposited the proceeds to the credit of the county. If the note was not paid at maturity, could the Union Bank charge the county with the amount thereof? Certainly not. Now, in effect, what was actually done was that supposed in the first instance. The Union Bank as a banking institution accepted the check from Ponder and gave the county credit therefor. It became the owner of the check, and could do whatever it pleased with it. When its payment was refused, it had no authority to withdraw a credit which it, as county depositary, had theretofore given to the county. The charging back of the amount of th'e check was in effect a withdrawal of county funds from the depository without lawful authority. It must be remembered that the county was in no wise a party to this check, and made no agreements, express or implied, concerning or respecting same. Ponder and the depositary in handling the same did so at their own risk. It was within the province of the treasurer and the Union Bank to accept the same for collection only, and not pass it to the credit of the county until it had been paid. - In such a case, the funds which the check represented would never have been credited to the county, the county would never have come into the possession of the money, it would never have become subject co the control of the commissioners’ court, and a suit by the county upon the tax collector’s bond could certainly ha,ve been maintained.

Appellees call attention to cases holding that an agent authorized to collect his principal’s debts cannot accept payment in anything other than money, and that delivery of a check as a substitute for money does not constitute a payment until accepted as such and actually paid in due course. Western, etc., v. Maverick, 4 Tex. Civ. App. 535, 23 S. W. 728; Potter v. Sager, 98 Misc. Rep. 25, 161 N. Y. Supp. 1088, and many others.

The correctness of these holdings is undoubted. But they are not in point, for the reason that the money represented by the check never reached the principal. Suppose such agent had procured the cash' upon the cheek from some person other than the drawee, and the amount of the check had been placed to the credit of his principal in the depository of his principal’s funds. Certainly then the principal could maintain no action against the. original debtor, because he had received his money; and if the depositary undertook, without authority, express or implied, to charge the amount back to the principal, it would be unlawful and the principal’s cause of action would be against his depositary.

Here Bonder was the agent of the county to receive payment from Watson. He had no authority to accept a check in payment of Watson’s indebtedness. But he received a check, and from the Union Bank upon that check he had passed to ■ the credit of the county the amount thereof. If the county had not received this credit, the authorities relied upon would be applicable and the right of the county to recover of Watson and his sureties would be clear. But, as stated, the credit was entered in favor of the county, and unless there was some authority, express or implied, for the depositary to charge this check back against the county, then it was unlawfully done.

There is no authority in the statute for county depositaries to so withdraw county funds. As stated above, the county was not a party to the check, or to the course of dealing between Watson, Ponder, and the depositary, and there was no agreement upon its part, express or implied, to authorize the depositary to charge back the check. If there was such agreement between the depositary and Mr. Ponder, the county is in no wise affected thereby.

Upon this view of the case, it makes no difference if there was an express or implied agreement by Pbnder authorizing the depositary to charge back to the county checks which he had deposited, if not paid, nor does it make any difference whether there was an agreement between Ponder and the depositary that the check was accepted conditionally for collection. Funds credited to the county.by its depositary cannot be charged back simply upon agreements made by its treasurer.

We therefore hold that, so far as the county is concerned, it has received payment of the amount of the check by credit allowed therefor by its depositary, and that the depositary and its bondmen are liable to the county for the amount thereof. Since it has received such payment, it has no cause of action in respect thereto against Watson and the sureties upon his official bond. Two Iowa cases seem to support the conclusion, reached: Griffin v. Erskine, 131 Iowa, 444, 109 N. W. 13, 9 Ann. Cas. 1193; Harbach v. Colvin, 73 Iowa, 638, 35 N. W. 663. See, also, in support generally of this view, Kempner v. Galveston Co., 73 Tex. 196, 11 S. W. 194; Kempner v. Galveston County, 76 Tex. 450, 13 S. W. 460; Ward v. Marion County, 26 Tex. Civ. App. 361, 62 S. W. 557, 63 S. W. 155; Anderson v. Walker, 93 Tex. 119 at 130, 53 S. W. 821; Burton v. United States, 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482; 7 Corpus Juris. 635; Haas v. Fruit Co. (Mo. App.) 183 S. W. 676; Bank v. Bank, 241 Fed. 1, 154 C. C. A. 1; Wasson v. Lamb, 120 Ind. 514, 22 N. E. 729, 6 L. R. A. 191, 16 Am. St. Rep. 342; Auto Co. v. Bank, 116 Md. 179, 81 Atl. 294.

Cases which seem to recognize the distinction made between the case of the mere unauthorized acceptance of a check by a collecting agent in settlement of his principal’s debt, and a case where the money upon the cheek is obtained by tbe agent and passes into tbe bands of tbe principal or tbe depositary of bis funds, are: Western, etc., v. Maverick, 4 Tex. Civ. App. 535, 23 S. W. 728, and Burnstein v. Sullivan, 134 App. Div. 623, 119 N. Y. Supp. 317.

5. As to tbe fourth proposition under appellant’s fifteenth assignment, our attention is not called to any evidence showing that tbe item of $2,967.02 was paid by Watson out of funds collected during bis second term of office. For this reason, it is unnecessary to further consider tbe question presented.

6. Tbe cross-assignments presented by ap-pellee are considered to be without merit.

For tbe reasons indicated, tbe cause is reversed and remanded.

WAETHALL, J., not sitting.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUEF, O. J.

license: Public Domain

text:
    TEXAS REFINING CO. v. ALEXANDER.
    (No. 1297.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 6, 1918.
    Rehearing Denied March 20, 1918.)
    1. Trial <§==203(1) — Requested Submission Ob Issues — Duty of Couht to Submit Proper Issue.
    Although the fact that some 14 issues in all were requested and were on one paper when presented to the trial court will not, as a rule, support an assignment based orr their refusal, yet if the issues so presented were duly pleaded by the party and the issues cabed attention to an affirmative defense, even though defective, it will be sufficient to require the court to submit a proper issue thereqn.
    2. Appeal and Error Statutes — In-dorsement by Trial Court on Request for Instructed Verdict.
    Acts 35th Leg. c. 177 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), as to effect of court’s indorsement on a request for instructed verdict, applies to a case tried before its passage, and appealed about the time the act went into effect, since the act affects the remedy only in the appellate court.
    3. Statutes <§=>267(2) — Retroactive Effect —Procedure.
    When a new statute deals with procedure only, prima facie it applies to all actions, those which have accrued, or are pending, and future actions.
    4. Master and Servant <§=88(3) — Independent Contractor.
    The mere use by one doing a piece of work of material or employés primarily employed by the company having the work done will not, of itself, make the company liable for such em-ployés’ acts, unless it had the immediate control and management of the work done.
    5. Master and Servant <S=>88(3) — Independent Contractors.
    The mere fact that a machinist, or the machine shop sending him to do a piece of work for a corporation, was to receive pay for the work at so much an hour, or that it was to be paid for by the job, is not conclusive on the issue whether he was an employé of the corporation.
    6. Master and Servant <§=>88(3) — Independent Contractor.
    The question as to whether the relation of independent contractor exists as to a piece of work is usually determined on the issue as to who is in charge and control of the work and who determines the method of doing it.
    7. Master and Servant @=388(3) — Servants Loaned to Independent Contractor.
    On the issue whether a company is liable to one as an employé when he is injured, in doing work for it, by a company employé assisting him, the true test is to ascertain who directs the movements' of the person committing the injury.; the fact that the company is the primary employer of the persons assisting in the work not necessarily making them its servants.
    8. Master and Servant @=>284 (2) — Question for Jury — Independent Contractor.
    In action against a company by a machinist injured while doing a piece of work for the company 'by one of its servants assisting him, the issues that the machine shop sending him was his employer, and undertook to do the specific work; that the machinist, for it, was in control of the work, including the company’s employés loaned to assist him; that the company was interested only; in the result of the work, etc. — were for the jury.
    9. Master and Servant <§=>297(2) — Verdict —Inconsistent Findings.
    An affirmative answer to the issue whether plaintiff was contributorily negligent, with a negative answer to the issue whether said negligence proximately caused or contributed to cause his injury, under the court’s definition of proximate cause, held a contradictory answer requiring verdict for plaintiff to be set aside.
    10. Master and Servant <§=>358 — Workmen’s Compensation Act.
    An election of one to take under the Employers’ Liability Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), in case he is an employé, is sufficiently shown by his making claim thereunder and prosecuting it to final adjudication, so that if he is an employé within part 1, § 3, of the act, he has no right of action against his employer, if the latter is a subscriber under the act, irrespective of whether the employer gave him notice of being a subscriber.-
    11. Master and Servant <§=>367 — Workmen’s Compensation Act — “Employé.”
    Under Employers’ Liability Act, pt. 4, § 1, excepting casual employés from the definition of employés, and pt. 2, § 6, excepting the em-ployés of independent contractors on a contract “merely auxiliary and incident to” the business, a machinist sent by a machine shop to do certain work on a machine was not an “employé” of the company owning the machine.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second .Series, Employe.]
    12. Master and Servant <§=>416 — Workmen’s Compensation Act — Effect of Denial of Compensation.
    Denial by the Industrial Accident Board of a workman’s claim for compensation on the ground that, as a casual employé, he was not an employé within the Employers’ Liability Act had the effect of remitting to their common-law rights both .him and the company he claimed to be liable for his injury; the provisions of the act, depriving the employer of common-law defenses of contributory negligence, fellow-servant negligence, and assumed risk, applying only in suits by one who is an employé entitled to invoke the act.
    13. Master and Servant <§=>287(2) — Question for Jury.
    Whether an improvised battering-ram used to drive a crank pin into place in an upright engine was an instrumentality requiring special skill in its operation by the helper guiding it held, in suit by machinist injured by its operation, a question for the jury.

      Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by J. M. Alexander against tbe Texas Refining Company. Erom judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Harry P. Dawther, of Dallas, for appellant.' B. Q. Evans and W. A. Shields,' both of Greenville, and Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.
   HUEF, O. J.

Alexander sued the Texas Refining Company for damages occasioned by the loss of a finger, and recovered upon the trial $2,000. He alleged that on or about the 2Sth day of October, 1915, he was in the employment of the refining company, assisting in repairing a part of their machinery, etc. The negligence alleged is that the refining company employed the men to help in the work, and without his knowledge employed incompetent men, who were not experienced in that line of work, which was the proximate cause of the injury, and also alleged that the men so employed were negligent. The answer will not be set out at this place, but the issues presented by it will be noticed in the course of the opinion. The Texas Refining Company was engaged in the manufacture of lard and cooking oil and in the making of ice. A crank pin in an upright engine in use in its plant in Greenville, Tex., became loose, necessitating taking it out, the making of a new pin, and putting it in its proper place in the engine. One Mc-Mackin was a machinist in the city, doing business under the name and style of the Model Machine Shop. Alexander was wofk-ing for McMackin on a percentage basis; that is, he received 50 per cent, of half of the compensation for any job of work that Mc-Mackin obtained, and which was turned over to Alexander, and after the work Was done and expenses paid they divided the profits.

Some portions of the appellee’s testimony seem directed to an effort to show that the Model Machine Shop lent or hired him to appellant to work on the engine, and under appellant’s control and management that his services were to be paid for by the hour, while from other portions of the testimony the inference may be drawn that the “job” was that of the shop, and that 'he controlled and directed the entire work. The testimony of all the other witnesses shows the contract was made with McMackin, or the shop, to do the designated work; that it was to be paid for as a complete piece of work, and the Model Machine Shop was so paid upon the rendition of its bill; that the appellant did not manage, control, or direct the appel-lee, but that he controlled the work, using his own tools, manner, and method of doing the work; that in doing the work he was representing the Model Machine Shop, and at his request the appellant, through its engineer, lent to" him helpers who, while helping, were under the control of appellee, In doing the work all the necessary tools and appliances for the work were furnished by the Model Machine Shop, unless it was the piece of steel out of which the pin was made. This piece of steel was taken to the shop and fashioned for the purpose of inserting it into the hole bored by appellee.

It is also shown that appellee chipped off the parts of the machine necessary to get the old pin out, and the helpers, negroes, with a sledge drove the pin out, and after it was out, with a boring machine belonging to the shop the appellee enlarged the hole; one of the negroes turning the machine. After the hole was completed to suit the appellee he took the necessary measurements and the steel for the pin to the shop and finished it so as to make it the proper size for the hole. Upon return to the plant the new pin was inserted in the hole and was driven in, under the direction of appellee, to within about an inch of the distance it should go. This was accomplished by Alexander holding a copper hammer on the head of the pin, tlfi? negro striking this with a sledge hammer. It was then found that in order to drive it up it would require more force. Carley, the engineer of appellant, was in the engine room asleep, and appellee woke him up, stating that he could drive the pin no further with the sledge, and that he would have to have a battering-ram, and asked for something that could be so used. Carley told him there was some railroad iron which he could use, and told the negroes where it was. This railroad iron weighed about 400 pounds and was about 20 feet long. The engine, where the pin was being driven was about 8 feet from the brick wall of the building, and it was found necessary to cut a hole in the wall in order to pass one end of the iron through it for leverage to use the iron as a battering-ram. Appellee im one place seems to say Carley cut the hole in the wall; all the other witnesses but himself say that he himself measured it and directed the negroes to cut the hole. One end of the iron was run through this hole, and the one next to the machine was suspended by a rope from above. The appellee says Carley directed this arrangement. All the other witnesses state appellee did so himself. Carley says that he was not in there when it was rigged up, and was not there until after they had begun to use it as a battering-ram. Appel-lee admits in one place that he did assist and direct the arrangement of the ropes suspending the iron. In using the rail there were three negroes outside the building for the purpose of propelling the iron and one on the inside at the rope to hold and guide the iron so as to strike the head of the pin. When they first began using the iron a brass hammer was held against the head of the pin and the iron struck this. The handle fell out of the hammer, and appellee picked up a piece of shafting 5% inches long and 2ib/i® inches in diameter, holding one end against the pin with his hand, while the negroes swung the ram against this piece of shafting. There were some blows struck with the ram after which a blow missed and caught the finger of appellee, mashing it against the plate so that amputation was necessary. The negroes on the outside, swinging the ram, could not see appellee or the pin. After they had begun to use the iron, Carley states, and the other evidence shóws, that he was present when the ram struck appellee’s finger, holding a light so the work could be seen. Ap-pellee, in some of his testimony, would seem to state that Carley was directing the work. All the other witnesses say appellee was doing so. The negroes were in the employ of appellant, and appeared to be only ordinary laborers, and were perhaps not skilled mechanics. At the time of the contract or employment of appellee, he asked Carley if appellant could give him helpers. Carley stated he would -be there, and would furnish him help. Carley was the engineer at the plant, working for it in that capacity; the negroes were helping appellee under the arrangement so made.

This statement of the facts we judge to be sufficient for the purpose of considering the assignments.

The appellant requested the trial court to instruct a verdict for it, and presents a number of assignments, based on the refusal of such instruction.

The fourth paragraph of the court’s charge, instructed with reference to the duty of a master to furnish a reasonably competent fellow servant, and after certain definitions submitted special issues to the jury, the first being, was the helper Stinson (who was the negro guiding the ram at the time of the injury) incompetent and wanting in required qualifications for assisting plaintiff in the work in hand? Second, was the defendant guilty of negligence in furnishing the helper? Third, was the helper furnished and the negligence of the defendant the proximate cause of the injury? The jury answered all of these questions in the affirmative. The appellant requested several issues to the effect, Was appellee, at the time of the injury, in the employment of the Model Machine Shop? Was he paid for his services by that shop, by commission on the net profits? Was he doing the work he was engaged in according to his own methods and means and with his own choice of tools? While doing the work, was he under the control or direction as to method, means, and manner of work as to tools used by the Texas Refining Company? Were the employes who assisted him in his work under his direction and control in so far as said work was concerned? Did he direct the manner and use in which the railroad rail was used as a battering-ram? These several issues the court refused, and submitted no issues on the points presented. The appellant also objected to paragraph 4, because it assumed that the relation of master and servant existed between appellant and appellee, and also objected to issues 1 and 2, for the reason the evidence established that appellee was in the employ of the Model Machine Shop, which was an independent contractor to do the specific work; that he was pursuing his own means, methods, and manner of work; that the particular work was to be paid for to the shop, which in fact was so paid in a lump sum, and that appellant’s interest in the work was only in the final result. That the duty to furnish competent fellow servants is an obligation imposed by common law upon the master to his servant; that in this case the relation of master and servant did not exist. The appellant, in its answer, pleaded independent contract by the Model Machine Shop; that appellee was in its employ and under its direction when he was performing the particular work; that he adopted his own methods and means, and that the entire work was under Ms control and management; that the negroes were lent appellee for the purpose of helping him, and were under his control, management, etc. Appellants took a bill of exceptions to the action of the court in refusing to submit the special issues so requested. The court, however, indorsed on this bill his approval with the following explanation:

“The question as to whether the work being done by plaintiff was done under an independent contractor, an employ'd of defendant, was, by counsel for defendant and by counsel for plaintiff, repeatedly stated to be a matter for the court to pass on, and throughout the trial the case proceeded on this understanding.”

At this time we will notice the qualification made by the trial judge on the bill. All the record in this case suggests that the appellant urged in the court below, as well as in this court, that the evidence did not establish the relation of master and servant, and as a matter of law the court should so hold; but the court did not think so, and submitted issues of fact for the jury’s findings. The appellant filed written objections to the assumption by the court of the existence of the relation of master and servant between appellant and appellee, and presented them to the court before his charge was given to the jury; not only that, but it requested, in writing, issues for findings by the jury which, if they had answered in the affirmative, would have shown no such relationship existed, and these issues were also presented by its answer, specially setting them out. The statute relating to special issues provides, where issues are not submitted to a jury and no finding thereon, if necessary to support the judgment, the appellate court will presume such finding by the trial court, if there is evidence to support the finding, unless there is a written request for a finding on such issues by a jury presented to the trial court. In this ease appellant objected to such finding by the court, and also requested in writing that such issue be submitted to the jury for their finding. But some 14 issues in all were requested, and were on one paper when presented to the trial court. This, as a rule, will not support an assignment, based on their refusal. If, however, the issues so presented were duly pleaded by the party, and the issue called attention to -an affirmative defense, even though defective,- as we understand the rule, it will be sufficient to require the court to submit a proper issue thereon. Roberts v. Houston Motor Co., 188 S. W. 257; Olds Motor Co. v. Churchhill, 175 S. W. 787.

As to the bill of exception to the action of the court in refusing to instruct a verdict for appellant, the bill fails to show affirmatively that it was presented to counsel for appellee, but does show it was submitted to the court at the proper time and before his charge was read to the jury. However, we believe most of the courts hold it to be necessary that the bill be presented to the opposite party for examination before the charge of the court is read to the jury, and that this showing is required as a prerequisite to the consideration of an assignment based on such refusal. This court has held to a different view. Banger v. First National Bank, 170 S. W. 1091. We have also held that a request for a peremptory instruction is not a charge within the meaning of our statutes; that it is more in the nature of a motion for a verdict, a refusal of which no bill of exception is required, under article 2062; and whether it be called a demurrer to the evidence, or motion, or an instruction, the effect is the same, and calls upon the court to say as a matter of law whether there is any evidence for the jury to pass upon. Under our statutes defining a charge, only issues of fact can be submitted to the jury. If there are no disputed issues of fact, there is nothing to submit. Such a request is in no sense under the statute a charge, whatever it may have been at common law. Loving v. Warren County, 77 Ky. (14 Bush) 321. But all the Courts of Civil Appeals, it appears, except this one, hold to the contrary.

Whether we are right in our views or not, if the request for an instructed verdict is a charge, all that is now necessary under the act of the Thirty-Fifth Legislature (page 389), is for the court to make his indorsement thereon, and all else is presumed; that is, with reference to its presentation to the court, time, etc. This case was tried before the above act was passed or went into effect, and it went into effect about the time the case was appealed. This act only affects the remedy in this court. We believe it to be the rule, if, pending an appeal, the law is changed with reference to procedure in this court, the appellate court is required to dispose of the case under the law as it exists at the time of deciding the case.

When a new statute deals with procedure only, prima facie it applies to all actions, those which have accrued, or are pending, and future actions. The amendment takes the place of the former statute, and in effect repeals it. We would therefore have no law governing us in considering the charge other than the present statute. This enactment'by the Legislature appears to us to be reasonable, and it further appears to us would not be unjust or unreasonable to apply in this case. The trial judge had ample notice of appellant’s contention in the court below, and was given the opportunity to pass upon the question presented, as is clearly shown by this record. A technical omission in the bill would defeat a consideration of the question in this court. Estoppel is invoked because of such omission. If all the requirements contended for had been complied with, the trial court could not have been given a more certain notice of appellant’s position upon the trial than was given, and shown to have been given by the bill presented. We believe it is not only reasonable, but just, to consider the assignment presented. Phoenix Ins. Co. v. Shearman, 17 Tex. Civ. App. 456, 43 S. W. 930; Id., 43 S. W. 1063; Railway Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642; Odum v. Garner, 86 Tex. 374, 25 S. W. 18; Garce v. Buffington, 25 S. W. 317. We shall therefore consider the assignments presented, based upon the refusal of an instructed verdict, or objection-to the charge of the court, and the refused'specially requested issues.

Very high authority has said, in effect, “No man can serve two masters.” This principle is fundamental in the law of master and servant. There cannot be more than one responsible superior for the same subordinate at the same time and in the same transaction. When it is conceded one is the servant of one of two or more persons, it is sometimes difficult to tell who is the master. In modern industry the line of cleavage is often difficult of ascertainment. Before one is the master he must have the right and power to control the servant in the particular work in hand, however temporary may be that right and power. In this case either the Model Machine Shop or appellant was master to Alexander when he was injured. They were not both such at that time. The cause of action alleged by appellee depends upon establishing that appellant was at that time master in that particular work. If not, there was no duty on it to use ordinary care to furnish competent helpers. It is said by Street on Personal Injuries, §§ 111, 112:

“No better test can be applied than to say that the relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished by the employment of another, but as well the means and details of its accomplishment; ‘not only what shall be done, but how it shall be done.’ ”

Our Supreme Court said:

“It is now the well-established doctrine in Europe and the general prevailing rule in this country that the ordinary relation of principal and agent and master and servant does not subsist in the case of an independent employé or contractor who is not under the immediate direction of the employer.” Cunningham v. Railway Co., 51 Tex. 503, 32 Am. Rep. 632; Railway Co. v. Meador, 50 Tex. 87.

The mere use by appellee of material or employés primarily employed by appellant to do the work undertaken by him would not of itself make the company liable for their acts, unless it bad the immediate control and management of the work done; and, as said in the Cunningham Case, supra;

“To hold otherwise would virtually forbid parties to construct works of improvement, or perform many other acts except by their own servants, unless at great peril for liability for actions of others over whom they have no immediate control.”

The Supreme Court again announced substantially the same rule in Wallace v. Southern Oil Co., 91 Tex. 18, 40 S. W. 399. The case of Walker v. El Paso Electric Co., 103 Tex. 259, 126 S. W. 262, and 118 S. W. 554, does not announce a different rule.

The mere fact that the appellee, or the Model Machine Shop, was to receive pay for the work for so much per hour, or that it was to be paid for by the job, is no conclusive, either one way or the other. Such facts may be entitled to some evidentiary value. These questions are usually determined on the issue as to who is in charge and control of the work, and who is left to determine the method in which it is done. Thompson on Negligence, vol. 1, §§ 629, 630, et seq. The true test in such cases is to ascertain who directs the movements of the person committing the injury. Higgins v. Western Union Telegraph Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St. Rep. 537; Cotter v. Lindgren, 106 Cal. 602, 39 Pac. 950, 46 Am. St. Rep. 255; Labatt on Master and Servant, vol. 1, §§ 18, 19, et seq., notes. The fact that appellant was the primary employer of the negroes who operated the battering-ram does not necessarily make them its servants at the time the injury was inflicted. The statement made by Judge James with reference to this subject is as we understand the generally accepted rule; that is:

“The rule, generally adopted, is that when a master loans or hires his servant to another, the test of fellow servant is whether in the particular service the servant continues liable to the direction and control of his master, or becomes subject to the party to whom he is loaned or hired. Munsie v. Springfield Breweries Co., and cases there cited; 200 Mass. 79, 85 N. E. 840.”

Judge Ply in the same case recognizes the same rule. He says:

“If, with the knowledge and consent of an em-ployé, he is placed in charge of another to perform his work, he would thereby, at least temporarily, pass from the control of one master to that of another, as was held in the case of Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267.” Wallace v. El Paso Electric Co., 118 S. W. 554; Wolfe v. Mosler Safe Co., 139 App. Div. 848, 124 N. Y. Supp. 541, and authorities above cited.

This case, we think, clearly raises the issue that the Model Machine Shop undertook to do the specific work, and that Alexander was in its service; that it furnished the material and work; that Alexander, for it, selected the instrumentalities with which to do the work ; that he directed and controlled the manner in which it was done and all those who assisted in the work; that appellant did not control the work as it progressed, but was only interested as to the final result of the work;' that appellant loaned, with their consent, its employés to appellee to assist him in the work; and that he controlled them in their duties with reference thereto. We, perhaps, would not be justified in holding as a matter of law that there are no facts to the contrary, but we think, under the motion for new trial, pointing out the error of the court in the particulars above stated, that the court should have granted a new trial, and •therefore we believ.e the case should be reversed and remanded for the reasons above stated.

The trial court submitted issue No. 4:

“(a) In the manner and by the means by which the plaintiff was performing the work, was plaintiff guilty of contributory negligence, as defined in paragraph 3 hereof? (b) If yes, then did said negligence of the said J: M. Alexander proximately cause, or contribute to cause, his injury, as to the term ‘promimate cause’ has been defined to you?
To (a) the jury answered “Xes”; to (b) “No.”

Paragraph 3 is as follows:

“Contributory negligence is negligence on the part of the person injured combining and concurring with negligence of the person inflicting the injury complained of and contributing to such injury, and but for which the injury would not have occurred.”

Even though appellant was master and was negligent in failing to employ competent helpers, which negligence proximately caused the injury, we cannot see how appellant at common law could recover if he himself was negligent, which negligence caused, or contributed to cause, the injury, “and but for which the injury would not have occurred.”

The definition of proximate cause given by the court is stated to be that which, in a natural and continued sequence, “unbroken by any new or independent cause,” causes the injury, etc. Now, the natural sequence from employing an incompetent helper, the jury found, was negligence, and caused the injury. But they further found this injury would not have happened but for the new and intervening negligence of appellee. The answer of the jury is contradictory, and no judgment could be rendered on the verdict. The court should have set aside the verdict.

We will at this point consider appellant’s assignment No. .6. The appellant, in answer to the petition, pleaded that it was a member and subscriber under the Texas Employers’ Liability Act, passed by the Thirty-Third Legislature, alleging the necessary facts as to the number of its employés, etc.; that it held a policy in the iEtna Life Insurance Company; that the policy appellant so held provided for payment .of the compensation provided for in the act above named; that appellee presented his claim for compensation to the Industrial Accident Board, which 'made its final ruling, to the effect that he was not entitled to compensation under the act. The facts show appellant was such member and subscriber as alleged, and had taken out a policy with the insurance company, as alleged, which was in force at the time of the injury. After the injury Alexander filed his claim for compensation under the act for personal injury while in the employ of appellant The date of such claim and filing is November 10, 1915, after the accident on August 27, 1915. On the 22d day of December, 1915, the hoard entered an order to the effect that, it appearing that Alexander was not in the regular employ of appellant, in a capacity covered by the policy, and that the claim is without merit under the Employers’ Liability Act, therefore the board adjudged and ordered that the claim be disallowed. The answer and request of appellant sought the judgment of the trial court as to whether it would take further cognizance of the action, and prayed that the cause be dismissed.

If the appellee was an employé of appellant, within the meaning of the Employers’ Liability Act, under section 3, part 1, of the act, appellee would have no cause of action against appellant, who was a subscriber under the act. The fact that no notice was given by appellant to appellee that it was a member of the association, or did not so plead and prove, we believe not to be material, when it is shown by the pleading and the proof that the appellee made his claim under the act and prosecuted that claim to final adjudication before the’board. This, we think, sufficiently shows he accepted as such em-ployé, provided the board find that he fell within the class of employés defined in the act. In the case of Rice v. Garrett, 194 S. W. 667, Judge Boyce, speaking for this court, said:

“And we have concluded that the employer, in order to show that the employé has elected to take under the compensation act, should show that the employer has given notice required by the act, or the employé has in some manner waived it.”

We think in this case the pleadings and evidence show appellee waived the formalities stated by filing his claim with and prosecuting to judgment the claim before the board. However, we believe the appellee was not an employé within the definition of section 1, pt. 4, of the act, and not entitled to compensation under the act. That section in part is as follows:

“The following words and phrases, as used in this act, shall, unless a different meaning is plainly required by the context, have the following meaning: ‘Employer,’ shall include the legal representatives of any original employer. ‘Employs’ shall include every person in the service of another under any contract of hire, expressed or implied, oral or written, except one whose employment is but casual, or is not in the usual course of the trade, business, * * * or occupation of the employer.”

The board, in its findings, evidently determined that appellee was only a casual employé, and not employed in the usual course of the trade or business of the employer. The appellant relies on section 6 of part 2, referring to employés under an independent contractor or subcontractor, which in effect provides the association shall pay to such employé compensation which would be payable under the act, etc. The section shall not apply to independent or subcontractors on any contract which is merely auxiliary and incident to 'and is not a part or process in the trade or business carried on by the subscriber. If the appellee was working for an independent contractor at the time of his injury, it “was merely auxiliary and incident to,” and was not part of, the “trade” or “business.” W'e believe the finding of the board and the award made had the effect of remitting the parties to their common-law rights, both employer and employé.

Under this act and the facts showing only casual employment of appellee by the employer in auxiliary or incidental work to the business in which he could not become a subscriber under the act so as to obtain relief from his common-law liability, it is our view that the purpose of the act was not to deprive the employer of the defense of contributory negligence, negligence of fellow servant or assumed risk, but under such circumstances leaves both parties amenable to the rules of the common law, governing master and servant. Section 4, part 1, entitles the employé to bring suit against a nonsub-scribing employer, and when such employer is not a subscriber, section 1 of the act deprives him of the defense of contributory negligence, etc. If he is a subscriber, the section does not apply; in fact there is no cause of action against him. Section 1, part 4, above quoted, defining who are employers and employés, further evidences the fact that the provisions of the act do not apply in this case. The term “employé” as used in the act, does not mean a casual employé. Section 1 of the act provides that, in an action for damages by an employé, “it shall be no defense” that he was guilty, etc. The em-ployé here referred to is an employé under the act as defined. If he was such employé as would be entitled to compensation under the act, appellee would have no cause of action; if he was not such employé, then the employer was not deprived of his common-law defense. We hold he was not an em-ployé within the meaning of the act, and, not being such, he was subject to the defense of contributory negligence, etc. The trial court, therefore, was in error in rendering judgment on the verdict finding appellee guilty of contributory negligence. He should either have set the verdict aside or rendered a judgment for appellant. Owing to the inconsistency of the verdict, we believe a new trial should have been awarded.

As to whether the battering-ram as , constructed in this case was an instrumentality such as required special skill in its operation by the helper guiding it, we have concluded not to discuss. We will only refer to the rule generally stated that, where skill or special fitness is required, the duty appears to be on the master to use ordinary care to furnish a competent helper. This is, we believe under the record in this case, a question for the jury.

We shall not discuss the assignments further, but believe what has been said disposes of most of them.

This case will be reversed and remanded.
      ^=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    MEDLEY v. BROWN, County Judge, et al.
    (No. 8770.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 19, 1918.
    Rehearing Denied Feb. 23, 1918.)
    Judgment (&wkey;590(2) — Res Judicata — Changed Conditions.
    Recovery of damages for obstructing access to property by erection of a bridge in front of it at a higher grade bars plaintiff, after he has raised his house to the bridge level, from recovering damages for the obstruction of access to his premises by the bridge balustrade, a permanent part of the bridge and not changed since the first action, and also from claiming a mandatory injunction requiring the tearing down of the bridge balustrade in front of his property; for the test of whether the same evidence would support both actions does not apply, plaintiff himself having caused the changed conditions.
    Appeal from District Court, Tarrant County ; Ben M. Terrill, Judge.
    Action by H. G. Medley against Jesse Brown, County Judge, and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    . Marvin H. Brown and Ocie Speer, both of Ft. Worth, for appellant. Marshall Spoonts and J. E. Mercer, both of Ft. Worth, for ap-pellees. -
   DUNKLIN, J.

H. C. Medley is the owner of a lot of land abutting on the Arlington Heights boulevard in the city of Ft. Worth in close proximity to Trinity river, and at a point where Tarrant county has constructed a bridge across the river. At the point where the lot abuts on the highway the bridge is 20 feet above the level of the ground. Prior to the institution of the present suit he instituted a former suit against the county for damages for obstructing ingress to and egress from the lot by means of the bridge. The former suit was instituted. against both the county and the Ft. Worth Improvement District No. 1, a private corporation that had constructed a levee near the property to confine the water in the river during its overflow.' Upon the trial of that suit the jury in answer to special issues found that prior to the construction of the bridge and levee the market value of plaintiff’s property was $4,000, and that by reason of those obstructions the market value of the property was depreciated $2,500, one half of which depreciation was caused by the erection of the bridge and the other half by the levee, thus leaving the market value of the lot at the time of the trial of the former suit to be $1,500. There was no appeal from that judgment, and the $2,500 damages allowed plaintiff therein was collected, and, with $1,-350 of the proceeds, plaintiff raised the house on the lot to a level with the bridge.

In the present suit, which was instituted against Tarrant county, Medley sought a mandatory injunction to compel the commissioners’ court to cut the balustrade of the bridge immediately in front of his lot, so as to allow him access to his house from the bridge, and in the second count of his petition he prayed in the alternative for a judgment against the county in the sum of $10,-000 as damages to his property by reason of such obstruction of access to his property; and from a judgment in favor of the county, he has prosecuted this appeal. The former judgment was pleaded by the county as res adjudicata, and that plea was sustained by the trial court.

The petition and judgment in the former suit were introduced in evidence and appear in the statement of facts. In that petition it was alleged that prior to the erection of the bridge plaintiffs’ property was improved with buildings, and was valuable both as business and residence property, having a rental value of $75 per month, and a market value of $10,000; that its value was wholly destroyed by reason of the fact that access thereto was wholly cut off by reason of the bridge, and plaintiff prayed for a judgment for the value of his property, or, in the alternative, for the deterioration in its value by reason of the bridge and levee. And in all other respects the allegations with reference to the injury to plaintiff’s property by reason of his deprivation of access thereto from the highway was substantially the same in the petitions in the former suit and in the present suit, save and except that in the petition in the presept suit the raising of the house upon the lot to a level with the bridge is alleged in connection with further allegations that by cutting the balustrade of the bridge in front of his property, and thus giving him ingress and egress to and from the building situated on the lot, the property could be utilized advantageously to plaintiff; while in the former suit it was alleged that by reason of the bridge the property could not be used for any purpose whatsoever. The property fronted south on the bridge, and in the petition in the former suit it was alleged that a concrete wall constituting a part of the bridge was built from the ground at the southern boundary of his lot to a height of. 25 feet. This wall extended above the floor of the bridge, and that portion of it above the floor is what is known as the balustrade, which extended the entire length of the bridge. We are unable to perceive any escape from the conclusion that the plea of res adjudicata was properly sustained. Grayson Co. Bank v. Wandelohr, 105 Tex. 226, 146 S. W. 1186; Hermann v. Allen, 103 Tex. 382, 128 S. W. 115; Nichols v. Dibrell, 61 Tex. 539; Hanrick v. Gurley, 93 Tex. 479-480, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Flippen v. Dixon, 83 Tex. 421A In Hermann v. Allen, supra, the following was said by Justice Williams:

“The pleadings certainly put in issue (1) the right of the defendants therein to move the house, and (2) the right of Allen to recover damages caused by Herman’s interference with that right. The judgment determined the first in his favor, saying nothing about the second. This was necessarily an adjudication that that which was given was all that he had shown himself to be entitled to. The necessary legal effect of the failure to award damages for which a claim was pending in the pleadings was a denial of the right to them. This does not mean that it appears the court actually made a decision upon the plea in reconvention. The record does not show whether that was done or not. The proposition is that the necessary legal effect of a final judgment is to determine finally a cause of action set up in the pleadings and pending for decision in the cause when that judgment is pronounced, unless, indeed, the court exclude it from the scope of its action; and this whether the judgment result from actual decision or oversight of the court. That which is adjudged is the decision of the court that it is all the parties are entitled to. In determining the effect of a judgment it sometimes is important to inquire whether or not a particular question or issued was tried and decided in the cause in which the judgment was rendered. That is true when, although the cause of action is not the same in the second as that decided in the first action, it is claimed that a party to the second is estopped upon a question common to both which was decided in the first. Nichols v. Dibrell, 61 Tex. 541; Hanrick v. Gurley, 93 Tex. 480 [54 8. W. 347, 55 S. W. 119, 56 S. W. 330], and authorities cited. Such an inquiry is out of place where the cause of action is the same in the two causes and a final judgment on the merits has been rendered in the first.”

Appellant has cited many cases announcing the general rule to be that the test of res adjudicata is whether or not the same evidence would support both actions such as U. S. v. Haytian Republic, 154 U. S. 118, 14 Sup. Ct. 992, 38 L. Ed. 930; Water Co. v. Hutchinson, 160 Fed. 41, 90 C. C. A. 547, 19 L. R. A. (N. S.) 219; Hodge v. Shaw, 85 Iowa, 137, 52 N. W. 8, 39 Am. St. Rep. 290. Invoking that test, appellant insists that the plea is not applicable here, because when the former suit was tried the house upon his lot had not been elevated to a level with the bridge, and that as evidence of that fact was admissible in the present suit and not in the former suit, the causes of action are not the same. Bub the fact is that the bridge is a permanent’ improvement, and that plaintiff was allowed full damages to his property by reason of its erection. In that suit he was entitled to recover damages to his property for all uses for which it was adapted, and as he accepted the amount recovered by him therein, he is conclusively estopped from now claiming by another suit additional damages for the same obstruction, and also from claiming a mandatory injunction requiring the tearing down of the balustrade of the bridge in front of his property. S. L. S. W. Ry. Co. v. Anderson, 173 S. W. 908, and cases there cited. To hold otherwise would be to say that plaintiff not only could recover damages for the obstruction in the present suit in addition to amount already received by him, but in the future could recover other damages for the obstruction of some other use to which he might desire to subject his property; and to allow him to do so, we think clearly would be contrary to the essential elements of the defense of res adjudicata.

For the reason indicated, the judgment of the trial court will be affirmed.

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      d&wkey;Eor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    DURHAM et al. v. WICHITA MILL & ELEVATOR CO.
    (No. 8751.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 12, 1918.
    Rehearing Denied Feb. 16, 1918.)
    1. CORPORATIONS <&wkey;360(l) — DIRECTORS—NEGLIGENCE — Actions.
    Where plaintiff, having extended credit to an insolvent corporation in reliance on false financial statements made by the corporation to commercial agencies, sued the directors on the theory that they were guilty of fraud or negligence in permitting false financial statements to be given out, it was unnecessary for the petition to allege that either the corporation or the directors were subscribers to the mercantile agencies, or that it was deceived.
    2. Corporations <&wkey;335 — Dibectobs — Liability.
    While ordinarily a director of a corporation is not responsible individually for corporate acts, the directors are personally liable for damages sustained by reason of the insolvency of the corporation when a person is induced to extend credit by false representations, either knowingly made, or which in the exercise of ordinary care the directors should have known were false.
    3. Cobpobations <&wkey;360(l) — Directors—Actions — Petition.
    The petition of plaintiff which, having extended credit to an insolvent corporation on faith of statements made to commercial agencies, sought to recover against the directors, properly alleged that the dividends in bankruptcy amounted only to 19 per cent, of plaintiff’s claim; such allegation being permissible as to the question of the insolvency, and affecting the intention and purpose of the financial statements.
    4. Trial <&wkey;96 — Exclusion ox Evidence-Motion to STRIKE.
    A motion to strike must be denied, where much of the evidence against which it is direct-, ed is admissible.
    5. Corporations &wkey;>335 —Directors —Actions — Defenses.
    In an action against corporate directors by plaintiff which extended credit to the corporation when insolvent, relying on false financial statements given out to mercantile agencies, recovery cannot be defeated because credit was not wholly extended in reliance upon the representations.
    6. Appeal and Error &wkey;>730(l) — ¡Review-Assignments of Error.
    Where neither in the assignment of error nor in the proposition thereunder was any specific reason or ground given why error was committed, in the refusal of a requested instruction such assignment need not be considered.-
    7. Trial <5&wkey;260(l) — Instructions—Refusal —Repetition.
    The refusal of requests covered by the charge giyen is not error.
    3. Corporations <&wkey;335 — Actions—Defenses.
    In an action against corporate directors by plaintiff which extended credit to the corporation, though insolvent, relying on statements issued to mercantile agencies, defendants cannot escape liability because the identical statements rendered to the commercial agencies were not transmitted; it appearing that the material contents were made known to plaintiff and that it extended credit in reliance thereon.
    9. Trial <&wkey;252(2) — Instruction — Conflict with Testimony.
    The refusal of a request based on a theory in conflict with the uncontradicted testimony is proper.
    10. Corporations <&wkey;361 — Fraud of Directors — Actions — Evidence—Admissibility.
    In an action against corporate directors by plaintiff which extended credit to the corporation on the faith of false statements given to commercial agencies, evidence as to the dividends paid on subsequent bankruptcy of the corporation was admissible.
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by the Wichita Mill & Elevator Company against W. F. Durham and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Smith & Palmer and H. N. Goodson, all of Comanche, for appellants. Martin, Bull-ington, Boone & Humphrey, of Wichita Falls, and Callaway & Callaway, of Comanche, for appellee.
   BUCK, J.

This suit was instituted by ap-pellee, a corporation, against appellants, alleged to be the directors of Martin Company, a corporation of Comanche, Tex. Plaintiff alleged that during the years 1913 and 1914 it was a wholesale dealer in the milling and grain business in Wichita Falls, Tex., and the Martin Company was a general mercantile corporation, and a customer of the plaintiff; that during the said time the defendants, as directors of said Martin Company, held said corporation out to the plaintiff and to the public generally, and to R. G. Dun & Co. and Bradstreet & Co., the agents of the plaintiff, as of undoubted financial ability and deserving credit, which was done for the purpose of deceiving the plaintiff and other merchants from whom the Martin Company was purchasing or expecting to purchase merchandise and obtain credit; that during said years said defendants, on behalf of Martin Company, caused and permitted to be furnished written statements of its financial condition which purported to show its true financial condition to Bradstreet & Co. and R. G. Dun & Co. for publication in their printed reports, believing that the plaintiff would receive, read, and rely upon said statements; that one of said statements was furnished on June 18, 1913, and the other on May 14, 1914; that, relying upon said statements and induced thereby, the plaintiff sold and delivered to the Martin Company merchandise amounting to $4,787.61, exclusive of interest. It was alleged that said financial statements and representations so furnished were false and untrue, and that during said time said corporation was insolvent; by reason of said premises, the plaintiff was misled to its damage in the sum of $3,027.55. Defendants answered by way of general demurrer, special exceptions, general denial, and specific defensive answers. The nature of the special exceptions urged and the special denials pleaded will be noticed further in the course of this opinion. From a judgment based on a jury verdict in favor of plaintiff against defendants W. F. Durham, W. R. Slider, N. E. Ralmer, and W. G. Dingus in the amount sued for, defendants have appealed.

The record in this case is rather voluminous, and appellants present in their brief some 66 assignments of error; there being 10 separate assignments under the caption “Fifty-Third Assignment of Error.” It would be an unnecessary labor, and an extension of the opinion beyond its proper limits, to attempt to discuss each separate assignment, but we have examined every assignment presented, and have found that in several instances many of them present but a single question. Consequently, in such cases such assignments will be grouped in our discussion.

Appellee objects to the consideration' of practically every assignment presented, urging that such assignments in their form and manner of briefing are not in compliance with the rules provided by our Supreme Court for our guidance, and we find that in many instances the criticisms made and objections urged by appellee to the assignments are well founded, but we have concluded, except as may hereinafter be noted, to give said assignments consideration. But we think appellant’s first assignment, directed to the action of the trial court in overruling defendant’s general demurrer, is too general to warrant consideration. Neither in the assignment nor in the proposition thereunder is any reason given wily the court erred in its action.

By assignments 2 to 8, inclusive, it is urged the court erred in overruling several exceptions leveled at plaintiff's petition, but we do not find error shown. It was not necessary for the plaintiff to allege that the Martin Company or the defendants were subscribers to the mercantile agencies to which were furnished the financial statements as to said Martin Company’s standing, or to allege that said mercantile companies were themselves deceived or misled by reason of said statements or representations. It was alleged these mercantile companies were the agents of plaintiff for the purpose of collecting and securing information as to the financial standing of plaintiff’s actual or prospective customers, and if defendants, knowing this, furnished false and misleading reports or statements as to the Martin Company’s financial standing, and such reports were calculated to and did mislead the plaintiff, relying thereon, it would be immaterial whether the mercantile companies themselves were deceived thereby.

Neither do we think there is any error in overruling the exception directed to that part of plaintiff’s petition in which it was alleged that the defendants caused to be published said financial statements for the purpose of deceiving the plaintiff and other merchants from whom it was purchasing and expecting to purchase merchandise during said years, and that the statements were carelessly and negligently allowed to be furnished. The very basis of the liability of directors of a corporation in a case of this kind is the fraud, arising from actual intent or negligence, perpetrated in the issuance of the financial statement. Ordinarily, a director óf a corporation is not responsible individually for the corporate acts. But such directors may he personally liable for damages sustained by reason of the insolvency of the corporation when a person is induced by false representation, either knowingly made, or when in the exercise of ordinary care the directors would have and should have known said representations to be false, to rely on said representations in his dealings with said corporation and suffers loss by reason thereof. Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592; Kinkler v. Junica, 84 Tex. 116, 19 S. W. 359; Slater Trust Co. v. Coal Co. (C. C.) 166 Fed. 171.

Nor are we prepared to agree with the contention of appellants, as urged in their sixth assignment, that the allegations contained in plaintiff’s petition that on or about the 9th day of January, 1915, the said Martin Company was adjudicated a bankrupt, etc., and business was suspended and its assets, when sold, only paid to the plaintiff 19 per cent, of the indebtedness due it. at the time. We think this allegation was permissible as affecting the question of Martin Com-: pany’s solvency, as affecting the intention and purpose of defendants in furnishing the report of its financial condition, and also as’ an admission by plaintiff of payment. We think what we have heretofore said disposes of the first eight assignments, and they are overruled.

In the ninth assignment complaint is made of the refusal of the court to strike out and remove from the record testimony of plaintiff’s witnesses Welborn Patterson and Mrs. W. J. Howard. These witnesses, Mrs. Howard being in the employ of R. G. Dun & Co. and Patterson of Bradstreet & Co., testified at length concerning the methods used by said mercantile companies in securing desired information for their subscribers, and especially for the plaintiff, and of the particular reports from the Martin Company, and of the forwarding of said reports to W. M. Priddy, credit man of the plaintiff. At least much of the evidence given by these witnesses was admissible, and, in the absence of a specific objection to certain parts of the statement claimed to be inadmissible, the motion was properly overruled. It seems the main contention made'by appellants is that Priddy did not rely on the reports furnished by the Martin Company, but rather on the reports made by the mercantile companies. Priddy testified in part:

“To the best of my knowledge and belief the statement we received from R. G. Dun & Co. was an exact copy of this. * * * Mr. Bul-lington, attorney for plaintiff, says that he lost this copy; that is the original cony that R. G. Dun & Co. sent to the plaintiffs. * * * I received this statement from R. G. Dun & Co. about the 1st of June, 1914, and read it carefully and believed it was correct and relied on it as being correct, and continued soliciting the business from the Martin Company based on that representation or statement rendered.”

Priddy further testified:

“I believe this to be an exact copy of the statement we received from Bradstreet & Co. that I afterwards turned over to our attorney.”

Mrs. Howard testified:

“On application of the Wichita Mill & Elevator Company we sent a copy of the report received by us from the Martin Company to said Wichita Mill & Elevator Company.”

Patterson testified:

“In addition to the said publication [made by Bradstreet] there was forwarded to the Wichita Mill & Elevator Company at Wichita Falls, Tex., a copy of the statement given the Bradstreet & Co. by the said Martin Company in June, 1913, in which was the said statement of the said Martin Company purporting to give its said financial condition.”

It was not essential to show that plaintiff relied exclusively on the information furnished by the Martin Company in order to hold the defendants liable. If the report made by the Martin Company was false and misleading, and the plaintiff relied thereon, even in part, and would not have extended' the credit it did except for such reliance, defendants would be liable. In 12 R. O. B. § 112, it is said:

_ “It is not necessary that the misrepresentation should be the sole cause or inducement of the contract or transaction in question, contributing to the result, but it is enough that it may have constituted a material inducement. Belief may be had under this rule where reliance was in part on one’s own investigation.”

In Buchanan v. Burnett et al., 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900, it is held an instruction that the purchaser must have relied solely upon the vendor’s false representation of title in making the purchase was properly refused. It was sufficient that he relied upon the representation, and would not have purchased if the representation had not been made.

We think appellee’s objection to the consideration of the appellants’ tenth assignment should be sustained, on the ground that the same is too vague and uncertain to warrant consideration, and that neither in the assignment nor in the proposition thereunder is any specific reason or ground given why error was committed in the failure of the court to give the requested instruction for the defendants.

We believe the instructions contained in the special charge requested by defendants, to the refusal of which the eleventh assignment of error is directed, are sufficiently covered by the court’s main charge. Hence we overrule appellants’ assignments, ninth to eleventh, inclusive, and also the twelfth, which complains of the refusal of the trial court to give ■ a special charge instructing the jury in effect that before the plaintiff could recover it must be shown that the plaintiff relied solely and alone upon the statement furnished by the Martin Company. Buchanan v. Burnett et al., supra. This ruling applies also to the thirteenth assignment, which complains of the refusal -of a special charge to the same general effect as that set out in the twelfth assignment.

In the fourteenth assignment objection is made to the refusal of a special charge to the effect that it was the duty of the mercantile agencies to furnish to plaintiff a correct copy and report of all statements received by it from the defendants, and if the jury found that said mercantile agencies failed to send to plaintiff such statement or statements then the defendants would not be liable. We do not think such charge should have been given. Even if the evidence upon this point makes it a question for the jury whether the identical statements rendered to the commercial agencies, or exact copies thereof, were forwarded by said commercial agencies to the plaintiff, yet if the material contents thereof were furnished by such agencies to plaintiff, and these portions contained material and false representations as to the Martin Company’s solvency, and plaintiff relied thereon in extending further credit, defendants would be liable. If defendants caused to be furnished a financial statement containing false representations as to material matters, and Issued said false statements with a knowledge or intention that they would be used and relied on by plaintiff in furnishing goods or extending credit to defendants’ company, and the material information contained in such statement or statements was in fact furnished plaintiff, and it relied thereon to its detriment, then it would be immaterial, whether the statement furnished by the Martin Company was in its entirety, either as original or copy, forwarded by the mercantile agencies to the plaintiff. We think what we have said disposed of the fourteenth and fifteenth assignments.

We think the special charge requested by defendant, the refusal of which is urged as error in the sixteenth assignment, was on the weight of the evidence and should not have been given.

The seventeenth assignment is too vague and uncertain to warrant consideration.

The eighteenth assignment complains of the refusal of a special charge instructing the jury that, unless they found that Hill Huddleston, bookkeeper and secretary of the Martin Company, was directed and authorized by the defendants to make and transmit to Bradstreet & Co. the information contained in the statement furnished in 1913, the jury should find against the plaintiff as to all the items alleged to have been furnished by plaintiff in reliance upon said statement. We think the evidence is uncontradicted as to the authority of Huddleston to furnish these statements. Huddleston testified that in sending out these statements he acted under the direction and authority of the defendants and this testimony was uncontroverted. None of the defendants testified in the case.

In his main charge the court instructed the jury that before they could find against the defendants they must find and believe the financial statements of 1913 and 1914 were made or caused to be made by the defendants. It is true that, if the evidence were conflicting upon the question of the authority under which and the capacity in which Huddleston acted in making these statements, the defendants would probably be entitled to an affirmative charge, but we do not construe the evidence as presenting an issue of fact for the jury as to the authority of Huddleston in this respect.

By another -group of assignments, appellants complain of the failure of the court to give certain tendered special charges to the effect that if plaintiff had other sources of information, as to ¡the financial condition of the Martin Company during these two years, and if they should find it was the duty of the traveling salesman of plaintiff, and others, to inquire into the financial condition of its customers and report thereon, and that through these other sources of information,’ knowledge was brought to the plaintiff, or its agents, as to the failing or insolvent condition of the Martin Company, the jury should find for the defendants. We do not believe, for the reasons heretofore given, that such charges were proper. The mere fact that one makes a personal investigation, or consults with others, or has other sources of information open to him, does not necessarily show that he relied on such personal investigation, or the information gained therefrom, or through the other sources. See 12 R, C. L. § 112, and authorities therein cited. The material question is, Did the party claiming fraud rely on false statements or misrepresentations made .by the other? In several other instances, complaint is made of the admission in evidence of the statem¡en]ts made by the mercantile agencies to plaintiff. It is in evidence that these reports contained either the original or exact copies of the financial statements furnished by the Martin Company. No request was made by appellants to limit the force and effect of theso mercantile reports to the information contained in the financial statements themselves furnished by defendants. In the absence of such objection or request the assignments must be overruled.

In the thirty-ninth assignment, complaint is made of the admission of the deposition of the referee in bankruptcy to the effect that the unsecured creditors of the Martin Company were paid a total dividend of 19 per cent. We think this was admissible to show the amount that had been paid on the original amount of indebtedness due plaintiff by the Martin Company, and as against a general objection we think the the court did not err in admitting such testimony.

Under the forty-fifth assignment, complaint is.made of the admission in evidence of the purported trial balance from the books of the Martin Company as of date November 7, 1914, purporting to disclose the financial condition of the Martin Company. It is urged that said statement W immaterial and irrelevant, etc., because it was not shown that either of the defendants were responsible therefor. By reference to appellants’ bill of exception No. 45, and the court’s modification thereof, it is shown that the court excluded said statement and the sam,e was not introduced as evidence.

Several assignments are directed to the testimony of the plaintiff’s witness S. J. Hacks. ■ We think the witness made a prima facie showing as to his qualification 'to testify as to the market value of the notes and accounts owned by the Martin Company on January 1, 1913, and as to the value of the real estate holdings, and the testimony evoked from said witness on cross-examination affected rather the weight of such evidence than its admissibility. We are further of the opinion that, while the incidental statement made by said witness that some of the notes and accounts of the Martin Company were barred by the statutes of limitation was probably subject to the objection that the notes were in writing and would be the best evidence as to their dates, etc., yet in view of the entire testimony of Hicks, and in view of the statements contained in the courts’ qualification of this bill, we are of the opinion that error, if any, was harmless.

Without attempting to enlarge further this opinion, it is sufficient to say that after a careful examination of appellants’ lengthy brief, we find no reversible error presented, and conclude that judgment should be affirmed ; and it is so ordered.

Affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       18 S. W. 803, 29 Am. St. Rep. 653.

      (gmoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes