author: JONES, O. J.

text:
    HENDERSON COUNTY et al. v. EASTERWOOD.
    No. 11349.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 12, 1932.
    Rehearing Denied Dec. 10, 1932.

      . E. A. Landman and Hobson Green, both of Athens, W. M. Harris, of Dallas, and W. H. Graham, of Houston, for appellants.
    Bishop & Holland, of Athens, for appellee.
   JONES, O. J.

This .is an appeal from an injunction suit filed in the district court of Henderson county, to have declared void a contract entered into between Henderson county, through its commissioners’ court, and R. B. DeWitt and W. M. Harris, to install a plat system in Henderson county, and to collect state, county, and district delinquent taxes, and to enjoin all parties to the contract from carrying it out. Upon the trial of the case, the contract was decreed to be void and the permanent injunction prayed for issued. The appeal is duly perfected to this court.

The contract was duly executed on September 21, 1931, and was to be completed in eighteen months. The statement of the terms of the contract is preceded by a long preamble, which amounts to findings of fact clearly showing the necessity for installing the plat system in Henderson county, provided for by law (article 7264a), and also for the collection of all delinquent taxes. The terms of the contract are very specific and at great length describes the work and duties of the parties employed. That portion of the contract providing for compensation to be paid for the work of installing the plat book system is as follows: “It is further agreed that for and in consideration of the skilled services and technical knowledge required to be employed by the second parties in the preparation and installation of said plat system and of the obligations devolving upon them thereunder, second parties are to receive and shall receive and be paid by First Party 15% of all delinquent taxes, collected from and after the date of this contract, except State delinquent taxes, until the sum of Eighty Thousand Dollars of County, School District, Road District, and other political subdivisions or defined District taxes that are collected through the tax collector of said county has been collected and 5% thereafter.”

That portion of the contract providing for the compensation to be paid for the collection of delinquent taxes, is as follows: “For said services of second parties in performing obligations set out in paragraphs XIV 'and XVII, inclusive, and to enable second parties to properly perform said services and to furnish all material and supplies necessary to complete said work there shall be paid to the said second parties the penalties and interest of all delinquent taxes, except State delinquent taxes, actually collected from and after the date of this contract and during the term thereof, contingent upon the collection of said delinquent taxes, penalties and interest as and when collected until the sum of Eighty Thousand Dollars of County, road district, school district and other district delinquent taxes, penalties and interest which receive their taxes through the Tax collector of said County has been collected and five per cent, of said penalties and interest thereafter.”

The contract required the contractors, De-Witt and Harris, to perform all of the work contemplated by the legislative enactments, authorizing both the installation of a plat system by a county, and the necessary work in preparing for, and the collection of, all delinquent taxes. While the state delinquent taxes would necessarily be collected as the result, yet no remuneration from the state is to be paid the contractors for such colleetion. In other words, the state, free of cost, is to reap all the benefits it would have done had it been required to pay from its collected delinquent taxes the compensation authorized by law. Before the contract was entered into, the commissioners’ court duly requested the county attorney to proceed by law to collect the taxes, but after the expiration of thirty days the said official did nothing in this respect. Harris, one of the contractors, is a duly qualified and practicing attorney at law. The contractors had begun the work of carrying out the contract when they were restrained, first by a temporary writ of injunction, and then by the permanent injunction issued at the final trial.

The legislative enactments directly involved in-the validity of this contract are here quoted. Article 7335a, effective February 17, 1930, is as follows:

“Sec. 1. No contract shall be made or entered into by the Commissioners’ Court in connection with the collection of delinquent taxes where the compensation under such contract is more than fifteen per cent of the amount collected. Said contract must be approved by both the Comptroller and the Attorney General of the State of Texas, both as to substance and form. Provided however the County or District Attorney shall not receive any compensation for any services he may render in connection with the performance of the contract or the taxes collected thereunder.
“See. 2. Any contract made in violation of this Act shall be void.”

Article 7264a, effective May 27, 1931, is as follows:

“Sec. 1. It is hereby declared the Policy of the State to adjust delinquent taxes, correct errors, to eliminate conflicts in surveys of land, and 'to collect the delinquent, occupation, franchise and Ad- Valorem Taxes, in order to clear this State of such taxes, errors and conflicts at the earliest date possible, and to provide a system for assessors, in order to eliminate the numerous errors that now appear on the tax rolls each recurring year.
“Sec. 2. Cost of collecting delinquent taxes shall not exceed the amount of the penalty and interest, or an amount equal to such penalty and'interest of all delinquent taxes collected. Any county desiring to install a tax or plat system and clear the county of errors, conflicts and unknown owners, may do so by paying not to exceed 15% of the delinquent taxes collected, which payment shall cover the cost of records and installing same.
“Sec. 3. In order to speedily carry out the provisions of this Act, the State Comptroller an'd the Commissioners’ Court of each of the several counties may employ competent persons to do the work and to furnish the Comptroller and the Commissioners’ Courts all eases where adjustment is necessary; and in all such cases the Commissioners’ Court shall make proper settlement or adjustment.
“Sec. 4. This Act is not intended to change any law now in effect regarding the collection of delinquent taxes? but to be an aid to the officials in the discharge of their duties, and when the delinquent taxes in a county are adjusted, corrected and collected, the Comptroller shall take necessary steps to see that all delinquent taxes are collected within a reasonable time after they become delinquent, in order to avoid the necessity of again employing additional help.”

Article 7335 specifically authorizes the commissioners’ court to contract with an attorney for a consideration, to enforce the collection of delinquent taxes, provided the county attorney or the district attorney of such county fails to undertake the enforcement of such collections, after the expiration of thirty days from a written notice requesting such official to file delinquent tax suits, and no steps have been taken by such official in this respect. ' Article' 7344 specifically authorizes commissioners’ courts to contract for the plat system and for maps.

It is contended by appellee (1) that this contract is void, because the compensation allowed is in excess of that allowed by law; (2) that it is void, because it was not approved by the state comptroller; (3) that it is void, because it was not approved by the state Attorney General; (4) that it is void, because the state comptroller did not join in the employment of the contractors; (5) that it is void, because it is against the public policy of the state, which requires the state to be a party to such contract, and to pay its proportionate share of the expenses.

As we understand appellee’s contention that the contract is void because it allows compensation greater than that authorized by law, such contention is based (a) on a provision of article 7335a, declaring that “no contract shall be made or entered into by the Commissioners’ Court in connection with the collection of delinquent taxes where the compensation under such contract is more than fifteen per cent of the amount collected” ; and (b) because the Legislature contemplated, by these enactments, that the state of Texas should bear its proportionate share of the expenses in collecting delinquent taxes, and, since the contract exempts the state from paying any part of the compensation allowed by its terms, thereby placing the entire burden on Henderson county, the contract is excessive.. We do not believe either of these contentions can be maintained. The contract embraces two distinct and authorized undertakings by the contractors, viz.: (1) The collection of delinquent taxes, and (2) the preparation and installation of a complete plat system, for the future use of county officials in the assessment and collection of taxes.

Section 2 of article 7264a, a later enactment than article 7335a, specifically authorizes a commissioners’ court to contract for each undertaking, and specifically names the maximum amount to be paid as compensation to those who contract to perform each of such undertakings. For collecting delinquent taxes, the maximum compensation allowed is the penalty and interest allowed by statute on delinquent taxes. For installing the plat system, a maximum compensation of 15 per cent, of the delinquent tax collected is allowed. It is true that the Legislature declares that the enactment of article 7264a does not change any law now in effect, but was enacted as an aid to other laws on this subject. The provision of article 7335a, quoted above, is general in respect to the compensation allowed. The provisions of section 2 of article 7264a are specific in this respect, and must be accepted, rather than the said general provision, as declaring the intention of the Legislature. Under this contract, Henderson county is not required to pay more than the maximum compensation authorized by this statute. We do not think the contract is subject to the criticism of being excessive in either of the respects named.

Is the contract against the declared public policy of the state, in that it does not charge the state with any expenses of collecting the state delinquent taxes, or in the preparation of the plat system, and is not approved by the Attorney General and the comptroller. If DeWitt and Harris, contractors, did not bind themselves to collect delinquent taxes of the state, but were permitted by the contract to ignore the state’s right in this respect, then the contract would be subject to the criticism made, that it was against the public policy of the state, as declared by the statutes under review, and as specifically declared by 'section 1, art. 7264a. We do not believe the contract offends in this respect. It is the duty of the county, through its tax collector, to collect state taxes along with its collection of county and district taxes. Although, in the matter of enforcing the payment of delinquent taxes, the county is authorized, under the conditions stated in article 7264a, to require the state to pay the compensation stated in said article, we can see no valid reason why the county cannot waive its right in this respect and collect state delinquent taxes, without exacting payment therefor. In making such contract, the county does not violate the public policy of the state in respect to collecting delinquent taxes.

A more serious question is raised by that provision of article 7335a, which requires that a contract entered into by a county for the collection of delinquent taxes must be approved by the state Attorney General and by the state comptroller. Appellee contends that, as this contract is not approved by the designated state officials, it is void, under the very terms of the statute authorizing it. On the other hand, appellant contends that, as no compensation is exacted from the state for ’ the collection of the state delinquent taxes, the reason for the enactment of this provision of the statute does not exist and such provision of the statute has no application to this contract. Approval by the Attorney General of this contract was requested, and not given for the following stated reason: “In view of the fact that the contract only calls for a percentage of the county taxes and does not in any way affect delinquent State taxes, it is my opinion that the same does not require the approval of this Department, either as to substance ofi form, as the interest of the State is not affected thereby.”

We are inclined to agree with the Attorney General in his construction of his official duty in respect to this contract. The Supreme Court of this state, in the case of Cherokee County et al. v. Odom, Tax Collector, 118 Tex. 288, 15 S.W.(2d) 538, holds that the execution of such a contract, as the one under inquiry, is within the power of the commissioners’ court as county business. See, also, Commissioners’ Court of Madison County et al. v. Wallace et al., 118 Tex. 279, 15 S.W.(2d) 535.

It is true that these opinions were written prior to the enactment of either article 7335a or article 7264a, and necessarily the specific question now under review was not before the Supreme Court in either case. The principle of law, however, declaring that the making of a contract for the collection of delinquent taxes is strictly county business, applies just as much to the contract in the instant case as it applied to the contract in the reported cases; also 'the holding of those cases, to the effect, that the commissioners’ court of a county has the right to contract, independent of the state, for the collection of delinquent taxes provided such contract does not entrench upon the right of the state in this respect. We construe the effect of article 7335a and article 7264a to be that, when a county attempts to contract for the collection of delinquent taxes in part at the expense of the state, then such contract, in order to be valid, must have the approval of the two state officials designated in article 7335a, but that it was not the intention of the Legislature to require such approval when the contract, in the language of the Attorney General, “does not in any way affect delinquent state taxes.”

It follows that, in our opinion, as this contract does not allow more compensation than that authorized by law, and does not affect adversely the interest of the state, its execution is a valid exercise of the power lodged in the commissioners’ court, and is a valid and enforeible contract. We therefore are of the opinion that the trial court erred in decreeing its invalidity, and in issuing the permanent writ of injunction.

It necessarily follows that this case should he reversed and here rendered in favor of appellants, decreeing the contract to be valid, and dissolving the permanent injunction, and it is so ordered.

Reversed and rendered.


source: Caselaw Access Project

author: FUNDERBURK, J.

license: Public Domain

text:
    CHOATE v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 1014.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 4, 1932.
    Rehearing Denied Dec. 9, 1932.
    •Grisham, Patterson & Grisham, of East-land, for appellant.
    Eckford & McMahon, of Dallas, for appel-lee.
   FUNDERBURK, J.

W. M. Choate sued Hartford Accident & Indemnity Company to set aside an award of the Industrial Accident- Board and to recover compensation insurance. The claim as made to said board was for an injury received on August 31, 1930, in the nature of burns, resulting from the ignition of gas in a pit in which Choate was working upon a pipe line as an employee of the Lone Star Gas Company. The injury was described as “the complete loss of the sight of his left eye,” and it was further stated: “Claimant also sustained other painful burns and permanent scars; however, he only places claim for the specific injury of the loss of the left eye.” There was no question as to the jurisdiction of the Industrial Accident Board or of the due filing of the suit on February 9, 1931, after proper notice as respects the claim for the loss of an eye. By an amended pleading filed September 30, 1931, plaintiff, in addition to the claim of compensation for the loss of his eye, sought compensation for a permanent partial incapacity resulting from the same accident, the allegations being, in effect, that, by reason of the burns in and about his throat, when he would stoop over to lift anything he experienced a choking sensation, like tying a cord tight about some member of the body, forcing him from the intensity of the feeling to stand up and desist from such employment. For this cause it was alleged that his earning capacity,was impaired 50 per cent.

The jury found, in answer to one special issue, that the injury of the plaintiff did not result in the loss of his left eye. It was further found, however, that he sustained the alleged injury to his throat which resulted in permanent partial incapacity of 35 per cent., and that his average weekly wage at the time of the injury was $25. It was further found that the case was one in which manifest hardship would result if payment was not made in a lump sum.

Both parties urged motions for judgment. The motion of the defendant was granted. The judgment recites that a plea to the jurisdiction filed by the defendant was temporarily overruled, but after verdict upon-reconsideration was sustained. This action of the court was based upon the conclusion that the claim for which the jury rendered verdict in favor of the plaintiff was never presented to or acted upon toy the Industrial Accident Board, and that therefore the court was without jurisdiction to adjudicate the same. From the judgment for defendant, rendered notwithstanding the verdict, plaintiff has appealed.

The controlling question presented is: Did the trial court err in sustaining defendant’s plea to the jurisdiction of the court? If the injury, which plaintiff claimed had resulted in the loss of his left eye, was a separate and distinct injury from the burns in and about his throat which resulted in the partial permanent incapacity, as found by the jury, then the court, by such action, did not err, since unquestionably the jurisdiction of the court to award compensation for an injury was confined to the same injury passed upon by the Industrial Accident Board.

The Workmen’s Compensation Law (R. S. 1925, arts. 8306 to 8309) defines the word “injury” as therein used as follows: “The terms ‘injury’ or ‘personal injury’ shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” Article 8309, § 1, su-bd. 5. By a process of judicial construction, the validity of which we need not stop to discuss, since the proposition seems too well settled to justify any holding by us to the contrary, there is read into this definition of “injury” the element of accident. Middleton v. Texas P. & L. Co., 108 Tex. 109, 185 S. W. 556, 560; South Western Surety Ins. Co. v. Owens (Tex. Civ. App.) 198 S. W. 662; Texas Employers’ Ins. Co. v. McGrady (Tex. Civ. App.) 296 S. W. 920; Barron v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 36 S.W.(2d) 464. In the case first cited, the Supreme Court, speaking generally of the Workmen’s Compensation Law, said: “Notwithstanding the breadth o-f some of its terms, its. evident -purpose was to confine its operation to only accidental injuries and its scope is to be so limited. * ⅜ * The injuries, or wrongs, with which it deals are accidental injuries or wrongs.” (Italics ours.) The practical effect of these holdings is to modify the statutory definition of “injury” so as to make it mean “damage or harm to the physical structure of the body caused by accident, and such diseases or infection as naturally result from such damage or harm.” If the term “injury” be given this meaning, it is readily apparent that the accident which produces an injury is a most effective means of identifying the injury, as well as the claim for compensation therefor. The identification of an accident, together with any -particular effect thereof which consists of damage or harm to the physical structure of the body, is a, sufficient identification of an injury to clothe the court with jurisdiction to set aside an award respecting it, and to adjudge compensation for the full extent thereof. It is not necessary to such jurisdiction that the full extent of the injury (meaning thereby every effect of the particular accident consisting of damage or harm to the -physical structure of the body) may have been presented to, or was considered by, the Industrial Accident Board.

In this case the accident was a fire. A spark from a pick struck against a pipe line emitting gas, and, causing an ignition of the gas, burned the plaintiff. The accident, both in the claim to the Industrial Accident Board and in the pleadings in the suit, was identified as to its date, manner, and place of occurrence. The burn was certainly an effect of such accident properly to be described as “damage or harm to the physical structure of the body.” That there was presented to the board, and the board considered, only one particular part-of the total effect of the accident, namely, the loss of an eye, no more restricts the power of the court to .award compensation to include other effects of the said accident than it would to award compensation to include the results of a subsequently developing disease resulting from the burn, but not presented to or considered toy the board.

Under the law, injuries winch may be compensable, all being results of accident, are of two classes—specific and general. Specific injuries are compensable per se. General injuries are compensable if and when they result in incapacity. We believe it a fair interpretation of the law, at least as determinative of jurisdiction, that all the results of a particular accident are to be claimed as one injury. There is never any necessity that different parts of the total result of one accident toe presented to and passed upon by the Industrial Accident Board as separate claims.

We are not without authority in the decisions of our own courts to support our conclusions, at least as to the result of same. The same question was involved in Texas Indemnity Ins. Co. v. Bridges, 52 S.W.(2d) 1075, 1078, recently decided by this court. There the injured employee, in giving notice of his injury, specified only injury to his foot. Upon the trial in court he recovered upon allegations and proof of an injury to his back. It was contended that no notice had been given of an injury to his back and that therefore the court did not have jurisdiction to award recovery for such injury. This court overruled the contention and held: “The statute merely requires that ‘notice of the injury’ toe given the association or subscriber within 80 days after the happening thereof. It does not specify that the injury must be described in detail atid with formality.” (Italics ours.) In Standard Accident Ins. Co. v. Williams, 14 S.W.(2d) 1015, 1016, Judge Speer of the Commission of Appeals said: “But we take the rule to be, if an injury to a specific member does not stop with the injury to or loss of that member, but for any reason continues as an injury affecting the body to such extent as to result in permanent or partial total disability, a recovery may be had therefor, even exceeding the statutory compensation for the complete loss of that member. In such a case, the injury is general and not confined to the specific member.” (Italics ours.)

It thus appears that a general injury may include a specific injury, which is but another way of saying that, if the total effect of an accident be not confined to the damage or harm, to the physical structure of a particular member of the body -for which the law authorizes a particular definite compensation in lieu of all other compensation, then the entire effect is the injury to be compensated. In Ætna life Ins. Co. v. Culvahouse (Tex. Civ. App.) 10 S.W.(2d) 803, 805, medical, hospital, and doctor’s bills not presented to or acted upon by the Industrial Accident Board were recovered in the subsequent suit in court. Held, * * * where the claim sought to be established in the suit to set aside the award is the same general claim as that asserted before the Accident Board, the action is maintainable with reference to every item or claim that could have been asserted before the Accident Board, or finding that such board could have made.” While in the Oulvahouse Case the question was with reference to a part only of the compensation to be allowed, rather than as to a part of the injury to be compensated, the one no less than the other is a component part of a claim, and the controlling question is one of the identity of the claim or the injury. In New Amsterdam Casualty Co. v. Harrington (Tex. Civ. App.) 283 S. W. 261, 263, it was said: “When the award of the board was appealed from toy suit initiated in the district court, the trial was de novo, and appellee had the right to testify to such injuries as then appeared to have been done him. He, it is true, would not be permitted to bring in a new cause of action, but injuries wMoh he claimed to have been occasioned him from the same accident that caused those presented to the board certainly would not be classed as a new cause of action.” (Italics ours.)

The italicized portion of the preceding quotation accords exactly with our views as above indicated. No doubt one of the more important facts going to show the identity of an injury would be the date, but in Security Union Casualty Co. v. Frederick (Tex. CSv. App.) 295 S. W. 301, the alleged date was held to be not necessarily controlling as against other facts sufficiently identifying the injury or claim.

For determining jurisdictional questions the decisive test, we think, is the identity of the injury involved, and that identity is Shown when any part of the total effect of a particular accident consists of damage or harm to the physical structure of the body of the alleged injured employee.

We conclude that the trial court erred in sustaining the plea to the jurisdiction; that appellant’s judgment for motion in his favor should have been granted, except as to the allowance of a lump sum, the provisions for such an allowance not appearing tó toe applicable in a claim for permanent partial incapacity. R. S. 1925, art. 8306, §§ 15 and 15a.

It therefore becomes our duty to reverse the judgment of the court below and to render judgment for the appellant awarding him recovery of $5.25 per week for 300 weeks from and after September 7; 1930, and for costs of suit, all of which is accordingly so ordered.

On Rehearing.

Appellee, in its motion for rehearing, makes a very serious challenge of the correctness of our decision by pointing out that, under the law as we have construed it, it would be impossible in some cases to determine from the claim passed upon by the Industrial Accident Board what court would have jurisdiction to hear a contest of the award and to adjudge compensation. It is suggested by way of illustration that, had the employee lost his fourth finger (for which the maximum compensation allowed is $300), and had filed his claim stating: “Claimant also sustained other painful burns and permanent scars; however, he only places claim for the specific injury of ihe loss of Ms fourth finger,” in such i case only the county court would have had jurisdiction and certainly could not have awarded recovery to cover additional injury, as in this case. It must be conceded that, under present decisions, if such had been the case, the employee could not have extended his claim in court beyond that which was before the board, as has been permitted in this case. But to treat this fact as a sufficient reason to deny such extension of the claim would, we think, bring us in direct conflict with the decisions cited, and under the authority of which, such extension has been allowed, and unnecessarily so.

The real question presented is probably one of waiver. No waiver was alleged nor adjudicated, and we have not regarded such a question as being involved in the case. We are not disposed now to consider that question and undertake to dispose of the case upon that theory, involving as it would a question of the necessity of pleading the waiver, and whether, if it should be determined that it arose as a matter of law without such pleading, it in fact constituted a waiver. The question would be purely one of waiver and not of estoppel, for, so far as the record suggests, appellee is in no worse position than if the employee had merely claimed before the board the loss of his eye without any mention of the other injuries, in which case, certainly, we think, under the authorities, there would have been no obstacle to his enlarging the claim in court so as to include the additional extent of the injury.

Anything we may say on the jurisdictional question thus raised by way of argument against the correctness of our holding would, of course, be simply dictum unless we should sustain the motion upon that ground. It may not be amiss to say, however, merely ¡by way of showing that there is no insuperable objection to the validity of our conclusions, that the supposed case but suggests a possible defect in the law itself. If, for example, the Constitution requires that a claim for the loss of the fourth finger be brought in the county court, then, of course, it would have to be brought there, and if the effect of doing so would be to deprive the injured employee of compensation for a part of his injury, that result would simply follow from the failure of the law to make adequate provision for recovery, under the particular facts, for the full extent of the injury. The insurer in all cases could, no doubt, bring its suit in a court having jurisdiction of the máximum amount of the claim that could have been allowed by the board, even if the effect thereof would ¡be, because of the lack of jurisdictional authority of the court, to deprive the employee of compensation for a part of the injury. On . the other hand, we see no reason why, if, at the time required to contest the award, other manifestations of the injury than those considered by the ¡board had developed so as to justify recovery of a larger maximum amount as compensation, the employee could not file his case in a court having jurisdiction according to the pleadings, even though that court would not have had jurisdiction of the claim as it appears when presented to the board. If it should result that the insurer files suit to set aside the award in one court and the employee in another, then in the absence of a challenge of the good faith of the employee’s suit, the other could be safely abandoned. These suggestions are nob made to be regarded as an authoritative decision of these questions, but, as we have said before, merely to show that the jurisdictional question presents no insuperable barrier to the validity of our conclusions set forth in the original opinion.

We are therefore of opinion that the motion for rehearing should be overruled, which is accordingly so ordered.


author: CALHOUN, J. MORROW, P. J.

text:
    ROGERS v. STATE.
    No. 15220.
    Court of Criminal Appeals of Texas.
    June 1, 1932.
    Rehearing Denied Dec. 14, 1932.
    C. J. Williamson, of Lockhart, and Henry Faulk, of Austin, for appellant.
    Fred L. Blundell, Dist. Atty., of Lockhart, and Lloyd W. Davidson, State’s Atty., of Austin, for the State. •
   CALHOUN, J.

The offense, murder; the punishment, death.

The appellant was jointly indicted with one Robert Cubit and Willie Ray Autrey for the unlawful killing of one G. W. Mann. The defendants each requested a severance and asked that the appellant herein be placed upon trial first. Said motion for severance was granted, and the appellant was placed upon, trial.

There are no bills of exception in the record and no exceptions to the court’s charge.

The undisputed evidence showed that the deceased, G. W. Mann, commonly called “Dad” Mann, kept a little grocery store and hamburger stand in the northern part of the town of Luling, commonly known as the Flat, which was in the negro section of said town. The deceased was about 55 or 60 years of age, and lived in his little place of business alone. He had been in business in Luling for six or seven years, but had only been in that particular location for six or seven months'prior to the time he was killed. The evidence further showed that he was killed on the night of May 13,1931.

The witness J. T. Conley, a deputy sheriff of Caldwell county, testified that he lived right across a little street on the Bruner Field road from deceased’s place of business and on the same side of the Bruner road. He (the witness) was at home on the night of the killing, and heard somebody holler twice for help. He secured a flash-light and ran to deceased’s store, which was open, and nobody was there. He found the deceased in a ditch eight or ten feet deep, and there was an ice pick, six or eight inches long, with a handle about four inches long, sticking in his left breast. The deceased was not dead when the witness found him, but only gasped a couple of times after he was turned over and made no statement. The deceased had bn his pants and shirt and was barefooted. The witness examined deceased’s pockets and found no money, and the witness further testified that the deceased was in the habit of keeping his bills in one large folder and a purse in which he carried his change, and he carried both purses all the time, one in each pocket. A search of deceased’s store the next morning failed to reveal either one of said purses.

The state introduced, as their principal witness, Willie Ray Autrey, who was jointly indicted with the appellant and Robert Cubit for the killing of deceased. Said Autrey testified, in substance, as follows; That the night before the killing he was at Bush’s Café and talked to Louis Rogers, the appellant, and Robert Cubit; that one Woodson was also present in the café at the time, and they called him over to where they were, and Cubit asked Woodson whether Dad Mann had any money, and said, “You ought to know, you trade down there right smart,” and said Woodson replied, “I guess so”; Cubit then asked the said Woodson where the deceased kept his money, and Woodson replied, “I guess he keeps it in his pockets.” Autrey further testified that the appellant and Robert Cubit and himself all agreed to go down and rob the deceased, but that Wood-son would not go with them and they did not go to deecased’s place of business that night, but the next night he met appellant and Cubit at Bush’s Café, and, when it was about time for the café to close up, they decided to. go down to deceased’s place of business for the purpose of getting deceased’s money. When they got back of the Tullos Machine Shop, which was just a little north of deceased’s store, the witness asked the others what they wanted him to do, and they told him to ‘‘just stop here and watch and if anybody comes up you holler or make a noise.” The witness further testified that he sat down on a pile of pipes by the machine shop, and appellant and Cubit went on to deceased’s store; that he could see them enter the door of the store from where he was sitting, and after a little while they came back out with Dad Mann, the deceased, and each had him by the arm; that they got him outside of the door of his. store and walked towards the edge of the highway, and at that time the deceased hollered, “Help, help”, and then hollered, “Oh, oh,” about twice. The witness then got up and ran back towards the west, and after he had run a little piece he stopped and looked back, and they were then going across the highway in front of the machine shop towards the east with the deceased between them; that the last time he saw the appellant, Louis Rogers, and Robert Cubit they were going down by the machine shop.

The appellant relies for reversal of this case upon the claim of insufficiency of the state’s testimony to sustain the conviction due to the fact that such conviction was obtained by the state primarily through the evidence of the witness Autrey, who was jointly indicted with the appellant for the offense, and whose testimony was not corroborated by other evidence and witnesses to that degree of certainty and conclusiveness to the extent that the law requires. The evidence of this accomplice, if entitled to full credit, is unquestionably sufficient to sustain the conviction. The conviction cannot be sustained upon his testimony unless it is corroborated by other evidence tending to connect the defendant with the offense committed. We must therefore examine the other evidence in the case, and from it ascertain whether or not this witness’ statements have been corroborated to the extent required by law.

The witness Lee Woodson corroborated said accomplice to the extent that the appellant and Robert Cubit and the witness Autrey were at Bush’s Café together on the night before the killing and asked him if deceased had any money and where he kept it, and they all three said they were broke and were going down to rob Dad Mann, the hamburger man, and asked him to go with them, which he refused to do. He further testified ■ that on the same night he heard a conversation between the appellant and Robert Cubit and one Dora Bell Chambers. He also testified that Cubit tried to borrow a pistol from said Dora Chambers, and also that he saw them at Bush’s Café the night of the killing talking together. This evidence, if true, tends to corroborate the accomplice as to what occurred the night before the homicide at Bush’s Café and as to the avowed intention of the appellant and the two others to rob the deceased.

The witness Wésley Jenkins also corroborates the accomplice as to the appellant and the other two jointly charged with him being at his café together the night before the killing and also on the night of the killing.

The witness Tom Gant testified that on the night Dad Mann was killed he was cheeking traffic on the Bruner Field road with one Jacob Bolton, and about midnight they passed by Dad Mann’s little store; that they were traveling about 15 miles an hour and were driving on the same side of the road that the deceased’s store was situated, and they saw two men standing in front of the store and one of them was Robert Cubit whom he (the witness! had known all his life; that he did not know the other negro with him in front of the store that night, but that he had had occasion to observe the appellant, Louis Rogers, during the trial, and that the second man he saw standing by Dad Mann’s store was about the same size as appellant and about the same build, and compared favorably with the appellant; that his best judgment was that the appellant was the man who was with Cubit that night, and that he looked like the man.

There was also evidence to the effect that there was a street light diagonally across the street from the deceased’s store, and a person riding along the Bruner Meld road in front of deceased’s place of business could distinguish and recognize a man standing in front of said store.

The appellant testified in his own behalf, and denied in toto the testimony of the accomplice witness Autrey, and testified that he went to the home of Walter Hysaw about 10:30 on the night of the killing and stayed there the balance of the night.

Walter Hysaw was called in rebuttal by the state, and he testified that he got home about 9 o’clock on the night of the killing, and that the appellant did not stay at his house that night, did not stay any part of the night with him, and did not stay with him that entire week.

The witness McKinley Brawley testified that on the night Dad Mann was killed he, Volley Surrell, and Snooks Taylor were coming along by the calaboose about 12 o’clock, and they met Willie Ray Autrey coming from the direction of thei machine shop, out of the little path that comes by Sleeping Jessie’s house and through the mesquite thicket, and they all went to town together.

There are other facts in evidence, testified to by other witnesses than those whose testimony has been quoted, which tend to support the testimony of the accomplice Autrey, ■but we deem it unnecessary that we should refer to them. We think that it was sufficiently shown from the evidence set forth in the record that the testimony of the accomplice witness is corroborated to the extent required by law. It is not required that the corroboration should be conclusive. It is sufficient if it tends to connect the appellant with the offense committed. The test as to the sufficiency of the corroboration is to eliminate' from the case the evidence of the accomplice witness, and then examine the evidence of the other witnesses with the view of ascertaining if there be inculpatory evidence, that is, evidence of incriminating character, which tends to connect the accused with the commission of the offense. If there be such evidence, the corroboration is sufficient. See Durham v. State, 106 Tex. Or. R. 85, 290 S. W. 1092; Jones v. State, 59 Tex. Or. R. 559, 129 S. W. 1118. The corroborating testimony need not be sufficient to establish the guilt of the defendant, for, if this were the rule, the testimony of the accomplice would be of no value. Branch’s Ann. Penal Oode, § 719, and authorities collated thereunder.

We are of the opinion that the verdict of the jury is supported by the testimony.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The sufficiency of the corroborating testimony to meet the measure of the law is challenged in the motion for rehearing as it was upon the original hearing. The law declares that there must be corroborating evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely show the commission of the offense. Article 718, O. C. P. 1925. This statute was in the first Code of Criminal Procedure adopted in this state, and since its adoption it has remained unchanged. Speaking of it in a recent ease, the following language was used: “In the reports the word ‘tend’ has been defined ‘to have a leaning’ (Chandler v. State, 89 Tex. Cr. R. 597, 232 S. W. 318); ‘serve, contribute or conduce in some degree or way,’ or ‘have a more or less direct bearing or effect’ (Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580, 584); ‘to be directed as to any end, object, or purpose’ (Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 709); and in Webster’s Dictionary, the word ‘tend’ is thus defined: ‘To be directed or have a tendency, conscious or unconscious, to any end, object or purpose.’ ” Shrader v. State (Tex. Cr. App.) 51 S.W.(2d) 607, 609. See, also, Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422.

The requirement of the statute may be met by circumstances as well as by direct evidence. See Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 709.

G. W. Mann, about 60 years of age, kept a small grocery store and lived near the road which leads from the town of Ruling to the Bruner oil field. It was an extension of one of the streets of the city of Ruling. The main street ran east and west, and the Bruner oil field road ran north and south, intercepting the main street at right angle.

The witness Conley, a deputy sheriff, gave testimony as set forth in the original opinion, going to show that Mann was killed by a stab from an ice pick; that he had been robbed: that he was taken from hisi store partly dressed and barefooted.

Autrey, the accomplice, testified that on the night previous to the death of Mann he overheard the making of a conspiracy by the appellant, Rogers, and his eodefendant Cubit, the object of the conspiracy being to rob the deceased. Autrey joined the conspiracy, according to his testimony, and performed the part that was assigned to him, namely, to keep watch and warn his confederates in case of necessity. According to Autrey, Rogers and Cubit entered the store of the deceased. Shortly thereafter they, together with the deceased, came from the store. Mann called for help. His cry was heard apparently by the witness Conley, who answered the call and found Mann’s store rifled and his money gone; and his body at a place in accord with the testimony of Autrey. That the conspiracy described by Autrey was made was vouched for by the witness Woodson, as shown in the original opinion. That the parties were together at the time of the conspiracy as claimed by the accomplice to have been made was likewise shown'by the witness Jenkins.

The witness Gant gave testimony going to show that in passing along the road near Mann’s store about the time the robbery (according to Autrey) took place, he saw two men at Mann’s store. One of them was Cubit, the coconspirator of the appellant. On the trial, Gant circumstantially identified Rogers as the companion of Cubit at the time the offense was committed.

The appellant’s testimony denying his association with Autrey on the night of the tragedy was controverted by the testimony of the witness Hysaw. Other witnesses, as shown in the original opinion, corroborated Autrey touching the association of Cubit and the appellant with Autrey at the time the latter claims the conspiracy to hare been formed.

In his motion for rehearing, appellant’s counsel adverts to certain circumstances which it is argued were calculated to render improbable the statement of Autrey. These circumstances, however, were before the jury.

Upon a review of the record and the evidence in the light of the motion for rehearing, we are constrained to the view that the testimony relied upon to corroborate the accomplice is sufficient, if believed, to comply with the requirement of the statute. Its truth, as stated above, was a matter for the jury, and their finding is binding upon this court.

The suggestion of the appellant that this court should find as a fact that the presence of the appellant at the time of the commission of the offense was shown by the record to be impossible and that the testimony of the accomplice witness was untrue, calls upon this court to go beyond its province and to invade the domain in which the jury is supreme. To determine whether there be evidence in the record is the province of the court. To determine whether the evidence is true is the province of the jury, committed to that body by the law of the land.

The motion for rehearing is overruled.


author: WALKER, J.

text:
    STEGER et al. v. SHOFNER et al.
    No. 2245.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 17, 1932.

      Crane & Crane, of Dallas, for plaintiffs in error.
    J. M. Sanders and Sanders & McLeroy, all of Center, for defendants in error.
   WALKER, J.

We take the following statement of the nature and result of this suit from the brief of plaintiffs in error:

“On March 3rd, 1931, V. B. Shofner, A. A. Doggett, J. A. Woodfin and C. O. Payne, residents of Shelby County, Texas, as plaintiffs, filed suit in the District Court of Shelby County, Texas, against The W. T. Rawleigh Company, which was alleged to be a foreign corporation domiciled in the City of Freeport, State of Illinois, and Farmers State Bank of Center, a Banking corporation incorporated under the laws of Texas, with its principal office and place of business in Center, Shelby County, Texas, as defendants.
“The cause of action alleged in the petition as against the defendant The W. T. Rawleigh Company was in effect that the plaintiffs A. A. Doggett, J. A. Woodfin and C. O. Payne had theretofore on or about January 6, 1939, signed a written contract as sureties, guaranteeing the payment of certain indebtedness due and to become due the defendant The WT. Rawleigh Company from the plaintiff Y. B. Shofner (described in said contract as Bur-én Shofner); that said surety agreement was void and unenforcible as against said sureties because the indebtedness secured thereby was incurred under a contract between Shofner and The W. T. Rawleigh Company, which violated the anti-trust laws of the State of Texas; that the original surety agreement was in the custody and possession of the defendant, Farmers State Bank of Center, Texas ; that the defendant The W. T. Rawleigh Company was threatening to bring suit against plaintiffs for a claimed balance of $861.10, based on said surety agreement in some county of Texas other than Shelby County, Texas, and would do so unless restrained by injunction from so doing. The petition concluded with a prayer that the defendants Rawleigh Company and the Bank be cited to appear and answer; that a temporary injunction issue pending the suit restraining the defendant Rawleigh Company from in any manner attempting to enforce the provisions of said surety agreement and from filing suit on said surety agreement against plaintiffs during the pendency of said suit; that temporary injunction also issue restrain- • ing the defendant Bank from permitting the said surety agreement to be removed from Shelby County, Texas, and ordering said bank to immediately place the same with the District Clerk of Shelby County, Texas, until further order of the court; and that upon final hearing, the surety agreement be by decree of the court cancelled and declared void; and that the temporary injunctions be made perpetual.
“The petition was duly presented to the Honorable R. T. Brown, district judge, who indorsed his fiat thereon, directing the clerk to issue the temporary injunctions as prayed for upon plaintiff’s executing bond in the sum of $500.00. Bond having been provided, temporary writs of injunction were duly issued; that, directed to the defendant bank, was served by the sheriff of Shelby County, Texas, on the 3rd day of March, 1931; and that, directed to the defendant The W. T. Rawleigh Company, was served in Freeport, Illinois, by Elmer L. Kailey, sheriff of Stephenson County, Illinois, on the 10th day of March, 1931. Nonresident notice to The W. T. Rawleigh Company was issued simultaneously with the writ of injunction, and was served in Free-port, Illinois, by Elmer L. Kailey, sheriff of Stephenson County, Illinois, at the time the writ of injunction was served. (Service both of notice and injunction was had in the manner provided by articles 2037, 2038, R. O. S. 1925.)
“No further process was served or attempted to be served upon either The W. T. Raw-leigh Company or the Bank.
“The defendant bank filed its answer, averring that it bad delivered tbe surety agreement to the clerk in obedience to the court’s order, and prayed that it be discharged with its costs.
“The cause came on for trial August 11, 1031. The W. T. Rawleigh Company not having answered or entered its appearance therein, the court appointed the Hon. Dallas Ivy, ■a practicing attorney at the bar-, to represent •'said nonresident defendant The W. T. Raw-leigh Company,’ who filed an answer in behalf of The W. T. Rawleigh Company, consisting of a general demurrer and general denial.
“The cause was tried before the court without a Jury, and resulted in a judgment can-celling the surety contract and perpetuating the injunction theretofore issued restraining The W. T. Rawleigh Company from ‘attempting to enforce any of the provisions of the aforesaid Surety Agreement in any of the courts of the State of Texas.’
“The judgment contained further recitals to the effect that since the service of the writ of injunction upon the nonresident defendant, The W. T. Rawleigh Company, the ‘said The W. T. Rawleigh Company by and through its attorney, Thomas P. Steger, has filed suit in the County Court at Bonham in Fannin County, Texas, on the instrument above mentioned and involved in this suit against B. Shofner, ■(who the court finds to be the same person as V. B. Shofner) A. A. Doggett, J. A. Woodfin and C. C. Payne,’ and that it was the order of the court ‘that injunction now issue from this ■court directed to the Judge of the County Court of Fannin County, Texas, and his successors in office, and all other persons who may attempt to file suit or render judgment on said instrument be restrained under pains and penalties of the law from proceeding further with said cause so filed by The W. T. Rawleigh Company in the County Court of Fannin County, Texas, against the plaintiffs herein, which is cause No. 4097 on the docket of the County Court of Fannin County, Texas’. It was further ordered that the clerk of the court ‘do forthwith issue a writ of injunction directed to said Thomas P. Steger and the County Judge of Fannin County, Texas, and his successors, directing them to desist and refrain from further prosecuting’ said Fannin ■County suit, and ‘from in any manner rendering judgment against any of the defendants as named in said cause No. 4097’ (the county court suit).
“November 4, 1931, Thomas P. Steger and .J. I. Warren filed with the clerk of the District Court of Shelby County, Texas, their petition for removal of said judgment to this Honorable court for revision and correction ■of errors therein, and filed therewith Writ of Error cost bond as required by law. Assignments of error were seasonably filed. Citations in error were duly issued on the petition and served on all parties adversely interested to petitioners as required by law.”

Opinion.

Defendants in error raise a jurisdictional question. The term of court at which this case was tried, as shown by the caption to the transcript, began on the 10th day of August, 1931, and adjourned on the 21st day of August, 1931. Judgment was rendered herein on the 11th day of August, 1931. On September 7, 1931, after the adjournment of court, plaintiffs in error filed their motion to set aside or modify the judgment as entered on the 11th day of August. ,On the 9 th day of October, 1931, they filed herein the following pleading: “Come now Thomas P. Steger and J. I. Warren, County Judge of Fannin County, Texas, and hereby discontinue the motion heretofore filed in the above c'ause on September 7, 1931,-and request that same be dismissed from the docket of said court.”

No order was made by the trial court on either of these pleadings. On October 22, 1931, they filed herein their petition and bond for writ of error. On the ground that the court failed to make an order disposing either of the motion to set aside .the judgment or the motion to dismiss that pleading, defendants in error insist that this court is without jurisdiction to entertain this appeal. This proposition is overruled. If the motion to set aside the judgment be construed as a motion for new trial, it was without legal effect because filed after the .term of court at which the judgment was rendered had adjourned and at a time when the lower court had lost jurisdiction of its judgment except upon petition for review. If it be construed as in the nature of an independent action to set aside the judgment, the filing and prosecution of the writ of error constituted in law an abandonment of that proceeding. Radford v. Radford (Tex. Civ. App.) 42 S.W.(2d) 1060, 1064; Golden Rod Oil Co. v. Golden West Oil Co. (Tex. Com. App.) 293 S. W. 167.

There is no merit in the contention that the filing of the motion to set aside the judgment in the lower court by these plaintiffs in error constituted an appearance by the original defendant, W. T. Rawleigh Company. The motion in the lower court was filed by plaintiffs in error for themselves and in their own behalf only, and W. T. Rawleigh Company was in no way made a party to the motion. The principal contention made by the motion to set aside the judgment of the lower court was that the service had upon W. T. Rawleigh Company was insufficient to support the judgment. If that contention is sound, then plaintiff in error Steger, as attorney for W. T. Rawleigh Company, was not bound by the judgment, but, if the service was sufficient, then Steger was properly made a party to the injunction proceeding and the judgment against him was valid.

Tlie judgment of tlie lower court sought to accomplish three things: (a) To cancel the indebtedness claimed by W. T. Rawleigh Company against defendants in error ; (b) to cancel and annul the written contract of agreement evidencing the indebtedness; (c)"to enjoin W. T. Rawleigh Company from forever prosecuting a suit in a court of this state for the claimed indebtedness. We believe the service had upon W. T. Rawleigh Company was insufficient to support, in any respect, the judgment awarded defendants in error granting the relief prayed for. That the courts of a state have no power to cancel obligations owing by its citizens to a nonresident creditor except upon valid personal service of notice upon the creditor within the limits of the state where the suit is brought is well established in our general jurisprudence. Pullen v. Hillman, 84 Me. 129, 24 A. 795, 796, 80 Am. St. Rep. 340; 32 C. J. 9171 Therefore the judgment canceling the indebtedness must fall.

It is also well established that suits merely for the cancellation of contractual rights, obligations, or choses in action are personal “as distinguished from actions in rem.” Morris v. Bunnells, 12 Tex. 175; Vandever’s Adm’rs v. Freeman, 20 Tex. 334, 70 Am. Dec. 391; Hart v. Sansom, 110 U. S. 151, 3 S. Ct. 580, 28 L. Ed. 101. In so far as this action was an effort to cancel the written contract of guaranty, it was strictly personal in its nature, and could have support only by personal service within the state.

Defendants in error erroneously insist that the written contract of guaranty was a “res,” and that its physical presence in the state of Texas and its surrender to the clerk of the district court of Shelby county, Te.x., constituted this an action in rem. The instrument of writing in issue was not a “res,” but a mere chose" in action evidencing the obligation and contractual rights between the parties thereto. Discussing property of this character and the essentials of service sufficient to support judgments adjudicating the rights of the parties interested therein, the Supreme Court of Maine, in Pullen v. Hill-man, supra, said: “Contractual rights, obligations, mere choses in action, however, are not visible, nor tangible, nor local. They have no situs. They do not exist as things, as substances, within any territorial limits. They follow the person of the creditor. They are his wherever he lives. Saunders v. Weston, 74 Me. 85. * * ⅜ The only court, therefore, that can effectually discharge such a claim is the court that has jurisdiction over the person of the creditor himself. But unless the creditor voluntarily submits to the jurisdiction of the court, by taking some part in the proceedings before it, jurisdiction can only be acquired by service of process upon him within the territorial limits of the state establishing the court. Beyond those-limits, no process of any court has any force in acquiring jurisdiction of the person. This proposition is firmly settled by authority as well as by reason. Lovejoy v. Albee, 33 Me. 414 [54 Am. Dec. 630]; Baldwin v. Hale, 1 Wall. 223 [17 D. Ed. 531]; Pennoyer v. Neff, 95 U. S. 714 [24 L. Ed. 565].”

This contract possesses property characteristics similar to promissory notes and checks. It is the law of this state that the ownership of notes and checks follows the domicile of their owner and do not constitute “money” or “effects” with a situs independent of the owner’s domicile. It necessarily follows that the judgment of the lower court outlawing the guaranty contract was void. .

The injunction awarded defendants in error against W. T. Rawleigh Company was also void. This feature of the judgment could operate against W. T. Rawleigh Company only in a personal way, and personal service within the state of Texas was essential to its validity. See authorities cited above.

On another ground the judgment against the county court of Fannin county was void. As the amount in question in this, suit was within the jurisdiction both of the district court of Shelby county and of the county court of Fannin county, the district court of Shelby county was wholly withojit power to issue its injunction against the county court of Fannin county. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063,

We agree with defendants in error that, since W. T. Rawleigh Company is not before us by this appeal, we are without jurisdiction to adjudicate the effect of the judgment as between it and them. But, since the lower court had no jurisdiction of the plaintiff in error Steger, except upon the theory of valid service against W. T. Rawleigh Company, Steger had the right to question the validity of the judgment in order that he might be released from the injunction awarded against him.

For the reasons stated, the injunction granted by the lower court against plaintiffs in error is dissolved, and the judgment against them reversed and here rendered in their favor.


author: DUNKLIN, J.

text:
    DOCKERY v. HANAN et al.
    No. 12692.
    Court of Civil Appeals of Texas. Fort Worth.
    June 11, 1932.
    Rehearing Denied Oct. 8, 1932.
    Dean & Perkins and Elton M. Hyder, all of Fort Worth, for appellant.
    Clay Cooke and A. W. Christian, both of Fort Worth, for appellees.
   DUNKLIN, J.

In July, 1928, there was a meeting of the •board of directors of the Montex Corporation, at which A. W. Terpening, its president, was removed on account of mismanagement of its affairs. At that time the corporation was in immediate danger of insolvency because of such mismanagement, and an executive committee was appointed with authority to exercise the powers of the board of directors and to take steps necessary to finance the business and to settle and adjust all claims against the corporation. On September 4, 1928, a stockholders’ meeting was held in obedience to a call of the executive committee. At that meeting a resolution was adopted reciting that numerous claims were being made for the issuance of capital stock, which were, of doubtful validity; that all such claims should be submitted to the executive committee, who would investigate the same, and that none of those claims should be allowed unless supported by authentic proof of its justness. A further resolution was passed empowering the board of directors to employ an experienced engineer to make a complete survey of, the corporation’s plant and submit a report to the board showing an estimate of expenses necessary to put the corporation’s oil plant in proper condition to produce gasoline in paying quantities; and that if the directors should find that the plant could he operated profitably, then they were authorized to refund the company’s present indebtedness by the issuance of debenture notes secured by a lien upon the company’s assets, payable upon such terms and conditions as might be fixed by the board, such issue to be of a sufficient amount to cover all present indebtedness of the company, together with expenses necessary ,to put the plant on a paying basis; and all claims of indebtedness to be liquidated “on a pro rata basis.”

On the day following, to wit, September 5th, the board of directors held a meeting at which a resolution was adopted authorizing the officers and the executive committee of the corporation to cause to be issued promissory notes of the corporation in the respective sums of $50 and $100 each and aggregating $50,000, to be secured by a deed of trust executed by the officers upon all the assets of the corporation, the notes so secured to be sold with a preference right to the stockholders to purchase the same “and the proceeds thereof to be used to liquidate the present outstanding indebtedness of this company on a pro rata 6asis.” (Italics ours.) The resolution further provided that the officers should allow no claim for stock to be issued or for indebtedness incurred under the prior management of the business unless such claim be first submitted to the board of directors and satisfactory proof of its justness be made.

On September 15, 192S, a deed of trust was executed by the president in the name of the Montex Corporation as mortgagor covering all of its assets to secure the payment of 600 promissory notes in denominations of $50 each, but only 300 of those notes were in fact issued, and they and the deed of trust given to secure the same were hypothecated to Mrs. Alta Dockery as collateral security for an unsecured promissory note held by her against the corporation dated June 14, 1928, for the principal sum of $4,227.27, payable on demand, which was executed in the name of the corporation by A. W. Terpening, its president, and also by him as surety. Mrs. Dockery was present at the stockholders’ meeting already mentioned, both in person and by attorney, and at that time held 5,000 shares of the capital stock of the corporation. She was not present at the meeting of the board of directors, but the deed of trust taken by her as collateral security contained the recital that it was executed “in-pursuance of authority of the stockholders in meeting assembled, and in pursuance of a resolution of the board of directors as appears im, the minutes of said corporation.” (Italics ours.)

At the time of the execution of that deed of trust and the hypothecation of the notes to Mrs. Dockery, the corporation was in imminent danger of insolvency.

Mrs. Dockery’s claim was never submitted to the board of directors for their approval and was never approved by .the board.

On December 4, 1928, Charles Hanan, Clay Cooke, George Mullenhauer, and Ernest Thompson, who were stockholders in the corporation, instituted this suit in the district court of Tarrant county against the Montex Corporation and others to recover a personal judgment against the corporation for debts due the respective plaintiffs in stated amounts. In plaintiffs’ petition it was alleged, that the affairs of the corporation had been mismanaged by its officers, who had wrongfully converted to their own use its assets,, and who had conspired together and with others to defraud the corporation and its stockholders and creditors out of the remaining assets on hand; and plaintiffs prayed for the appointment of a] receiver to take charge of the estate. That application was granted and Joe B. Wills was appointed receiver. Thereafter,, under an order of court, the receiver sold all the assets of the corporation for the sum of $20,000; the receiver and Mrs. Dock-ery agreeing that Mrs. Dockery should have the same lien against the proceeds of the sale as she might establish against the assets covered by the deed of trust.

On December 6, 1928, Hon. Ernest May was appointed master in- chancery, “with full power and authority to hear and report to the court on all claims against the Montex Corporation,' defendant herein, and to hear and report his findings upon all claims of the Mon-tex Corporation against or in favor of any person, firm, or corporation, and with full authority to that end to summon-witnesses and to take testimony under oath and to examine the books, papers and vouchers and other documents pertaining to any such claim.”

That order further provided: “That the receiver issue notices to all creditors of the Montex Corporation known to him, or shown by the books of said corporation, to file their claims with the receiver or by intervention herein, within 60 days from this date and that notice likewise be published in the Fort Worth Star-Telegram to all creditors of said corporation of the appointment of a receiver, and that claims should be filed within 60 days from this date.”

On May 18, 1929, Mrs. Alta Dockery filed her plea of intervention in the suit, seeking a recovery against the corporation and the receiver for the amount of the note held by her in the sum of $4,227.27, already noted, and establishing the alleged priority of her lien on the proceeds of the sale of the assets, which she alleged had been given as collateral security for the note.

The Montex Corporation and the receiver filed an answer to the intervention, in which it was alleged that the deed of trust was executed without authority of the stockholders or board of directors and without any consideration therefor.

On February 4, 1930, the master filed his report upon that intervention, reciting that after due notice a hearing was had upon the Dockery claim and that the master had made findings thereon as follows: That the note held by Alta Dockery for $4,221.27, dated June 14,1928, executed by the corporation and also by A. W. Terpening as surety, was supported by a valid consideration and was given to the payee by the corporation bn account •of advances made by her; that the 300 notes described in the deed of trust and assigned to her were assigned as collateral security for the principal note just mentioned; and that she was entitled to judgment for the amount shown to be due on the principal note. The report further recites that Mrs. Dockery in her pleading had prayed for judgment establishing the priority of her lien on the proceeds of the sale made by the receiver; but ■the report did not contain any findings as to whether or not she was entitled to such a decree. The report also included findings on other claims not necessary to be noted.

On June 2, 1930, the court entered an order •approving the finding by the master upon the Dockery claim, and directing Joe B. Wills, the receiver, to pay over to her the amount allowed in the master’s report, with modification made by the court as to interest, •on condition that she would execute a bond with two or more good and sufficient sureties, payable to the receiver in double the amount -of the award, conditioned to hold the receiver harmless against any claims of B. R. Barton, another intervener, arising by reason of such payment to Mrs. Dockery. Mrs. Dockery has never executed that bond.

On June 5, 1930, the plaintiffs in the case, together with G. H. Kendrick and R. A. Stuart as interveners, filed objections to the allowance of the claim of Alta Dockery and other interveners, and prayed that the allowances so made be set aside and the claims be again referred to the master for further hearing. It was alleged that the petitioners were unsecured creditors of the corporation in an aggregate sum of $15,000, and that the proceeds of the sale of the assets would be insufficient to pay all claims in full if the Dockery and other claims were allowed as preference claims. They further alleged that the Dock-ery claim had no just standing as a preferred claim since it was an unsecured claim, and that the deed of trust held by her as collateral security was executed without authority of the corporation and in violation of the resolutions of the stockholders and board of directors expressly requiring that the proceeds realized on debenture notes for which the deed of trust was executed, should be used in satisfaction of the debts of the corporation on a pro rata basis. It was further alleged that those defensive matters were never presented to the master upon the hearing of the intervention, and that the petitioners had had no prior notice that either of the inter-veners would claim preference liens on the assets and therefore had no opportunity to be heard as to that issue.

On June 14, 1930, Mrs. Dockery filed a reply to that petition, alleging that the former order of the court was res adjudieata and that the petitioners were parties to the suit at the time of the former hearing and were therefore charged with notice and had had actual notice of said hearing before the same occurred.

On June 14, 1930, the court entered an order dismissing the action of the petitioners because the same came too late, in that the attorney for the petitioners was present when that intervention was heard and determined by the master. And in that connection the court further decreed that the Alta Dockery claim be allowed as per the former order. The petitioners excepted to that ruling and gave notice of appeal to the. 'Court of Civil Appeals; and by order of the court it was provided that the judgment in favor of Mrs. Dockery would be suspended for thirty days for the petitioners to perfect an appeal, but that if the appeal be not perfected within that period of time, then the judgment in favor of Mrs. Dockery should be paid without further orders of court.

The petitioners did not perfect an appeal from that order.

On July 22,1930, plaintiffs in the case filed their first amended original petition in lieu of the original petition, with additional allegations of mismanagement by the officers in charge .of the corporation as the grounds for appointing a receiver, with more detailed statements of their claims of indebtedness against the corporation, but not challenging the order of the court last mentioned.

On July 25, 1930, the master filed what he designated as his final report, purporting to cover claims which were not covered by his former reports. In that report there were findings in favor, of the plaintiffs for certain indebtedness against the corporation asserted by them in their pleadings. The report also included favorable findings on the claims of other interveners and rejecting other claims. The report contains this further statement: “I have heretofore filed reports covering all secured claims or) claims entitled to priority for any reason.”

On July 25, 1930, the court entered an order reciting the filing of the foregoing final report of the master upon the claims and interventions filed in tlie cause and allowing to all parties to the suit and interveners and claimants twenty days from and after the date of that order within which to file exceptions to the master’s report and to the report theretofore made hy the .receiver.

No such excexitions were filed within the period so fixed.

On September 20, 1930, Mrs. Alta Dockery filed an application to the court reciting.the former hearings of the master in chancery and the former orders of the court approving her claim, and praying for an order directing the receiver to pay her claim which had theretofore been adjudicated, with further allegations that the former judgment of the court •in her favor had become final.

On October 15, 1930, Charles Hanan, George Mullenhauer, Ernest Johnson, G. H. Kendrick, Clay Cooke, and R. A. Stuart, styling themselves interveners, filed a petition with the court seeking to sot aside the former order of the court allowing the Dockery «claim as a preferred claim and praying for a rehearing of that claim before the master in chancery. As grounds for the relief sought, the resolutions passed by the stockholders at the stockholders’ meeting and by the board of directors were set out, according to which it was expressly - provided that the proceeds arising by reason of the execution of the deed of trust should be used in liquidation of the corporation’s debts on a pro rata basis, and that the action of the officers of the corporation in so using the same as to give to the Dockery claim, which was an unsecured claim, a preference over other unsecured claims, was without authority of the corporation and was therefore void. It was further alleged that Mrs. Alta Dockery took such collateral with full knowledge that the same was not authorized by the corporation and without paying any consideration therefor, and that the receiver, through negligence, had failed to present to the master at said hearing the foregoing defensive matters, which would have defeated a preference to the Dockery claim; and that by reason of all of those facts, the judgment allowing the Dockery claim as a preference claim was procured by fraud and should therefore be set aside and annulled. There were further allegations that the petitioners had no prior notice of the hearing, and that the approval thereof was without any evidence to show that it should be allowed as a preference claim to other unsecured debts of the corporation. The insolvency of the Montex Corporation at the time of the execution of the deed of trust' and the passage of the resolutions of the stockholders and directors was alleged; also, that the Dockery claim was never presented to the executive committee nor authenticated as required by the resolutions.

On October 16, 1930, an answer to that petition was filed by Mrs. Alta Dockery, in which the former judgment of the court in her favor was again pleaded as res adjudi-cata, and praying for another order establishing the priority of- her claim as against other creditors.

On October 10, 1930, the receiver filed an answer to that pleading by Mrs. Dockery, alleging that the deed of trust and the hypothe-cation of the 300 notes was without authority of the corporation and in contravention of the resolutions of the stockholders and board of directors pertaining thereto.

The matters presented by those pleadings were all referred to the master in chancery for another hearing thereon, and on October 22, 1930, he filed his report showing his findings thereon. The report gives a full history of all the former proceedings, including the resolutions passed at the stockholders’ meeting and the subsequent resolutions by the board of directors, from both of which it appeared that the proceeds realized from the execution of the deed of trust were to be used in payment of creditors of the corporation On a pro rata basis; and findings that at the time she took the collateral as security, Mrs. Dockery knew or was charged with knowledge that the notes which she took as collateral to her existing indebtedness were authorized by the stockholders only for the purpose of refunding all of the indebtedness of the corporation without preference to any particular creditor and that she took such notes at her peril. The master further found that when the deed of trust was executed, and the 300 notes described therein were delivered to Mrs. Dockery as collateral security for her unsecured note then held against the corporation, the Montex Corporation was “financially embarrassed and in imminent danger of insolvency, if not actually insolvent, and the fact was understood by everybody concerned,” and the report includes this further finding: “In bankruptcy proceedings later instituted by certain creditors, the in-tervener, Mrs. Dockery, joined the corporation in pleading that the deed of trust, above referred to, did not create a preference, but was intended for the benefit of all creditors.”

Upon the facts so found the master recommended that all unsecured claims against the corporation that were outstanding at the time the deed of trust was executed — which included the claims of the contestants here — were entitled to payment on the same basis with the Dockery claim; in other words, that Mrs. Dockery’s claim of a prior lien on the property covered by the deed of trust and the proceeds of sale thereof should be rejected. Among the reasons given in support of the recommendation were that such a judgment would accomplish the intention of the stockholders and directors of the corporation, and that having taken the deed of trust with notice that same was executed without authority of the corporation, Mrs. Dockery was in no position in equity to claim the preferential security purported to he given hy that instrument; and that in equity she should be considered as holding the security -in trust for all other creditors of the same class, under the doctrine announced in 14-a C. J. p. 918.

On January 11, 1931, Mrs. Dockery excepted to the last findings of the master in chancery’ and specially pleaded the former orders of the court approving her claim as a preference claim as res adjudieata of the findings so made by the master.

On May 10, 1931, the court overruled all exceptions to the master’s report and entered a final judgment approving the same, setting aside the former orders made on June 2, 1930, and June 14, 1930, with respect to the Alta Dockery claim, and decreeing that that claim should be classified and paid as an unsecured claim and on a pro -rata basis with other claims of the same class.

Mrs. Alta Dockery has prosecuted this appeal from that judgment.

Her contention is that since the former judgment of the court approving her claim as having priority over other claims against the proceeds of the sale of the assets was rendered at a former term of the court and no appeal was prosecuted therefrom, the same constituted res adjudieata and was therefore a complete bar to the last proceedings noted. That contention is the controlling question involved in all of the assignments presented here.

No doubt the general rule is as announced in many authorities cited by appellant, that a judgment by a court of competent jurisdiction acquired over the subject-matter and the parties to a suit is a bar to a litigation of the same issues between the same parties and their privies in another suit. It is also true that, generally speaking, such a judgment becomes final after the term of court has ended if no appeal is prosecuted therefrom within the time required by the statutes.

But appellees have filed briefs in which authorities are cited to support the contention made by them that the former judgment approving the Dockery claim and ordering its payment by the receiver within a specified time was not a final judgment. Among others are the following:

“As a general rule, until a receiver has accounted for the receipt and disbursement of moneys by him, no order by the court should be made for the distribution thereof. The fund arising from all sources should be held under the direction of the court until the court shall upon final hearing direct its application to be made.” 34 Oye. p. 372.
“Where an order directing a receiver to pay a certain claim out of any money in his hands available for that purpose is made prior to final decree fixing priorities among creditors and ordering distribution, such decree supersedes the order.” Id. p. 374.

And to those the following may be added:

“Having decreed priority to certain claims, it may in later orders postpone their priority by ordering for subsequent claims an equal or superior rank, and the creditors when they obtain an order of priority, take it with the understanding that the court has power to act thus.” 53 Corpus Juris, 297.

And in 53 Corpus Juris, p. 310, it is said that no general order of distribution of an estate should be made until a receiver has rendered a final accounting of his receivership, and that no particular claims against the estate administered by the receiver should be ordered paid “until the status of all claims and their order of priority has been finally deterfnined where such determination may affect the payments to be made on such claims.”

However, without undertaking to determine whether or not the former orders of the court approving the Dockery claim as a preference claim was a bar to the action to set them aside, and independently of that issue, we have reached the conclusion that the final judgment of the trial court, setting aside those orders and decreeing that the Dockery claim be paid on a pro rata basis with other unsecured claims, should be sustained because the preference given to the Dockery claim by those former orders was manifestly unjust to other claims of the same class and was contrary to the principles of equity which usually govern in the final settlement of insolvent estates. The outstanding facts supporting that conclusion are the procurement by Mrs. Dockery of the collateral as security for her unsecured note, with at least constructive notice to her and the president of the corporation that that transaction was in direct violation of the terms of the resolutions of the stockholders and directors and without authority of the president to accord to her such preferential right, and without parting with any consideration therefor, and with intention of herself and the president thereby to secure for her a preference lien over other creditors of the same class and entitled to share with her on an equal basis. Nor should such other creditors be chargeable with the unexplained and manifestly negligent failure of the receiver — who was their legal representative and charged with the duty to protect their interests — to except to the former findings by the master and to take proper steps at proper times to set aside the orders of court approving the same and allowing a preference to the Dockery claim. And we do not believe that the absence of any finding by the master that the president of the corporation and Mrs. Rockery acted with fraudulent intent to procure such preference is any obstacle to setting aside those former orders. 21 C. J. p. 48; 34 C. J. p. 440, 470, and 520; Moffat v. U. S., 112 U. S. 24, 5 S. Ct. 10, 28 L. Ed. 623; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909.

Furthermore, it is to be noted that as found by the master, in answer to bankruptcy proceedings filed against the Montex Corporation on the ground that by the deed of trust a preference lien had been given in favor of Mrs. Dockery, the attorney for the latter appeared in that court and assisted in defeating that application upon allegations that no such preference had been created by the deed of trust. We believe that such action on the part of Mrs. Dockery amounted to an estoppel and waiver of her right to thereafter procure a decree in this suit according to her priority of lien on the assets, as against other unsecured creditors. We quote the following from the opinion of Chief Justice Phillips in the ease of Equitable Life Assurance Society v. Ellis, 105 Tex. 526, the quotation being found on page 538, 147 S. W. 1152, 1157, 152 S. W. 625: “Waiver is essentially unilateral in its character; it results as a legal consequence from some act or conduct of the party against whom it operates; no act of the party in whose favor it is made is necessary to complete it. It need not be founded upon a new agreement or be supported by a consideration, nor is it essential that it be based upon an estoppel.” And the facts recited clearly involve the elements of estoppel as well as of waiver.

For the reasons indicated, all assignments of error are overruled, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

The statement of facts shows that the last report filed by the master in chancery was introduced in evidence. That report embodied findings of fact by the master, including the following: The stockholders’ meeting of the Montex Corporation on September 4, .1928,- and the resolution passed at that meeting, as set out in our original opinion, authorized the board of directors to “refund the company’s present indebtedness by the issuance of serial debenture notes, secured by a lien on the company’s assets, and payable upon' such terms and conditions and bearing such rate of interest as may be fixed by the board of directors, said issue to include all the present indebtedness of the company,” and the fact that Alta Dockery was ■present at that meeting by her attorney and proxy, E. M. Hyder. Also the resolution passed by the board of directors on September . 5, 1928, authorizing the officers of the corporation to issue promissory notes of the corporation not to exceed the aggregate of $50,-000, and to execute a deed of trust to secure the same upon all the assets of the corporation, and the notes and proceeds thereof to be used to liquidate the present outstanding indebtedness of the company “on a pro rata basis.” Also the further finding that a deed of trust was executed on September 15, 1928, by those officers; that its execution was “in pursuance of the authority of ithe stockholders in meeting assembled and in pursuance of a resolution of the board of directors as appears in the minutes of said corporation”; and the deed of trust was executed to secure the payment of 600 notes signed by the Mon-tex Corporation, each for the sum of $50; with the further finding that “this deed of trust was probably prepared by Mrs. Dock-ery’s attorney and shows knowledge of the directors’ resolution.” Also the further finding that on September 28, 1928, 300 of those notes were indorsed and delivered to Mrs. Alta Dockery and the sole consideration for such delivery was as collateral for the prior indebtedness of the corporation to Mrs. Dock-ery evidenced by a promissory note of $4,-227.27. Also that the Montex Corporation was during all this time financially embarrassed and in imminent danger of insolvency, if not actually insolvent, and that fact was well known and understood by everybody concerned. There was a further finding that in the bankruptcy proceedings later instituted by certain creditors, Mrs. Dockery, as inter-vener, joined the corporation in pleading that the deed of trust above referred to did not create a preference but was intended for the benefit of all creditors. Following a recital of those facts, the master further found that Mrs. Dockery having participated in the stockholders’ meeting, on September 4, 1928, knew, or was charged with knowledge, that the notes which she took as collateral for her existing indebtedness were authorized by the stockholders only for the purpose of refunding all the indebtedness of the corporation, without preference to any particular creditor. That she had notice that when the vice president of the corporation delivered to her the 300 collateral notes secured by deed of trust upon all the property of the corporation, he was acting beyond the scope of the purpose for which the notes and deed of trust were authorized by the stockholders.

The facts so found by the master and introduced in evidence were sufficient to sustain the attack made upon the former judgments of the trial court, classifying the Dockery claim as a preferred claim, and ordering the payment of the same as such, on the ground that those judgments were procured by fraud, and therefore the judgment from which this appeal is prosecuted must be sustained on that ground, even though the former judgments of the court fixing the Dockery claim as a preferred claim in accordance with the recommendation ef the master be construed as final judgments and conclusive as against all attacks except fraud, accident, or mistake inducing their procurement.

Accordingly, appellant’s motion for rehearing is overruled.


author: LOONEY, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. TROTTER.
    No. 11225.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 12, 1932.
    Rehearing Denied Dec. 10, 1932.
    Lawther, Cox & Cramer and Jas. P. Swift, all of Dallas, for appellant.
    White & Yarborough, of Dallas, for appel-lee.
   LOONEY, J.

E. C. Trotter, an employee of McKenzie Construction Company, sued to set aside an award of the Industrial Accident Board and to recover for total permanent disability resulting from injuries received in the course of his employment. The findings of the jury and judgment in his favor against Texas Employers’ Insurance Association for $4,627.15 (one-third to his attorneys) are fully sustained by evidence and should be affirmed, unless reversible error is made to appear by the assignments, which we will now discuss.

Appellant insists that the suit was instituted too late, the contention being that same was not filed within the required twenty days after appellee notified the board that he would not abide by its final decision. The pertinent facts are these: The notice is dated December 16, 1930, was received and filed by the board on December 17th, and the suit was filed January 6, 1931. It is obvious, therefore, that the suit was filed within the time provided by statute. See article 8307, § 5, R. S. 1925, as amended by Acts 1927, c. 223, § 1, and Lumbermen’s Reciprocal Association v. Henderson (Tex. Com. App.) 15 S.W.(2d) 565.

Appellee notified appellant in writing (in his petition) to produce, at the trial, its ’policy insuring the employer, or that secondary evidence thereof would be introduced. The policy not being produced, appellant’s attorney, Mr. Cox, was called to the stand and sworn as a witness by appellee, and asked, among other questions, if he would admit that his client (appellant) had issued such a policy; this question, being objected to as prejudicial, was withdrawn and not answered. Appellant contends that the mere asking of the question was prejudicial. We do not think so, hence overrule the contention.

Appellant assigns error on the action of the court in admitting in evidence, over its objection, a certified copy purporting to be the notice given the Industrial Accident Board by appellant of the renewal of its insurance ; the objection -being that the instrument was not admissible because not signed by the insurer. The notice appears to have been made out on blank form furnished for that purpose by the board, and reads: “The Industrial Accident Board is hereby given notice of the Renewal of Policy of insurance by the undersigned under the terms and provisions of the Employers’ Liability Act, to— Employer McKenzie Construction Company, address, San Antonio, Texas. Occupation, contractor; former insurer, Texas Employers’ Insurance Association. Date of cancellation or expiration of old policy, 6 — 630, 19 — . Number of Employees Annual Pay Roll $-. Policy number G6471. Date effective 6-6-30, 19 — ; hour effective 12:01 A. M.; Present insurer Texas Employers Insurance Association; dated at Dallas, Texas, this 3rd day of May, 1930. Note: If more than one place of business is conducted under same; name, use separate Wank for each. This form must be executed by the insurance carrier promptly upon the Renewal of a Policy of insurance under the Employers’ Liability Act, and mailed to the Industrial Accident Board, Austin, Texas. (Rec’d. Industrial Accident Board State of Texas, May 5, 1930.)”

It will be observed that the name of appellant appears twice in the notice, both as the original and as the present insurer. The statute requires that both the employer and the association shall serve notice on the board, giving the name of the compensation insurer, the date of the insurance contract, date of its expiration, and of its renewal, if any. See article 8308, § 18a, R. S. 1925. No particular form of notice is required, neither is the manner of its éxecution directed; the. requirement being that certain information shall be furnished. The statute, article 8307, §§ 8 and 9, R. S. 1925, provides that the board shall furnish to any person entitled thereto certified copies of any orders, awards, decisions, or papers on file in its office, and makes the same admissible as evidence of the act of said board in the courts of the state. As to the admissibility and sufficiency of such evidence to establish the fact that appellant carried compensation insurance for the employer, see Texas Ind. Ins. Co. v. Wilson (Tex. Civ. App.) 281 S. W. 289 (App. for writ dismissed) ; Texas Employers’ Insurance Ass’n v. Perry (Tex. Civ. App.) 35 S.W.(2d) 1087-1090 (Writ refused).

The record discloses, however, that ap-pellee was injured on July 8, 1930, and thereafter, beginning July 18th, appellant, assuming liability, paid appellee weekly compensation for thirteen weeks, amounting to the sum of $180.05, for which credit was allowed on rendition of judgment. No contention seems to have been made below, nor is contention made here, that appellant was not the carrier of compensation insurance for the .employer. Under these circumstances, appellant will not be heard to deny the existence .of the insurance contract, as the assumption by it of liability, evidenced by payment of compensation to the injured employee, unexplained, is sufficient to establish the existence of the contract. See Georgia, etc., Co. v. Ginn (Tex. Civ. App.) 272 S. W. 601; Utilities, etc., Exchange v. Burks (Tex. Civ. App.) 7 S.W.(2d) 1112, 1115; Independence Ind. Co. v. Polk (Tex. Civ. App.) 14 S.W.(2d) 330; Texas Employers’ Insurance Ass’n v. Beckworth (Tex. Civ. App.) 42 S.W.(2d) 827. We therefore overrule all assignments and propositions pertaining to the existence, whether or not, of the insurance contract.

Appellant also assigns error on the action of the court in permitting John D. Coff-man, assistant district attorney, to testify, over objection, that after he had talked with appellee and appellant’s witness Iva Payne, and also with a handwriting expert, he filed complaint against Iva Payne, charging her with forgery; appellant’s contention being that the evidence was immaterial, irrelevant, and prejudicial.

The bill of exception taken to the action of the court is incomplete, in that it fails to state facts that exclude any reasonable hypothesis upon which the ruling of the trial court can be explained or that Show the supposed error is not merely abstract. Our decision could rest there, but we do not think appellant was prejudiced, for the reason that the witness had, on both direct and.cross examination, testified without objection that there pended against Iva Payne twelve charges of forgery, and it was on his redirect examination by appellee’s attorney that the testimony objected to was developed; in other words, the evidence objected to, in substance, was already a part of the record and without objection. It is not reversible error to admit testimony merely cumulative of evidence already in the record. See Texas Employers’ Insurance Ass’n v. Jimenez (Tex. Civ. App.) 267 S. W. 752, 756; Saigh v. Laechelin (Tex. Civ. App.) 17 S.W.(2d) 838, 839; Johnson v. Ashby (Tex. Civ. App.) 18 S.W.(2d) 726.

In harmony with the views expressed above, the assignments and propositions urged by appellant are overruled, and the judgment of the trial court is in all things affirmed.

Affirmed,