author: • PLEASANTS, C. J.

text:
    LLOYDS CASUALTY CO. et al. v. BUCKNER.
    No. 9737.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1932.
    Rehearing Denied Feb. 9, 1933.

      Ressel & Ressel, of Galveston, for appellants Lloyds Casualty Co. et al.
    Frank S. Anderson, of Galveston, for appellants Georgia Casualty Co. et al.
    Randolph L. Carter and Carter & Lewis, all of San Antonio, and James B. & Charles J. Stubbs, of Galveston, for appellee.
   • PLEASANTS, C. J.

This is a suit by appellee against appellants to recover damages for personal injuries alleged to have been caused by' the joint or combined negligence of appellants Catherine Giusti and Roland Somers, in the operation upon the public streets of Galveston of automobiles owned and operated by said defendants respectively. The appellant Lloyds Casualty Company was made a party defendant as insurer for appellee’s benefit against any injury caused by the operation of the automobile operated by the defendant Mrs. Catherine Giusti and owned by her and her husband, A. L. Giusti, who was also made a party defendant. The appellant Georgia Casualty Company was made a party upon' allegations charging it with liability to appel-lee under a contract of insurance issued by it to the defendant Somers upon the automobile owned and operated by him.

No question is raised on the appeal as to the liability of the respective insurance companies for the damages caused by the operation of the cars covered by their respective policies of insurance.

By her pleading, appellee, Bessie Buckner (plaintiff in the court below), alleged that the collision in which she was injured was between a Chevrolet automobile, owned and driven by Roland Somers, and a Packard automobile, owned by Catherine Giusti and her husband, A. L. Giusti, and driven at the time by Mrs. Catherine Giusti. Bessie Buckner was riding in the automobile driven by Som-ers.

Appellee alleged acts of negligence against •both Somers and Mrs. Giusti as follows: (a) Driving at an excessive rate of speed over 20 miles an hour; (b) driving at such an excessive rate of speed as to endanger plaintiff’s life and limb; (e) attempting to pass each other without slowing down; (d) failure to keep a proper lookout ahead; (e) failure to sound their horns or give any other signal; (f) discovered peril.

(a), (b), (c), (d), and (e) above were also alleged to be in violation of state laws and Galveston city ordinances.

Separate allegations were made' charging-Mrs. Catherine Giusti with negligence in driving on the wrong side of the street and in attempting to change the course of her automobile without first seeing that there was sufficient room for such movement to be made in safety.

The injuries sustained by appellee are set out in detail in her petition, and, as alleged, were serious and some of them permanent. '

The amount of damages claimed in the petition against the defendants' Giusti and Som-ers is $51,000. The petition alleges that the liability of the defendant Georgia Casualty Company under its insurance policy is $10,-000, and that of Lloyds Casualty Company is $5,000.

Appellants Lloyds Casualty Company and Catherine and A. L. Giusti answered by general demurrer, special exceptions, general denial, and a plea of contributory negligence.

The special exceptions were overruled by the court, but by written stipulation filed of record the relief sought for medical expenses was withdrawn, and the exceptions and the ruling of the court on the special exceptions waived.

Appellant Georgia Casualty Company answered by a general and a 'special exception and a general denial. Appellant Roland Som-ers answered by a general exception and a general denial. These demurrers and exceptions were not presented to the court or passed upon. Neither set of appellants filed any pleadings against the other or sought any relief, by way of contribution or otherwise, against the other.

The case was submitted to a jury in the court below upon numerous special issues. In response to the issues submitted, the jury found that plaintiff’s injuries were caused by a collision between a Packard automobile driven by Mrs. Giusti and a Chevrolet automobile driven by Roland Somers, and such collision was directly and proximately caused by the concurring negligence of Mrs. Giusti and Roland Somers; that at the time of the collision Mrs. Gius.ti was negligently operating her automobile on the wrong side of the street, and this negligence proximately contributed to cause plaintiff’s injuries; that at the time and place of collision Roland Somers was negligently operating his automobile at an excessive rate of speed and in violation of the laws of the state and the ordinances of the city of Galveston, and such negligence proximately contributed to cause plaintiff’s injuries; that Mrs. Giusti and Roland Som-ers, at the time of the collision, were both negligently driving their respective automobiles at an excessive rate of speed, such rate being in excess of 20 miles an hour, in violation of the state law and the ordinances of the city of Galveston, and such negligence proximately contributed to cause plaintiff’s injuries; that Mrs.' Giusti and Roland Somers each negligently failed to slow their respective automobiles, to a speed of 20 miles per hour when attempting to pass each other at the time and place of the collision, and such negligence of each of the defendants proximately contributed to cause plaintiff’s injuries; that each of said defendants at the time and place of the collision negligently failed to sound the horn of their respective automobiles, and such negligence of each of these defendants proximately contributed to plaintiff’s injuries; that Mrs. Giusti at the time of the .collision negligently failed to change the course of her automobile, and such negligence proximately contributed to cause plaintiff’s injuries; that the defendant Roland Somers negligently failed to change the course of his automobile at the time and place of the accident, and such negligence proximately contributed to cause plaintiff’s in'juries; that each of said defendants discovered plaintiff’s peril before the collision in time to have avoided the collision, and negligently failed to use all the means at their respective command to prevent plaintiff’s injury, and such negligence proximately caused plaintiff’s injuries.

The jury further found that the damages suffered by plaintiff amounted to the sum of $10,000. Upon return of this verdict, judgment was rendered in favor of appellee against all of the defendants, jointly and 'severally, for the amount found by the jury, except the defendant Lloyds Casualty Company, which was adjudged liable only to the extent of $5,000.

The defendants Giusti and Lloyds Casualty Company and the defendants Georgia Casualty Company and Roland Somers prosecute separate appeals, and have filed separate briefs in this court complaining of the judgment.

The judgment is first assailed on the ground that the trial court erred in refusing an application for continuance presented by appellants Lloyds Casualty Company and A. L. Giusti and wife.

The record discloses that this motion for continuance was based on' the ground of the absence from the court of John York, a witness for the applicants. The application sets out, in substance, that this witness was an enlisted man in the Aviation Corps of the United States Army stationed at Ft. Crockett, Tex., and was an “expert in observing distance and speed”; that he saw the collision, and would have testified that he saw Roland Somers’ Chevrolet going at a speed of 28 to 85 miles an hour, moving west on the south half of the street (Avenue T); that Mrs. Giusti was driving about 5 miles an hour; that the collision took place on the south half of Avenue T about 18 feet northwest of the west of the Silver Bell Restaurant.

The application stated that.“the testimony of said witness is necessary and material to show the carelessness and negligence of the defendant, Roland Somers, who was driving the Chevrolet car on the left-hand side or wrong side of Avenue T”; that John York was subpoenaed and had been present at a previous call of the case on March 5, 1931; that another subpoena had been issued on April 22, 1931, and placed in the hands of the sheriff, together with a dollar; that the witness was not found after diligent search; and that applicants believed that the “witness is confined in the Military Hospital at Fort Sam Houston, Texas, and is unable to be present at the present term of court; that the testimony of said witness cannot be procured from any other source.”

The application stated that “this is the third application of the defendants for a continuance of this cause.”

It was signed by Mrs. Catherine Giusti and Lloyds Casualty Company by Walter E. Res-sel. Georgia Casualty Company and Roland Somers were not parties to the application, and did not sign it.

The application did not show that applicants expected to procure the testimony of the absent witness at the next term of court or within a reasonable time.

It is manifest from the foregoing statement that there is no merit in the complaint of appellants Somers and Georgia Casualty Company of the ruling of the trial court refusing the application for continuance. The -application was not made by them, nor for their benefit. On the contrary, the testimony expected to be obtained from the absent witness, as stated in the application, was adverse and opposed to the interests of these defendants, and they would have stultified themselves by joining in the application.

Upon this .state of the record no complaint ■of these appellants of error in refusing the application for continuance can he entertained by this court.

The complaint of the other appellants of the refusal to grant the continuance is also, iwe think, without merit.

• .The application, as shown upon its face, was the third application for a continuance, and its granting or refusal was within the •sound discretion of the trial court, and the record does not show an abuse of this discretion.

The facts upon the issue of due diligence as disclosed by the record were not such as to compel a finding by the trial court that appellants had used such diligence to obtain the testimony of the absent witness. The application fails to state when, if ever, the applicants expected to obtain the testimony •of the absent witness, and the allegation in the application that the testimony of the absent witness “could not be procured from any other source” was shown to be untrue by a witness for the appellants, who testified on the trial to the identical facts which the application states would be testified to by the absent witness. Oilmen’s Reciprocal Association v. Hayes (Tex. Civ. App.) 295 S. W. 675, 678.

. In the case just cited, the application failed to state that the desired testimony could not be procured from any other source, as required by article 2168, Revised Civil Statutes 1925; nor did it state that the applicant expected to have the witness or his testimony at the next term of the court. After holding that the failure of the application to state the applicant expected to have the witness or his testimony at the next term of the court authorized its refusal by the trial court, the opinion says: “Furthermore, the motion was correctly denied because it was a second application for continuance and for a witness that at the time was in Europe. * * ⅜ Another eye specialist * * ⅜ testified to practically all and the identical facts that it was proposed to prove by Dr. Israel, the absent witness. So that Dr. Israel’s evidence, if he had been present and testified as set out in the application, would have been merely cumulative, and where the application is addressed, as it is here, to the discretion of the court, it is not error to refuse a continuance for testimony merely cumulative.”

We are. cited to no contrary decision of this question.

Both appellants next complain in their respective briefs of the action of the court in submitting to the jury the question of the amounts of the insurance policies issued by the respective insurance companies, defendants in the suit, covering the respective eases of the defendants, and then instructing the jury to answer these questions by finding that the policy issued by the Lloyds Company upon the Giusti car was for $5,000, and that issued by the Georgia Casualty Company upon- the Somers’ car was for $10,000.

The pleading of the plaintiff and the uncon-tradicted evidence show that these policies were issued in the respective amounts as stated in the charge to the jury. It was wholly unnecessary for th^court to submit the questions to the jury and require a verdict thereon, since there was no issue of fact as to the amounts of these respective policies, or their issuance by defendant insurance companies, respectively. The only effect of such proceeding was to unnecessarily incumber 'the record, and this is true in respect to at least one-half of the sixty-eight issues submitted to the jury. We cannot, however, agree with appellants that this unnecessary proceeding could have had any harmful effect in the determination by the jury of the issues of negligence submitted to them, nor the amount of damages found by the jury. The jury must necessarily have known from the pleading and evidence that these insurance policies had been issued and the amount of each policy, and we cannot believe that the action of the court in instructing the jury to find the amount of these policies could have improperly influenced the jury upon any issue in the case. Especially is this true since appellants do-not complain of excessiveness in the amount of damages found by the jury, and the verdict of the jury upon this issue is amply sustained by the evidence.

The facts of this case easily distinguish it from the cases of Simmonds v. Railway Company (Tex. Com. App.) 29 S.W.(2d) 989, and Thompson Drug Company v. Latham (Tex. Civ. App.) 19 S.W.(2d) 825, cited and relied on by appellants. In neither of these cited cases was the insurance company a party to the suit under allegations of plaintiff’s petition charging such company with liability for the damages caused by his injury in the alleged amount of the policy issued by it, and in neither of the cases did the uneontradict-ed evidence admitted without objection show the amount of the policy. In the case before us, the court by its instructions to the jury did not give them information' of any facts which the jury did not necessarily know from the pleading and the undisputed evidence before them. Nothing was injected into the case by the court’s instructions which was foreign to the pleadings and evidence. The contention of appellants that the court’s action in effect impressed the jury with the idea that they should use as a test for the amount of the damages awarded by them the highest amount “they could give plaintiff without loss to the principal defendants” is, we think, an unreasonable reflection upon the intelligence and integrity of the jury.

As we have before said, the amount of damages found by the jury is amply sustained by the evidence, and we' should not upon this record look beyond the evidence for some improper motive on the part of the jury in making such finding.

While it seems to us, as before said, that it is never necessary or proper for the court to submit and direct the jury what to find upon undisputed issues of fact, such proceeding has been held unobjectionable by our Commission of Appeals in the case of Kirby v. American State Bank, 18 S.W.(2d) 599, 63 A. L. R. 1528.

The appellants further complain of the action, of the trial court in instructing the jury to find that the injuries sustained by the plaintiff, whatever the jury might find such injuries to be, were “directly and proximately caused by a collision between a Packard automobile driven by Mrs. A. L. Giusti and a Chevrolet automobile driven by Roland Somers.”

What we have said in regard to the action of the court in instructing the jury to find the amounts of the respective insurance policies issued by the defendant insurance companies applies with equal force to this complaint. Under the uncontroverted evidence in the case, no other finding could have been rendered by the jury than that directed by the court. It was wholly unnecessary for the court to incumber the record with these perfunctory findings by the jury, since an appellate court in support of the judgment would find all necessary facts shown by the uncontroverted evidence. But this method of having the jury find such facts could not possibly have harmed appellants, and, as be-1 fore shown, has been expressly held unobjectionable in the case of Kirby v. American State Bank, supra.

None of the remaining assignments of error copied in the back of the briefs of appellants Somers and Georgia Casualty Company is presented in the brief as, or by, a proposition, and no statement from the record in support of any of them is contained in the brief.

As so presented, we are not required to consider these remaining assignments.

The appellants Giusti and Uloyds Casualty Company further complain of the ruling of the trial court in refusing to permit them to introduce the testimony of their witness, Walter Meyer, a policeman of the city of Galveston, by which, as stated in their bill of exceptions, these defendants “believe and had reason to believe that he (the Witness) would have testified that - Somers and Baezner were very drunk at the time this witness examined them within ten minutes after the accident. That Walter Meyer told these defendants he would testify that the said Somers and Baezner were very drunk.”

The bill of exceptions contains a statement of the question asked the witness who was placed upon the stand, the objection to the question made by the attorney for appellant Somers, which was sustained by the court, several statements by the court and counsel for the other appellants, and a somewhat lengthy argument by counsel for appellants Giusti and Eloyds Casualty Company. It wholly fails to state what, if any, act or statement of Somers or Baezner was the basis of the alleged conclusion of the witness policeman that they were very drunk. This witness was certainly not an expert in determining the cause of the mental condition of these witnesses for appellants Somers and Georgia Casualty Company. The record discloses that this observation by Meyer of the witnesses above named was while they were on the emergency operating table undergoing emergency treatment for the injuries received by them in the collision which caused plaintiff’s injury. In the absence of the statement by the nonexpert witness of any of the facts upon which his conclusion that their mental condition was due to drunkenness, such a conclusion on the part of the witness would have been inadmissible.

We cannot, upon the facts shown by this bill of exceptions, hold that the trial court erred in excluding the offered testimony - of the witness Meyer.

This disposes of what we regard as the material questions presented by the briefs of appellants. It is unnecessary to set out or discuss the other propositions presented, since in our opinion each and all of them are without merit and cannot be sustained.

It follows that the judgment should be affirmed, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    TEXAS CO. v. BETTERTON et al.
    No. 2287.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 25, 1933.
    Rehearing Denied Feb. 1, 1933,
    Lamar Cecil, of Beaumont, and Hunt & Hunt and H. G. Butts, all of Houston, for appellant.
    C. A. Lord, of Beaumont, Xavier Christ, of Pt. Arthur, and B. C. Johnson, of Houston, for appellees.
   WALKER, C. J.

Appellee Mrs. Amelia Betterton brought this suit against appellant, the Texas Company, for damages for negligently killing her husband, A. P. Betterton. Leslie Betterton intervened, claiming damages as.a dependent minor son of the deceased, A. P. Betterton. Other children intervened, but they went out of the case on the verdict of the jury, and nothing is before us regarding their interests.

A.- P. Betterton was killed on or about the 30th day of May, 1931, in a collision on West Sixteenth street in the city of Port Arthur between an automobile, which Betterton was driving, and one of appellant’s trucks,1* being- driven at the -time by Knockout Brown, one of its servants. Just prior to and at the time of the collision, Betterton was driving his automobile east on West Sixteenth street, and appellant’s truck was being driven west. Ahead of Betterton, just before the time of the collision, were parked two automobiles on the right-hand side of the street. As he drove up to these parked cars, he turned to his left and collided with appellant’s truck. A short distance behind appellant’s truck, driving in the same direction with the truck, was another car. The principal grounds of negligence pleaded by appellees were (a) “at the time of the collision” appellant’s truck was being driven at “a greater rate of speed than fifteen miles per hour”; and (b) “at the time of the collision” appellant’s truck was being driven partly on the left-hand side of the street. Appellant’s answer was by general and special demurrers, general denial, and by special pleas of contributory negligence. The jury convicted appellant of negligence on the two issues just stated, and found further that each of these grounds of negligence was a proximate cause of Better-ton’s death. The verdict was in favor of ap-pellees on all issues of contributory negligence submitted to the jury. Damages in favor of Mrs. Betterton were assessed at $10,-000, and in favor of the minor, Leslie Better-ton, at $2,000, and judgment was accordingly entered in their favor, from which this appeal was duly prosecuted.

Opinion.

Appellant insists that the two issues submitted to the jury (a) as to whether or not its truck, at the time of the collision, was being driven at a greater rate of speed than fifteen miles per hour, and (b) as to whether or not, at the time of the collision, it was being operated on the left-hand side of the street, submitted only evidentiary issues and not determinative issues, and that the answers to these questions, with the supporting findings on the issue of proximate cause, were insufficient to support the judgment in favor of the surviving wife and the minor son, appellees herein. Appellant does not contend that these issues were not raiséd by the evidence, but only that the jury’s answer thereto did not convict it of actionable negligence. If we understand appellant’s argument, as it relates to the rate of speed, the point is made that the motor vehicles came together in a head-on collision and were not “passing” each other at the time of the collision. Article 794 of the Penal Code is as follows: “All operators of motor vehicles in passing each other on the public highways shall slow down their speed to fifteen miles per hour.”

We do not believe appellant has correctly construed this article. The motor vehicles came together in a head-on collision. The evidence raised the issue that they were both in motion and were attempting to pass each other at the time of the collision. In Davis v. Estes, 44 S.W.(2d) 952, 954, the Commission of Appeals held that these facts invoked the provisions of article 794. It was there said: “The jury found that plaintiff in error, whan-attempting to pass the car driven by defendant in error, was traveling at a rate of speed in excess of 15 miles per hour. This finding rendered him guilty of negligence per se; hence it was clearly erroneous for the trial court to permit the jury to determine,. whether such act was negligenc-e. Railway Co. v. Wilson, 60 Tex. 142; T. & P. Ry. Co. v. Baker (Tex. Com. App.) 215 S. W. 556; Hess v. Denman Lbr. Co. (Tex. Civ. App.) 218 S. W. 162.” (Italics ours.) -

As appellant’s truck, under the verdict of the jury, was being driven at a greater rate of speed than fifteen miles at the time of the collision, negligence followed as a matter of law. Davis v. Estes, supra. On this issue the court, in West Texas Coaches, Inc., v. Madi (Tex. Civ. App.) 15 S.W.(2d) 170, 175, said:

“Conceding the facts to be that at the ■time of the collision the appellant’s coach was proceeding at a speed in excess of 15 miles per hour, that would clearly make against the appellant a case of negligence per se under the above article, and nothing would remain for the jury to pass upon, except the determination of whether such speed at such time and place proximately caused the death of John Madi. Exceeding the statutory rate of speed upon the highway is unquestionably negligence per se.
“ * * ⅜ There is nothing vague or uncertain about this statute, and by its provisions it is negligence per se for the operator of a motor vehicle to pass an approaching one at a rate of speed in excess of 15 miles per hour. Upon the preceding issues the jury has found against the appellant, and we do not believe the complaint urged against their submission well founded.”

That ease was affirmed by the Supreme Court, 26 S.W.(2d) 199. See, also, Orchin v. Fort Worth Poultry & Egg Co. (Tex. Civ. App.) 43 S.W.(2d) 308, and 5 Tex. Jur. 719.

Subdivision (A), of article 801, reads as follows: “The driver or operator of any vehicle in or upon any public highway wherever practicable shall travel upon the right hand side of such highway. Two vehicles which are passing each other in opposite directions shall have the right of way, and no other vehicle to the rear of either of such two vehicles shall pass or attempt to pass such two vehicles. On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand -side of such .highway unless the road on the left hand side of such highway is clear and unobstructed for a distance of at least fifty yards ahead.”

Under the provisions of this statute, the finding of the jury that appellant’s truck was being driven partly on the left-hand .side of the street convicted it of negligence as a matter of law- Scott v. Carlos (Tex. Civ. App.) 13 S.W.(2d) 957; Shaver v. Mason (Tex. Civ. App.) 13 S.W.(2d) 450; 5 Tex. Jur. 714. In support of its contention that the aet of driving its truck on the left-hand side of the street did not convict it of negligence as a matter of law, appellant advances the following argument: “In order to bring the act of The Texas Company truck in occupying any part of tlie left hand' side of the highway within this statute so as to make such act a negligent act per se, the jury would also have to find that it was practicable for the driver to drive on the right hand side, or that it was impracticable for the driver to occupy such left part of the highway as he did and would also have to find that the road on the left hand side of :such highway which he occupied was not clear and unobstructed for a distance of fifty yards ahead. Since the statute is a penal statute and prescribes that at certain times the right hand side of the highway may be used and the left hand side of the highway may be used, we think that it was necessary that the jury also find that it was not practicable for The Texas Company truck driver to use the part of the left hand side of the highway which he used and that such part which he did use was not clear and not unobstructed for a distance of fifty yards ahead. "We earnestly contend that it was necessary for the jury to find these corollary facts before a finding that the Texas Company truck used a part of the left hand side of the highway could be a negligent act per se, or ■could be an act within the terms of Section ■“A’ of Article SOI of the Penal Code.”

No exceptions were reserved by appellant as to the manner or form of submitting this issue to the jury. The unsubmitted issues, ¡suggested by appellant’s argument, were merely supplemental and incidental to .the issue actually submitted. The eyidence raised in favor of the judgment all the suggested issues. Under article 2190 all issues not submitted and not requested are deemed as found by the court in such manner as to support the judgment, where there is evidence to sustain such finding, when such issues are “supplemental or incidental to, and which support, the issues of fact which were submitted and found by the jury, and upon which the judgment is based.” Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

After appellees closed their case and rested, and the defendant had closed its case and rested, the court permitted appellees to reopen their case and to adduce testimony, not “in rebuttal,” but primary testimony upon the main issues. We overrule appellant’s contention that this ruling was error. There is no suggestion of abuse of discretion by the court in this ruling, nor is there any suggestion of injury to appellant. The point is one merely of abstract law, and is to the effect that the trial court has no power to permit a litigant to reopen his case for the purpose of offering anything except rebuttal evidence. The authorities are against this proposition. Gulf, C. & S. F. Railway Co. v. Williams (Tex. Civ. App.) 136 S. W. 527; Galveston, H. & S. A. Railway Co. v. Brewer (Tex. Civ. App.) 4 S.W.(2d) 320; Scott v. Bonner (Tex. Civ. App.) 21 S.W.(2d) 54; Sprowls v. Youngblood (Tex. Civ. App.) 23 S.W.(2d) 879; Magnolia Compress & Warehouse Co. v. Davidson (Tex. Civ. App.) 38 S.W.(2d) 634; 17 Tex. Jur. 373, § 128. To constitute error, the record must show affirmatively that the trial court abused its discretion in reopening the case or that the opposite party suffered affirmative injury from the court’s ruling.

Having permitted appellees to reopen their case, under the circumstances just stated above, appellant insists that the trial court erred in refusing to permit it to reopen its defense by offering- primary testimony, not in rebuttal of its defense, as made before closing the introduction of its evidence. The facts do not support this proposition. The trial court excluded certain evidence offered by appellant in rebuttal. But this ruling was not made upon the ground advanced by this proposition, but on the ground that the evidence tendered, for other reasons, was inadmissible. Appellant has no proposition complaining that the specific ruling made by the court was error.

There was no evidence offered by ap-pellees on the issue of life expectancy of the deceased nor of the life expectancy of the beneficiaries. Because direct proof was not offered in support of these issues, appellant insists that the judgment was without support. This contention is overruled. The evidence showed the age of the beneficiaries and of A. P. Betterton at the time of his death, the amount of his earnings, his habits as to employment and earning capacity, the length of time he had been so employed, that he was healthy and worked regularly all the time, and his ability to contribute to his wife and minor son. Prom these facts the jury had the right to estimate and assess damages in favor of the beneficiaries, and they were not required to offer proof of their life expectancy nor of the life expectancy of the deceased. In Gulf, C. & S. F. Railway Co. v. Compton, 75 Tex. 667, 13 S. W. 667, 670, Judge Gaines, speaking for our Supreme Court, said: “Evidence of the probable duration of life by experts in the business of life insurance is admissible in such cases, but is not necessary. Our statute contemplates that the jury shall judge of this upon proofs being made of the party’s age and physical condition.” See, also, Missouri Pac. Railway Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838; Texas & P. Railway Co. v. Lester, 75 Tex. 56, 12 S. W. 955; Gainesville, H. & W. Railway Co. v. Lacy, 86 Tex. 244, 24 S. W. 269.

In this connection, it should be said that appellant has no proposition complaining that the verdict of the jury was excessive. The point made is only that the judgment was wholly without support because of this omission in the evidence. Gulf States Utilities Co. v. Moore (Tex. Civ. App.) 47 S.W.(2d) 488, 489, cited by appellant in support of this proposition, does not control this proposition. Our. ruling in that case was based upon the fact conclusion that “there was no evidence as to. the age of his wife,” and, based on this omission in the evidence, the proposition was, “The judgment is excessive and without adequate support in the evidence.” The facts clearly distinguish this ease from the Moore Case.

Appellant insists that the judgment of the lower court should he reversed because appellees injected into the ease the fact that it carried indemnity insurance. This contention is overruled. Appellant had tendered to appellees’ witness Broussard a written statement which he had signed. Appellees ashed the witness the following questions, and it is upon this statement that this proposition is based:

“Q. Is it true? Who wrote that statement? Did you write it? A. I didn’t write it.
“Q. Who wrote it? A. The insurance agent, the one that represented the insurance company of the Texas Company.
“By Mr. Butts: Q. Just a minute. A. (Continued) If I remember right.
“By Mr. Butts: Comes now the defendant and moves the court to declare a mistrial in this cause for the reason that counsel has brought out from plaintiff’s own witness and it is unprovoked, uncalled for, unwarranted, and there is no place in this record the question of insurance in this case.
“The Court: Motion overruled. ■
“Mr. Butts: To which we except.”

This ruling was not error. Appellant itself injected this instrument into the case. As it had exhibited the instrument to the witness to be offered in evidence, appellees had the right to inquire as to who wrote it. In the following cases and the many other cases cited by them, the injection of the issue of “insurance” was held not to be error. Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108; and Jimmie Guest Motor Co. v. Olcott (Tex. Civ. App.) 26 S.W.(2d) 373; D. & H. Truck Line v. Lavallee (Tex. Civ. App.) 7 S.W.(2d) 661; and Horton v. Benson (Tex. Civ. App.) 266 S. W. 213. affirmed by the Supreme Court, 277 S. W. 1050.

The court did not err in refusing to submit to the jury appellant’s special issue No. 3, which was as follows: “Did A. P. Bet-terton in changing the course of his vehicle just prior to the collision see first whether ' there was sufficient space for such movement tp be made in safety?”

This issue was upon the weight of the evidence, and assumed that A. P. Betterton changed the course of his vehicle just prior to the collision, and was merely evidentiary, in that it did not submit the ultimate issue of negligence. The refusal of this charge was not error, for the further reason that the issue was sufficiently covered by the court’s charge. At the'request of appellant, the court submitted an issue as to whether or not the attempt of Betterton to pass the ear or cars ahead of him, under the circumstances, was negligence; also issues were submitted as to whether or not Betterton, in attempting to pass appellant’s truck, failed to give half of the road and as to whether or not he had his car under control at the time of the collision and as to whether or not he kept a proper lookout for vehicles coming from the .opposite direction.

Appellant also complains that the court erred in failing to submit the following specially requested issues:

“Did A. P. Betterton fail to observe the Texas Company vehicle just prior to his attempt to pass the vehicle on his right?”
“Did A. P. Betterton fail to stop his car upon seeing the Texas Company vehicle just prior to his attempt to pass the vehicle on his right?”
“Did A. P. Betterton just prior to the injury drive his automobile from a position of safety to a position of danger?”

The refusal of these issues was not error. The points made were sufficiently covered by the charge as given to the jury. Thus, the court submitted appellant’s special issue, reading: “Was the attempt of A. P. Better-ton to pass the car or ears ahead of him, under the circumstances, negligence, as that, term has been defined to you”—which was answered in the negative. Special issue 12,-submitted to the j.ury, was as follows: “Did. A. P. Betterton keep a proper lookout (that is,-such lookout as an ordinarily prudent person would keep under the same or similar circumstances) for vehicles, coming from the opposite direction, while attempting to pass the ears on his right”—which was answered in the affirmative. And special issue No. 9, submitted to the jury, read: “Did A. P. Bet-terton have his car under proper control (that-i?, under such control as an ordinarily prudent person would have had his car Under), at the time and place in question”—which was also answered in the affirmative. A complete answer to- these contentions would be to say that. these issues were merely evidentiary and did not submit ultimate issues of negligence.

For the reasons stated, the judgment of the lower court is in all things affirmed.


author: VAUGHAN, J. JONES, C. J.

text:
    SHAW, Commissioner of Banking, et al. v. CONE et al.
    No. 11069.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 14, 1933.
    Rehearing Denied Feb. 11, 1933.
    Locke, Locke, Stroud & Randolph, J. P. Dreibelbis, and Maurice E. Purnell, all of Dallas, for appellants.
    Bartlett, Thornton & Montgomery, David W. Hardy, and P. G. Peurifoy, all of Dallas, for appellees.
   VAUGHAN, J.

This suit was brought by appellants the Farmers’ State Guaranty Bank of Navasota, Tex., now defunct, and James Shaw, the commissioner of banking of Texas, as statutory receiver of said bank, against appellee, Clarence S. Cone, Jr., an employee of the bank, to recover damages for the alleged faithlessness of said Cone as an agent of the bank, and against said employee, as principal, and appellee American Surety Company, as surety, to recover the sum of $2,500 on a $2,500 fidelity bond given to the bank to secure the bank against specified defaults of the said Cone. The effect of the allegations made by appellants was to recover damages arising from the alleged embezzlement, wrongful abstraction, and willful misapplication of money of the bank by the said Cone to the extent of $7,248.76, represented by shortages in the accounts of six depositors in the bank, and further charged him with aiding certain officers of the bank in accomplishing embezzlements, abstractions, and misapplications of the bank’s funds, and with knowledge that said officers of the bank were fraudulently diverting and feloniously appropriating to their own use the money of the bank and for the purpose and with the intent of concealing their said transactions and contributing to the accomplishment thereof, and, in pursuance of a common design and plan, said Cone fraudulently manipulated the books of the bank, and made false, misleading, and fraudulent entries therein, whereby he actively and affirmatively caused and! contributed to and participated in such embezzlements, abstractions, and misapplications. The condition of the fidelity bond was alleged and proven to be that said surety company would» hold the bank harmless against and pay to it “such pecuniary loss as it may sustain of money or other valuable securities embezzled, wrongfully abstracted or willfully misapplied-by said officer in the course of his employment as such”; that as to the accounts of the six depositors of the bank alleged to have been so manipulated and handled by said Cone appellants alleged, as to said accounts, loss to have been sustained respectively by said bank as follows: “(a) By manipulating the account of Mrs. John A. (or Eunice) McKay between January 22, 1925, and February 12, 1926, resulting in a pecuniary loss to the bank of $1,433.85. (b) By manipulating the account of Mrs. Fritz Meyer on and before August 18, 1924, to February 12, 1926, resulting in a pecuniary loss to the bank of $1,126.00. (e) By manipulating the account of Ben Silverstein from and after July 2, 1926, to Eebruary 12, 1926, resulting in a pecuniary loss to the bank of $275.98. (d) By manipulating the account of Wm. Gardner from and after March 1, 1923, to February 12, 1926, resulting in a pecuniary loss to the bank of $1,545.03. (e) By manipulating the account of G. O. Brooks from and after March 1, 1923, to February 12, 19⅝ resulting in a pecuniary loss to the bank of $527.-54. (f) By manipulating the account of Peter Yeorek, Special, from and after December 23, 1924, to February 12, 1926, resulting in a pecuniary loss to the bank of $2340.36.”

Of the many pleas embraced within the answers filed respectively by appellees in defense of appellants’ alleged cause of action, the record of this appeal only makes it necessary to state that same presented, on the merits, a general denial, release of liability of the said Gone on account of and against the several sums constituting the amount of $7,24S.76 sued for on account of and by reason of certain services rendered by said Cone to the then banking commissioner, Chas. O. Austin, in assisting said commissioner and his personal representative, H. P. Audrey, then liquidating agent of said bank, in auditing the books of said bank and fully investigating the affairs of said bank, and any and all claims which said bank had against the officers of said bank, to wit: R. L. Renick, cashier, and J. T. Evans, vice president, alleged to have, in fact, received the several sums of money to their own use and benefit comprising the said sum of $7,248.76 sued for, and, further, that said Cone did not receive any benefit from and on account of the abstraction of the funds of said bank so made by said cashier and vice president of said bank, and, in effect, pleaded that said Cone did not mean to do wrong, that he acted upon the instructions of said Renick and Evans, officers of the bank. And, in effect, further pleaded that, although he (Cone) knew deposits were being made daily, and that many deposits, over a long pqriod of time, were being withheld from the bank, he did not know they were being stolen, but believed that they were only being “held out,” but why or for what purpose he did not know. Following are the special issues submitted and answers made thereto by the jury, viz.:

“Special Issue No. 1. Do you find and believe from a preponderance of the evidence that Clarence S. Cone Jr., prior to the closing of the bank by the Commissioner of Banking, knew that either Renick or Evans, cashier and vice-president, respectively, were withholding from the bank, funds of the, bank with the intent on the part of either Renick or Evans to misapply said funds? Answer ‘Yes’ or ‘No.’ Answer: No.
“If you have answered special issue No. 1 by ‘Yes’ you need not answer special issue No. 2. If you have answered by No then answer special issue No. 2.
“Special Issue No. 2. Do you find and believe from a preponderance of the evidence that Clarence S. Cone, Jr., prior to the closing of the bank by the Commissioner of Banking, had knowledge of such facts as that a man of ordinary prudence and care, under the same or similar circumstances, would have known that Renick and Evans, cashier and vice-president respectively, were withholding from the bank, funds of the bank, with intent on the part of either Ren-iek or Evans to misapply said funds? Answer ‘Yes’ or ‘No.’ Answer: No.
“Special Issue No. 3. Do you find and believe from a preponderance of the evidence that Clarence S. Cone, Jr., prior to the closing of the bank by the Commissioner of Banking, by his act and words, aided and assisted Renick or Evans, cashier and vice-president, respectively, in withholding from the bank funds of the bank with the intent on the part of either Renick or Evans to misapply said funds? Answer ‘Yes’ or ‘No.’ Answer: No.”'

On this verdict judgment was rendered in favor of appellees and against appellants that appellants take nothing against appellees and that appellees recover their costs, etc. From this judgment appellants duly prosecuted this appeal. By their propositions Nos. 3, 4, and 5, appellants urge that the answers of the jury to special issues Nos. 1, 2, and 3, supra, are respectively against the overwhelming preponderance of the evidence. Said propositions tested by the probative effect of all of the evidence adduced in support of said answers, especially by the following testimony of appellee Cone, are sustained: “ * * * And he said that he was holding that up to go on and balance the books and show it just as though the deposit had been run through. I don’t remember whether I asked him why he was holding that particular- deposit or not. (Abstracted deposit, Eunice McKay, $833.00.) * * * I did not ask about the $833.00 deposit that had not come through. I don’t remember why I didn’t. (Subsequent balancing, two months later.) * * »' I recall that I went to Mr. Renick at that time and asked about' the $833.00 deposit. I did ask him more than the one time but I could not say how many times. He did not always tell me the same thing. I couldn’t say whether he told me the same thing about the McKay account every time or not. (Subsequent balancing, one month later.) * * * I don’t recall whether or not I went to Mr. Renick on that date. (Subsequent balancing, one month later.) * ⅜ * I don’t remember whether I went to Mr. Renick on the occasion of that balance and asked him about the $833.00 deposit that had been out about seven months. (Subsequent balancing, one month later.) * ⅜ ⅜ I always asked somebody about every deposit that showed on the pass book and didn’t show on my ledger; I talked to the man who took the deposit, Mr. Reniek, but I don’t remember what he told me about each individual one. (Additional abstracted deposit, Eunice McKay, $1,334.85.) * * ⅞ I asked Mr. Reniek about this one but I don’t recall what he said in any particular instance. * * * Most, of the time Mr. Ren-ick would say that he was holding it out and to go on and balance the book and show it just the same as though it was in. I didn’t know why he was holding it out but I just knew he was holding it out and I knew it was not going on the bank’s books. (Abstracted deposit, Ben Silverstein, $275.98.) * * * I asked Mr. Reniek abopt that deposit but I don’t remember what he said in that particular ease. I couldn’t say exactly what he said but he generally told me to go on and balance the books, that he was holding it out. One time I forget which one he told me that they were offsetting some cheeks with it. The checks were supposed to be charged on the individual ledger account. (Abstracted deposit, William Gardner, $2,-640.03.) * * * I don’t recall whether I went back and asked Mr. Reniek about holding out that same deposit or not. (Subsequent balancing, one month later.) * * * I couldn’t say whether I discussed with Mr. Reniek the holding out of this deposit or not at that time. I don’t remember whether I ■went to Mr. Reniek every time a deposit was held out or not. I couldn’t say, that is to say unless it was a new deposit. (Subsequent balancing, one month later.) * * * I am sure I asked somebody about that but I don’t recall who nor do I remember what they told me. (Abstracted deposit, Mrs. Fritz Meyer, $101.00.) * * * I am not sure that I asked Mr. Reniek or Mr. Evans about that when I balanced the book but X do not remember what they told me. (Additional abstracted deposit, Mrs. Fritz Meyer, $125.00.) * * * I don’t know why that charge was not taken into consideration when I ran the list of checks from January 7th to July 16th * * * that $1,000.00 charge plus the $25.00 deposit that was not credited on the book plus $101.00 it was already out of balance makes a difference of $1,126.00. That is the exact difference between the amount I posted in the pass book on July 16, 1925, and the amount as reflected by the bank’s ledger. (Two aforesaid abstracted deposits and false charge, Mrs. Fritz Meyer.) * * * I recall that I asked about that difference at that time; I asked Mr. Evans about' that and he said to go on and balance it and show it, he was holding that out. (Abstracted deposit, G. O. Brooks, $801.00.) * * * I am sure x talked to Mr. Evans or Mr. Reniek about it, one of them. I couldn’t say specifically what they told me on that occasion. (Additional abstracted deposit, G. C. Brooks, $227.17.) * * * I again mentioned it to Mr. Evans but I do not remember what I asked him or what he told me, that was his general answer, that he was holding it out and to go on and balance the books. (Second additional abstracted deposit, G. O. Brooks, $219.80.) * * * I am sure I asked him about it but X don’t remember what he told me. * * s At one time he said he was offsetting some notes but I don’t remember what account it was. (Third additional abstracted deposit, G. O. Brooks $300.-'37.) * * ⅜ Whpn I had a case of that kind and I was balancing the book, if it .was out of balance I would ascertain how much it was out and start checking to see where it was out and in those cases I found some deposits were missing and I would take the books and see who made the entry and go to him and ask where that deposit was, I didn’t have it on my ledger and in most cases they told me they were holding it out and for me .to balan.ee the book and show it as though it had come through. * ⅜ ⅞ They would tell me that the money had been received in the bank or that they had the deposit and that the bank owed the depositor that much money though not in those words * * * X did not know why they were holding them out. » ⅜ * ” However, while this situation would have authorized the granting of a new trial by the court below, same confers no power on this court to render judgment adversely to that rendered by the trial court, there being, perhaps, more than a scintilla of evidence in support of said answers; in fact, we doubt if we would be authorized to reverse said judgment alone upon the meager evidence found in the record to sustain said findings of the jury.

Because of the fact that, the evidence before the court bearing upon the acts and conduct of said Cone showing his course of dealings with and making entries in the books of the bank and passbooks of its depositors, considered in the light of Cone’s testimony offered in explanation thereof, failed to conclusively show the guilty knowledge of said 'Cone of the illegal acts and conduct of said Reniek and Evans, whereby the money sued for was lost by the bank, which must be shown in this character of litigation, we will have to overrule appellants’ proposition No. 1, viz. “Cone’s admitted participation in losses sustained by the bank, by deliberately falsifying books and records of the bank entrusted to his charge, in order to conceal the fact that funds were being withheld from the bank, as a matter of law constitutes a willful, or at least a negligent, violation of his duties as agent of the bank.” And proposition No. 2: “Cone’s admitted participation in losses sustained by the bank, by deliberately falsifying books and records of the bank entrusted to his charge, in order to conceal the fact that funds of the bank were being withheld from the bank, as a matter of law constitutes wrongful abstraction or willful misapplication within the meaning of the condition of the bond.” This holding is largely due to the following facts having been established by the evidence, viz.: That the money lost by the bank was taken by said Reniek and Evans ; that no evidence was adduced showing that Oone received any of the money sued for, or profited by his alleged illegal acts and conduct, or that of said officers; that the duties of Oone, as an employee of the bank during the period of his employment, were to keep the individual ledger and cash book and to balance the customers’ passbooks; that some time he was assisted by the officers of the bank. Prom the above, we think it is made to clearly appear that the guilty knowledge of said Oone remained, under all of the admitted evidence, a question for the jury to determine, as Cone’s said admissions must be viewed in the light of his testimony in-explanation of his acts and conduct involved in said admissions.

In this state it is well established that one who falsifies a bank’s books in order to conceal abstractions of funds which he knows that some one else is making is himself guilty . of willful misapplication of such funds within the meaning of the bond sued upon in this case. National Surety Company v. Pirst State Bank (Tex. Civ. App. 1922) 244 S. W. 217 (writ of error refused); Chapman, Commissioner v. Nieman (Tex. Civ. App. 1925) 276 S. W. 302; second appeal Austin v. Nieman (Tex. Civ. App.) 3 S.W.(2d) 128; Id. (Tex. Com. App.) 14 S.W.(2d) 794; American Surety Company v. Austin (Tex. Civ. App. 1928) 5 S.W.(2d) 626 (writ of error refused); Maryland Casualty Company v. Farmers’ State Bank (Tex. Civ. App. 1924) 258 S. W. 584; Ferguson v. State (1916) 80 Tex. Cr. R. 383, 189 S. W. 271. There is no question that funds were abstracted by some one; and that Cone made the false entries which concealed, and thus aided in the perpetuation of, the abstractions. And, although Cone denies that he knew that the officers who intercepted the deposits at the window were using that money for their ■own benefit, he knew, or should have known, that the bank was not getting the benefit of it. If the bank' got the money, or the benefit of the money, it'would have to show up in some account, as cash or as a loan or discount, or bill receivable, or otherwise as an asset of the bank. Yet, if it did, the books of the bank would be out of balance, unless some corresponding credit was passed to the account of a depositor. But no corresponding credit was entered for such funds, and the express reason for not making such credits was that the books might be in balance; and the hooks were in balance. The above should have made it apparent to Cone that the bank was not receiving credit in any of its accounts for funds so intercepted on being received from depositors. Notwithstanding this, there remained the question for the jury to deter mine, viz. the guilty knowledge of Cone, viz. the knowledge of the spirit and intent that actuated Reniek and Evans, respectively, in their course of dealings with money presented to be deposited and which was never permitted to enter the vault of the bank by reason that same was “held, out” by either Reniek or Evans.

It being assumed from the above that the jury was entitled to treat Cone’s attempted explanation as satisfactory, and if so accepted to thereby absolve appellees from any liability to appellants on their alleged cause of action, it was the appellants’ burden to show the j*ury, by the introduction of proper testimony, that such explanations were no.t sufficient to exculpate appellees from such liability.

This brings us, in logical order, to consider appellants’ sixth proposition: “After the plaintiffs had examined -Cone with reference to the seven accounts contained in the record herein, in which specific losses occurred for which recovery is sought, plaintiffs attempted to examine Cone with reference to shortages and false entries made by Cone in other accounts in the bank. Plaintiffs had in the court room the original records of the bank of numerous additional accounts, including the account of a Dr. W. P. L. Knoll. They sought to lay the predicate for the admission in evidence of the ledger sheets and pass books of such additional accounts for the purpose of showing that Cone had made numerous and repeated false entries therein.” The admission of this testimony was objected to on the ground that no losses in such additional accounts were sued for. Appellants, in support of the admissibility of said testimony, urged that the accounts so objected to, and Cone’s testimony with reference thereto, were admissible upon the issue of Cone’s knowledge that money of the bank was being misapplied during the time he was bookkeeper, and restricted their offer to such purpose. .Cone admitted that he knew that deposits were being held out Of the bank, and that, notwithstanding such knowledge, he made entries which concealed such fact. He attempted to ameliorate the fact of such knowledge when he testified, in effect, that each time a deposit was held out he went to the officer who was holding the deposit out and asked him the reason therefor; that, in the case of each inquiry so made, the officer told him that he was'“just holding out” the deposit, to go ahead and balance the books as if the deposit had come through; that in each instance this explanation completely satisfied his mind. In view of Cone’s protestation of innocence, it was appellants’ burden to show the jury that his explanation was not satisfactory.' This could not be done by direct evidence; therefore recourse to circumstantial evidence was undoubtedly available for that purpose, presenting other similar acts and conduct on the part of Cone to that involved in the seven specified accounts in which deposits were alleged to have been held out, and constituting appellants’ cause of action.

The evidence excluded was both material, competent, and admissible on the issue raised by the pleadings as to the state of Gone’s mind with which he acted in making the entries that deceived the depositors and made the books of the bank appear to be in balance by withholding the entry thereon of the deposits so made, thereby falsifying the records of the bank to conceal such facts. The generally recognized rule is that, where the issue is a state of mind with which a person acts, both parties should.be allowed a wide field in proving the general course of the person’s conduct under investigation, with each detail and ramification which might ■tend to color the conduct or characterize the intent which actuated it. U. S. Fidelity & Guaranty Co. v. Egg Shippers’ Strawboard & Filler Co. (C. C. A. 8th, 1900) 148 F. 353; Massillon Mortgage Co. v. Independent Indemnity Co. (1930) 37 Ohio App. 148, 174 N. E. 167. The fact that no recovery is sought by appellants .for the losses caused by the other false entries which they attempted to show was no barrier to proving them merely on the circumstances of Cone’s guilty knowledge in making the false entries upon which recovery was sought. In the offering of this proof, there could be no element of surprise, the petition stated the amount involved in Cone’s alleged false entries were large and that the entries occurred, at various times between the years 1923 and’ 1926; and the particular losses in the seven particular accounts, for which recovery was sought, were set out in the petition as constituting only some of the transactions with which Cone was connected. Cone had already testified that there were many additional shortages, and that he had made many additional false entries, that he could not say how many there were, or even hazard a guess. The excluded testimony was offered by appellants to show how many additional false entries there were and the circumstances under which same were made, not through some unknown person or by some disconnected testimony, but by producing the books and records which Cone himself kept. In excluding this testimony, material error was committed, for which this cause should be, and is, reversed and remanded.

Reversed and remanded.

On Rehearing.

JONES, C. J.

On a former day of this term of court, the above cause was reversed and remanded because of error of the trial court in refusing to admit certain evidence offered by appellant, and appellee has filed a motion for rehearing. We have carefully considered said motion, with the result that we see no reason for changing our opinion that the trial court committed error in refusing to admit the testimo.-ny. This question is fully discussed in the opinion rendered by former Associate Justice VAUGHAN, and appellee’s motion for rehearing is overruled.

After again analyzing the evidence in this case, as set out in the original opinion, .in the light of the opinion of the Commission of Appeals in the case of Austin, Commissioner, v. Neiman, 14 S.W.(2d) 794, we have concluded that this court erred in reversing and remanding the ease for another trial, and that the judgment this court should have rendered was to have reversed and rendered the ease in favor of appellants.

It clearly appears from the record, and is admitted in appellee’s motion for rehearing, that the case was fully developed in the trial as to the defenses of appellees, and that the rejected testimony, which called for a . reversal of the case, is only cumulative of other testimony on the same issue offered by appellants. Our conclusion is that the legal effect of the testimony admitted in evidence conclusively shows that Cone actively participated in the unlawful acts of the cashier and vice president of the Navasota Bank, by means of which large sums of money were lost to the bank and applied to the personal use and benefit of said bank officials. Such conclusion is impelled by the announcement of the law in the case of Austin, Commissioner, v. Neiman, supra, under facts that cannot be distinguished from the facts of the instant case.

In the reported case, Neiman as bookkeeper, on the x’equest of an officer of the bank, accomplished ,the same wrongful purpose as was accomplished by Cone at the request of _the vice president and cashier of the Nava-sota Bank in the instant case; also in the reported case Neiman testified as to his ignorance of the wrongful purpose of the officer of the bank, just as in the instant case Cone testified as to his ignorance of the wrongful purpose of the said officers of the Nava-sota Bank. The evidence shows, in the reported ease, that Neiman manipulated certain books of the bank in a way that would prevent discovery of the shortage, and, in the instant case, the undisputed evidence shows that Cone manipulated bank, and customers’ pass, books, in a way that concealed the wrongful acts of the said officers of the Navasota Bank. In respect to this question, the instant case is stronger in evidentiary facts than those in the reported ease.

In the reported case, it was held that, notwithstanding Neiman’s testimony of ignorance, the evidence “established beyond controversy that Neiman aided and assisted Lowe in the unlawful appropriation of the bank’s funds. * * ⅜ ” This conclusion of the Commission of Appeals, approved by the Supreme Court, compels the announcement of. the same conclusion in the instant case, that the evidence establishes beyond controversy that Cone aided and assisted the vice president and cashier of the Navasota Bank in the unlawful appropriation of the bank’s funds. Therefore this court, on its own motion, sets aside its former order reversing and remanding this cause for another trial, and here renders judgment against Cone in the sum of $7,248.76, with interest at the rate of 6 per cent, per annum from the date of the trial of the ease* in the district court, and renders judgment against the American Surety Company, as surety on Cone’s fidelity bond, in the sum of $2,500, together with interest at the rate of 6 per cent, per annum from the date of the judgment in the district court.

Motion of appellee for rehearing overruled, and the court on its own motion renders the judgment above described. In view of the judgment here entered, appellees have the right to file a motion for rehearing without regard to their former motion.

Reversed and rendered..


author: SMITH, J.

text:
    WESTERN UNION TELEGRAPH CO. v. SORENSON.
    No. 8984.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1933.
    R. B. Creager and, R. E. Green, both of Brownsville, for appellant.
    S. L. Gill and Orris N. McNeil, both of Ray-mondville, for appellee.
   SMITH, J.

This action was brought by E. M. Sorenson against the Western Union Telegraph Company to recover actual and exemplary damages alleged to have been sustained by Soren-son on account of the erroneous transmission of a telegram sent by Sorenson to one Paul-son in a distant state. The body of the message filed for transmission was as follows:

“Will pay you thirty-six hundred dollars cash for your land here. All taxes to be paid by you. Taxes for this year paid by purchaser. I will pay for abstract. Wire acceptance and I will send deed for signature. Money available within ten or fifteen days.” (Italics ours.)

It is alleged the message was changed in transmission so that when delivered to the addressee it read as follows:

“Will pay you thirtysix hundred dollars cash for your land here all taxes to be paid by the Taxes for this year to be paid by purchaser I will pay for abstract wire acceptance and I will send deed for signature money available within ten or fifteen days.” (Italics ours.)

It will be observed that the italicised word “you” was changed to the italicised word “the,” which rendered .unintelligible the stipulation concerning the payment of taxes. It was alleged and proven that the error resulted in a requirement that Sorenson pay said taxes, amounting to $241, whereas, but for such error, he would have been relieved of such payment. Sorenson recovered $241 actual damages, and $250 exemplary damages. The telegraph company has appealed.

There was neither allegation nor proof of facts warranting the judgment for exemplary damages, which must be specifically pleaded and proved.

So must tlie judgment for actual damages be reversed.

The contents of the message actually delivered at destination was proved only by a purported copy thereof as quoted in a letter from the addressee to the sender. Its introduction in that form and from that source was appropriately objected to by appellant, but was admitted nevertheless. This was error. The contents of the message as actually delivered by appellant cannot be proven by any mere letter or ex parte statement of the addressee, or of any other person. It may, of course, be proved by the deposition of the addressee, with the original delivered message attached, or proven copy with satisfactory explanation of the failure to attach the original. The correspondence between appellee and the addressee was not admissible for any purpose, in the presence of appropriate objections, which ought to be obvious.

Appellant complains of the measure by which the court below ascertained appel-lee’s damages, contending that, as appellee made a profit in his transaction with Paulson in spite of the loss occasioned by the alleged error in the transmission of said telegram, he was not entitled to recover any amount. Appellant’s contention is unreasonable and fanciful, and without support in the authority it cites. The tr.ue measure is the actual loss to the injured party in so far as the same was a natural and reasonable result of the negligence of the telegraph company in transmitting the message.

The judgment is reversed, and the cause remanded.


author: BOND, J.

text:
    DE GRAZIER v. CRADDOCK.
    No. 11411.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 7, 1933.
    Rehearing Denied Feb. 4, 1933.
    John T. Gano, of Dallas, for plaintiff in error.
    Saner, Saner & Jack and R. T. Meador, all of Dallas, for defendant in error.
   BOND, J.

This suit has been brought to this court by writ of error proceedings from a district court of Dallas county, Tex., perfected by plaintiff ■in error by means of filing a petition and an approved supersedeas bond, and forthwith caused to be issued and served on defendant in error a citation. The petition and bond were filed in the court below on September 9, 1932; the citation in error was issued 2 days later and served on the defendant in error on September 12, 1932. Thereafter, the statement of facts was filed in the office of the district clerk of Dallas county, and it, with a certified transcript of the proceedings in the court below, were duly presented and filed in this court on November 10, 1932 — being 59 days after; the service of citation on defendant, and 62 days after the filing of plaintiff’s petition and bond.

The defendant in error has .presented to this court a motion to strike the transcript and statement of facts which the clerk of this court has filed, and to dismiss the writ of error, on the ground that plaintiff in error did not file or tender to the clerk for filing the said transcript and statement of facts within the time required under article 1839, R. S. 1925, as amended by Acts of 1931, 42d Legislature, c. 66, p. 100 (Vernon’s Ann. Civ. St. art. 1839). The question raised is whether an appeal by writ of error is perfected upon the filing of the petition and bond, or upon securing service on the citation in error.

Article 1839, Revised Statutes, as amended in 1931, provides: “In appeal or Writ of Error, the appellant or plaintiff in error shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error. * * * ” Thus, it is seen that the time within which to file the transcript in proceedings by writs of error is determined by the event of the perfection of the writ of error. Chapter 12, art. 2267, R. S. 1925, provides: “When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the ease may be, shall be held to be perfected.” It is clearly apparent from the wording of this statute that the “previous requirements” referred to are the giving notice of appeal and filing bond in cases of appeals and the' issuance, service, and return of citation, etc., in cases of writs of error.

We are cited to the case of Reed v. Great American Indemnity Co., 47 S.W.(2d) 860, opinion written by the Eastland Court of Civil Appeals, in which that court held that the writ of error was perfected by the filing of the petition for the writ of error and super-sedeas bond in .the office of the district clerk; and we are also cited to the case of J. M. Rad-ford Grocery Co. v. Lawson et al., 53 S.W.(2d) 843, opinion of the El Paso Court of Civil Appeals, holding that the writ of error was not perfected until legal service was had upon defendant in error. Thus, we are confronted with two conflicting opinions.

In amending article 1839, R. S., in 1931, the purpose of the amendment evidently was to expedite the disposition of causes on appeal. The emergency clause of the act fully discloses' such purpose. The amendment, however, does not change the event from which the time begins to run within which to file the transcript. The Courts of Civil Appeals have potential jurisdiction of writs of error proceedings when the petition and bond are filed, and the execution of the judgment in the court below is thereby stayed. To that extent, the writ of error shall be held to be perfected, but Courts of Civil Appeals do not acquire active jurisdiction, and the writ of error is not perfected completely until the requirements of chapter 12, R. S. 1925, have been complied with, and one of those requirements is that citation of the writ shall be served. The service of the citation gives the appellate court active jurisdiction to determine the cause. Weems v. Watson, 91 Tex. 39, 40 S. W. 722, 723; Thompson v. Pine, 55 Tex. 429; Barnard v. Tarleton, 57 Tex. 402. We think the filing of the petition and bond, and the issuance, service, and return of the citation, has the effect of completely conferring jurisdiction on this court, and until citation has been served the time limit for filing the transcript does not begin to run and the appellant in error has sixty days from the day of service of the writ.

While a plaintiff in error might lose his right' to have a cause heard on its merits in this kind of proceedings by negligent failure on his part to use proper diligence to procure a service of citation in error, we think that, in this case, plaintiff in error’s failure to file the transcript, within sixty days from the filing of the bond, should not work such a result, and that he acted within the time required by law.

The statute, as amended, might be doubtful as to whether the time for filing the transcript shall begin to run from the filing of the petition and bond, or the service of the writ. In some cases, the service might delay the active jurisdiction of this court to hear the ease on its merits; but the right of appeal, being one guaranteed by our Constitution, should never be denied except under very reasonable and liberal rules and regulations which may become necessary looking to the rights of litigants and the ends of substantial justice. The right of appeal contemplates that the cause should be disposed of on its merits in the appellate court, except in cases where the party be deprived of that right as a result of some reasonable, necessary, and positive provision of law or rule of court. If a doubt arises, such doubt should be resolved in favor of the appeal.

It follows from what we have said that the motion of defendant in error, that the transcript be stricken and the said writ of error be dismissed, is overruled.

Overruled.


author: ■ SMITH, J.

text:
    JOHNSON et al. v. TOWN OF REFUGIO et al.
    No. 8934.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Rehearing Denied Feb. 8, 1933.

      J. Turner Vance, of Refugio, for appellants.
    Terrell, Davis, Hall & Clemens, of San Antonio, for appellees.
   ■ SMITH, J.

Appellee has moved to dismiss the appeal oil the two grounds that appellants had not filed their brief in this court within the time prescribed in article 2283, R. S. 1925, or in the trial court and this court as provided in rules 36 and 38 for the government of this court. That statute and those rules were superseded by the amendment of April 21, 1931, to article 1848 (Acts 1931, 42d Deg., p. 98, ch. 64, § 1 [Vernon’s Ann. Civ. St. art. 1848]). Moreover, neither party is required to file briefs at any time in appeals from orders denying temporary injunctions, such as in this case, although they should do so, in the faithful prosecution of, their appeals, wherever practicable.

The appeal is from an order denying a temporary injunction to restrain the officials of the incorporated town of Refugio from proceeding to carry out the mandate of the requisite majority of the qualified voters of the town for the issuance and sale of municipal bonds in the sum of $160,000 for the construction and improvement of streets, bridges, and roads in the town.

It is provided in article 709, R. g. 1925, as follows:

“Before any bonds shall be offered for sale, the county judge or the mayor, as the case may be, shall forward the bonds to the Attorney General, together with a certified copy of the order or ordinance levying the tax to pay the interest and provide a sinking fund, and a statement of the total bonded indebtedness of the county, city or town, including the series of bonds proposed, together with the amount of the assessed value of the property of the county, city or town for purposes of taxation as shown by the last official assessment of such county, city or town. Such county judge or mayor shall also furnish the Attorney General with any additional information he may require.”

This action was brought by appellants to restrain the town officials from submitting the transcript and bond to the Attorney General as provided in said statute, or to do anything towards carrying out the mandate of the voters. As a basis for this relief appellants alleged that the proceedings for the issuance of the bonds were invalid, and set out the objections thereto in detail.

The trial judge sustained a plea in abatement and general demurrer urged below, and dismissed the bill, from which the plaintiffs, below have appealed.

We are of the opinion that the trial court correctly disposed of the case. It appears from appellant’s own pleadings that the record of the proceedings had by the town officials has not been submitted to the Attorney General for his examination and approval or disapproval as provided in article 709. Such examination and approval is made requisite to the issuance of bonds of this character, and that primary method of determining their validity is made mandatory by the statute before the bonds may be offered for sale.

The courts of the state must assume that the Attorney General will faithfully perform the duty imposed upon him by the statute, that he will carefully and efficiently traverse such records, and discover and require the correction of errors therein which may invalidate the bonds, or else disapprove them. Until the issue has been submitted to him for his examination and report thereon, and it becomes apparent that he intends to approve them in contravention of the law, the courts will not interfere to prevent the Attorney General’s action and opinion thereon. In our opinion this action was prematurely commenced, and was properly dismissed below. Smith v. Reaves, County Judge (Tex. Civ. App.) 208 S. W. 545; Bird v. Alexander (Tex. Civ. App.) 294 S. W. 305.

There seems to be another reason found in the authorities which support af-firmance, and that is that courts of equity will not bother to restrain the issuance of void bonds, or bonds about to be issued without the semblance of authority. Polly v. Hopkins, 74 Tex. 145, 11 S. W. 1084; Temple Lbr. Co. v. Commissioners’ Court (Tex. Civ. App.) 239 S. W. 668; Bolton v. City of San Antonio (Tex. Civ. App.) 21 S. W. 64, 65. Here it was alleged in the bill that the bonds, the issuance of which is sought to be restrained, would be void for numerous reasons, rendering them without the semblance of authority. Under the authorities cited those allegations deprived the bill of substantial merit.

The judgment is affirmed.


author: MARTIN, J.

text:
    ALEXANDER FILM CO. v. BOXWELL et al.
    No. 3945.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 11, 1933.
    Slough, Gibson & Slough, of Amarillo, for appellant.
    Dorenfield, Foster & Fullingim, of Amarillo, for appellee.
   MARTIN, J.

Appellant is a Delaware corporation without a permit to transact business in Texas as required by article 1529, R. S. Suit was brought for a balance alleged to be due under the contract mentioned below. Its right to maintain this suit by virtue of the terms of article 1536, R. S., was properly raised by plea in abatement. The plea was sustained upon a hearing by the trial court and the suit dismissed. Appellant claims here that the transaction forming the basis of this suit was “interstate,” which required no such permit. The question is purely one of fact.

The evidence introduced was sufficient to support a finding by the trial court that ap-Xiellant maintained an office in Dallas, Tex., in charge of its agent through whom there was negotiated and concluded a contract with appellees by the terms of which certain advertising was to be ‘■'displayed” and “screened” at the Dent theaters in Amarillo, Tex., for appellees. This was manufactured and shipped from Colorado Springs, Colo. The performance of this contract impliedly, if not expressly, required all local work and expenses to be done and borne by appellant. As we view the facts, the performance of certain stipulations of this contract was necessarily required to be done in Texas, and this fact, coupled with the maintenance of an office in Dallas through which the contract in question was handled, precluded a finding that the transaction was “interstate” and justified the action of the trial court. Buhler v. E. T. Burrowes Co. (Tex. Civ. App.) 171 S. W. 791; Browning v. Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828; Elliott Electric Co. v. Clevenger (Tex. Civ. App.) 300 S. W. 91; Motor Supply Co. v. General Outdoor Advertising Co. (Tex. Civ. App.) 44 S.W.(2d) 507.

The importance of the question does not seem to justify any extended discussion.

The judgment is affirmed.


author: BAUGH, J.

text:
    STATE v. LOWRIE et ux.
    No. 7802.
    Court of Civil Appeals of Texas. Austin.
    Jan. 4, 1933.
    Rehearing Denied in Part and in Part Granted Jan. 25, 1933.

      Critz & Woodward, of Coleman, for the State.
    W. Marcus Weatherred, of Coleman, for ap-pellee.
   BAUGH, J.

The’ state, acting by and through the commissioners’ court of Ooleman county,' sought to condemn a right of way for state highway No. 7 across appellees’ lands in that county. Commissioners were appointed as provided by law, and appellees presented to them their claim for $1,451 for the 2.02 acres taken and damages to the remainder. The commissioners awarded them $500. Appellees were dissatisfied with this award, filed their objections in the county court, where a trial was had before a jury, and, in response to special issues submitted, they awarded appellees $350 for the lands taken and $400 'as damages to the remainder. Judgment was entered accordingly, and the state has appealed.

Appellant’s first contention is that the trial court should have sustained its objections to appellees’ amended claim, filed in county court, on the ground that it enlarged and varied that presented by them to the commissioners. We do not sustain this contention. We find nothing in the statutes under which such proceedings are had (title 52, R. S. 1925, arts. 3264 to 3271; Acts 3d Called Sess., 41st Leg. (1029) p. 243, c. 10) which either requires or contemplates that the property owner shall file any claim at all with the commissioners. On the contrary, the law affirmatively requires such commissioners to find the value of the property taken and the damage, if any, to the remainder. In the trial, therefore, in the county court on these issues, the property owner was entitled to claim in that proceeding such damages as the law authorizes, regardless of the amount claimed before the Commissioners, or whether any claim at all for a fixed amount had been presented to the commissioners. That being true, he would not be confined to such claims, if any, as he did file with the commissioners.

In any event there was no material variance between the claim presented to the commissioners and that subsequently pleaded. The only damages authorized are the value ■ of the lands taken and the damages, if any, to the remainder. While appellee in his claim before the commissioners listed the 2.02 acres at $101, he also asked $150- for a tank destroyed thereon, and $250 for the value of trees destroyed on said land. All of these were, of course, a part of the-realty itself, and as such added to its value. And the mere fact that such items were listed separately in the cl'ai,m before the commissioners, and pleaded in the aggregate in the suit as the value of said 2.02 acres of land, is immaterial.

Propositions 2, 3, and 4 complain of the trial court’s action in permitting the ap-pellee to testify over objection as to the market value of the cistern, the storm cellar, ■and the tank located upon the premises. This was clearly erroneous. In the very nature of things these improvements were such that they could not have a separate market' value. Had all been destroyed, the cost of digging others of similar nature, if same could be done on the premises, might have been a proper inquiry. But the storm cellar and cistern were unmolested. The record discloses that appellee owned 80 acres of land. That the highway ran diagonally across one corner of it, destroyed his surface tank and some large shade trees, cut off about 4¾ acres on which were located his improvements, and that his farm and pasture were across the highway from his residence, lots, barns, etc. The value of the tank as a water supply for his entire premises would of course be a proper consideration in arriving at the damages, if any, to the entire tract. Or, if the tank could be replaced elsewhere on the premises so as to serve the same purpose, and with adequate drainage facilities, the cost of digging another of similar size could be proven. The value or cost of construction of the cistern and storm cellar, which were undisturbed, was wholly immaterial. The issue was whether the fact that the highway separated these, along with the other improvements, from 'the main body of appellees’ lands, thereby diminished the reasonable market value of lands remaining after the actual roadway had been condemned. And, in determining that question, the dangers and inconvenience of crossing such highway and living in immediate proximity to it, would, of course, be elements entitled to consideration.

It was also error, we think, to permit ap-pellee to prove the reasonable cost of mov.ing hi,s house across the highway. If replacing, by reconstruction or removal, of all his improvements on the opposite side of the highway, was necessary to obviate any damage to the remainder of his land, such cost might be a proper inquiry on the issue of diminished market value resulting from the construction of the highway. This was not the basis, however, on which he sought damages to the lands not taken, but rather the diminished value due to partition of his land by the highway and the loss, inconvenience, and damages resulting from the use of his premises with the improvements remaining on one side of the highway, while the major portion of his lands were situated on the other.

While the inquiries submitted to the jury properly presented the issues made — that is, the value of the land taken, and the damages to the remainder — and other testimony was introduced on these issues, because the court admitted the foregoing incompetent evidence over objection, it is not improbable that the jury understood that they were to consider, and probably did consider, such items as the value of the cistern and storm cellar, and the cost of moving the house, in reaching their verdict. We cannot say, therefore, that the error was harmless. And the fact that there was other competent evidence sufficient to sustain the jury’s findings does not cure the error.

It was not error to exclude proffered ' testimony that post oak land was not considered the best land in the country. Witnesses as to market value knew this particular land and knew that it was post oak land. Their testimony was as to the market value of the particular tract, not as to lands generally in that community. It would be immaterial, therefore, as to whether other and different kinds of land were more or less val-' uable than the land ip controversy.

Por the errors pointed out, the judgment of the trial court must be reversed, and the cause remanded for another trial.

Reversed and remanded.

On Motion for Rehearing.

We have concluded that we were in error in holding that appellees were not entitled 'to prove the cost of removing their improvements across the road as an item that the jury might consider in arriving at the damages to the lands of appellees not taken. The. cases cited by appellee in his motion for rehearing are clearly in point on this issue. . The other testimony discussed in our original opinion was, however, in our opinion, clearly erroneous, violative of elementary rules of evidence, and such as to require a reversal of the case. To this extent appellees’ motion is granted; in all other respects it is overruled.

Granted in part, and in part overruled.


author: JACKSON, J.

text:
    RHOTON et ux. v. TEXAS LAND & MORTGAGE CO. et al.
    No. 3938.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 4, 1933.
    Rehearing Denied Feb. 8, 1933.

      Lockhart, Garrard & Brown, of Lubbock, for appellants.
    Coke & Coke, of Dallas, and Morrison & Morrison, of Big Spring, for appellees.
   JACKSON, J.

This is an appeal from an order of the district court of Howard county refusing the appellants D. A. Rhoton and wife, Fannie Rhoton, a temporary writ of injunction restraining the appellees, the Texas Land & Mortgage Company, beneficiary, and J. W. Mitchell, trustee, from selling 5,777 acres of land under the terms of a deed of trust given by appellants to appellees.

The appellants allege that on December 6, 1926, they, for the purpose of securing the beneficiary in the payment of three notes aggregating the sum of $36,000 with interest at the rate of 8 per cent, per annum, executed and delivered a deed of trust conveying to the trustee nine sections of land situated in Howard county, Tex., which is fully described in their petition.

They allege that they have defaulted in rhe payment of two of said notes for $6,500 each and that appellants are threatening to sell, and will sell, if not enjoined, all of said land under the terms of said deed of trust to satisfy all of said notes. They charge that the deed of trust was and is void and created no lien against the property because their acknowledgments thereto were taken before a notary public, Claude Wolf, who was the agent of and received a commission from the Texas Land & Mortgage Company and was financially interested in securing the loan. That four sections of said land, designating them, were the separate property of appellant Fannie Rhoton, and that no lien was created against said four sections because in taking her acknowledgment to the deed of trust she was not examined by the notary privily and apart from her husband.

The appellees answered by general and special exceptions and specially denied that Claude Wolf was their agent, asserted that they had no knowledge of his connection with the transaction and that Burdine, Ireton & Cowsert had no authority to appoint a sub-agent, and that appellees never paid the said Wolf any sum whatever, and alleged that $35,646.93 of the $36,000 loan was used to pay pre-existing lien indebtedness against the land, to which the appellees became subro-gated, and that Mrs. Rhoton is estopped by false representations to assert that any of said land was her separate property.

The testimony shows that Burdine, Ireton & Cowsert, who resided at Lamesa, Tex., were the correspondents of appellee Texas Land & Mortgage Company; that they advised Claude Wolf, the cashier of the First State Bank of Coahoma, in Howard county, that they were making loans for said land and mortgage company, and agreed to split with him their commissions' on any loans he secured, and furnished him blanks upon which application for a loan should be madé That he obtained the application of appellants, sent it to Burdine, Ireton & Cowsert at Lamesa, who forwarded it to the land company at Dallas, where the notes, the deed of trust, and other papers connected with the loan were prepared by said company and sent to their correspondents at Lamesa and by them forwarded to Claude Wolf, who, after securing the signatures and acknowledgments of appellants to such papers, sent them direct to the loan company at Dallas. That the loan was consummated, and thereafter Bur-dine, Ireton & Cowsert paid Wolf $350 for his services in securing the loan. There is testimony to the effect that Burdine, Ireton & Cowsert had no authority to appoint a sub-agent and the appellees knew nothing of the arrangement between them and Claude Wolf; that appellees paid Wolf no compensation for his services and were not informed that he was receiving a commission on account of securing the loan; that the correspondents of the loan company did not know that Wolf was the notary who took appellants’ acknowledgment until after the loan had been consummated; that the four sections of land claimed as tile separate property of Fannie Rhoton were conveyed to her by her husband prior to the time the loan was obtained from the land company; that in the application for the loan each of the appellants represented by affidavit that the title to the property was in I>. A. Rhoton; that appellants obtained the loan for the purpose of paying certain notes secured by valid and subsisting liens against their land to the extent of $35,646.93; that the notes and deed of trust contained accelerating clauses, the appellants were in default, the appellees had declared the entire indebtedness due and were threatening to foreclose their lien by sale under their deed of trust. The record shows that each of the appellants appeared before Claude Wolf, the notary, and their joint acknowledgment was properly certified by the notary and in regular statutory form (see Rev. St. 1925, arts. 6607, 6608), but Mr. Rhoton testified that his wife’s acknowledgment was taken in his presence.

From the testimony the court was authorized to find that Claude Wolf was not the agent of appellees; that they did not know that Wolf secured appellants as borrowers ; that Burdine, Ireton & Cowsert were not authorized to employ him as subagent; that appellees paid him no commission and did not know he was to receive a commission from their agents.

Under the record appellees had no actual knowledge that Wolf was financially interested in the transaction and under the law notice of his interest was not imputable to them. “The relation of principal and agent must exist in order to charge one person with another’s knowledge, and the knowledge of a person who is not, in fact, the agent of another cannot be imputed to the latter.” 2 C. J. 864. See, also, String-fellow v. Braselton, 54 Tex. Civ. App. 1, 117 S. W. 204; Marx v. Ruling Co-Operative Association, 17 Tex. Civ. App. 408, 43 S. W. 596.

The appellants failed to plead or prove any fraud or coercion perpetrated upon or any undue influence exercised over Fannie Rhoton in connection with the taking of her acknowledgment.

“In this state the rule is firmly established that where a married woman, who has, with her husband, signed a deed conveying her separate real estate, appears before an officer authorized by law, for the purpose of acknowledging the conveyance, and the officer fails to do his duty in taking such acknowledgment, but makes a certificate which shows a full compliance with the law, such certificate is conclusive upon the married woman in favor of an innocent vendee who paid value for it without notice that the officer failed to perform his' duty as required by law.” Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 797, 66 Am. St. Rep. 920.

“The rule is well settled in this state that the certificate of the officer taking an acknowledgment of a married woman is conclusive of the facts therein set forth, unless fraud or imposition is alleged. Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Brand v. Colorado Salt Co., 30 Tex. Civ. App. 458, 70 S. W. 578; Oar v. Davis, 105 Tex. 479, 151 S. W. 794; Essex v. Mitchell (Tex. Civ. App.) 183 S. W. 402; Stringfellow v. Brazelton (Tex. Civ. App.) 142 S. W. 938; Freiberg v. De Bamar, 7 Tex. Civ. App. 263, 27 S. W. 151.” Cox v. Sinclair Gulf Oil Co. (Tex. Civ. App.) 265 S. W. 196, 198.

“As against an innocent purchaser for value a certificate of a married woman’s acknowledgment which is regular upon its face may not be impeached by showing that the aeknowledgor was not separately examined, did not act willingly, or did not understand the import of the writing; nor by showing that the officer failed properly to explain the contents of the instrument; nor by evidence of a secret undisclosed intention of the aeknowledgor. And it has been held that when an instrument was explained to a married woman through an interpreter of her own selection, she may not be heard to say that such person was incompetent or corrupt or that he failed to interpret correctly. Similarly, a certificate which is in proper form may not be impeached as to one without notice because of drunkenness of the officer, or by showing that the acknowledgment was taken over the telephone. It is also the rule that an instrument which appears upon its face to have been regularly acknowledged imparts notice when recorded, and its effect as a record may not thereafter be impeached by showing that the officer who took the acknowledgment was interested in the lands, that the acknowledgment was taken outside the territorial limits of the officer’s appointment, or that the officer was exercising incompatible offices.” 1 Tex. Jur. 596, § 194.

Under the facts revealed in this record the court was warranted in concluding that the appellees were in the position of innocent lienholders and refusing the temporary writ of injunction.

The judgment is affirmed: