author: BOND, Justice.

text:
    HUBBARD v. TALLAL.
    No. 11094.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 21, 1933.
    Rehearing Denied Feb. 18, 1933.

      W. J. Rutledge, Jr., of Dallas, for appellant.
    John W. Craig, of Dallas, for appellee.
   BOND, Justice.

This action was brought by S. V. Tallal, ap-pellee, in a district court of Dallas county, Tex., against G. E. Hubbard, appellant, in the nature of a bill of review to cancel and annul a judgment rendered in the same court in favor of Hubbard and against Tallal, and for an injunction to prevent its enforcement.

On September 28, 1926,’ Hubbard filed the original suit against Tallal for a debt in the sum of $4,526.54. Tallal answered, denying the allegations of plaintiff. The case was passed from term to term without order, until January 21, 1929, when judgment was entered.

The grounds set forth in appellee’s petition for invoking the extraordinary equitable powers of the court to grant relief against the judgment of a former term are: That he had meritorious defense to the original suit, he did not owe plaintiff any sum of money; and that his reason for not making his defense and appearing in -court at the time the original judgment was rendered was due to the acts of Hubbard, wholly unmixed with any fault or negligence on his part. He set out in great length his defense to the original suit, the acts of the opposing side, and his reason for not attending the trial. On the undisputed evidence, the trial court entered a judgment in favor of Tallál against Hubbard, canceling and vacating and perpetually enjoining the enforcement of the original judgment entered against Tallal. We concur in the conclusion of the trial court. The pertinent facts found by the court ate substantially these:

The original suit was filed on September 28, 1926, and judgment rendered in favor of Hubbard against Tallal January 21, 1929. That Tallal was personally served with citation, employed an attorney, and filed answer ; later, his said attorney notified him that he could not further represent him in the suit. Immediately on receiving such notice, Tal-lal did employ, or thought he had done so, another attorney, and so believing he turned over to the attorney all of his documentary evidence for use in the preparation of his defense. That he relied upon his said attorney, and personally notified the attorney of record, who brought the suit for Hubbard, that his said attorney ’ would look after his interest. That Tallal’s attorney notified Hubbard’s attorney that he would look after Tal-lal’s defense if and when the attorney who had filed Tallal’s answer had announced to the court that he would withdraw from the case and have such withdrawal entered on the trial docket, but that he would not represent him until that was (.’.0110. There was a well-recognized existing custom in Dallas, and known to Hubbard’s attorney, that opposing counsel in lawsuits would be notified when cases in which they were interested would be called for trial. That Tallal made repeated inquiry of the court as to when the case would be tried, and knew that the case was passed from term to term without orders. No orders were made on the trial docket until the day of the judgment, when, for the first time, the attorney first employed by Tallal announced to the court his withdrawal from the case, and had his withdrawal entered on the docket. That Tallal nor his attorney were notified of the setting of the case for the trial, or the judgment when entered. The court further found that, some time prior to the institution of the original suit, Hubbard and Tallal and others had been jointly interested in an oil enterprisé, out of which Hubbard’s alleged claim for debt arose; that Hubbard was to furnish the necessary money to promote the enterprise and to be repaid only out of the profits of such enterprise; that Tallal was not personally liable to Hubbard for any money advanced; and that no liability exists on the part of Tallal to pay Hubbard for such advances.

In addition to the findings of fact by the trial court, the evidence showed that the attorney last employed by Tallal did not understand that he was definitely employed to represent defendant. He understood that it was conditional, if and when the attorney who filed Tallal’s answer withdrew from the case, and had his withdrawal entered of record. The attorney notified Hubbard’s attorney of that.fact. On account of the misunderstanding between him and Tallal as to his employment, he did nothing in defense of Tal-lal’s suit. .Tallal understood that his attorney was definitely employed, and, so believing turned his personal file over to him, and expected him to look after the case, and to that end notified the attorney for Hubbard before the judgment was entered.

It is a well-established rule in this state that courts will not set aside a judgment entered at a former term, except on strict showing that the party aggrieved had a meritorious defense to the suit, and that he was not guilty of negligence in failing to give attention to the controversy. And it is a further well-settled principle of law that the negligence of one’s attorney is attributable to him.

Evidently the defendant Tallal, in the original suit, was not guilty of negligence as a matter of law; he immediately, on being served with citation, employed an attorney, filed answer, and attended court, making repeated inquiry of tlie court as to when the case would be assigned for trial. He employed, as he believed, a second attorney to present his defense. The attorney excused himself from negligence in failing to appear in behalf of the defendant, he did not understand that he had been definitely employed by Tallal, and told Hubbard’s attorney that his employment was conditioned on the former attorney withdrawing from the case. The trial court found that Tallal nor his attorney were guilty of negligence; to which we agree. Principles of equity govern suits of this kind.

The case of Dallas Development Co. v. Reagan (Tex. Civ. App.) 25 S.W.(2d) 240, a ease which presents features differing but little to those in the instant case, opinion by our own Associate Justice Looney, held that such facts present grounds for equitable relief. We adhere to that holding, and conclude that, under the undisputed facts in this case, the judgment of the trial court should be affirmed.

Affirmed.


source: Caselaw Access Project

author: LATTIMORE, Justice.

license: Public Domain

text:
    BUTLER MOTOR CO. v. NEIMEYER.
    No. 12753.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 7, 1933.
    Wheat & Wheat, of Seymour, for appellant.
    L. C. Counts, of Olney, for appellee.
   LATTIMORE, Justice.

This cause is an appeal from the order of the trial court denying appellant the privilege to be sued in Baylor county, its residence. Appellee alleges a trespass committed in Archer county by appellant wrongfully seizing appellee’s automobile.

Appellant sold appellee an automobile, receiving some cash and a note secux-ed by a mortgage on said automobile. This note and mortgage appellant sold with his indorsement to the Universal Credit Company and appel-lee made several payments to that company. Appellee defaulted some of his payments and all unpaid balance was due in July, 1931, at which time appellee claimed he made an oral arrangement with appellant that he (appellee) would pay $50 in August and $75 in September on the note, and that appellant “would carry it four or five months.” These payments were made by appellee direct to the Universal Credit Company. On October 6, 1931, appellant Butler, acting on instructions from and as agent for the Universal Credit Company, sent Garlington to the home of ap-pellee, who, appellee being absent, on the instructions of appellee’s father, took the car, which was in charge of appellee’s wife, who delivered the keys to Garlington. (

The mortgage gave by its terms to the owner thereof the right to take possession of the car upon any default in payments of any of the installments of this note. This is a valid power. Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, 60 L. R. A. 143, 97 Am. St. Rep. 901. The appellee relies on his oral agreement with appellant. At that time Butler did not own the note and appellee knew that he did not, and no attempt is made to show that Butler had any authority from the Universal Credit Company to make any such agreement.

The Universal Credit Company, long prior to October 6th and after the $75 payment, advised appellee that “the balance on his note was due.” It had a right to send its agent, even though it be Butler’s employee Garlington, to get the car in such manner as the evidence shows it was gotten.

It is thus apparent that as far as the holder of the note and mortgage and Butler as his agent are concerned, there was no' wrongful taking of the car.

Whether there be an action against Butler for breach of his personal agreement is not before us; but if there be such action, it is at Butler’s residence.

The judgment of the trial court is reversed, and the cause remanded, with instructions that the cause be transferred to Baylor county.


author: WALTHALL, Justice,

text:
    AGRICULTURAL INS. CO. v. NORTH TEXAS NAT. BANK et al.
    No. 2770.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 2, 1933.
    Rehearing Denied Feb. 23, 1933.
    Burgess, Burgess, Chrestman & Brundige, of Dallas, for appellant.
    R. G. Storey, Hugh S. Grady, and E. Taylor Armstrong, all of Dallas, for appellee.
   WALTHALL, Justice,

On or about September 18, 1928, George B. Ford, an insurance broker, called Thomas B. Collins, the local agent of appellant at Dallas, Tex., and asked hipi to write a policy onl a Pierce-Arrow coupé, belonging to Joe Armour, who resided on Lakeshore drive in the city of Dallas, Tex., giving Collins a description of the car. Collins issued the policy insuring the automobile against fire in the sum. of $3,000.

On October 2, 1928, Ford called Collins and advised him that the car had burned on the: Fort Worth and Stephensville road. Collins made out a formal notice of loss under the policy, and forwarded it to Gross R. Scruggs & Co., general agents of appellant at Dallas, who forwarded same to appellant at Water-town, N. Y. Gross R. Scruggs, of Gross R. Scruggs & Co., assigned the investigation of the loss to H. M. Daniels of the Daniels Adjustment Company of Dallas. Daniels, ⅝ is admitted, was a local independent adjuster who had been sometimes used, during the year 1928, to adjust losses for appellant.

On October 15, 1928, E. P. Talley, an employee of a Dallas plumbing concern, forged the name of Joe Armour to a proof of loss arid made oath to the facts contained therein before Margaret E. Wilson, a notary public.

Daniels made a report showing that the loss had occurred, and that a settlement could be made for the sum of $2,800.

Upon the report of Daniels and the proof of loss executed by Talley, Gross R. Scruggs issued a draft on appellant in favor of Joe Armour for $2,800, to cover the loss on the policy. Talley then forged the name of Joe Armour to the draft, and turned it over to Ford, who forged the name of his mother ⅝-law, Mrs. Georgia L. Maddux, thereon and deposited the draft to her credit in the North Texas National Bank. Later he withdrew the proceeds of the draft from the bank by giving cheeks to which he forged her name. The proceeds, after being withdrawn, were divided equally between Ford, Talley, and Daniels, the adjuster. The North Texas National Bank attached to the draft the following indorsement: “Pay to the order of any bank, banker, or trust company, October 20, 1928, prior endorsements guaranteed. North Texas National Bank, Dallas, Texas,” and forwarded it through regular banking channels. It was presented to and paid by appellant.

Later the North Texas National Bank was merged with the Republic National Bank & Trust Company, who assumed all obligations of the North Texas National Bank. It appears that Ford had caused another company to issue a bona fide policy on the car to Armour, and by that means was in possession of the facts which he furnished to appellant’s local agent, that Armour’s car was not in fact destroyed by fire, and that the taking out of the policy and the collection thereon were the result of a conspiracy between DanielSi the insurance adjuster, Ford, the insurance broker, and Talley to defraud appellant. It further appears that Mrs. Maddux was a depositor in the North Texas National Bank.

After the consolidation of the North Texas National Bank with the Republic National Bank & Trust Company, appellant, as plaintiff, brought this suit against both banks) as defendants. In its petition it set out the facts, as above, and alleged that it was induced to pay the draft by virtue of the in-dorsement above quoted, and that defendants thereby became liable to it in the sum of $2,-800, plus interest. In the alternative it pleaded that the North Texas National Bank,by reason of the indorsement and guaranty, and, by'reason of its possession of the draft and presentation thereof, actually and impliedly represented to appellant that the draft was valuable to the extent of the amount thereof, and that it owned the legal and equitable title thereto, and thereby, by reason of said belief, induced appellant, under a mistake of fact, to pay the amount of the draft. As a further ground for relief, appellant pleaded that the North Texas National Bank was negligent in not making proper investigation of the genuineness of the indorsements on the draft, that the signature of Mrs. Maddux, a depositor of the bank, was in fact known to it, asd that such negligence in failing to ascertain that said indorsements were forgeries was the proximate cause of appellant’s loss.

Upon a trial before the court, judgment was rendered that appellant take nothing.

The following recital appears in the judgment of the court: “And the court, having heard the pleadings of the parties, considered the evidence and the argument of counsel, and, being of the opinion that the equitable maxim of ‘where one of two innocent parties must suffer, he through whose agency the loss occurred must bear it’ is applicable to the undisputed facts in this case, and operates to defeat plaintiff’s claim.”

Appellant in its brief contends that the facts are not such as render the maxim applicable, while appellee, on the other hand, argues to the contrary.

Appellant’s pleading contains the following allegations:

“VI. The North Texas National Bank then endorsed said draft by placing on the back thereof its endorsement specifically guaranteeing all prior endorsements, which said draft, with the endorsement of the North Texas National Bank, was by said bank presented to plaintiff through regular banking channels for payment, and the plaintiff, in reliance upon the endorsement, and on the 24th of October, 1928, paid the same.”

“VII. Plaintiff would show to the court that the defendant North Texas National Bank, by endorsing said draft with the endorsement aforesaid guaranteed the genuineness of all previous endorsements, including that of .Toe Armour and-Mrs. Georgia L. Mad-dux, both of which were not genuine, but were,forged by said Talley and Ford, and thereupon presented the said draft to the plaintiff upon whom it was drawn and, under and by virtue of said endorsements and guarantee of all prior endorsements, induced the plaintiff to pay the said sum of Twenty-eight Hundred ($2,800.00) Hollars, and thereupon became bound and liable to plaintiff in said amount, plus interest from the said 24th day of October, 1928, the day upon which plaintiff paid said draft.”

The general rule as to commercial paper appears to be that a transferor warrants the signatures of all prior parties to be genuine, S O. J. § 581, p. 393; Gardner v. Hawes (Tex. Civ. App.) 149 S. W. 273; Wells, Fargo & Co. v. Simpson National Bank, 19 Tex. Civ. App. 636, 47 S. W. 1024; Harrison v. Smith, 2 Willson, Civ. Cas. Ct. App. § 396; therefore, when it appears that the signatures are forgeries, as it is admitted. here, then the indorser would become liable under his warranty. But ⅝ further appears here that the North Texas National Bank did not stop at a plain indorsing of the instrument, but went further and guaranteed all prior in-dorsements.

Under such a state of facts, it is our opin-1 ion that it would be liable to any person who ; suffered loss by reason of such indorsement.

Appellant here alleges that it was Induced by such indorsement to accept and pay the draft, and we think the circumstances are sufficient to support such allegation.

This being true, then the North Texas National Bank became liable by virtue of its in-dorsement, and the question of whether or not the maxim recited by the court applied to the facts would not arise.

The facts being agreed to, the judgment of the trial court must be reversed and judgment here rendered that appellant recover of the Republic National Bank & Trust Company in the sum of $2,800, together with interest thereon from October 24, 1928.


text:
    POLLOCK PAPER & BOX CO. v. SOUTHWEST BOX CO.
    No. 12745.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 24, 1932.
    Rehearing Denied Feb. 18, 1933.
    Mack & Mack, of Port Worth, for appellant.
    Virgil M. Blow and Ernest May, both of Port Worth, for appellee.
   LATTIMORE, Justice.

Appellee sued appellant, alleging the sale of paper boxes as per the following order:

“Southwest Box Co. B05156. Sand Springs, Oklahoma. Salesman’s No.-; Date 7/10/ 30; sold to Pollock Paper & Box; Address Pt Worth, Texas; ship to same; How ship Pool car; When rush; Terms: 1% 10 30 net; P. O. B. —;-; Quantity 1 M; Style R.SC; Test 275# ; Print No ; Size 20xl5%x 14½; Price Per Thousand 223 00 ; 5% plus overage; if you can furnish double wall at the single figures more advantageously it will be O. K.; 7/10/30 — 9:30 A. M. Authorized by Max Goodlin; O. K. to send double wall.

“Write printing instructions in detail on opposite side.

“To avoid mistakes, or claims on oral agreements, all orders containing complete terms must be in writing and signed by purchaser and salesman, and constitutes the only contract between purchaser and this company. Special agreements not binding unless mentioned herein. Subject to acceptance at Sand Springs Office and can be canceled only by permission of Southwest Box Co. Pollock Paper & Box Co. Purchaser; Wallace Salesman — 30035.”

And acceptance:

“Southwest Box Company, Sand Springs, Oklahoma, July 25,1930. Sold to Pollock Paper & Box Company, Port Worth, Texas. Salesman Wallace; terms 1% — 10; Net 30; Our order No. 5243; Customer’s order No. -; 1055 20xl5y2xl4i/2 275# Test DW Rsc Plain 211/5 @ $223.00 M- $223.27. Via SL&SF 151204 Freight Prepaid 4130#.

“Please mail all remittances to Southwest Box Co., General Offices, Keokuk, Iowa. We, the undersigned, do hereby guarantee that the 'goods listed herein were ¡produced or manufactured in accordance with the federal child labor act of September 1st. 1916. Southwest Box Company. Claims for shortage must be made within 5 days after receipt of goods.”

It appears that Mr. Wallace, salesman for appellee, called on the Rubber Products Company, as he had often done before, and its manager told him he needed 1,000 of “our largest size boxes”; it being shown that such Products Company used three different sizes of boxes and had purchased same from appel-lee before this occasion. Wallace replied: “I know what you need, I have taken these orders and I know what you need better than you do.” Thereupon Wallace wrote the following order:

“South West Box Co. B05151; Sand Springs, Oklahoma. Salesman’s No. ■ — • Date 7/10/30; Sold to Rubber Products Co; Address Ft Worth, .Texas ; Ship to Pollock Paper & Box Co. Ft Worth, Texas; I-Iow Ship Pool car; When Rush; Terms: 1% 10 days; P. O. B. Pt Worth, Texas; Quantity 1 M; Style R. S. C.; Test 275# ; Print No.;' Size 20xl51/£xl4% ; Price per thousand 279.00.

“It is understood and agreed that Pollock Paper & Box Co. are to deliver to us as needed in 200 to 300 lots they to bill us for boxes as we take them out. Rubber Products Co. By W. P. Collins.

“Write printing instructions in detail on opposite side.

“To avoid mistakes, or claims on-oral agreements, all orders containing complete terms must be in writing and signed by purchaser and salesman, and constitutes the only contract between purchaser and this company. Special agreements not binding unless mentioned herein. Subject to acceptance at Sand Springs office and can be cancelled only by permission of South West Box Co. -- Purchaser —:- Salesman — 30035.”

Thereupon Wallace went to appellant and stated that he had this order, that it must be delivered about 200 at a time, that appellee had no warehouse facilities in its neighborhood, and ashed if appellant would “handle it for us” at 25 per cent, less to appellant than to Rubber Products Company. The Fort Worth representative of appellant explained to Wallace that he had no authority “to buy” for appellant and called the district manager of appellant on long-distance telephone and explained to the latter, in the presence of Wallace, the situation as above outlined, and was told “to buy” if he saw fit to do so. The order above set out was thereupon executed.

The boxes, made according to specifications in appellant’s order, were shipped to appellant, who attempted to deliver some of them and the Rubber Products Company refused same, on the ground thart they were not suitable size and were not what the Rubber Products Company told Wallace it wanted.

On a trial the court instructed a verdict for appellee.

W’hen a person seeks to contract with another and makes a representation of fact regarding the subject-matter, he must speak the truth. He is not in.most cases required to speak, but if he does and the other party relies on it, he should bear the consequences if his misrepresentations, though unintentional, have misled the other to his injury. Here Wallace represented that he had a contract with the Rubber Products Company to sell the boxes as per the order signed by Collins. Tuscany relied on that statement. We place no value on the fact that the Rubber Products Company’s order was not signed by Wallace. That signature was wholly within the power of Wallace, and he may not say that the contract he said was valid, is invalid through his own failure to sign. Moreover, the signature was only required when the order “Contained all the terms in writing,” which this did not do, according to appellant.

Unless the Rubber Products Company’s contract was valid, appellant is not bound. We believe that the Rubber Products Company would have been entitled to show the oral conversation leading up to the order and to deny liability on the order as written by Wallace. Moreover, the orders are undoubtedly not clear. The code language therein may be intelligible to experts in the paper box business, but it has no meaning to the ordinary understanding of the English language.

The testimony shows evidence which raises a question as to whether the reasons assigned by the Rubber Products Company for its refusal to accept were the real ones or not, and we therefore order the cause reversed and remanded for further proceedings not inconsistent with this opinion.


author: ALEXANDER, Justice.

text:
    KEY v. FORSHAGEN.
    No. 1317.
    Court of Civil Appeals of Texas. Waco.
    Jan. 28, 1933.
    R. B. Russell, of San Antonio, for appellant.
    J. C. Romberg, of Gonzales, for appellee.
   ALEXANDER, Justice.

This suit, based on a promissory note due September 15, 1927, was filed September 15, 1931. The defendant’s plea of limitation was overruled, and judgment entered for plaintiff. The defendant appealed.

• [1,2] The defendant had all of September 15, 1927, in which to pay the note, and the cause of action therefore did not accrue until September 16, 1927. 6 Tex. Jur. 680, 878; Standard v. Thurmond (Tex. Civ. App.) 151 S. W. 627; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Geistweidt v. Mann (Tex. Civ. App.) 37 S. W. 372; Payne v. Wittenberg (Tex. Civ. App.) 239 S. W. 224. The suit was filed within four years from the time the cause of action accrued, and was not barred by limitation. Revised Statutes, article 5527; Watkins v. Willis & Bro., 58 Tex. 521.

The judgment of the trial court is affirmed.


author: MARTIN, Justice.

text:
    POWELL v. CITY OF AMARILLO et al.
    No. 3948.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1933.
    Rehearing Denied Feb. 15, 1933.
    Harold B. Sanders, of Dallas, for appellant.
    Earl Wyatt, of Amarillo, for appellee®
   MARTIN, Justice.

The sole question presented by this appeal is the priority of two paving liens assessed against the same property by the city of Amarillo, but on different dates. The first is dated August 30,1927, and the second September 27, 1927. They are for the benefit of different paving contractors, and arose out of improvements to be made upon two streets abutting upon the same lot. Each assessment purported upon its face to grant and give a prior and first lien.

Tiie trial court gave priority to appellee’s lien, which was first in time.

The appellant contends that the last in time is the first in law, and, in the alternative, that no priority be given to either, and that the proceeds from the sale of the property should be prorated.

' The question appears to be an original one in Texas. In other states the authorities are in hopeless confusion and contradiction, and any attempt to analyze and harmonize them would be wasted time. The leading cases which sustain appellant’s contention are those of Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972 and Woodill & Hulse Elec. Co. v. Young, 180 Cal. 667, 182 P. 422, 5 A. L. R. 1298. The first is by a divided court, four judges to three, and is in opposition to an earlier decision by the same court. In the California case there was no dissent, but its conclusion is contradicted by language used in the earlier case of Brady v. Burke, 90 Cal. 1, 27 P. 52. The Oppenheimer Case is bottomed upon the reasoning that an assessment is a special tax and is in a class with general taxes. That since the rules of reversed priority apply to the collection of successive general taxes, it must be applied to liens assessed for successive improvements, thus making the first last and the last first. We are not able to agree with this reasoning. To place the paving assessment statute of Texas in a class with that inherent power of sovereignty to levy a tax which is necessary for its existence and perpetuation is to crown it with a superiority and dignity to which, in our opinion, it is not entitled. There is some likeness between the two in the power to create a lien and in its exercise when public necessity requires it, but here the similarity ends. The terms of article 1105b, Vernon’s Revised Statutes (Acts 40th Legislature [1927] 1st Called Sess., c. 106, p. 489 [Vernon’s Ann. Civ. St. art. 1105b]), which is our present paving statute, are such that candor compels the statement that the private interest of the paving contractor appears to have been given precedence. The validity of such a procedure is upheld upon the theory of benefits to the property and its owner in enhanced value at least equal to the cost of the improvements. This is the specific requirement of the statute and the holding of the courts. Storrie v. Houston, etc., Ry. Co., 92 Tex. 129, 46 S. W. 796, 799, 44 L. R. A. 716. This would be ample protection to the paving contractor, unless such provision is a mere pretense. Notwithstanding the above, there has been granted to a city the right (1) to subordinate all liens, including one even for purchase money, in favor of the paving lien, and (2) the authority is granted to take a personal judgment against the owner of property in favor of the paving contractor, even though the abutting paved property is a homestead. City of Wichita Falls v. Williams, 119 Tex. 163, 26 S.W.(2d) 910, 913, 79 A. L. R. 704. If the above theory is true, the provisions just mentioned have been inserted for the protection of one who needed none.

These are mentioned merely to show that the provisions of this statute relate only in a very small way to matters of public interest, and that this law preponderates with stipulations intended to protect a private contract. It is, of course, true that the power inheres in sovereignty to levy and collect taxes to perpetuate its existence, but to say that the exercise of the powers granted under the statute we have been considering is necessary to the existence and perpetuation of government is too obviously untrue to require any discussion. Moreover, it is specifically held by our Supreme Court that, because assessments for paving are not “taxes” in the strict sense of that term, homesteads are exempt from their operation. City of Wichita Falls v. Williams, 119 Tex. 163, 26 S.W. (2d) 910, 913, 79 A. L. R. 704. We cannot believe that such right belongs inherently to sovereignty, as seems to be the case with the right to levy taxes generally for the support of the government; nor has it been specifically granted by the Constitution, as is the case with general taxes.

The personal view of the writer is that there should be no priority of liens under assessments for successive improvements, and that the better and more equitable rule would ¡be to make them equal, and require the distribution of the proceeds of the sale of the property ratably between such lienholders. We feel compelled, however, to yield this personal view to what seems to be more logical reasoning and the weight of authority in favor of giving priority to the lien first in time. We take the following quotation from the case of Rankin & Schatzell v. Scott, 12 Wheat. (25 U. S.) 177, 6 L. Ed. 592, by Chief Justice Marshall: “The principle is believed to be universal, that a prior lien gives a prior claim.”

Such has always been the rule under the common law, and such is the rule with regard to statutory liens in the absence of some provision of the statute to the contrary. The Texas statute is silent with reference to the priority of the two liens in question.

“In case of ambiguity, statutes are to be considered with reference to the principles of the common law in force at the time of their passage.” 5 C. J. 1039.

At the time of the passage of this statute, a knowledge of the general rule and of the common law will be imputed to the Legislature, and it will be presumed that this law was enacted with full knowledge that priority in time gave priority in law. So construed, we have no difficulty in reaching the conclusion that it was intended that the lien first granted took precedence over all succeeding liens. Such is the undoubted rule with reference to all other statutory liens, and such rule is supported, in our opinion, by the weight of authority in the United States. Herbert C. Heller & Co., Inc., v. Duncan et al., 110 W. Va. 628, 159 S. E. 52; Des Moines Brick Mfg. Co. v. Smith, 108 Iowa, 307, 79 N. W. 77; Brady v. Burke, 90 Cal. 1, 27 P. 52; Parker-Washington Co. v. Corcoran, 150 Mo. App. 188, 129 S. W. 1031; City of Charles City v. Ramsay, 199 Iowa, 722, 202 N. W. 499; Hollenbeck v. City of Seattle, 136 Wash. 508, 240 P. 916; Philadelphia, to Use of Holgate v. Meager; 67 Pa. 345.

Finally we desire to make, note again of the provisions of this remarkable statute which strikes down all prior liens, and gives the right to a personal judgment against' the property owner under which every dollar of his estate subject to execution may be swept away, upon the theory that the paved property has been enhanced in value to an amount equal to that of the assessment. A presumption so potent against the property owner ought to be sufficient to protect the paving contractor. Common fairness demands that the rule be permitted to work both ways.

So, giving the same effect to this rule against the paving contractor as is given it against the property owner, the conclusion seems irresistible that whatever error the trial court committed was entirely harmless, since theoretically there will be bidders present at the sale of this property who will give not only an amount sufficient to cover both appellant and appellee’s claim, but as well the amount of all prior liens. How then can appellant be harmed, whether either or neither theory discussed herein be correct? It is no answer to say adversity has destroyed the value of this property. The property owner cannot raise this question. Why should the other party to the contract be permitted to do so? The voice of the one has been silenced. The law ought to silence the other.

Affirmed.


author: MURRAY, Justice.

text:
    HERBST et al. v. BENAVIDES INDEPENDENT SCHOOL DIST.
    No. 8982.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1933.

      John K. Weber and C. O. Wolfe, both of San Antonio, for appellants.
    J. F. Clarkson, of San Diego, for appel-lee.
   MURRAY, Justice.

This is a suit for taxes and to foreclose a tax lien on real estate alleged to be located within the Benavides independent school district in Duval county, Tex. The appellant Albert Herbst filed, in statutory form, his plea of privilege. The county attorney, on behalf of the state, in due time filed a controverting affidavit, and stated, as the facts supporting venue in Duval county, “that this is a suit for the foreclosure of a tax lien and it may be brought in the County of Duval,-where the property or any part hereof subject to such lien is situated and such property is situated in the County of Duval and State of Texas.” •

The defendant Herbst excepted generally and specially to said controverting affidavit. Appellant contends that said controverting affidavit does not’ meet the requirements of article 2007, R. S. 1925, which provides that a controverting affidavit shall set out specifically the fact or facts' relied upon to confer venue of such cause on the court where the case is pending. And appellant insists that his special exceptions should not have been overruled.

Article 7326, R. S. 1925, provides, among other things, a tax suit for foreclosure on real estate shall be filed in the name of the state of Texas, in the district court of the county where such real estate is situated. We take it that this statute fixes the venue of tax suits independent of the general venue statute as found in article 1995. So it would seem that to properly controvert a plea of privilege in a tax suit it is necessary to allege sufficient facts to show that the nature of the suit is a tax suit asking for a foreclosure of a tax lien on land and that the land is situated in the county where the suit is -pending. The nature of the suit could be shown by the controverting affidavit referring to the petition and making the petition a part of the affidavit. The description of the land and the location of it could also be shown by a reference in the affidavit to the petition. Indiana Trucks, Inc., v. Pederson (Tex. Civ. App.) 52 S.W.(2d) 352.

In the controverting affidavit in thi < case no reference was made to the petition, no real estate was mentioned or described, and we feel that the exceptions were well taken and should not have been overruled by the trial court. If the controverting affidavit should be held to be sufficient, which we do not hold, the proof is not sufficient to show that the land was located in Duval county. The only testimony having any bearing on this subject is by the witness J. A. Heras, to wit:

“Q. The land mentioned herein is in Duval' County, Texas? A. Yes, sir.

“Q. And in the Benavides Independent School District of Duval County, Texas? A. Yes, sir.” ,

This testimony does not describe the land nor indicate where it is mentioned.

We feel that both allegation and proof are lacking in this case.

It might be contended that a tax suit is similar to -a suit by the Attorney General, to recover land under the provisions of article 5420, R. S. 1925. Under that article, the character of the action determines venue, and, as was said in the case of Yates v. State (Tex. Civ. App.) 3 ,S.W.(2d) 114, quoting from syllabus: “On questions of venue, character of an action is determinable solely by pleading contained in petition, and is question of law to be determined by court, and not question of fact to be determined by testimony, aside from allegations in petition.”

Under article 5420, R. S., suits to recover land-for the state-are to be brought in Travis county, and thus it is seen that the nature of the suit fixes venue. The situation is different in a tax suit, not only the nature of the cause of action, hut also the question of fact as to the location of the identical land on which a foreclosure is sought determines venue. This brings a tax suit under the general provisions of article 2007, R. S. 1925, and this article must be complied with in a tax suit where a controverting affidavit to a plea of privilege is filed.

The requirements of a controverting affidavit to a plea of privilege and the necessary proof to be made thereunder are very fully discussed by Justice Smith in the case of Commercial Standard Ins. Co. v. Lowrie (Tex. Civ. App.) 49 S.W.(2d) 933, in which many authorities are cited and discussed.

The judgment is reversed, and the cause remanded.


author: CONNER, Chief Justice.

text:
    CITY OF WICHITA FALLS v. SWARTZ et al.
    No. 12743.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 10, 1932.
    Rehearing Denied Jan. 14, 1933.
    Thelbert Martin, of Wichita Falls, for appellant.
    E. W. Nicholson and J. W. Friberg, both of Wichita Falls, for appellees.
   CONNER, Chief Justice.

This suit originated in a justice court, from whence by appeal it was tried in the county court of Wichita county, resulting in a judgment for the plaintiffs, appellees here, in the sum of $100.65. The facts show that the city of Wichita Falls operates a water system by means of which, for the benefit and convenience of those applying and paying therefor, water used for domestic and other purposes is furnished. The plaintiffs alleged that at a specified date an employee of the city had cut off the water for the purpose of repairing an intake pipe supplying water to a ¡hotel owned by plaintiffs but used and occupied by a Mr. and Mrs. Nider as tenants. It was alleged that as a result the pipes leading to a water heater in the building were drained, thus emptying the water in the heater, which caused a flow of gas thereto to melt and destroy the coils or inner equipment, the repair and equipment of which cost $100.-65, for which the plaintiffs sued.

It is clear, we think, that plaintiffs had no contractual right of recovery. The city in furnishing the water did so, not for the general benefit of its citizens, but in its capacity of a private owner for the benefit only of those who contracted and paid for the water. It does not appear that the plaintiffs were parties to the contract with the Niders or privies thereto, nor does it appear from the evidence that any of the terms of the contract inured to the benefit of the plaintiffs or devolved upon the city any duty for the care and preservation of the property in the hotel.

In 38 Cyc. p. 433, par. 5, it is said: ‘.‘When the duties violated by defendant were created solely by contract, a cause of action arising out of such violation is limited strictly to the parties to such contract and those in privity with them. * * * ”

To the same effect, see, also, Cooley on Torts (2d Edition) p. 2, and the case of House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532. In that case it appears that one Henry House sued the waterworks company, operating under a contract with the city, for damages to his property from fire, on the ground that the waterworks company had not kept the water pressure up to its contract gauge. In disposing of the appeal from the judgment in favor of House, the Supreme Court, among other things, had this to say: “As a general rule, no person can sue upon a contract except he be a party to or in privity with it.” And the judgment was reversed and rendered against House.

Nor do we think the judgment below can be upheld on the ground of negligence on the part of the employee of the city in cutting the water off. The plaintiffs alleged that he was negligent in that he cut the water off without informing them that the water pipes would be drained. The facts show, however, beyond dispute, that before cutting the water off the employee informed the person who appeared at the door in answer to his alarm that the water was to be cut off. This information came to Mrs. Nider, and she drew a supply of water to answer the purposes of the hotel during the period taken to repair the intake pipe. The operator, however; did not specifically inform the occupants of the hotel that the water from the pipes would be drained, and this is made the basis of the city’s alleged negligence.

Mrs. Nider testified, among other things, that on previous occasions when the water had been cut off there had been no draining of the pipes, and it was not made to appear that it was the general custom of the company or that the employee had been instructed to give information other than such as was given in the present case. Nor does it appear that the city or its operator knew that a water heater of the kind was maintained in the hotel. Nor does it appear that the plaintiffs’ title to the property was of record or that either the company or its operator had notice that the building was owned by the plaintiffs instead of the actual occupants, Mr. and Mrs. Nider. In cases of negligence a necessary allegation of plaintiffs’ pleading is' that the negligent act or acts charged proximately resulted in the damage claimed. It is essential that such allegation be proved, otherwise the plaintiff must fail of recovery. The case of Union Stockyards v. Peeler, 37 S.W.(2d) 126, decided by Section A of the Commission of Appeals, announces the well-recognized rule that a finding that an injury was the proximate result of an act of negligence requires a showing that injury was a natural and probable consequence and should have been foreseen. See, also, Texas Juris, vol. 13, p. 96, § 25. We do not think the circumstances shown here sufficient to show that the city’s operator could have reasonably foreseen injury to appellees. It was held by the Mississippi Supreme Court in the ease of Brame v. Light, Heat & Water Company, 95 Miss. 26, 48 So. 728, 21 L. R. A. (N. S.) 468, 20 Ann. Cas. 1293, that, quoting from the headnote: “A water company which shuts the supply off a particular main to repair a hydrant is not liable for injury to the house of a consumer injured by an instantaneous water heater, which sets fire to it because of the stoppage of the supply, because it failed to notify him of its intention to shut off the water, where it had no knowledge that such heater had been installed, as the loss is not the proximate result of the negligence.”

Indeed, the authorities announce the rule that to constitute negligence at all there must be some violation of duty and the duty required is that of the wrongdoer to the very person claiming on the ground of negligence. See M., K & T. Ry. Co. v. Saunders, 101 Tex. 255, 106 S. W. 321, 14 L. R. A. (N. S.) 998. 16 Ann. Cas. 1107; I. & G. N. Ry. Co. v. Vallejo, 102 Tex. 70, 113 S. W. 4, 112 S. W. 25. See, also, Lancaster v. Hall, 277 S. W. 776, 779, by the. Dallas Court of Civil Appeals, where it is said: “It is an elementary principle of the law that negligence is a failure to observe a legal duty, and when no duty exists, no legal liability can arise on account of negligence.”

We finally conclude that the trial court erred in failing to give the peremptory instruction in favor of appellant as requested, and that the judgment below should be reversed and here rendered for the city.


author: HIGGINS, Justice.

text:
    NESMITH v. ARCHER-COX FUNERAL HOME, Inc.
    No. 2789.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 9, 1933.
    Olin E. Nesmith, R. T. Meador, and Dwight Whitwell, all of Dallas, for appellant.
    John G. Whitaker and Oren Parmeter, both of Dallas, for appellee.
   HIGGINS, Justice.

Appellee brought this suit in the justice court against Olin E. Nesmith,- administrator of the estate of Geo. S. Starrs, deceased, to recover a balance of $121, upon an open account for funeral expenses of the deceased. Judgment for said amount was rendered in favor of .appellee, and upon appeal to the county court at law a like judgment was rendered.

As we understand the only proposition here presented by appellant,. is to the effect that in the county court at law the ap-pellee set up a new and different cause of action, from that asserted in the justice court, which is forbidden by article 958, R. S.

There is nothing in the record to justify the assumption upon which such proposition is predicated.

The original itemized account, verified as required by article 3514, R. S., and bearing the rejection of the administrator, was filed with the justice of the peace.

The notations upon the transcript show that on April 20, 1931, “Plaintiff files First Amended Original Petition.” The inference is that this was a written pleading, but it does not appear in the transcript before this court. In the county court at law plaintiff filed a third amended original petition declaring upon the account, a copy of which is attached to the petition as an exhibit. This petition sets up that the items in the account were riecessaries in burying the deceased, the charges were reasonable, etc., and shows liability upon quantum meruit. This is the only pleading of the appellee shown by the record before this court, and it cannot be assumed it set up a new or different cause of action from that declared upon by the plaintiff in its previous pleadings, whether they were oral or written. Error is not to be presumed. The presumption is that the judgment of the court below is correct and it is incumbent upon appellant to affirmatively show by the record that error has been committed. 3 Tex. Jur. title Appeal and Error, § 734. The record here does not support the assumption upon which appellant predicates the only proposition he presents.

Affirmed.


author: GALLAGHER, Chief Justice.

text:
    UNIVERSAL CREDIT CO. v. RATLIFF.
    No. 1311.
    Court of Civil Appeals of Texas. Waco.
    Jan. 19, 1933.

      Henry P. Edwards, of Dallas, for appellant.
    Oxford & McMillan, of Stephenville, for appellee.
   GALLAGHER, Chief Justice.

This appeal is prosecuted by Universal Credit Company, a corporation, from a judgment of the district court awarding a recovery against it in favor of Giles Ratliff in his capacity as administrator of the estate of D. R. Ratliff, deceased, of actual and exemplary damages for conversion of a Ford truck belonging to said estate. D. R. Ratliff, on August 1, 1931, purchased the truck involved in this ease for the sum of $821.50. He paid $257.50 of the purchase price in cash, and agreed to pay the remainder in twelve monthly installments of $47 each, commencing September 1, 1931. He secured the payment of deferred installments by executing a so-called sales contract, which provided that title should not pass to him until all sums due thereunder were paid in cash; that maturity might be accelerated by the seller in various contingencies not necessary to recite; that in event of such acceleration, the seller might, without process or demand, enter any premises where said truck might be found, remove the same, and hold possession thereof without responsibility or liability. Broad powers of sale were also conferred on the seller by the terms of said instrument, and it was expressly stipulated therein that the rights of the seller thereunder should pass to his as-signee. D. R. Ratliff paid the installments due on the 1st days of September and October, respectively. He died some time during the month of October. Appellee was duly appointed administrator of his estate, qualified as such January 11, 1932, and promptly returned an inventory of the property belonging thereto on the same day. Said truck was included therein. Appellee took actual possession of said truck. Shortly thereafter a representative of appellant called on appellee and demanded that he store said truck, and informed him that if he did not store it, he,/ the representative, would do so himself. Said representative then went to the residence of appellee, and, in his absence, seized said truck and started to remove the same. Appellee arrived before he had gotten the truck off the premises, and earnestly protested against such seizure and removal, but without avail. Said representative stored the truck in a garage at Glen Rose. Appellant thereafter, as assignee of said contract of purchase, presented to said administrator its claim for the balance due thereon, and for establishment of its lien on said truck. He rejected the same on the ground that appellant had converted the truck and had damaged the estate in a sum in excess of the amount due, as shown by said claim.

Appellee, in his capacity as administrator, then filed this suit against appellant, and alleged that the acts of appellant’s representative in the premises constituted a conversion of said truck and sought to recover actual and exemplary damages therefor. Appellant alleged that it had taken' peaceable possession of said truck, and stored the same to preserve its value pending administration on the estate of the deceased. It pleaded the terms of said contract of purchase in justification of its acts, and denied such conversion. It also pleaded its debt in reconvention, and sought recovery for the amount thereof, with foreclosure of lien.

The case was tried to a jury. Appellant, at the close of the testimony, requested an instructed verdict, which was refused. The ease was then submitted on special issues. The jury found in response thereto, in' substance, that:

(1) The reasonable market value of said truck was $500.

(2) The value of the use of said truck to appellee as administrator for the purpose of marketing farm products belonging to said estate was $100.

(3) Appellant’s representative, in taking said truck from the possession of appellee, acted willfully and maliciously.

(4) Exemplary damages in the sum of $200 should be awarded.

The court deducted from the aggregate sums awarded appellee by the findings of the jury the amount of appellant’s claim against the estate for unpaid purchase> money for said truck, and rendered judgment in favor of appellee as such administrator, and for the benefit of said estate against appellant for the remainder in the sum of $259.50, together with costs of suit.

Opinion.

Appellant complains of the refusal of its request for a peremptory instruction. It contends in that connection that its action in seizing said truck and removing and storing the same was expressly authorized by the terms of the contract of purchase, as herein-before recited. Appellee insists that all authority to enforce the collection of the unpaid purchase money by summary action without resort to legal proceedings was revoked by the death of the purchaser, the appointment and qualification of appellee as administrator of his estate, and his possession of said truck under such appointment. Appellee further insists that the circumstances attending the seizure and removal of said truck raised an issue of whether such action constituted a “peaceable,” as distinguished from an aggressive and hostile, taking. Appellee, as before shown, was in actual possession of the truck in his capacity as administrator of the estate of his father, to which estate said truck belonged. Appellant, as the holder of said contract of purchase, was, under the express terms of the statute, merely a creditor of said estate, with a chattel mortgage lien on the truck to secure its debt. Revised Statutes, art. 5489; Harling v. Creech, 88 Tex. 300, 301, 302, 31 S. W. 357; Milburn Mfg. Co. v. Peak, 89 Tex. 209, 211, 34 S. W. 102; Kuntz v. Spence (Tex. Civ. App.) 48 S.W.(2d) 413, 417, par. 3 (writ granted on other grounds). The collection of secured debts and the enforcement of liens on the incumbered property to satisfy the same are expressly provided for in our probate procedure. 14 Tex. Jur. p. 41, § 296, and authorities cited in notes thereto. As said, in substance, by our Supreme Court at an early day, the act of Providence which removed the debtor beyond the jurisdiction of earthly courts released his property from the active operation of mortgages and other liens, and transferred his estate, with its claims and liabilities, to a jurisdiction specially organized for the settlement thereof. McMiller v. Butler’s Adm’x, 20 Tex. 402, 403, 405. Administrations upon the estates of deceased persons are controlled and regulated by the provisions of our statutes on that subject.” Such provisions are very comprehensive. The rights of creditors as declared therein and the procedure prescribed for the enforcement of such rights are materially different from the procedure prescribed for the enforcement thereof in ordinary judicial proceedings. Article 3314 of our Revised Statutes, so far as applicable, provides, in substance, that when a person dies intestate, all his estate shall vest immediately in his heirs at law, but, with the exception of exempt property, shall be liable and subject in their hands to the payment of the debts of the intestate, and that upon the issuance of letters of administration, the administrator shall have the right to the possession of the estate as it existed at the death of the intestate, and shall hold such estate in trust, to be disposed of in accordance with law. Ap-pellee, therefore, in taking possession of said truck, rightfully exercised authority specifically conferred upon him by the terms of said article. Morrell v. Hamlett (Tex. Civ. App.) 24 S.W.(2d) 531, 534, pars. 1 and 2. Our probate statutes not only provide that the administrator of an estate shall be entitled to the possession of all the property belonging thereto, but further provide for the sale of such property by him for the purpose of paying debts and charges, and the order in which the proceeds of such sales shall be applied. See especially, in this connection, Revised Statutes, articles 3533 to 3536, inclusive; 14 Tex. Jur., pp. 523 et seq., §§ 684 to 687, inclusive, and authorities cited in notes. Such statutory proceedings are wholly inconsistent with the contractual stipulations entered into by the decedent in his lifetime for the summary seizure and sale of the truck and the application of the proceeds of such sale, and the stipulations relied on by appellant were revoked and superseded by the administration on his estate. Whitmire v. May, 96 Tex. 317, 72 S. W. 375, 376; Low v. Felton, 84 Tex. 378, 385, 19 S. W. 693; 14 Tex. Jur. 525 et seq., § 685, and authorities cited in notes 12 and 13. Since the seizure of the truck by appellant was unauthorized, consideration of the circumstances attending such seizure is not necessary in disposing of appellant’s contention that the court erred in refusing a peremptory instruction in its favor, and such contention is here overruled.

Appellant complains of the action of the court in submitting issue No. 2, wherein the jury were asked to find the value of the use of said truck to appellee as administrator for the purpose of marketing farm produce belonging to the estate, and in including the finding of the jury that the value of such use was $100 in the judgment rendered against it herein. It contends in this connection that the proper measure of appellee’s damage was the value of the truck at the time of conversion, with legal interest thereon to the time of trial, and that the value of the use thereof could not be substituted for such interest as an element of his damage. Appellant made no such objection to the submission of said issue, nor did it present such contention as . ground for modification or correction of the judgment in its motion for new trial. Such contention is presented for the first time in the brief filed by appellant in this court. It cannot therefore constitute ground for reversal. Our courts have, however, in many cases, allowed. as an element of damages for conversion the value of the use of the property from the date of conversion to the time of trial, in lieu of interest, when such allowance was necessary to properly compensate the injured party for the loss sustained. Barr v. White (Tex. Civ. App.) 47 S.W.(2d) 910, 913, par. 5; Block Motor Co. v. Melia (Tex. Civ. App.) 247 S. W. 666, 669, par. 9; Moore v. King, 4 Tex. Civ. App. 397, 23 S. W. 484, et seq.; Brown v. Guaranty Securities Co. (Tex. Com. App.) 265 S. W. 547, 550, par. 4; Waller v. Hail (Tex. Civ. App.) 46 S. W. 82; Byers v. Shelton (Tex. Civ. App.) 282 S. W. 635, 637, par. 2; Pridgin v. Strickland, 8 Tex. 427, 434, 435, 58 Am. Dec. 124. Appellant further contends in,this connection that the testimony is insufficient to sustain such finding. Appellee testified that at the time of the seizure of said truck he had on hand belonging to said estate 2,000 hales of hay and 450 bushels of peanuts; that he had already contracted to sell the same in Port Worth, and _was to begin hauling them there the next day. He further testified that the distance from his home to Port ■Worth was 50 miles; that it would have cost 15 cents a bushel to hire said peanuts hauled; that he had sold the same in Forth Worth for 45 cents a bushel; that there was no nearer market; that he had no other way of transporting the same to Port Worth, except by the use of said truck; and that he was compelled to sell said peanuts on the place for 32½ cents per bushel. He further testified that the reasonable market value of hay in Port Worth at that time was 40 cents per bale; that it would have cost 15 cents per bale to hire it hauled; that there was no nearer market; that he had no other way of transporting the same, and was forced to sell it on the place for 17⅛ cents per bale. He further testified that when appellant’s agent demanded that he surrender said truck for storage until the debt was paid, he informed him that the use of said truck was necessary in order to transport said products to market. We cannot say that the finding of the jury on said issue was without support in the evidence.

Appellant complains of the action of the court in submitting special issue No. 3, wherein the jury were asked to find whether the taking of the truck from appellee’s possession by appellant’s representative was done willfully and maliciously; in accepting the affirmative finding of the jury thereon, and in including the sum of $200 awarded by the jury as exemplary damages, in the judgment rendered against it herein. It contends in this connection that the testimony was insufficient to justify the submission of the issue of willful and malicious taking, and to support the affirmative finding thereon which the jury returned. The court instructed the jury in connection with the submission of said issue as follows: “By the term ‘willfully and maliciously’ is meant the intentional doing of a wrongful act without just cause or excuse; that is, if an act is.intentionally done without just cause or excuse for believing it to be right or legal, then such act is willfully or maliciously done.”

The testimony shows that appellant was advised by letter from appellee’s attorneys about the middle of December, 1931, that appellee had made application for appointment as administrator of his father’s' estate, and that a hearing thereon was expected in about two weeks. Appellant replied thereto demanding that appellee pay the past-due installments, and personally guarantee the payment of the remainder of the debt, or, in the alternative, that he place the truck in storage. In a subsequent letter appellant waived its demand that appellee personally guarantee the payment of its debt, but demanded that the truck be immediately placed in storage, and declared' its purpose to contest appellee’s appointment unless he did so. Appellee’s attorneys advised appellant by letter dated January 19, 1932, of appellee’s appointment and qualification as administrator, asked it to present its claim according to law, and assured it that such claim would be allowed and paid in due order as soon as possible. Appellee testified that shortly thereafter he was approached by appellant’s representative, Halla, in the city of Granbury; that Halla asked him if he had the truck there and he told him no, that it was at his home; that Halla said: “I might want to look at it in a few days to ascertain and report its condition”; that Halla remarked in that connection that appel-lee seemed to be a pretty nice fellow; that he had lots of trouble with some people; and that one fellow, when he went to get his car, got mad and the judge gave him thirty days in jail. Appellee assured him that he didn’t see any use of having trouble as he intended to pay as soon as the court ordered him to do so. He further testified that about an hour later Halla approached him and said that he had talked with appellant by phone and had been instructed to store that truck; that he remonstrated and said he had a good shelter for it at home; that Halla peremptorily ordered him to take it to Lane Brothers Garage and leave it until the estate settled for it; that he stated in reply that he was depending on the truck to haul the peanuts and hay aforesaid to market in, and that storing would ruin him; that Halla replied that he, appellee, would have to store the truck because the company ordered him to do it; that he again demurred, and Halla said he would have to store the truck if appellee didn’t, and that he forbade Halla to take the truck; that Halla asserted that appellee had nothing to do with the truck, it belonged to his father and he was dead. Halla, in leaving, indicated that he was going to Stephenville. The testimony shows that, instead of doing so, he secured an assistant, went immediately to ap-pellee’s home, entered his premises and located the truck; that he found it locked and demanded that appellee’s wife surrender the key to it; that she was unable to find it; that he then disconnected the wiring from the lock and rearranged it so as to start without a key.' Appellee testified that he arrived at home before Halla got the truck off his premises; that he protested vigorously, and insisted that he was under bond for the safekeeping of said truck; that Halla announced he was going to take 'the truck anyway, and kept on working to get it started. Halla was a trained athlete. Appellee, angered by Hal-la’s defiant attitude and actions, and apparently deeming himself helpless to prevent the unlawful and forcible invasion of his possession by physical encounter, went to the house after his gun, but his wife dissuaded him from using it. Halla and his .assistant got the truck going about that time, and immediately left with it. Though the actual seizure was made by a mere employee of appellant, we have in this connection set out the circumstances thereof, because of appellant’s insistence in its brief that neither the acts of its credit manager which culminated in its peremptory order to such employee to make such seizure, nor the acts of such employee in executing such order, raise an issue of willful and malicious taking, as that term is applied in determining the propriety of awarding exemplary damages.

Appellant does not assail the definition of the words “willful and malicious” as given the jury by the court in his charge. Neither does it contend that a willful and malicious taking by it through its agent and representative, Halla, would not justify an award of exemplary damages. The charge of the court in this case, so far as the issue of exemplary damages is concerned, is substantially in accord with the rule expressed in Evans v. McKay (Tex. Civ. App.) 212 S. W. 680, 685, from which we quote as follows: “Exemplary damages are awarded as matter of sound public policy in punishment of the guilty one for malicious acts, and not as compensation. The amount awarded goes to the complaining party merely because assessed in his suit. ‘In a legal sense, any unlawful act done willfully and purposely to the injury of another is, as against that person, malicious.’ Culbertson v. Cabeen, 29 Tex. 247.”

Appellant limits its contention in this connection to an insistence that the evidence is insufficient to show that its intentional and wrongful taking of the truck from the possession of appellee was without just cause or excuse for believing such action to be right or legal. More specifically stated, it contends that the testimony shows that such taking was under a mistake of law, and in the assertion of a supposed right to do so, and without any actual wrongful intention. The testimony above recited shows that appellant was advised at the outset of the controversy over the collection of its debt and the custody of the truck pending such collection, that the original purchaser of such truck was dead, and that appellant had filed an application for appointment as administrator. The testimony further shows that it was subsequently advised that said appointment had been made, and that appellant had duly qualified as such; that appellant, during all of such time, persisted in a series of unwarranted and oppressive demands, all of which finally culminated in its sending Halla with imperative instructions to seize said truck and deprive appellee of its possession, which instructions he executed in the manner above shown. The te£ti-mony raised an issue of willful and malicious taking by the express orders of appellant’s credit manager; and such issue was therefore properly submitted to the jury for determination. The affirmative finding of the jury thereon is not without support in the evidence. Gordon v. Jones, 27 Tex. 620, 622, 623 ; Jackson v. Poteet (Tex. Civ. App.) 89 S. W. 980, et seq.; Werkheiser-Polk Mill Co. v. Hangford, 51 Tex. Civ. App. 224, 115 S. W. 89, 91.

The judgment of the trial court is affirmed.


author: WALTHALL, Justice.

text:
    REEF v. MILLS NOVELTY CO.
    No. 2778.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 2, 1933.
    Rehearing Denied Feb. 23, 1933.

      King S. ’Williamson and J. H. Synnott, both of Dallas, for plaintiff in error.
    Tarlton Stafford and Seay, Seay, Malone & Lipscomb, all of Dallas, for defendant in error.
   WALTHALL, Justice.

In this case Fred A. Reef, plaintiff in error, sued to have an accounting with Mills Novelty Company, defendant in error, and B. B. Moseley, and judgment for the amount found due. Moseley made no answer, the case went to trial as to Reef and Mills Novelty Company.

The case was submitted and tried in the district court upon an agreed statement of facts as between Fred A. Reef, plaintiff in error, and Mills Novelty Company, defendant in error, the only parties to this appeal.

The agreed státement is as follows:

“We, Fred A. Reef, plaintiff, and Mills Novelty Company, defendant in the above entitled and numbered cause hereby make the following agreement as to the facts in this case, in-so far as the controversy between us is concerned and agree that the same covers all of the facts, and may be introduced in evidence as correctly stating the controversy between the parties hereto.

“It is agreed that during the year 1926 the' defendant B. B. Moseley was in the employ of the defendant Mills Novelty Company as a salesman of the products of such company upon commission; that on or -about December 31st, 1926, the said Moseley’s account showed that his accrued commissions came to $1,031.-48, and unaccrued commissions came to $630.-35, as shown by itemized statement hereto attached, marked Exhibits A and A-l, mailed to the said Moseley by said Company about that time.

“It is agreed that some of the proceeds of sale upon which such commissions were owing were represented by notes due as late as August, 1928, and the company claimed the right, which is not contested, to defer settlement of Moseley’s commission account till all said notes matured.

“It is further agreed that during the year 1926, and through the various dates herein mentioned, the said B. B. Moseley was employed by the said Mills Novelty Company under a written contract, true copy of which is hereto attached, marked Exhibit B, and expressly made a part- hereof as completely as though set forth in detail herein.

“It is also agreed that on or about thé various dates herein mentioned, the plaintiff Fred A. Reef was employed by the Mills Novelty Company under a similar contract, and that both of said contracts contained, among other provisions, the following provisions:

“ ‘In case of any termination of your services as a salesman in the capacity created by this contract, you will hereby authorize the company to pay and charge to your account your outstanding indebtedness incurred by you while so employed, providing of course, your account will warrant same; but the company shall not be called upon to pay such indebtedness unless it elects to do so; and the payment of your indebtedness by the company shall not raise any obligations on its part to pay the whole of said indebtedness. No assignment of your account, or any part of it, at any time, to be binding upon this company unless such assignment is accepted and acknowledged by the Company’s treasurer.’

“ ‘It is further understood and agreed that, should this contract be terminated at any time for any reason, said company shall proceed to collect the customers’ accounts and charge back against said salesman’s account the commissions upon such accounts as it shall be unable to collect, together with said salesman’s proportional parts of the expense of the collection. This is to continue until a final account can be stated, and no money shall be due said salesman over this contract until such a final account can be stated.’

“It is further agreed by and between the parties, hereto, that on November 17th, 1926, Fred A.- Reef wrote to the defendants Mills Novelty Company a letter, a copy of which is attached hereto and marked Exhibit C, expressly made a part hereof, and that the defendant Mills Novelty Company received said letter, and in a few days of the date thereof.

“It is further agreed that on or about the first day of April, 1927, when said account stood practically as shown by said statements, except for several small charges against it by the company, the said Moseley executed and delivered to said Reef an assignment of such account in words and figures as shown by duplicate copy thereof, attached hereto and marked Exhibit D; that on the 11th day of April, 1927, King S. Williamson attorney for said Reef, mailed a copy of such assignment, that is, duplicate original thereof, to the defendant Mills Novelty Company, addressed to it at Chicago, Illinois, with a letter calling its attention thereto; that said letter and said assignment were received by the company, and on the 14th day of April, 1927, it was returned by the company to the said attorney, King S. Williamson, with a letter, copy of which is hereto attached and marked Exhibit E; that thereafter, said account all matured, and, by -deductions and charges, was reduced to the amount of $1,401.-29, which sum it is hereby agreed represents: the entire amount due the said Moseley under his contract with the. Mills Novelty Company in November of 1928. It is agreed that in November of 1928, such sum was paid to the defendant B. B, Moseley, as shown by itemized statement hereto annexed, marked Exhibit E, and that no part of it has been paid to the plaintiff Fred A. Reef by the defendant Mills Novelty Company.

“It is agreed that the consideration paid by Fred A. Reef for the assignment from B. B. Moseley was cash which the said Reef from time to time paid and advanced to the said Moseley on his commissions, claimed to be coming from Mills Novelty Company, amounting in the aggregate to several hundred dollars, and that Reef has never been repaid any part of that money.

“It is further agreed that there is in the contract under which the said Moseley and under which the said Reef operated as salesmen of the defendant Company, the following provision:

“ ‘If any question arises as to the validity interpretation or performance of this contract n any court of the United States, or foreign country, it is agreed that the law of the State of Illinois shall govern, without reference to the place of execution or performance of same.’

“And that the contracts of both the said Moseley and the said Reef also contain this provision which appears in said contracts, after the signature or signatures of the official or officials of the Mills Novelty Company, and directly above the signatures of the said Moseley and the said Reef to said contracts:

“ ‘I have carefully read and fully understand each and every provision of this contract and do hereby accept and agree to the same; I understand that the violation of any of the terms contained in said contract by me or my failure to comply with all the provisions of said contract annul all my rights in said contract at the option of the company without notice.’

“It is further agreed that if it should become material to ascertain the law of Illinois, any printed volumes of statutes and reports commonly recognized in Dallas as authentic may be resorted to, cited and/or consulted without actually proving such statutes or law as a fact.

“It is further agreed that such contracts were written by the defendant company and executed by it and the said Reef and the said Moseley.

“It is further agreed that this stipulation covers all of the facts and that no other evidence will be introduced insofar as the controversy between the said Fred A. Reef arid the said Mills Novelty Company is concerned.

“In witness whereof, this agreement has been executed on behalf of the said Reef and of said Mills Novelty Company by their respective attorneys of record, this the 30th day of July, 1931.”

The statement refers to certain exhibits which are in the record, and, where necessary,' we will refer to the exhibit as a part of the agreed statement of facts. The agreed statement of facts, with the exhibits, were offered as the evidence in the case. No question is made but that the pleadings of the parties were sufficient to tender the issues of fact embraced in the agreed statement of facts.

In the judgment the court concluded that the law was with the Mills Novelty Company, and ordered that Reef take nothing as to it, and as to Moseley the court found and assessed the damages at the sum of $1,401.29, and entered judgment for Reef against Moseley for said sum, with interest.

From the judgment so entered Reef duly prosecutes this appeal.

Opinion.

The agreed statement of facts shows that on April 1, 1927, B. B. Moseley, an employee of Mills Novelty Company, for a valuable consideration paid to him by Fred A. Reef, assigned to Reef his then earned commissions represented and expressed by an account against the Mills Novelty Company, properly itemized by an exhibit annexed to and made a part of the assignment, and which assigned account the trial court found amounted to the sum of $1,401.29, and upon which amount the court allowed interest from May 1, 1927, or a total to the time of the trial of $1,780.

The agreed statement shows that Moseley’s commissions assigned to Reef were earned under a written contract with Mills Novelty Company, and which contract contained the following provision: “No assignment of your account, or any part of it, at any time to be binding upon this company, unless such assignment is accepted and acknowledged by the company’s treasurer.”

■ Such assignment of the account or any part of it had not been accepted and acknowledged by the company’s treasurer.

After such assignment had been made, Mills Novelty Company was notified of such assignment, and, after such notice, it paid to Moseley the amount of such assigned account, and refused to pay to Reef on demand all or any part of it.

Plaintiff in error has submitted a number of propositions and subpropositions, all in effect complaining of the judgment of the trial court holding that the above-quoted provision in the contract between the Mills Novelty Company and B. B. Moseley, no assignment of Moseley’s account with the company should be binding upon the company without the company’s acceptance and acknowledgment of such assignment, was a valid defense on the part of the company against Reef’s claim.

The only question we think to discuss is: Was the inhibition in the contract against an assignment of the accounts a valid provision? If it was valid, the Mills Novelty Company had a right to stand upon it, and, if not valid, it would be no defense against Reef’s claim.

In the absence of a contract inhibition, the earned and open account being a species of property, and Moseley having a •present interest in it, it was assignable without the consent of the debtor, the company. There was at the time of the assignment vested in Moseley a right to enforce payment by suit in his own name. Any species of property, in fact everything that may be called a debt, as a general rule, may be assigned. The Texas courts have broadly stated-that “any species of property,” “everything that may be called a debt,” may be assigned. Texas Jurisprudence, vol. 5, par. 6 et seq. and the cases referred to. Certainly the statutes of this state do not require the consent or acceptance of the debtor of the kind of account we have here to give validity to the assignment. The general rule in this state is that the consent or acceptance of the debtor is not essential to the validity of an assignment. We do not understand defendant in error as controverting the above, as a general rule. We think the account of Moseley, with the Mills Casualty Company, except for the contractual inhibition, was assignable, and the only question to be discussed is as to the exception to the general rule above stated, that is: Does the provision in the contract as above render the assignment of the account invalid as to the company without acceptance by the company of such assignment? We have not found a Texas ease on the question presented. Corpus Juris, vol. 5, p. 937, par. 98, under the subject “Assignments” discussed, says: “As a general rule, the consent or acceptance of the debtor is not essential to the validity of an assignment either as between the parties or as against the debtor.” And in support of the general rule as stated under note 64 refers to many eases from other states, including Texas, and to which we refer without stating them here. As a part of the Same paragraph, it is further said: “Exceptions. Such consent or acceptance is necessary, as against the debtor, however, in the case of a partial assignment, except, in some jurisdictions, in equity, or where the parties to the contract under which the right arises have stipulated that neither the contract nor any right thereunder shall be assignable without the consent of the other party, or where the contract is of such a nature that it is not assignable.”

Many cases from other states are referred to under the exception to the general rule.

As suggested by defendant in error, our Texas statute does not forbid a contractual provision limiting the right of assignment, nor abrogate the right of parties to a contract to agree upon such lawful restrictions as they might desire; that, as said in Parisian Live Dyers & Cleaners v. Springfield (Tex. Civ. App.) 275 S. W. 1098, public pqlicy is as much concerned in holding persons to their contracts as it is in prohibiting contracts on account of some fancied restraint.

The following cases, as we construe them, all hold that parties may validly prohibit assignment of moneys due under a contract: Stanley v. Sheffield L., I. & C. Co., 83 Ala. 261, 4 So. 34; Barringer v. Bes Line Const. Co., 23 Okl. 131, 99 P. 775, 21 L. R. A. (N. S.) 597; Arkansas Valley Smelting Co. v. Belden Min. Co., 127 U. S. 379, 8 S. Ct. 1308, 32 L. Ed. 246; City of Omaha v. Standard Oil Co., 55 Neb. 337, 75 N. W. 859; State ex rel. K. C. Loan Guarantee Company v. Kent, 98 Mo. App. 281, 71 S. W. 1066; Tabler v. Sheffield L., I. & C. Co., 79 Ala. 377, 58 Am. Rep. 593; Mueller v. Northwestern University, 195 Ill. 236, 63 N. E. 110, 88 Am. St. Rep. 194; 2 R. C. L. p. 598, par. 6, note 11.

We do not understand the ease of Portuguese-American Bank v. Welles, 242 U. S. page 7, 37 S. Ct. 3, 61 L. Ed. 116, Ann. Cas. 1918D, 643, referred to by plaintiff in error, as holding differently.

Other propositions not discussed have been considered and are overruled.

The case is affirmed.


text:
    FIDELITY UNION CASUALTY CO. v. SOUTHWESTERN BELL TELEPHONE CO. et al.
    No. 2758.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 9, 1933.

      Collins & Houston, of Dallas, for appellant.
    P. P. Ballowe, Hughes & Monroe, Nelson Phillips, and C. C. English, all of Dallas, for appellees.
   WALTHALL, Justice.

This suit was brought by appellant, Fidelity Union Casualty Company, for itself and for Y. O. Pannell, and Mrs.' Elvira -Pannell, against the appellees, Southwestern Bell Telephone Company and H. L. Curd to recover damages for negligently causing the death of Ralph Pánnell, the adult and unmarried son of V. O. and Elvira Pannell.

Appellant was the compensation carrier of W. B. Stovall. Ralph Pannell, an employee of Stovall, was killed while in the employ of Stovall. Appellant had paid V. O. and Elvira Pannell, Ralph Pannell’s beneficiaries, the compensation, and this suit was to recover the compensation .paid and the alleged excess of damages on account of the death of Ralph, for the use and benefit of Mr. and Mrs. Pan-nell.

W. B. Stovall operated an independent telephone system in Ellis county, Tex., and under a contract with the Southwestern Bell Telephone Company had attached his telephone wires to certain of.the poles of the Southwestern Bell Telephone Company.

The court sustained Stovall’s plea in abatement and as to appellant and appellees submitted to the jury the issues tendered by the pleadings. The issues submitted and the jury’s findings thereon, briefly stated, are substantially as follows:

The telephone pole in question was not in a. safe condition for Ralph Pannell to work upon; the Southwestern Bell Telephone Company and H. L. Curd (the telephone company’s supervisor in charge of its lines, poles, etc.) were negligent in failing to keep said pole in a safe condition for Ralph Pannell to work upon, and that said negligence was the proximate cause of Ralph’s death; the telephone company and Curd failed to inspect the pole in question prior to the time Ralph went upon it to work; such failure to inspect said pole was negligence and a proximate cause of Ralph’s death; the telephone company and Curd failed to warn Ralph of the unsafe condition of said pole; such failure to warn was negligence and a proximate cause of Ralph’s death; neither the telephone company, nor Curd, nor any one acting for them, requested Ralph, to remove from the pole that fell with him “the paired wire belonging to the defendants”; Ralph climbed the pole that afterwards fell with him without first making an inspection of it for his own safety, and in so doing Ralph was guilty of negligence, and such negligence was a proximate cause of his death; Ralph’s failure to make an inspection of the pole was “contributory negligence” and a proximate cause of his death. On cutting away some of the wires from the pole and before it fell with him, Ralph had notice, or in the exercise of ordinary care could have had notice, from a twist or turn or other movement of the pole, that the pole had become weakened or broken by the removal of the wires that had been removed; Ralph did not use ordinary care for his own safety in cutting the remaining wire or wires, and such failure to use ordinary care for his own safety was a proximate cause of his injuries and death; while Ralph was on the pole which later fell with him, Curd, the foreman of the telephone-company, said to Mr. Wilson, Stovall’s foreman, that the pole ought '.to be guyed, that Ralph did not hear, nor in the exercise of ordinary care could have heard, Curd’s statement to Wilson; Ralph was guilty of contributory negligence in failing to guy the pole which fell with him before finally cutting all of the wires therefrom, and such contributory negligence was a proximate cause of his death; the death of Ralph Pannell was not the result of an unavoidable accident. The jury found that $750, if paid now, would reasonably compensate Y. O. and Elvira Pan-nell for the loss to them of such contributions as may have been made by their son Ralph had he lived. The court gave the jury other instructions not necessary to state here. The court entered judgment for' appellees, and appellant prosecutes this appeal.

Opinion.

Appellant submitted and requested the court to give the following charge: “At the request of plaintiff, Gentlemen of the Jury, I charge you that Ralph Pannell was under no duty to inspect the telephone pole that broke causing his death, either before or after climbing the same; he .was only required to use ordinary care for his own safety, and if no danger was apparent from observing said pole, he was not required to make an inspection to find some latent defect.”

Appellant makes the contention that Ralph Pannell, deceased, was acting in the employment of Stovall in climbing the pole that fell causing his death, and that Stovall had a lease contract with the telephone company on certain poles including the one that fell; that Ralph was an invitee on said pole and owed no duty, in the use of ordinary care for his own safety, to inspect said pole to discover latent defects, and the court erred in refusing to give the submitted special charge.

We think the court was not in error in refusing to give the requested charge. We regard the charge as a general charge on the law. The case was submitted on special issues. Article 2189, R. O. S., provides that when a case is submitted on special issues the court shall submit only “such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” The requested charge was not an explanation or definition of a legal term as was necessary to enable the jury to properly pass upon and render a verdict on such issues. Texas & Pacific Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Radford Grocery Co. v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218; Texas-Louisiana Power Co. v. Bihl (Tex. Civ. App.) 43 S.W.(2d) 294; Kemper v. Police & Firemen’s Insurance Ass’n (Tex. Com. App.) 48 S.W.(2d) 254.

The charge was also objectionable as being on the weight of the evidence. See the Texas & Pacific Ry. Co. v. Perkins Case, supra. The court had sufficiently explained and defined the legal terms used in the charge.

In answer to interrogatories 16, 17, and 18, the jury found that Ralph Pannell made no inspection of the pole which fell with him and caused his death; that such failure to make an inspection of the pole was contributory negligence on his part, and was a proximate cause of his injury and death. Appellant objected to the submission of the issue as to Ralph’s failure to inspect the pole he being an invitee, and had a right to assume that it was safe for him to climb upon it without such inspection, and that a failure to inspect the .pole would not under the evidence constitute contributory negligence.

The evidence shows, without quoting it, that Ralph was an experienced lineman, had been warned to be careful as to that pole, knew how to inspect poles, knew that the pole was old and swayed in the wind. Conceding that he was an invitee as to appellees, which we do not decide, he was not an employee of appellees in climbing the pole; it was a question of fact for the jury and not of law for the court, we think, under all of the evidence .whether Ralph should have inspected the pole before climbing it, in the exercise of care for his own safety. The jury should be free to decide for themselves whether a party exercised the requisite care for his own safety where the evidence is sufficient to suggest caution or danger, as here. The requested charge told the jury that as a matter of law Ralph did not have to inspect the pole in the exercise of ordinary care. Such charge, in view of the evidence, would have been error, we think. However, in view of other issues, submitted and found by the jury, if properly submitted, the submission of the issue last above discussed would not be reversible error. The cases referred to by appellees, we think, support their contention that the issue last above discussed was an issue of fact for the jury. They are: Paris Transit Co. v. Faith (Tex. Com. App.) 231 8. W. 1080; Galveston Electric Co. v. Troublefield (Tex. Civ. App.) 285 S. W. 634; Gulf, C. & S. F. Ry. Co. v. Saunders (Tex. Civ. App.) 295 S. W. 283; Missouri, K. & T. Ry. Co. v. Luten (Tex. Com. App.) 228 S. W. 159; St. Louis Southwestern Railway Co. v. Arey, 107 Tex. 366, 179 S. W. 860, L. R. A. 1916B, 1065, in which it is said that all men, as a rule of action, to avoid such injury, ought to use the care that such a man would exert under like circumstances, 16 Tex. Juris. § 25; 45 Corpus Juris, § 244, in which it is said, in effect, that the invitee assumes all normal or ordinary risks attendant upon the use of premises, and that the owner is not liable to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care; 45 Corpus Juris, §§ 507 and 512, and 522; International & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; Burnett v. Fort Worth Light & Power Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504, the last two are Supreme Court opinions.

To issues 26 and 27 the jury found that Ralph Pannell was guilty of contributory negligence in failing to guy the pole which fell with him before finally cutting all the wires therefrom, and that such contributory negligence was a proximate cause of his death. To the submission of said issues appellant objected on the ground that Ralph was an invitee of appellee telephone company; that the evidence showed that the pole looked safe and sound, no patent defects or weakness; that Curd had inspected the pole a few minutes before it fell and had not guyed it; that it was not incumbent upon .Ralph to guy the pole.

The objections nor the proposition go to form or manner in which the issues were submitted, but that under the facts and the evidence the issues should not have been submitted.

The evidence shows: There were two cross-arms on the pole, and Ralph was astride one of them and had worked there about an hour before the pole fell; two guy wires were fastened to the pole and Ralph was cutting the guy wires; when he cut the first wire, the pole hent and had a twisting motion and made the cross-arms rotate or revolve around enough to be noticeable; then he cut the other guy wire and the pole fell straight down. Mr. Wilson, foreman of Ralph Pan-nell, testified: Had had some eight years’ experience in climbing poles, as lineman; said: To a lineman, if a pole twisted and the cross-arms twist around after cutting one of two guy wires, it would be a sign that something was wrong, rotten, or loose at the bottom and unsafe.

The evidence justified the submission of the issues. They were clearly fact issues for the jury.

The same authorities referred to above are applicable under this proposition.

Appellees’ pleadings are amply sufficient to justify the submission of the issue of contributory negligence on the part of Ralph Pan-nell. We need not quote the pleading.

We need not pass upon appellees’ cross-assignment.

The case is affirmed.


author: McOUENDON, Chief Justice.

text:
    HARALSON et al. v. WHEELER.
    Motion No. 7446.
    Court of Civil Appeals of Texas. Austin.
    Jan. 18, 1933.
   McOUENDON, Chief Justice.

Motion to affirm on certificate. The appeal bond was filed more than twenty days after adjournment of the term of court at which the judgment was rendered. The court not being one whose term “may by law continue more than eight weeks,” the appeal was not perfected, and the jurisdiction of this court has never attached. R. S. art. 2253 as amended ; Webster & Son v. Lucas, 117 Tex. 64, 296 S. W. 1089. The wording of this article gave rise to some confusion as to nonresidents of the county where the judgment was rendered, although the uniform holdings of the Courts of Civil Appeals applied the twenty-day provision to both residents and nonresidents. The above case confirmed the holdings of the Courts of Civil Appeals. Whatever ambiguity existed in the language of article 2253 was removed by the amendment of 1927 (40th Leg. p. 21, c. 15, § 1 [Vernon’s Ann. Civ. St. art. 2253]), which conformed the wording to the above holding.

The motion is dismissed.

Dismissed.