author: LANE, J.

text:
    SEYMOUR et al. v. SECURITY TRUST CO. OF AUSTIN et al.
    No 9717.
    Court of Civil Appeals of Texas. Galveston.
    July 1, 1932.
    Rehearing Denied Dec. 15, 1932.
    Hunt & Hunt and W. S. Hunt, all of Houston, for appellants.
    Woodward & Gay and Hart, Patterson & Hart, all of Austin, and Baker, Botts, Andrews & Wharton, James L. Shepherd, Jr., and S. H. German, all of Houston, for appel-lees.
   LANE, J.

On the 17th day of September, 1926, Harriet A. Seymour, Mary F. Seymour, Edward P. Seymour, Beatrice Seymour Wilson, and Florence Seymour Hood, hereinafter referred to as the Seymours, were the owners of 40 acres of land, a part of the A. C. Reynolds survey now in the town of West University Place, bounded on the east by Kirby drive, on the south by Glen street, on the west by Wakeforest avenue, and on the north by a small tract lying between it and University boulevard.

On the day and date above stated, the Sey-mours, for the consideration of $12,000 cash paid to them by one J. H. Page, and the further consideration of one promissory vendor’s lien note for the sum of $74,000 executed by J. H. Page and delivered to the Sey-mours, and for the further consideration and promise and obligation of J. H. Page that he and his heirs, assigns, and associates would within six months from the date of the execution and delivery of said deed begin, and within twelve months complete, the following improvements at a cost of not less than $20,000, to wit:

“1. Curb, and gutter upon both sides of one street to be called Belle Court Boulevard, extending North and South through the entire length of said forty acres;

“2. A six inch sanitary sewer extending through the entire property;

•⅞. Natural gas line through the entire property;

“4. Extensions of water works and water lines, including main lines to serve the entire 40 acres;

“5. The balance of said $20,000.00⅛ if any, to be expended upon sidewalks, graveling streets and other improvements”

—conveyed to J. H. Page, trustee, their said 40 acres of land. .

This 40 acres was made a part of University Place and designated as Pemberton Place. It was divided into lots, blocks, and streets, as it was intended by the interested parties, including the Seymours.

The Pemberton Company, a corporation, became the owner of said 40 acres by deed from J. H. Page, subject to the lien held by the Seymours. Said 40 acres was, as it was intended to be by the Seymours and those holding under them, divided into lots, blocks, and streets, as an addition to University Place.

As laid .out, street No. 1 was called Flen-wood road, No. 2 Pemberton drive, No. 3 Barbara lane, No. 4 Caroline way, No. 5 Stanford street, and No. 6 Belle Court boulevard. After said land bad become a part of University Place and designated as Pemberton Place, and after said streets bad been laid out and named, tbe city commission of tbe city of University Place passed an ordinance ordering that designated parts of tbe above-named streets be paved or improved as designated by sucb ordinance. By sucb ordinance tbe city engineer was directed to prepare plans and specifications for tbe improvements ordered. Among others, tbe ordinance contains tbe following provisions:

“That tbe cost of making said improvements shall be paid as follows:
“Tbe whole cost of making all of said improvements shall be paid by tbe owners of property abutting said portion of said streets or portions thereof and tbe city shall not be liable to pay any part thereof.
“That portion of the cost of sucb improvements which is not to be assessed against said property and the owners thereof as is hereinafter set forth, shall be arranged for by private agreement between the contractor making said improvements and the owner or owners of said property upon such terms and conditions as may be agreed upon between said contractor and said property owners.
“That the whole cost of constructing, reconstructing, repairing and realigning sidewalks, curbs, and gutters, and nine-tenths of the cost of said improvements exclusive of sidewalks, curbs and gutters, shall be assessed against the respective parcels of property abutting said streets, or portions thereof and against the owners thereof, and such cost shall be apportioned among the respective parcels of property so abutting and the owners thereof in accordance with the front foot plan or rule; provided that if the application of such rule would, in the opinion of the City Commission in particular cases, result’ in injustice or inequality it shall be the duty of the City Commission to apportion and assess said cost as it may deem just and equitable, having in view the special benefits in enhanced value to be received by such respective parcels of property and .the owners thereof, the equities of such owners, and the adjustment of such apportionment so as to produce substantial equality of benefits received and burdens imposed.
“Assessments, when made, shall be a personal liability and charge against the real and true owner or owners of said respective parcels of property, and shall be secured by a lien against said respective parcels or property superior to all other liens and claims of every character except State, County and City ad valorem. taxes, and said personal liability and said lien when fixed by the assessing ordinance hereafter to be'.passed by said City Commission shall relate'back and take effect as of the date of the passage and approval of this resolution ordering said improvement, and the passage and approval of this resolution shall be notice to all persons of the fixing of such personal 'liability and the creation of such lien. * ,⅜ ⅜
“The sums so assessed against said property and the owners thereof shall be evidenced by special assessment certificates to be issued in the name of said city in favor of the contractor making said improvements, and said contractor shall be required to accept said certificates in full payment of that part of the property owners’ share of the cost of improvements so assessed against said property'and the owners thereof. Said certificates shall be of such form as may be authorized by law and as may be provided for in the ordinance levying assessments hereafter.
“No assessment shall be made against any parcel of property or the owner thereof until after a full and fair hearing has been given such owner and all others in anywise interested therein as is provided by law in such-cases.’’

The -ordinance also provides that the paving to be constructed shall be with six-inch concrete base covered by a one and one-half' inch cold rolled rock asphalt topping.

The survey was made by the city engineer as ordered, which gave a description of the-property abut.ting on those parts of the streets named which were to be improved, designating them as quits 1, 2, 3, 4, 5, and 6. It gave the estimated total cost of the improvements to be constructed on said streets, the names of the owners of the respective parcels of property abutting thereon, the number of front feet of each such parcel, and the estimated amounts to be assessed against the several parcels or properties and the respective owners thereof.

Report of such survey was presented to and approved by the city commission, and thereafter said city commission entered into a contract with Scott Shambaugh to construct such improvements, pertinent and material parts of which are as follows: .

“Whereas, the City of West University Place, Texas, in Harris County, has heretofore by resolution passed by the City Commission on May 7th, 1928, ordered the improvement of Elenwood Road and sundry other streets in Pemberton Place, in said City, by installing sidewalks, curbs and gutters and by paving the same and constructing appurtenances, said streets and places so to be improved being in said order designated as units 1, 2, 3, 4, 5, and 6, and to which order and every part thereof is here referred to for all of the terms and provisions of said order and this contract is made in pursuance of the provisions of said order; and
“Whereas, contract for making said improvements has been awarded to Scott Sham-baugh, of Hquston, Texas, “Now, therefore, it is agreed by and between the City of West University Place, in Harris County, Texas, hereinafter called the ‘city’ and Scott Shambaugh, of Harris County, Texas, hereinafter called the ‘contractor’ as follows:
“(1) The contractor binds and obligates himself to make and construct said improvements on the streets described as units 1, 2, 3, 4, 5 and 6 in said order aforesaid, according to the plans and specifications therefor, prepared by the City Engineer and approved by the City Commission of said City, all at his own cost and expense and to furnish all material therefor and to perform or cause to be performed all labor necessary to make said improvements, and to pay for all labor and material necessary to construct same, in consideration of the several sums of money specified in the unit price schedule set forth in the next succeeding paragraph; and in consideration for said improvements being made by said contractor, the City obligates itself to issue and deliver to said contractor valid, binding and enforceable special assessment certificates against the property abutting said portions of said streets and the owners thereof, which said certificates shall represent the whole cost of curbs, gutters and sidewalks and nine-tenths of the cost of the remaining improvements, upon the completion and acceptance of such improvements by the City, and for remaining cost of such improvements, the contractor shall look solely and only to the owners of said property under private agreement with them, and in no event shall the City be liable to pay any part of the cost of making such-improvements.
“(2) The prices which the contractor shall be paid for making said improvements, and which he agrees to take therefor, are as follows: * * *
“For one inch asphalt topping per sq. yard, $1.10
“For one and one-half inch asphalt topping, per square yard, $1.80.”

After the occurrence of the several matters and things above mentioned, due publication was made of the following notice:

“Official Notice to Property Owners on Flenwood Road and Sundry Other Streets in the City of West University Place, Texas, Designated as Units 1, 2, 3, 4, 5, and 6 and to All Bien Holders and Others in Any Wise Interested Therein:
“I, Erwin Cushman, .Secretary of the City of West University Place, do pursuant to direction in the hereinafter set out resolution hereby give notice by publication of the same of the matters and things therein contained and particularly of the hearing to owners of property abutting on said streets and to lien holders and others in anywise interested therein, which resolution follows:
“Resolution approving engineer’s statement or roll of property abutting Flenwood Road and sundry other streets in the City of West University Place, names of owners, estimated cost of making improvements on said streets, and estimated amounts to be assessed against abutting property owners thereof, fixing time and place for a hearing to be given to owners of such property and all others interested therein, and providing for notice of such hearing and declaring an emergency.
“Be it resolved by the City Commission of the City of West University Place, that:
“Whereas, the City Commission of the City of West University Place and heretofore by resolution passed and adopted the 7th day of May, 1928, ordered the improvement of Flen-wood Road and sundry other streets in said City, designated as Units 1, 2, 3, 4, 5 and 6, providing that a share of the cost thereof shall be assessed against property abutting said streets and the owners thereof; the general nature of said improvements so ordered being as follows:
“(a) By constructing, reconstructing, repairing and realigning sidewalks, curbs, gutters, where adequate sidewalks, curbs and gutters, or either of them are not installed, so as to bring them to proper grade and in proper alignment.
“(b) By filling, grading and raising, where necessary, and by paving said streets from curb to curb with a six inch concrete base covered by a one inch cold rolled rock asphalt topping; the width of said paving between curbs to be approximately as follows:
“For Units Nos. 1, 3, 4, and 5, 25 feet.
“For Unit No. 2, 35 feet.
“No pavement to be laid on Unit No. 6.
“(c) By constructing all necessary appurtenances and incidentals to any of said improvements, including drains and culverts; and
“Whereas, the work of making said improvements has been awarded to Scott Sham-baugh and contract therefor has been entered into between the City of West University Place and said Scott Shambaugh; and
“Whereas, the City Engineer, at the request and direction of the City Commission, has prepared and presented to the Commission a written statement or roll showing a description of the property which abuts said streets, such description being by lot and block number in Pemberton Place, and addition to said City, as well as the names of the owners of said respective parcels of property, and an estimate of the cost of making such improvements, and also showing the estimated amounts proposed to be assessed against the owners of such abutting property, respectively, and against their property for such improvements; and
“Whereas, the Commission is desirous of fixing the time and place for a hearing to be given to said owners and all others interested relating to all matters pertaining to said improvement and to provide for notice thereof;
“Now, therefore, be it resolved by the Oity Commission of the Oity of West University Place:
“I. That the Engineer’s roll or statement submitted by the Oity Engineer showing description of property abutting on said streets, names of owners, an estimated cost of making improvements to Elenwood Road and sundry other streets in said city, designated as Units 1, 2, 3, 4, 5, and 6, the estimated amount to be assessed against the abutting property and owners thereof, respectively, and the other data therein contained, be and the same is here now in all things approved. Said roll or statement being as follows:
“Said roll or statement is not shown in full in this notice but summarized as follows, to-wit:
“Units Nos. 1, 3, 4, and 5, Elenwood Road, Barbara Lane, Caroline Way and Stanford Street, $82,000.00.
“Total estimated cost of improvements including sidewalks, curbs, and gutters for each of such units.
“Amounts proposed to be assessed against abutting property owners thereof on each such units:
“Against the Pemberton Company as owner of all abutting lots:
“For sidewalks, per front foot (the total cost), $1.00.
“For curb and gutter per front foot (the total cost) $1.00.
“For other improvements (9/10th of cost thereof) per front foot, $7.00.
“Unit No. 2, Pemberton Drive.
“Total estimated cost of improvements, including sidewalks, curbs and gutters for said unit, $27,000.00.
“Amounts proposed to be assessed against abutting property and owners thereof on said units:
“Against the Pemberton Company as owner of all abutting lots:
“For sidewalks, per front foot (the total cost), $1.00.
“For curb and gutter per front foot (the total cost) $1.00.
“For other improvements (9/10th of cost thereof) per front foot $10.00.
“Unit No. 6, Belle Court Boulevard:
“Total estimated cost of improvements on such unit consisting only of sidewalks, grading parkways and installing drains and appurtenances (pavements between curbs having been laid previously), $7,000.00. ,
“Amounts proposed to be assessed against abutting property and owners thereof on such unit:
“Against the Pemberton Company as owner of all abutting lots:
“For sidewalks, per front foot (a total cost), $1.00.
“For other improvements (9/10ths of cost thereof) per front foot, $1.00.
“II. That a hearing be given before the City Commission of the City of West University Place on the 3rd day of October, 1928, at 8 o’clock p. m., in the City Hall of said City, to all owners of property described in the Engineer’s statement, and to all lien holders or others interested in said improvements, at which hearing all owners of any of said property or any lien holder or any one having or claiming any right, title or interest therein in any manner, shall have a full and fair opportunity to be heard on the question of benefits to said property by reason of such improvement or about any other question about which they wish to be heard, and they and each of them shall have the right to appear in person or by attorney or agent and make any protest or objection they desire to make about any matter pertaining to such improvement, and such hearing shall be a full and fair hearing and said hearing shall be kept open from day to day until the Commission is satisfied that all,persons have had a full and fair opportunity to be heard on any matter pertaining thereto, after which said hearing shall be closed, and assessments levied covering the property owners’ share of the cost of such improvement.
“Notice of such hearing and the time, place and purpose thereof shall be given by the City Secretary in the manner and' for the, length of time provided by law in such cases, to-wit: by advertisement inserted at least three times in the Houston Post-Dispatch, a newspaper of general circulation in Harris County, published in the City of Houston, Texas, and the nearest to the City of West University Place (there being no newspaper published in said City of West University Place), the first publication to be made at least ten days before the date set for said hearing; said notice shall describe in general terms the nature of the said improvements proposed to be made and for which assessments are proposed to be levied, the names of the streets, highways and portions-thereof to be improved, the estimated amount or amounts per front foot proposed to be assessed against'the owners of abutting property, respectively, and such property, on each street, highway or portion thereof, and shall state the estimated total cost of - the improvements on each such street, highway or portion thereof, and shall state the time and place at which such hearing shall be held!
“III. The condition of said streets and the necessity for early completion of the work of improving same creates an emergency and it is therefore ordained that all rules requiring ordinances to be read at more than one meeting be dispensed with, and that this ordinance be and is finally passed on first reading, and shall take effect from and on this date.
“Passed by unanimous vote and approved this the 20th day of September, 192S.
“H. B. Schlesinger, Mayor. “Attest: Erwin Cushman, City Secretary.”

There being no response by any one to such notice, Scott Shambaugh proceeded under his contract to improve said streets, and after the completion thereof the city commission approved and accepted such improvements and in payment therefor it issued to Scott Shambaugh 169 paving certificates, to secure which a first lien was fixed against 202 lots, respectively, parts of the 40 acres of land sold by the Seymours to Page, and by Page to the Pemberton Company, and against which the Seymoui-s held their vendor’s lien and superior title to secure the purchase-money notes executed and delivered by J. H. Page to them for the sum of $74,000.

On the 8th day of October, 1928, Scott Shambaugh assigned and transferred by writing all of said certificates to Security Trust Company of Austin, together with the paving liens securing same; it being recited in such written transfer that: “Said paving certificates have been endorsed by said Scott Sham-baugh ‘without recourse’ but the said Scott Shambaugh hereby covenants and warrants to and with the said Security Trust Company of Austin, its successors and assigns, that .the procedure had before the City Commission of the City of West University Place, Texas, with reference to the improvement of said streets, and the assessments against said property owners and their property, is in all things valid, legal and sufficient.”

Eive of such certificates were later transferred to one W.‘ K. Miekow.

This suit was brought by Security Trust Company of Austin against the Pemberton Company, Scott Shambaugh, the Seymours, and several other persons and firms, for the purpose of establishing and foreclosing the special assessment certificates issued to Scott Shambaugh owned by it, and for a personal judgment against the Pemberton Company for the sums due on such certificates, together with attorney’s fees and costs of suit.

After such suit was filed one W. K. Miekow intervened, asserting similar rights of recovery by reason of his ownership of five of said certificates.

The plaintiff and intervener made all the usual necessary allegations in a suit of the character ‘of the present one, including publication of notice of hearing, issuance of the certificates, a full compliance with the law applicable to the matters involved, default in payment of the certificates, and asserting priority of liens and personal liability of the Pemberton Company.

The Seymours alleged by exceptions and plea the invalidity of the assessment certificate and lien sought to be created thereby and all proceedings in relation thereto, because such proceedings were not done in conformity to the provisions of the Acts of the Legislature of 1927, 1st Called Sess., c. 106 (Vernon’s Ann. Civ. St. art. 1105b), governing the right and authority of a city, such as West University Place, to contract for the pavement and improvement of its streets, and to fix liens against property abutting on such paved and improved streets, in that the contract in the present case provides that the city should not be liable or responsible for any portion of the costs of such improvements, but that the contractor should and that he would look solely to the owners of said abutting properties for the payment of the costs of the improvements, which had not and could not be assessed against the owners; it being provided in such contract that the contractor would make such arrangements with the owners as he could and thus protect the city from payment of any portion of the improvement costs.'

Defendants Seymour also averred that the resolution and contract and all proceedings thereunder, including the assessment certificates, were void as against public policy and as tending to corruption, because H. B. Sehle-singer wasmayor of the city of West University Place and at the same time.a large stockholder, director, and secretary of the Pemberton Company; that J. H. Rafferty was a director and president of the Pember-ton Company and at the same time employed by the city of West University Place as city engineer and as such furnished the estimates and prepared the roll .and plans and specifications; that it was informed and believed and charged that the contractor, Scott Sham-baugh, was at the time of the execution of said contract and of the issuance of the special assessment certificates, to wit, May 7, 1928, to October 3, 1928, a large creditor and a large stockholder of Pemberton Company; that the Pemberton Company being unable to finance the improvement of the property by private contract, through its secretary, director, and stockholder, H. B. Schlesinger, who was mayor, procured the passage of the resolution of the city council of West University Place, dated May 7,1928, under which resolution the said Schlesinger as mayor executed the contract with Scott Shambaugh of date May 7, 1928, covering the improvements.

That H. B. Schlesinger, the mayor of West University Place and presiding member of its governing body, and J. H. Rafferty, city engineer in charge of the construction of said improvements under said contract, were officers and directors of the Pemberton Company who were vitally interested in said contract.

They further allege the insufficiency of the notice published and that the amount assessed for said improvements was from 30 per cent, to 50 per cent, greater than their costs, and that the contractor, Scott Shambaugh, had, with the knowledge and consent of the mayor, H. B. Schlesinger, and of the city engineer, J. H. Rafferty, added 30 per cent, to the costs of said improvements to take care of any discount he might have to make in the sale of said assessment certificates, and this 30 per cent, was added to the estimate of the costs by said engineer in order to take care of any loss the contractor might sustain by reason of the failure of the Pemberton Company to pay the one-tenth of the costs of the paving which he was required, under the contract and ordinance, to arrange with the owners of the property.

They also averred that such action was in violation of article 373 of the Penal Code of Texas, which prohibits any officer of any county, city, or town from becoming in any manner pecuniarily interested in any contract made by such county, city, or town, and prohibits such officer from receiving any money or 'property or any emolument or advantage whatsoever. They also charged that the city of West University Place lost its jurisdiction, if any it ever had, when the defendant Shambaugh accepted the mechanic’s lien from the Pemberton Company to secure his paving contract on August 20, 1928.

Defendants Pemberton Company and Scott Shambaugh answered generally and alleged good faith, denied that any fraud or collusion existed between them and any persons whomsoever.

All other defendants except the Seymours, either filed disclaimers or were dismissed in open court from the suit prior to the conclusion of the trial of the cause.

Plaintiff and intervener specially excepted to all the defenses pleaded by the Seymours, all of which were sustained by the court, except their attack upon the validity of the published notice of the assessment.

A jury was impaneled and sworn to try the case, but after both parties had closed their evidence the court instructed a verdict for plaintiff and intervener for the sums sued for by them respectively, with foreclosure of the assessment liens upon each of the lots involved. The Seymours have appealed.

As already shown, the city commission of the city of West University Place passed a resolution under the provisions of sections 3 and 4 of chapter 106, Acts of the 40th Legislature of 1927, 1st Called Sess., p. 489 (Vernon’s Ann. Civ. St. art. 1105b, subds. 3, 4), ordering the improvement of certain streets in said city. By such resolution it was stipulated the whole cost of making such improvements should be paid by owners of property abutting such improvements, and that the city should not be liable for any part thereof. It then provides that such costs of such improvements which cannot be assessed against the abutting property shall be taken care of by private agreements between the contractor making the improvements and the owner or owners of said property upon such terms as may be agreed upon by and between such contractor and the owners of said property. It then provides that nine-tenths of the cost of such-improvements only shall be assessed against the respective parcels of property abutting the improved streets. Section 4 of the act mentioned provides: “That the cost of such improvements may be wholly paid by the city, or partly by the city and partly by property abutting upon the highway or portion thereof ordered to be improved, and the owners of such property, but if any part of the cost is to he paid by such abutting property and the owners, then before any such improvements are actually constructed, and before any hearing herein provided for is held, the governing body shall prepare, or cause to be prepared, an estimate of the cost of such improvements, and in no event shall more than all the cost of constructing, reconstructing, repairing and realigning curbs, gutters and sidewalks, and nine-tenths of the remaining cost of such improvements as shown on such estimate be assessed against such abutting property and owners thereof.”

The contract entered into between the city commission and Scott Shambaugh provided for payment of costs of the improvements practically as does the resolution.

Appellants attack the validity of both the resolution and the contract, and contend that since neither provides that the municipality shall pay a part of the costs of such improvements, as required by law, but to the-contrary both provide that the city shall not be required to pay any part thereof, such governing body failed to acquire jurisdiction of the subject-matter and therefore all proceedings under such resolution and contract, including the assessment certificates, are void,

We overrule appellants’ contention. There is no requirement in the law that the city must pay a part of the cost. The-city is left free to do with that portion which cannot be assessed against the property owner as it may see fit, and as the public welfare may justify. The property owner, as such, has no concern whatever about it, and the whole tenor of the act, from beginning to end, is intended to safeguard the property only as to the amount which may be assessed against him and his property. The statute is essentially an assessment statute and is to be construed as such. There is unquestioned power in the city to make assessment against the property and the property owner to cover nine-tenths of the cost of paving. , It is obvious, therefore, that so long as the property owner is not assessed more than nine-tenths of the cost of paving,, he is in no position to complain, even though. the city is relieved from the other one-tenth. It is oply when provisions of the law that are intended for his protection is not observed that he can require a strict compliance therewith.

In the very recent ease of Clark v. W. L. Pearson & Company, 39 S.W. (2d) 27, 32, the Supreme Court itself, speaking through Judge Sharp of the Commission of Appeals, used this very significant language: “The improvement of highways and city streets is of a great public concern and is recognized as a public necessity and duty; the Legislature from time to time has enacted laws giving cities, under certain conditions, the authority to improve their highways and streets, and those laws should be rationally and sensibly construed as to accomplish the ■object for which they were enacted,. The primary rule governing the construction of statutes in this state is that ‘the provisions thereof shall be liberally construed with a view to effect their objects and promote justice.’ ”

There is another reason why the contention of appellants must be overruled. We think there was jurisdiction, and that appellants’ complaint at most relates to an irregularity of apportionment of costs. This being true, appellants are by law precluded from raising the objections here-urged, because they did not in any manner contest such an apportionment and assessment as provided by the second paragraph of section '9 of the legislative act (Vernon’s Ann. Civ. St. art. 1105b, § 9), above referred to.

The contention now under consideration was -before the Supreme Court of Illinois in the case of Cosgrove v. City of Chicago, 235 Ill. 358, 85 N. E. 599, 602. In disposing of the same the court said: “If the assessment roll which is the subject of complaint in this case improperly failed to charge the city with any part of the cost of the improvement as a public benefit, or if it failed to charge any property benefited with' its just proportion of the cost of the improvement, section 47 -of the local improvement act (Hurd’s Rev. St. 1905, e. 24, § 553) makes provision for the correction of the errors and omissions, and the just and equitable distribution of the cost of the improvement between the public and private property and among the various parcels of property benefited. The plaintiffs in error should have presented these objections to the county court on the application for confirmation of the assessment roll.”

Appellants in their answer to appellees’ suit alleged that the mayor of West University Place at the time the proceedings relative to the improvements in question took place, was a large stockholder, director, and secretary of the Pemberton Company, which owned practically all, if not all, the property abutting on said improvements; that at such time J. H. Rafferty was employed by the city as its city engineer, and that he furnished the estimates, prepared the rolls and the plans and specifications upon which the contract with Sha-mbaugh was based, and that at such time he (Rafferty) was president and director and a stockholder in the Pemberton Company; that at such time Scott Sham-baugh, the contractor, was a stockholder and creditor of the Pepiberton Company; that Shambaugh in making his bid to make the improvements fixed his estimate of costs and charges at 30 per cent, above the actual costs of the-improvements .-to be made.

Appellants also alleged that the mayor of the city and the city engineer, by reason of their interest, were disqualified to do any act looking to making of the improvements; that the city engineer, who was also president of the Pemberton Company, permitted and approved estimates made by Scott Sham-baugh, which included a surcharge of 30 per cent, made to absorb the estimated discount the contractor, Scott Shambaugh, thought he would be compelled to accept in disposing of the certificates, and that this surcharge was intended by the contractor to in part take care of the amount of the contract price which was agreed to be paid by the Pember-ton Company; that the surcharge of 30 per cent, upon which the engineer received 5 per cent, fee and included in the assessment certificates were attempted to be made a burden and charge and lien upon the property superior to defendants’ vendor’s lien; and that such overcharge or surcharge were known to said mayor and governing body and to its city engineer and their acceptance and approval showed a reckless disregard for the rights of the defendants Seymour and was the exercise of an arbitrary power, inconsistent with and contrary to a sound public policy.

Appellants are insisting that by reason of the truth of the facts alleged, which they proposed to prove, all proceedings had in pursuance of the improvements were and are void because of the interests of the participants in the subject-matter.

Upon exceptions addressed thereto, the allegations next above stated were stricken out upon a holding, in effect, that the city of West University Place had no special or private interest in the contract for the improvements made and was not disqualified to act in the -premises, and in effect holding that if the things alleged were true and would upon a contest, provided by law require the setting aside of the proceedings resulting in the issuance of the assessment certificates, the failure of appellants to contest the proceedings and appeal therefrom was a waiver of all inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on account of any matter or thing whatsoever.

The words italicized are those used in the ninth section of the legislative act mentioned.

While we expressly disclaim any purpose to uphold or approve the negotiations and contract which the record discloses were entered into by the mayor and commissioners with Scott Shambaugh, we are bound to follow the law.

“Interest, of one or all of city hoard of trustees or other municipal body charged with the making or ratifying of assessments for street or other improvements arising from their ownership of property directly affected by improvement does not create such a disqualification to act as to render their action void.” Federal Construction Co. v. Curd, 179 Cal. 489, 177 P. 469, 2 A. L. R. 1202; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448; City of Topeka v. Huntoon, 46 Kan. 634, 26 P. 488; Erie City v. Grant, 24 Pa. Super. Ct. 109.

There was nothing on the face of any of the proceedings looking to the pavement of the streets which tended to disclose to the governing body that the estimated cost of any item was excessive, or that any surcharge had been made by the contractor for any purpose. The Legislature, in passing the ninth section of the Acts of the 40th Legislature of 1927, evidently foresaw that the value of assessment certificates would be seriously impaired if testimony concerning inflated bids of contractors could be used to destroy the validity of such certificates, and therefore it very wisely passed the act mentioned.

By the provisions of the legislative act mentioned the governing body of the city is created a special tribunal for hearing, adjudging, and determining each and all of the •matters mentioned therein. Its action on such matters, unless appealed from in time and manner provided by law, after notice of hearing has been* duly made, is as final, binding, and conclusive as is the judgment of any court. Its judgment in such matters cannot be collaterally attacked except for want of jurisdiction. Glenn v. Dallas County Bois D’Arc Island Levee District, 114 Tex. 325, 268 S. W. 452, and authorities there cited; Hibbin v. Smith, 158 Ind. 206, 62 N. E. 447.

By section 9 of the act referred to it is provided as follows:

“No assessment herein provided for shall be made against any abutting property or its owners, * * * until after notice and opportunity for hearing as herein provided, and no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof by means of such improvements as determined at such hearing. Such notice shall be by advertisement inserted at least three times in some newspaper published in the city where such special assessment tax is to be imposed, if there be such a paper; if not, then the nearest to such city of general circulation in the county in which such city is located; the first publication to be made at least ten days before the date of the hearing. If any such notice shall describe in general terms the nature of the improvements for which assessments are proposed to be levied and to which such notice relates, shall state the highway, highways, portion or portions thereof to be improved, shall state the estimated amount or amounts per front foot proposed to be assessed against the owner or owners of abutting property and such property on each highway or portion, with reference to which hearing mentioned in the notice is to be hold, and shall state the estimated total cost of the improvements on each such highway, portion or portions thereof * * * and shall state the time and place at which such hearing shall be held then such notice shall be sufficient, valid and binding upon all owning or claiming such abutting property * * * or any interest therein, such hearing shall be by and before the governing body of such city and all owning any such abutting property, or any interest therein * * shall have the right, at such hearing, to be heard on any matter as to which hearing is a constitutional prerequisite to the validity of any assessment authorized by this Act, and to contest the amounts of the proposed assessments, the lien and liability thereof, the special benefits to the abutting property and owners thereof by means of the improvements for which assessments are to be levied, the accuracy, sufficiency,' regularity and validity of the proceedings and contract in connection with such improvements and proposed assessments, and the governing body shall have power to correct any errors, inaccuracies, irregularities, and invalidities, and to supply any deficiencies, and to determine the amounts of assessments and all other matters necessary, and by ordinance to close such hearing and levy such assessments before, during or after the construction of such improvements, but no part of any assessment shall be made to mature prior to acceptance by the city of the improvements for which assessment is levied.
“Anyone owning or claiming any property assessed, or any interest therein, * * * who shall desire to contest any such assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on account of any matter or thing not in the discretion of the governing body, shall have the right to appeal therefrom and from such hearing by instituting suit for that purpose in any court having jurisdiction within fifteen (15) days from the time such assessment is levied; and anyone who shall fail to institute such suit within such time shall be held to have waived every matter which might have been taken advantage of at such hearing, and shall be barred and es-topped from in any manner contesting or questioning such assessment, the amount,'accuracy, validity, regularity, and sufficiency thereof, and of the proceedings and contract with reference thereto and with reference to such improvements for or on account of any matter whatsoever. And the only defense to any such assessment in cmy suit to enforce the same shall he that the notice of hearing was not published or did not contain the substance of one or more of the requisites therefor herein prescribed, or that the assessments exceed the amount of the estimate, and no words or acts of a/ny officer or employee of the city, or member of any governing body of the city, other than the action of the governing body shown in its written proceedings and records shall in any way affect the force and effect of the provisions of this Act.”
Appellants make the further contention that since the legislative act mentioned provides for notice and What it shall contain, that is, the facts required to be stated therein, and since the notice published in this case failed to give notice of the transactions required to be given by the statute, the city commission was without jurisdiction to conclude the contract for the improvements and to issue the assessment certificates. They contend that it is shown by the undisputed evidence that the published notice failed to comply with the requirements of the statute, in that: “(a) It did not state that said improvement was to consist of any of those -named in Sec. 1 of the above named Act; (b) it failed to state the points on each street named in the notice between which such improvement was "to be made; (c) it does not state the estimated cost of such improvement per front foot as to either paving, curbing and/or gutters or sidewalks; (d) it does not show the estimated total cost of the whole improvement as to each street or unit; (e) it did not describe the street, highway, highways or portions thereof to be improved nor where the same began nor where the same ended; and it further affirmatively appearing that the appellants had no other notice or knowledge of such improvement, said notice was fatally defective and conferred no jurisdiction on .the city governing body to hold the hearing for benefits or to levy such assessments and all'of said -assessments and certificates are wholly void.”

We are of opinion that a correct decision of such contention, either for appellants or adversely to them, will effectually dispose of all issues presented by this appeal which we have not already disposed of, for if the published notice was insufficient to confer jurisdiction on the city commission to levy the assessment against the properties in question and to issue the certificates sued upon, such certificates are absolutely void and no recovery could he had upon them. To the contrary,if the notice was substantially as required by the statute, appellants by their failure to institute a contest of the proceedings, of which they had at least constructive notice, and failure to appeal from the judgment of the governing body, are now barred by such judgment from making a collateral attack upon the same.

The pertinent inquiry then is: Was the notice as published in substantial compliance with the provisions of the law? We think the notice was in substantial compliance of the law. It fixed the time of hearing and gave all interested persons full opportunity to be heard upon any and all proceedings subject to contest under the provisions of the legislative act mentioned. By appropriate reference and adoption it made the resolution of the city commission approving the engineer's report a part of the same. It recites the fact that the work of making such improvements had been awarded to Scott Shambaugh, and that a contract had been entered into with Shambaugh by the city of West University Place, wherein it was agreed that Shambaugh, for recited considerations, should make the improvements.

Booking to the things disclosed by the notice, when construed in the light of what the undisputed evidence shows appellants already knew of the situation, it is apparent that the notice is a substantial compliance with the law. By such notice, coupled with facts known to appellants, it is shown that it referred to the resolution of the city commission for full particulars as to the nature of the improvements. Reference was made in the notice to the engineer’s report and. the substance of such report was made a part thereof for full particulars as to the improvements, the . particular streets and portions thereof to he improved, the lots and blocks to be affected, the total estimated cost per front foot of each and every part of the work to be done, and the estimated total cost of the improvements on each such street, portion or portions thereof.

The notice discloses that the resolution of the city commission approving the engineer’s statement or roll contained such statement or roll in full. The notice reproduces the resolution verbatim, until the statement or roll is reached. It then states: “Said roll or statement being as follows.” Instead of then copying the roll or statement in full, it is expressly stated that the same is not “shown in full in this notice, but summarized.” Thus the person reading the notice is plainly advised that for the sake of brevity the statement or roll is being summarized, so that he will not be misled into a belief that what follows is all of its contents, but will be thereby cautioned to look to the resolution and roll or statement for all details. It does, however, give very full and complete summary of all of the essential portions of the roll or statement. It is obvious that all that was required was a sufficient summary to advise the property owner in a very general way of the contents of the resolution and roll or statement, so that he would thereby be put upon inquiry. If it was sufficient to put him on inquiry and lead him to an examination of the resolution, and engineer’s roll or statement, then it was unquestionably sufficient.

In Haggart v. Alton, 38 S. D. 527, 162 N. W. 158, 160, a South Dakota case, the court, in speaking of the sufficiency of notice such as is here under consideration, said: “A description is certain which is capable of being made certain through the examination of records to which it fairly calls one’s attention.” Again: “We are of the opinion that, inasmuch as one reading this notice would receive therefrom such information as, followed by reasonable investigation, would fully advise him of the boundaries of the proposed work, the notice should be held good at least as against one who makes no claim that h'e was misled toy the description given.”

In Haner v. City of Eugene, 95 Or. 596, 187 P. 841, 843, 188 P. 711, a question of the sufficiency of notice was involved. The notice contained this language: “The work shall be done in accordance with the plans and specifications of the city engineer filed in the office of the city recorder and in accordance with the terms of said Ordinance No. 1406.” With reference to such language the court said: “This reference, in point of law, made these plans a part of the notice just as effectually as if they had been copied in full thereon.”

In Eekhart v. C. H. Atkinson Paving Co., 46 S. D. 147, 191 N. W. 441, 442, the court, speaking of the sufficiency of the notice, said: “But if there is still a doubt, it would be removed by examination of the plans and specifications on file in the city engineer’s office which are by reference incorporated into the resolution, or to make such inquiry as would be suggested to a person of ordinary understanding as to what property would be affected by the proposed improvement.”

Eor other cases strongly in point, see Spalti v. Town of Oakland, 179 Iowa, 59, 161 N. W. 17; City of North Yakima v. Scudder, 41 Wash. 15, 82 P. 1022.

What is said in the decisions from which we have quoted and in those cited is peculiarly applicable to the notice given in the present case. It will be observed that in the act of the Legislature hereinbefore mentioned, after providing that one who fails to appeal. from the action .of the governing board within 15 days, from the time the assessment is levied, shall be estopped and barred from questioning the assessment on acooimt of any matter whatsoever, it is added: “And the only defense to any such assessment in any suit to enforce the same shall be that the notice of hearing was not published or did not contain the substance of one or moré of the requisites therefor herein prescribed, or that the assessments exceed the amount of the estimate, and no wo'rds or acts of any officer or employee of the city, or member of any governing body of the city, other than the action of the governing body shown in its written proceedings and records shall in any way affect the force and effect of the provisions of this Act.” Section 9.

Eor the reasons pointed out we feel constrained to affirm the judgment, and it is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

author: PELPHREY, C. J.

license: Public Domain

text:
    HUMPHRIS v. BENEDETTO.
    No. 2733.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 1, 1932.
    Rehearing Denied Jan. 5, 1933.
    Mead & Metcalfe, of Marfa, for appellant.
    J. C. Puller, of Marfa, for appellee.
   PELPHREY, C. J.

This suit was instituted in the district court of Presidio county by appellee, as plaintiff, seeking to recover the sum of $562, from appellant, alleged to be owing to her on a verbal contract of employment.

It appears to be uncontroverted that from October, 1927, until on or about November 1, 1930, appellee was employed by appellant in his office, where he conducted a real estate, insurance, and abstracting business, at a salary of $150 per month.

Appellee in her petition alleges that on or about November 15,1930, appellant represented to her that he was without funds with which to pay the full compensation for her services and that he could only pay her $100 per month, but that he would pay her the balance of $50 per month at such time as he might have the money. She also alleged that appellant had arbitrarily deducted $75 from the amount due her covering the vacation to which she was entitled, under the contract, to take with full pay.

Appellant, in his answer, alleged the original contract at $150 per month but that on or about November 1, 1930, he being unable to continue paying appellee the sum of $150 per month so informed her and that thereupon an agreement was entered into fixing her salary at $100, which he had paid since that time.

He further specifically denied that he agreed to allow appellee any vacation on full pay, and alleged that, if he had ever paid her for any services while she was on vacation, it was a pure gratuity and not because of any obligation on his part to do so.

The jury found, in response to a special issue submitted to it, that there had been no agreement between the parties to a reduction of appellee’s salary from $150 to $100 per month.

Judgment was rendered against appellant for $509.13, being $487 and $22.13 as interest thereon. The above amount not including the $75 claimed by appellee to have been due her for her vacation in 1930.

Appellant filed a motion for a new trial, one of the grounds of which was newly discovered evidence. The motion was overruled and he has appealed.

Opinion.

The sole question presented for review is as to the correctness of the trial court’s action in overruling appellant’s motion for a new trial.

The newly discovered evidence, which appellant set up in his motion, is evidenced by the following affidavit:

“Before me, the undersigned authority, on this day personally appeared J. E. Vaughan, who being by me duly sworn upon his oath says:
“That I am a citizen of Presidio County, Texas, and am well acquainted with Mrs. Clyde Benedetto and Mr. J. Humphris, both of Marfa, Texas, and have been acquainted with both of said parties, for many years, having served as sheriff of Presidio County; that on the 5th day of February, 1932, I was in the office of J. Humphris in Marfa, Texas, and while in a conversation with the said J. Humphris reference was made to the suit of Mrs. Clyde Benedetto against the said J. Humphris for the collection of back salary, and I learned for the first time that such a suit was pending and that a jury on the previous day had rendered a verdict in favor of the said Mrs. Clyde Benedetto.
“I state further that on or about the 15th day of February, 1931,1 met Mrs. Clyde Bene-detto in the City of Marfa and she informed me that Mr. J. Humphris, for whom she had been working for some time had cut her salary and that she was forced to seek other work. She requested me to let her write letters for ijie or do any typewriting or abstract work that I might need in order to help her out, and she told me that she especially needed the extra work because of the fact that Mr. Humphris had cut her salary; she stated in that connection that he cut her salary because the abstract business had fallen off so much that it would not justify paying the amount she had been receiving before that time and that she had an office in the National Bank Bldg..
“A few days later I came in and went to her office over the National Bank and had her write some letters for me, I never discussed the above conversation with the said J. Hum-phris nor with any one else until, as stated above, I related it to the said J. Humphris the next day after the trial.”

Appellee filed an affidavit contesting the matters set up in appellant’s motion, as follows:

“That affiant has never, at any time or place, under any circumstances or conditions, had a conversation with the said J. E. Vaughan regarding the character or nature of her employment with the said John Humphris, and has never, at any time subsequent to the 15th day. of February, A. D. 1931, done or performed any work or service, gratis or for hire, for the said J. E. Vaughan, and any alleged conversation imputed by the said J. E. Vaughan to have been had with affiant is false, untrue, and an absolute fabrication out of the whole cloth, made without any foundation in truth or in fact to support the same. On the contrary, affiant says that she has always so mistrusted the said J. E. Vaughan that she would not under any circumstances or conditions, engage his confidence or society for the purpose of discussing any arrangements with reference to her employment with the defendant, John Humphris, or any other person. * * *
“That the said J. E. Vaughan and the defendant John Humphris, are close and in-tímate personal friends, enjoying the complete and absolute confidences of one another; that they, the said J. E. Vaughan and .Tohn Humphris, are so constantly and almost daily in contact and conversation with each other, and entirely conversant with the business and enterprise of one another that it would have been almost impossible for the suit of this affiant to have been pending against the defendant, John Humphris, and the said J. E. Vaughan, not have been entirely familiar with every detail of her claim and demand, and she here and now states that he did have positive knowledge of the pendency of said suit and the nature of her claim and demand against the said John Humphris.
“That said action between plaintiff and defendant was of such a nature and such importance that the same was freely and generally discussed on the streets of Marfa, and for some time prior to the trial of said cause was a favorite topic of conversation.”

No evidence was introduced on the motion for a new trial.

In approaching the' question presented here we must bear in' mind that the granting or refusing of a new trial for newly discovered evidence rests within the sound discretion of the trial court. Galveston, H. & S. A. Railway Co. v. Kief (Tex. Civ. App.) 58 S. W. 625; Sherrill v. Union Lumber Co. (Tex. Civ. App.) 207 S. W. 149; Nations v. Miller (Tex. Civ. App.) 212 S. W. 742; Donoho v. Carwile (Tex. Civ. App.) 214 S. W. 553 ; Mitchell v. Bass, 20 Tex. 372; Houston City St. Railway Co. v. Sciacca, 80 Tex. 350, 16 S. W. 31, but, as said by our Supreme Court in Houston & T. C. Railway Co. v. Forsyth, 49 Tex. 171: “It must be admitted that greater deference should be given in an appellate tribunal to the action of the lower court on a motion of this kind, than on an application for a continuance; both of which, no doubt, are, in a degree, necessarily addressed to the discretion of the court in which they are made. But while this is the ease, it is well settled, that the right to a new trial on this ground is not exclusively within the discretion of the court of the first instance; and it must now be regarded as a settled rule of practice in this court, to revise the action of the District Court overruling the motion, where the newly-discovered evidence, when considered in connection with the facts developed on the trial, is clearly material to the issue, and might probably produce a different result on another trial; and where the evidence came to the knowledge of the applicant after the trial, without a want of due diligence on his part in not soonqr discovering it, and where the newly-discovered evidence is not of a character for which the courts, by well-established practice, do not in general grant new trials.”

Appellant’s witness who says he had the conversation with appellee in which she made the admission to him that her salary had been reduced, goes further and explains the fact of his failure to communicate the fact to appellant by saying that he had no knowledge of the pendency of the suit before the trial.

The truth of this explanation is refuted by appellee by her statement that Vaughan and appellant were bosom friends; were in almost daily conversation; were familiar with each other’s affairs; and that the case was a topic of general conversation in Marfa. These facts are nowhere denied by appellant, therefore, these facts, taken together with ap-pellee’s denial of having had any such conversation, raised a question as to the probable truth of the whole statement of the witness, or, in other words, tended to impeach his affidavit. But, aside from the question of the right of the court to refuse the motion on that score, we think the court was justified in overruling the motion because of the lack of diligence on appellant’s part in presenting the newly .discovered evidence to the court after he admits he had knowledge of its existence.

It appears that the case was tried on February 4, 1932; that the information as to the admission was imparted to appellant by the witness on February 5th; that his original motion for a new trial was filed on February 6th; that no mention was made of the newly discovered evidence in that motion; that the affidavit attached to the motion was made on February 11th; but that the amended motion setting up the newly discovered evidence was not filed until February 13th, the last day of the term.

It thus appears that the matter of the newly discovered evidence was not promptly presented to the trial court, but that the presentation thereof was delayed until the granting of the motion would necessarily have resulted in a continuance of the case until the next term of the court. Appellant offers no excuse for the delay, but merely asks us to hold, as a matter of law, that he was entitled to a new trial under facts which show that he failed to diligently present his grounds for a new trial after the facts which he now claims entitled him thereto came into his possession.

Our Supreme Court in Texas & N. O. R. Co. v. Scarborough, 101 Tex. 436, 108 S. W. 804, 805, had a similar question before it and had the following to say as to the duty of an applicant to present such grounds promptly: “We have seen that the amended motion in which the newly discovered evidence was set up was not filed until the 26th day of May, 1906, and that the term of the court expired by limitation of law at 12 o’clock p. m. of that day. The agents of the plaintiff in error were apprised of what their evidence should be a very few days after the trial, which ended on the 16th day of the month — 10 days before tie amended motion was filed. * * * There is nothing in the order overruling the motion to show upon what ground the court acted. Now, all presumptions must be indulged in favor of the court’s ruling. We think, therefore, we should presume that the court overruled the motion because it was filed too late. We think a party should not only be diligent in discovering testimony,' but also diligent in making use of it when discovered.”

All the reasons for the court’s holding in that case exist here, and, in conformity with it, we do not feel at liberty to hold that the trial court abused his discretion in overruling appellant’s motion.

The judgment of the trial court is accordingly affirmed.


text:
    MOORE v. McKAY.
    No. 2745.
    Court of Civil Appeals of Texas. El Faso.
    Dec. 15, 1932.
    Rehearing Denied Jan. 5, 1933.
    Isaacks & Lattner and Jesse Rosoff, all of El Faso, for appellant.
    H. A. Van Tassel and John T. Hill, both of El Paso, for appellee.
   PELPHREY, C. J.

Appellant, who the record shows resided át 3730 Morehead avenue, in the city of El Paso, Tex., was the owner of a German Shepherd dog. Appellee, a parcel post carrier, on or about September 26, 1930, while engaged in delivering a package at the residence of appellant, was bitten on the left leg by the dog. On the front door of appellant’s residence was a sign, which appellee admits he saw before going on the porch, warning of the presence of the dog. There is a conflict in the testimony as to what was on the sign, appel-lee testifying that it read, “Beware of the Bad Dog,” while appellant’s wife testified that-it read, “Don’t Ring the Door Bell Beware of Big Dog.”

There is a further conflict in the testimony as to how the dog got out of the house before biting appellee, he testifying that the dog came out through the door past the father-in-law of appellant, who was receiving the package from appellee, and appellant’s wife testifying that he went through the screen of a window.

Upon special issues the jury found that the dog was a vicious dog; that appellant knew of its vicious character; that he failed to keep it securely confined; that the reasonable value of the trousers of appellee alleged to have been destroyed by the dog was $10; and that $100 would reasonably compensate appellee for his physical injury and mental suffering occasioned by the dog bite.

The court rendered judgment in favor of appellee for $110 and appellant has perfected an appeal therefrom.

Opinion.

Appellant presents only two assignments of error, the first attacking the refusal of the court to instruct a verdict in his favor, and the second complaining of the submission of “Question No. 3” and in refusing to submit certain special issues tendered by him.

The propositions presented under these assignments, in substance, are to the effect that a person who, after having had notice of a warning of the vicious character of an animal given by the owner thereof, places himself in a position or situation that causes him to be injured by such vicious animal, is guilty of contributory negligence and cannot recover from the owner.

Appellee counters with the propositions that there is no evidence in the present case to sustain the theory that appellee assumed the risk and was guilty of contributory negligence; that the evidence showing the dog to be vicious, it was the duty of appellant to so restrain him as to' prevent him from attacking appellee; and that appellant failed in his duty to appellee in permitting the dog to remain in the house unrestrained and unguarded and in opening the doors and thereby permitting the dog to come out and attack appellee.

In deciding the question here presented we must first reach a decision as to the extent of the duty and liability of the keeper of a vicious dog, whose vicious character is knowp. to him. We find the following rule laid down in 3 O. J. § 315, p. 87, as to the duty of a keeper of wild beasts: “While it is not in itself unlawful for a person to keep wild beasts, although they may be such as are of a nature fierce, dangerous, and irreclaimable, yet it is the duty of those who own or keep them to do it in such a manner as will absolutely prevent the occurrence of an injury to Others through such vicious acts of the animals as they are naturally inclined to commit; and for any injury they may do to others the person keeping them is liable irrespective of any question of negligence or knowledge of previous acts showing a vicious disposition.”

In the same work in section 330, pp. 97-90, it is said: “At common law, .the owner of a dog is not liable for injuries caused by it, um less it is vicious and notice of that fact is brought home to him. But when it is once established that the dog is of a vicious or mischievous nature, and that the person owning or keeping it has knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal naturally ferocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary.”

As to the rights and liabilities of the owner of a vicious dog, 1 R. 0. L. § 59, p. 1116, announces the following: “The law clearly recognizes a right in the owner of a vicious dog to keep it for the necessary protection of life and property. But as such a creature is inherently dangerous, one assuming to exercise the right to keep it does so at his own risk, and is held strictly liable for any harm resulting to another. And if the owner of a vicious dog keeps it in such a manner that it can escape and do bodily harm, an injunction may issue to restrain him from keeping it thus negligently. In case of injury the gravamen of the action is the knowledge of the owner that the beast was the possessor of vicious or mischievous propensities. Negligence or lack of care on the part of the owner in keeping or restraining the animal need not be shown, and proof of the absence thereof is no defense, despite the possible contrary inference deducible from statements of the rule, frequently met with in the reports, that one knowingly keeping a vicious dog is prima facie liable for injuries inflicted by it. Therefore unless the owner or keeper can be relieved by some act or omission on the part of the person injured, his liability may be said to be absolute.”

However, in 3 O. J. § 319, on page 90, we find this discussion of what constitutes the gist of an action for injuries inflicted by a vicious animal: “The cases, even in the same jurisdiction, are not in harmony as to the gist of an action for an injury committed by a vicious animal. A majority of them hold that the gist of the action is the keeping of the animal with knowledge of its vicious propensity, and that the liability of the owner is not affected by any degree of care he may exercise in keeping it. * * On the other hand it is held or said in many cases that the gist of the action is negligence in not keeping the animal secure, which, however, is presumed whenever the animal is permitted to inflict injury on another.”

The latter theory appears to have been adopted by the Court of Civil Appeals of Texas in the case of Badali v. Smith, 37 S. W. 642, but in Triolo v. Foster, 57 S. W. 698, 699, the same court, with the decision in Badali v. Smith, supra, before it, and referred to in its opinion, adopted and followed the doctrine first announced.

In that case complaint was made that the charge of the court made the keeper of a vicious dog liable for actual damages without regard as to whether or not he exercised care in keeping and restraining the animal. In answer to such complaint the court said: “We think the charge expresses the rule applicable in such cases. All the testimony showing the vicious disposition of the dog was in respect to its attacking people. If he had the propensity, and defendant knew it, it was his duty to keep him so that he could not do injury to persons using the streets. It is not a question of neg’ligence, but of whether or not he kept him restrained. It seems to be the generally recognized rule that a man keeps such an animal (except as to trespassers) at his peril, though there are cases that hold otherwise.”

Applying the general rule, which appears to have been adopted by the Court of Civil Appeals of Texas, to the facts here, it follows that appellant here, knowing of the vicious propensity of his dog, and we think the evidence ample to support the jury’s finding that he did, would be liable for the injuries inflicted upon appellee by the dog, unless there was some act or omission on ap-pellee’s part which would relieve him.

1 R. G. L. § 65, p. 1122, has the following to say regarding contributory negligence on the part of the p'arty injured: “As negligence, in the ordinary sense, is not the ground of liability in an action for injuries occasioned by a ferocious dog, so contributory negligence, in its ordinary meaning, is not a defense. Therefore these terms, when employed in this class of actions, may be deemed to be used, not in a strictly legal sense, but for convenience. .Thus slight negligence, or the want of ordinary care, as the unintentional treading on the toes of a vicious dog, will not relieve its owner from injuries thereby occasioned; and even where warnings to beware of the dog are posted about the owner’s premises, it seems that he will not be exempted from liability to one who is rightfully there, or to one who is unable to read. * * The correct rule' of liability therefore seems to be that the owner cannot be relieved from it by any act of the person injured, unless it be one from which it can be affirmed that he caused the injury himself, with full knowledge of its probable consequences.”

'On this subject S O. J. § 349, p. 108, says: “Where the foundation of liability for injuries by animals is deemed to be negligence, the ordinary doctrine of contributory negligence as a defense applies. Where, however, negligence in the ordinary sense is not the ground of liability, contributory negligence, in the sense in which the term is ordinarily used, is not a good defense, but acts must be proved, with notice of the character of the animal, which will establish that the injured person voluntarily brought the injury upon himself. The cases all agree, however, that if a person with knowledge of the evil propensities of a vicious dog wantonly excites him, or voluntarily and unnecessarily puts himself in the way of such animal, he will be adjudged to have brought the injury upon himself, and will not be entitled to recover.”

The record here reveals that there was no fence across the front of appellant’s property, and that the dog was not and could not have been on the front part of the premises. Appellee advanced to the door to deliver the package, without appellant seeing him. With such a condition existing, it cannot be said that appellee either wantonly excited the dog or voluntarily and unnecessarily placed himself in the way of the dog, and, therefore, there was no evidence of any act on appellee’s part which would have relieved appellant from liability.

Appellee was rightfully on the premises, and, as far as this record shows, took ordinary precautions to avoid coming in contact with the dog.

The assignments are not well taken and the judgment will be affirmed.

On Motion for Rehearing.

Appellant has called our attention to what he claims were erroneous statements in the original opinion as to the evidence in the ease. The errors referred to are as to our statement that there was a conflict in the evidence as to what was on the sign on the door and as to how the dog came out of the house.

While we do not feel these matters have any bearing upon the controlling questions in the case, still, as the matter has been referred to, we will, in order to have it clear, discuss the statements made.

Appellee’s testimony was to the effect that he saw the sign but did not see all that Mrs. Moore claimed was thereon, therefore, we feel that we were not in error in our statement as to a conflict in that respect.

We were, however, in error in our statement that there was a conflict as to how the dog came out of the house and that Mrs. Moore testified that he came out through the window.

A further examination of the record shows that her testimony as to the dog’s getting out of the house through the window, referred to another occasion and not to the one in question.

Not being able to agree with appellant’s contention that appellee, an invitee, by going upon the premises, after having seen the warning sign, unnecessarily put himself in the way of the dog, and, therefore, could not recover or that his action in so doing entitled appellant to have the question as to whether he voluntarily and unnecessarily put himself in the dog’s way submitted to the jury, we must overrule this motion.


author: HIGGINS, X

text:
    GRIBBLE v. SCRUGGS.
    No. 2754.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    Rehearing Denied Jan. 5, 1933.
    Luther Gribble and Jas. C. Mahan, both of Wellington, for appellant.
    H. A. Bateman and Burgess, Burgess, Chrestman & Brundige, all of Dallas, for appellee.
   HIGGINS, X

This suit was filed in the county court at law of Dallas county, on November 27, 1926, by appellee, Scruggs, against Ed. Julian, B. H. Hooter, and appellant, Gribble. The action is upon a bond payable at Dallas, Tex., executed by Julian as principal and the other defendants as sureties. Gribble, on January 3, 1927, filed plea of privilege. Controverting affidavit was filed three days later. The plea was overruled on January 22, 1927, and judgment by default rendered in favor of Scruggs.

In an injunction suit subsequently 'brought by Gribble in Collingsworth county, the judgment was held to be void because of want of proper service upon Gribble of the hearing upon his plea. Scruggs v. Gribble (Tex. Civ. App.) 17 S.W.(2d) 153; Scruggs v. Gribble (Tex. Civ. App.) 41 S.W.(2d) 643.

The judgment" in that case became final September 9, 1931, when motion for rehearing was overruled by the Amarillo Court of Civil Appeals.

On November 20, 1931, Scruggs filed a motion to set aside the default judgment previously rendered herein, which motion was granted, and the hearing upon the plea of privilege set for December 19, 1931. Due notice of the hearing to be held on said date was given Gribble, and he appeared by counsel. Exceptions and objections filed by him to the jurisdiction of the court were overruled, and, upon hearing of the plea of privilege, the same was overruled. Gribble prosecutes this appeal from the order overruling the plea.

Appellant’s first two propositions read:

First. “Plaintiff having failed to secure service of notice of this controverting affidavit to defendant’s plea of privilege at the first term of the court and having made no further effort to secure said service until the passing of twenty eight subsequent terms of court, lost his right to controvert said plea of privilege, and the court was without jurisdiction to make any other order than an order transferring the cause to the county of the defendant’s residence.”

Second. “When defendant D. E. Gribble filed his plea of privilege to be sued in the County of his residence, it was his right, as a matter of law, to have said plea of privilege passed upon at the term of court next after he had been served with citation to answer to, and was entitled to have served upon him notice, with the notation of the Judge thereon, and a certified copy of plaintiff’s controverting affidavit to his (Gribble’s) plea of privilege, and when plaintiff failed to have said notice served, returnable to ithe January, 1927, term of court of the County . Court of Dallas County at Daw, No. One, plaintiff lost his right to contest said plea of privilege, and the Court was without- jurisdiction to make any order other than one transferring the cause to -the County of defendant’s residence.”

This is not a case where the controverting affidavit was filed after the time prescribed by law. The record here shows the history of the litigation in Collingsworth county. For such history we refer to the opinions of the Court of Civil Appeals reported in 17 S.W.(2d) 153, and 41 S.W.(2d) 643. After the judgment became final in that litigation, appellee acted promptly in having the void judgment set aside, another date set for the hearing upon the plea of privilege, and due notice thereof given.

We are clearly of the opinion that upon the facts of this case the court below never lost jurisdiction to finally dispose of the plea of privilege as it did on December 19, 1931, and appellee did not lose his right to contest the plea at that time. The reason for the delay is shown by the record in the Collings-worth county litigation. Spencer v. Sevier (Tex. Civ. App.) 5 S.W.(2d) 589; Republic Ins. Co., v. Harkrider (Tex. Civ. App.) 12 S.W.(2d) 250; Griffin v. Linn (Tex. Civ. App.) 3 S.W.(2d) 148.

The remaining proposition questions the sufficiency and competency of the testimony offered to show that appellant executed the bond sued upon. We regard this as without merit and as calling for no discussion.

Affirmed.


author: ELY, C. J.

text:
    TRAVELERS’ INS. CO. v. SANTOS.
    No. 8960.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.

      Templeton, Brooks, Napier & Brown, of San Antonio, and J. R. Sanford, of Eagle Pass, for appellant.
    David E. Hume, of Eagle Pass, for appel-lee.
   ELY, C. J.

This suit was instituted by appellee against appellant to recover the sum of $2,887.20 in a lump sum, or in weekly payments of $7.20. The cause was tried without a jury, and judgment was rendered in favor of appellee in the sum of $629.26, with interest on deferred payments at 6 per cent, per annum.

The court found in addition to an agreed statement of the facts:

“Angel Santos received an injury in the form of a compound fracture of the left leg, midway between his knee and foot on October 8, 1930, from which he was totally disabled for a period of 34 weeks.
“That he was and will be 62½ per cent disabled in the left leg for a period of 104 weeks from the expiration of his total disability.
“That after two years shall have elapsed from this date that plaintiff, Angel Santos, will be fifteen per cent permanently disabled in his left leg at the place of injury.
“That the injury is localized in his left leg and does not affect his general health.”

The agreed facts show that appellee was in the service of Barker Brothers, contractors engaged in the construction of irrigation canals on October 8, 1930. The contractors had a camp about twenty-two miles north of Eagle Pass, and the employees lived in tents; ap-pellee occupying one of them. The tents and mattresses were furnished by the employers. The employees cared for themselves. On the night of his injury appellee applied to and obtained permission from the foreman to ride, with other employees, on a truck belonging to his employers, to Eagle Pass. The truck was going to Eagle Pass on business for Barker Brothers; but appellee had ho connection whatever with this business. He wanted to visit his mother in Eagle Pass, and also to cash a check given him by his employers. He had no duties to perform on the truck or while in Eagle Pass for Barker Brothers. lie went on his own private business, and it was only through the kindness of the foreman that appellee was permitted to go. The truck went to Eagle Pass, and appel-lee spent his time there with his mother. The truck started back to the camp, and while returning was overturned by running into loose gravel, and appellee was injured, as concluded by the judge.

Article 8309, § 1, Revised Statutes of 1925, provides : “The term ‘injury sustained in the course of employment,’ as used in this law [excepting certain situations], * * * shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in. or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

Under- the facts, appellee, when injured, was not performing any service of the employer, and his actions did not have to do with or originate in the “work, business, trade or profession of the employer,” and he was not “engaged in or about the furtherance of the affairs or business of his employer.” The enterprise of appellee at the time he was hurt had nothing to do with the work or business of his employers, but it was on business of ap-pellee alone.

The facts in this case are very similar to those in the case of Lloyds Casualty Company v. Rodriguez, 36 S.W.(2d) 261, decided by this court, in which a writ was refused, and the opinion of Judge Smith has been cited with approval in other states of the Union. We adhere to the opinion delivered by Judge Smith in that case, which clearly lays down the law applicable to the facts of this ease.

The judgment is reversed, and judgment here rendered that appellee, Angel Santos, take nothing by his suit, and pay all costs in this behalf expended.


author: MARTIN, J.

text:
    WILLIAMS v. PATTON et al.
    No. 3903.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 2, 1932.
    Rehearing Denied Jan. 4, 1933.

      Sanders & Scott, of Amarillo, for plaintiff in error.
    Reynolds & Heare, of Shamrock, for defendants in error.
   MARTIN, J.

Plaintiff in error filed suit against E. H. Patton, declaring upon a note dated August 4, 1928, due on or before August 4, 1929, in the sum of $483.50, and asking for a foreclosure of his lien under a chattel mortgage executed contemporaneously with said note on a crop more particularly described hereafter.

Nep .True and J. W. Lea were joined as defendants with Patton and were charged with a conversion of approximately 1,800 bushels of wheat which it is alleged was covered by the mortgage of plaintiff in error.

The answer of defendants True and Lea was a general denial and a special plea that they had bought from Patton his 1930 wheat crop, for which they paid him $600 by taking up $150 of his indebtedness to the First State Bank of Miami and $450 due the First State Bank of Mobeetie, Tex. They specially denied that plaintiff in error had a mortgage on the wheat so purchased and each claimed that he had neither actual nor constructive notice of any lien or claim of plaintiff in error against the property so purchased by them.

The trial was to the court, who granted to plaintiff in error the relief prayed for against Patton, but denied any recovery against True and Lea.

This action of the court is assigned as error, it being claimed that the evidence uncon-tradictedly shows that defendants in error True and Lea purchased the wheat in question and converted it to their use with actual or constructive notice of plaintiff’s lien and claim to same and that they are therefore liable as conversioners to plaintiff in error.

The question presented, as we view it, turns entirely upon a construction of the chattel mortgage given to plaintiff by Patton.

This instrument was executed by Patton on the 4th day of August, 1928, to secure a note of even date therewith, due one year after date, for $483.50, and purports to sell and convey to J. B. Williams: “The following described personal property now located and situated in the County of Wheeler, State of Texas, to-wit: 150 acres of wheat on R. H. Templeton farm ten miles north Mobeetie, Texas, for year 1929. * * 35 acres of cotton, 1928, subject to lien held by First State Bank of Mobeetie for 150. It mutually understood that if this cotton pays the bank that as much as $150.00 is to be applied on this (note) dated Aug. 4, 1928 and due Aug. 1, 1929. If cotton does not make it then said note to be carried Aug. 1, ■ 1929, * * * And this lien shall continue and extend to cover the crops of succeeding years until all debts of this mortgagor to said Bank are fully satisfied.”

It will be observed that the note was dated in 1928 and purported to cover the crop for 1929, and it is the claim of plaintiff in error that, by virtue of the last clause above quoted in this mortgage, he had a lien for the next succeeding year after 1929, that is, the year 1930, that being the year during which the wheat in controversy was harvested. The clause in controversy purports by its terms to cover the crops of succeeding years “until all debts of this mortgagor to said Bank are fully satisfied.” This follows close after the clause pertaining to an indebtedness held by the First State Bank of Mobeetie. Whatever the parties intended, they did, by the use of this language, restrict and condition the continuance and existence of the mortgage of plaintiff in error upon the payment of all debts of Patton to the First State Bank of Mobeetie. Such a condition is not an impossible one. Reasons could have existed that made it advisable for the mortgagee in this instance to demand and require the payment of mortgagor’s debts to said bank and condition his failure to so pay, the granting of a lien upon future crops. This language is not ambiguous. There appears in the record no pleadings or proof that such clause was inserted by mistake of the scrivener or by mutual mistake of the parties. .There is no prayer for its reformation. All parties stood upon the mortgage as written. Some proof was introduced as to payment of debts owing by mortgagor to the First .State Bank of Mo-beetie in the fall of 1929. If this bank had been paid at'the institution of this suit, under the terms of this mortgage, plaintiff in error would have no lien. This is made one of the conditions of the existence of his mortgage. There is no allegation in plaintiff’s pleadings of any facts that would show the continuance of his lien for future years as provided in this clause. If its existence depended upon a condition or act to be performed by mortgagor, it was necessary for him to plead and prove such. Johnston v. McDonnell, 37 Tex. 595; Reeves v. Miller, 28 Tex. 578; Shuttuck v. Griffin, 44 Tex. 566. He did neither.

We are therefore of the opinion that the trial court correctly rendered judgment for defendants in error.

Affirmed.


author: HIGGINS, J.

text:
    THOMASON v. SPARKMAN et al.
    No. 2768.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 15, 1932.
    Rehearing Denied Jan. 5, 1933.
    Walter R. Ply, of Dallas, for appellant.
    Murphy & Murphy, of Gainesville, for ap-pellees.
   HIGGINS, J.

Appellant, a resident of Dallas county, brought this suit against H. L. Webster and J. B. Sparkman to recover damages. Spark-man was alleged to be a resident of Cooke county. The residence of Webster was alleged to be unknown. It was alleged plaintiff employed Webster to manage a farm in Cooke county for a year; that Webster breached the contract and Sparkman wrongfully induced him so to do and defendants had converted certain property upon the farm.

Sparkman filed plea of privilege which was sustained and the venue of the suit as to him transferred to Cooke county. The plaintiff appeals from this order contending the venue was properly laid in Dallas county, under subdivision 3 of article 1995, R. S., and subdivision 29a, as added by Acts 1927, 1st Called Sess., c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995, subd. 29a).

The fact that the residence of Webster was unknown did not authorize the maintenance of the suit against Sparkman in Dallas county under subdivision 3 of the venue statute. U. S. G. & O. Co. v. Duffy (Tex. Civ. App.) 8 S.W.(2d) 278; Kennedy & Gafford v. Reppond (Tex. Civ. App.) 226 S. W. 140; Sublett v. Hurst (Tex. Civ. App.) 164 S. W. 448.

Nor is the plaintiff aided in this respect by section 29a for the liability of defendants, if any, was several, as well as joint, and Spark-man was not a “necessary” party to the suit against Webster in Dallas county. Wool G. C. S. Co. v. Edwards (Tex. Civ. App.) 10 S.W. (2d) 577; Justin McCarty, Inc., v. Ash (Tex. Civ. App.) 18 S.W.(2d) 765; Fidelity Union Fire Ins. Co. v. First Nat. Bank (Tex. Civ. App.) 18 S. W. 800; Oakland M. C. Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861; Gulf R. Co. v. Lipscomb (Tex. Civ. App.) 41 S.W. (2d) 248; Woolridge v. Owens (Tex. Civ. App.) 44 S.W. (2d) 1061; Ellwood v. Pollard (Tex. Civ. App.) 46 S.W. (2d) 731; Matthews v. Hedley Motor Co. (Tex. Civ. App.) 47 S. W. 661.

The plea' of privilege was properly sustained.

Affirmed.

On Rehearing.

Appellant calls attention to the recent ruling of the Commission of Appeals in Commonwealth B. & T. Co. v. Heid Bros., 52 S.W. (2d) 74. Our ruling that Sparkman is not a “necessary” party to the suit within the meaning of article 1995, subdivision 29a (Vernon’s Ann. Civ. St.), is not in harmony with the ruling of the Commission of Appeals in the case cited. We therefore withdraw our ruling upon this phase of the case.

In Raymond v. Yarington, 96 Tex. 443, 72 S. W. 580, 73 S. W. 800, 62 L. R. A. 962, 97 Am. St. Rep. 914, it was held actionable for persons to knowingly induce one to break his contract with another in consequence of which damage was caused. This is in harmony with the general rule in other jurisdictions. 39 C. J., Title, Master & Servant, § 1606.

The authorities recognize that knowledge on the part of the defendant of the existence of the contract of employment is an essential element of the wrongful act. Such knowledge supplies the element of malicious or unlawful motive necessary to make the act of the defendant in enticing the servant, a tort.

15 R. O. L., Title, Interference, § 5; notes in 11 Am. St. Rep. 477 ; 5 L. R. A. (N. S.) 1094, 1095.

We doubt if the evidence is sufficient to show prima facie that the defendant Spark-man caused Webster to breach his contract of employment. In any event it is insufficient to show that Sparkman did so with knowledge of the contract of employment.

The evidence, therefore, is insufficient to show a cause of action against Sparkman for wrongfully inducing Webster to breach his contract.

As to the allegations that defendants converted certain property on the farm, there is no evidence that Webster was a party to any conversion. If any liability is shown as for conversion, it is the several liability of Spark-man.

It follows that no joint liability upon the part of the defendants is shown by 'the evidence so as to maintain the venue in Dallas county against Sparkman under the ruling in Commonwealth B. & T. Co. v. Heid Bros., supra.

The motion for rehearing is therefore overruled.


text:
    MARSHALL et al. v. SMITH.
    No. 2774.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1932.
    Rehearing Denied Jan. 12, 1933.
    W. H. Hall, C. E. Farr all, and B. W. Ash-worth, all of Dallas, for appellants.
    Roger Q. Mason, of Dallas, and W. J. Durham, of Sheripan, for appellee.
   HIGGINS, J.

This is an injunction suit filed February 4, 1932, by appellee Smith against appellants Marshall and others who were sued “in their individual capacities and as members, officers and agents of the Spring Hill Avenue Baptist Church, a religious society or association.”

The plaintiff alleged that he is the owner in fee simple of lot No. 1 of Wahoo addition to the city of Dallas, and injunction was sought to restrain, the defendants from disturbing him in his possession, trespassing upon the premises, etc.

Upon trial the defendants were perpetually enjoined, as prayed by the plaintiff.

The evidence discloses the controversy is simply over the title to and right of possession of the lot described in the petition upon which there is a house which for a number of years prior to the institution of the suit had been used by the members of the church mentioned as a place of worship. At the time the case was tried, the church property or much of it was still in the building. Plaintiff at one time had served as treasurer of the church. The organization had used the building under some character of rental or sales contract with the former owner, and later under some character of arrangement with the plaintiff.

We need not state the evidence in detail. It is sufficient to say it shows the controversy involves'simply the title to and right of possession of the house and lot described in the petition.

It is well settled that in controversies of this nature the equitable remedy of injunction is not to be substituted for the legal remedy of trespass to try title and the ancillary writ of sequestration. Woman’s Club of Ysleta v. Hutchins (Tex. Civ. App.) 40 S.W. (2d) 960; Allen & Yarbrough v. Ry. Co. (Tex. Civ. App.) 7 S.W.(2d) 1102; Hill v. Brown (Tex. Com. App.) 237 S. W. 252; Jowell v. Carnine (Tex. Civ. App.) 20 S.W.(2d) 1087; City Nat. Bank v. Folsom (Tex. Civ. App.) 247 S. W. 591.

The propositions presenting this point are sustained, and the cause remanded to permit plaintiff, if he so elects, to amend his pleadings so that he may avail himself of the proper legal remedy.

Reversed and remanded.