author: GALLAGHER, C. J.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. KILLINGSWORTH.
    No. 1276.
    Court of Civil Appeals of Texas. Waco.
    Oct. 13, 1932.
    Rehearing Denied Nov. 25, 1932.
    A. B. Geppert, of Teague, and A. C. Buckner and John A. Yivier, both of Houston, for appellant.
    Walter T. Thomason, of Wortham, for ap-pellee.
   GALLAGHER, C. J.

This is the second appeal in this case. The opinion of the court on the first appeal is reported in (Tex. Civ. App.) 37 S.W.(2d) 823. The suit was instituted hy appellee, J. H. Killingsworth, against appellant, General Motors Acceptance Corporation, and Hearne-Wilson Chevrolet Company, hereinafter called Chevrolet Company, both corporations, to recover both actual and exemplary damages for the conversion of his automobile.

Appellee alleged, in substance, that on October 5, 1929, he purchased from the Chevrolet Company a Chevrolet sedan for $853.-50; that the seller accepted his old car at the agreed valuation of $425; that the remainder of the purchase price of the new car, being the sum of $428.50, was to be paid in monthly installments of $36 each, beginning December 5,1930; that the seller undertook to prepare in triplicate a sales contract embodying said promise of payment; that the seller did prepare one copy of such contract by filling the blanks in its regular sales contract form according to such agreement ; that the seller stated to him that the blanks in the two remaining copies would be filled in the same manner; that, relying, thereon, he, at the request of the seller, Signed the copy so prepared and two additional blank forms of such contract; that the seller delivered to him the completed copy and retained the two signed by him in blank; that the seller, in violation of said agreement, filled out one or more of said forms signed by him in blank as aforesaid so as to make - the first installment of deferred payments due December 5, 1929, and one each month thereafter. The provisions of said contract, so far as material herein, were that the deferred payments should begin on December 5, 1930; that such payments should be made at the office of appellant designated by it; that title to the property should not pass to the purchaser until' the purchase money had been paid in full; that the assignee of such contract should he entitled to all the rights of the seller thereunder; that the holder thereof might, under certain contingencies, declare all unpaid installments thereon immediately due and payable, and that upon default the car might be seized and sold at public or private sale in satisfaction of such unpaid indebtedness. Appellee further alleged that on or about De--cember 15, 1929, appellant notified him by mail that an installment of $36 was due on said contract, and on or about January 5,. 1930, mailed him a second notice, claiming that $72 was then due thereon; that a representative of the Chevrolet Company sent for him to come to the office of said corporation in Wortham and demanded payment of said sum of $72; that they agreed to store the automobile in their garage at Wortham until they could get the matter adjusted with appellant; that they promised him he should not lose his automobile because of the substantial payment he had made thereon; that he relied on such representations and left his car with them; and that said corporations thereafter converted the same to their own use.

Appellant pleaded a general denial, and that it purchased said sales contract from said Chevrolet Company; that by the terms thereof the first installment became due December 5, 1929; that appellee made default; and that it declared the entire amount due and payable. It specially denied knowledge of or participation in any conversion of said automobile. The present transcript contains no answer by the Chevrolet Company.

The case was submitted to a jury, which, in response to eight special issues submitted to it by the court, found as follows:

(1) The date upon which the first installment was to fall due upon the contract of purchase between appellee and the Chevrolet Company was December 5, 1930.
(2-4) The Chevrolet Company was authorized by appellant to repossess for it said automobile in January, 1930, and in receiving and retaining possession thereof said Chevrolet Company was acting as agent of appellant and not for itself on its own responsibility.
(5) The cash market value of said automobile in January, 1930, was $700.
(6, 7) There was no malice in the act of said Chevrolet Company in taking charge of, converting, and retaining possession of said automobile.
(8) No punitive damages should be awarded.

Based on the foregoing verdict of the jury, and finding of the court from the undisputed evidence that there was still a lien indebtedness in the amount of $428.50 due by said Killingsworth on said automobile, the court entered judgment in his favor against appellant and said Chevrolet Company, jointly and severally, for the sum of $271.50 with legal interest from the date of such judgment.

Opinion.

Appellant presents assignments of error in which it assails the finding of the jury that the Chevrolet Company was authorized by it to repossess for it appellee’s automobile, and that, in repossessing and retaining the same, said Chevrolet Company was acting as its agent. Appellee testified that about December 1, 1929, he received by mail a notice from appellant that $36 was or would soon be due on his contract for the purchase of said automobile, and that about January 1, 1930, he received from appellant a similar statement claiming that $72 was then due; that Mr. Hearne, an officer of the Chevrolet Company, sent word that he wanted to see him; that he went to Wortham and saw Mr. Hearne, who also told him that there was $72 due on his contract and demanded payment; that he promised to try to raise the money by the next day; that he was unable to do so, whereupon Mr. Hearne suggested that he leave the ear for a few days and that they would “make it all right with the General Motors”; that he further stated in that connection that he did not want appellee to lose his car because he had already paid too much on it; that he (appel-lee) did leave the car upon such understanding ; that he returned shortly thereafter and found that the Chevrolet Company had gone out of business. There was testimony that said car had been removed to Teague, but nothing further with reference to the same was shown.

Mr. Hearne testified that he was president of the Chevrolet Company at the time ap-pellee purchased the car and at the time he left the same in the possession of said company as above stated; that appellant was a finance company and was connected with the Chevrolet Company, in that it would purchase and carry said company’s paper; that appellant did purchase appellee’s contract. He further testified: “We did know of any indebtedness against the different contracts because we would get copies of correspondence they would send out, and we would also get copies of delinquent lists. * * * Their custom was to send us a list of delinquent notes, and when we received these delinquent lists of notes, we would see the people about collecting the notes; * * * We did assist them in collecting the notes; we gave them' what assistance we could. I am sure we did get a delinquent list sometime in December, 19-29, if I remember' correctly. I am sure we got one because, we got them regularly every time they were sent out.”

Appellee introduced a letter received by him from appellant, dated January 15, 1930, peremptorily demanding payment of the sum •of $72 so claimed by the 25th of that month on penalty of termination of business relations between them. In such letter appellant advised appellee as follows: “Our Mr. ■Myrick, field representative, has reported that your collateral on your automobile has been temporarily repossessed and stored with our dealer.” Said letter was exhibited to the witness Hearne, who further testified in that connection as follows: “I am sure that we -did receive a copy of this letter which counsel has handed to me, as it states here at the bottom that copy went to us. I am sure that Mr. Myrick came to see us about the time we repossessed Mr. Killingsworth’s car because he was the territory man at that time and he came to see us every ten days or two weeks, or possibly more often than that, and I am sure that he came to see us about the time we repossessed Mr. Killingsworth’s car. I do not remember any conversation I had with Mr. Myrick about this car, however. I am sure we did have some conversation about the’ car because the field repre^ sentative would have the delinquent list and we would go over it and discuss the possibilities of the people who were delinquent taking care of their obligations.” Said witness, however, insisted throughout his testimony that, in demanding payment of said sums from appellee and in receiving and storing his car, the Chevrolet Company was acting only in its own behalf and in the protection of its interests as indorser on said contract. He further testified that he loft the company on the 15th of January of that year, that the car was thereafter removed to Teague, and that he -did not know what had become of it.

The credibility of the witness Hearne and the weight to be given to his testimony under the facts in evidence in this case were jury questions. The jury had a right to accept and credit so much of his testimony as was favorable to appellee and to reject and disregard so much thereof as was adverse to his contention. 17 Tex. Jur. p. 931, and authorities cited in notes 19 and 20. In determining whether the evidence as a whole is sufficient to support the findings of the jury upon the issues under consideration, we must view the same in the light most favorable thereto, discarding all evidence to the contrary. Richardson v. W. C. Bowman Lumber Co. (Tex. Civ. App.) 274 S. W. 349, 351, par. 1, and authorities there cited; Texas Employers’ Ins. Ass’n v. Davidson (Tex. Civ. App.) 5 S.W.(2d) 1008, 1010, and authorities there cited. The testimony above recited shows that appellant furnished the Chevrolet Company with a list of all notes upon which payments were delinquent; that Mr.-Myrick was appellant’s general collector or field man; that he conferred with the officers of said company about the collection of such delinquent payments, including the payments owed by appellee and erroneously claimed to be delinquent; that appellant permitted the officers or representatives of said company to collect or assist in collecting delinquent payments due it; that Mr. Hearne, one of such officers, demanded that appellee pay the sum of $72, which he erroneously charged was then due on ap-pellee’s note, and persuaded him to surrender possession of his car, to be held until the matter could be adjusted; that Myrick was cognizant of these fact-s and reported the same to appellant; and that appellant, as indicated by its letter to appellee, acquiesced in such action and tacitly if not expressly approved the same. Such testimony, viewed in the light most favorable to the findings assailed, is sufficient to sustain the same. Daugherty v. Wiles (Tex. Com. App.) 207 S. W. 900, 901, et seq.; Collins & Douglas v. Cooper, 65 Tex. 460, 464; American Mortgage Corporation v. Spencer (Tex. Civ. App.) 45 S.W. (2d) 301, 304, pars. 3 and 4; Ward v. Bledsoe, 32 Tex. 251, 252, 254.

Appellant assigns as error the failure of the court to define, at its request, the word “agent” as used in a special issue submitted to the jury. It is necessary, in order to determine whether there is merit in appellant’s contention, to consider the connection in which such term was used. The court, in the second issue submitted, asked the jury to determine whether the Chevrolet Company was authorized by appellant to repossess for it appellee’s automobile; in the third, to. determine whether the Chevrolet Company, in receiving and retaining possession of appellee’s automobile, was acting as agent of appellant; and, in the fourth, to determine whether the Chevrolet Company, in receiving and retaining possession of ap-pellee’s automobile, was acting for itself and on its own responsibility. The word “agent” is defined in Standard Dictionary as “one who or that which acts for another; * * * in law, one who acts in virtue of authority from his principal.” The connection in which that term was used in said issues clearly indicates that the same was used in the usual and ordinary sense of one acting for another with authority to do so. The statute (R. S. art. 2189) does not require ■the court to explain or define every legal term used in framing the issues submitted. It only requires the court to submit such .explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and answer the same. Reasonable necessity for explanation or definition of the term used is the proper test. Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W. (2d) 570, par. 1; Texas & N. O. Ry. Co. v. Martin (Tex. Civ. App.) 32 S.W. (2d) 363, 367, pars. 3 to 5 (writ refused); Spurlock v. Hilburn (Tex. Civ. App.) 32 S.W.(2d) 396, 398, par. 5, and authorities there cited; Dallas Railway & Terminal Co. v. Bankston, 33 S.W.(2d) 500, 503, 504, par. 5; Id. (Tex. Com. App.) 51 S.W.(2d) 304, 309, par. 13; Lightsey Black & White Cab Corporation v. Littlefield (Tex. Civ. App.) 48 S.W.(2d) 766, 769, par. 5; Magnolia Coca-Cola Bottling Co. v. Jordan (Tex. Civ. App.) 47 S.W.(2d) 901, 903, par. 2. We do not think a juror of ordinary intelligence could have misconstrued the issue in which said word was used, and a specific definition thereof was therefore unnecessary.

Appellant presents assignments of error in which it contends that the court erred in admitting the testimony of appellee with reference to the market value of his automobile at the time he was induced to deliver the ■same to the Chevrolet Company, and that his testimony as to such value was without sufficient probative force to sustain the finding of the jury on that issue. Appellee purchased a new Chevrolet sedan on October 29, 1929, for the sum of $853,50. On January 5, 1930, he .delivered the same to the Chevrolet Company, as hereinbefore stated. The car at that time was in good condition, and had been run only 2,000 miles. He paid for said car in part by the delivery of a secondhand automobile which he owned at the time, and for which he received credit of $425 on said purchase price. Appellee was the only witness who testified to the market value of his car at the trial. He testified that he was familiar with the market value of such automobiles on January 5, 1930; that he had familiarized himself with the prices of automobiles before he purchased the same; that he had investigated the market value of new and secondhand cars both in Wortham and in Corsicana. He testified on voir dire that he had never been in the business of buying and selling used cars and was not a mechanic; that he bought a used car in the summer of 1929, which was the car he gave in part payment for his new car; that he had priced in the market Chev-rolets, Fords, and Dodges prior to purchasing the new car, and that several of the Chevrolets so priced were secondhand; that he did not keep up with the reasonable market value of secondhand cars between October 29,1929, and January 5, 1930. The court then permitted appellee to testify that the cash market value of his automobile at the time he delivered it to Mr. Hearne on January 5, 1930, ought to have been $700.

There is no inflexible rule prescribing the exact amount of information concerning sales of similar property in the market in question which must be possessed by a witness before he will be held competent to testify to his opinion or estimate of the market value of the property under consideration. The qualification of a witness testifying to the market value of property is primarily a question for the trial court, and his ruling thereon will not be revised unless it appears that the same was clearly wrong. The issue here under consideration is fully discussed in the case of Rogers & Adams v. Lancaster (Tex. Com. App.) 248 S. W. 660, 661, et seq., pars. 1 to 3, to which and the authorities there cited reference is here made. See, also, Ross v. Wilkerson (Tex. Civ. App.) 277 S. W. 425, 426, par. 2; H. & T. C. R. Co. v. Clement Grain Co., 10 S.W.(2d) 400, 402, et seq.; Merchants Cotton Oil Co., v. Acme Gin Co. (Tex. Civ. App.) 284 S. W. 680, par. 3; International-Great Northern R. ‘ Co. v. Motley (Tex. Civ. App.) 18 S.W.(2d) 782, 784, pars. 6 and 7; North River Insurance Co. v. Rippy (Tex. Civ. App.) 23 S.W.(2d) 853, 857, pars. 7 and 8; St. Mary’s Oil Engine Company v. Alien-Morrow Company (Tex. Civ. App.) 20 S.W.(2d) 266, 268, pars. 4 and 5; Sparrow v. Tillman (Tex. Civ. App.) 283 S. W. 877, 878, pars. 2 and 3; Northern Texas Traction Company v. Armour & Co. (Tex. Civ. App.) 290 S. W. 544, 547, par. S. Appel-lee’s testimony that the ear ought to have been worth $700 at the time he delivered it to Mr. Hearne was not without probative force. Testimony with reference to market value, especially of secondhand goods, is ordinarily at least a mere matter of estimate of opinion. G. C. & S. F. Ry. Co. v. Harrell (Tex. Civ. App.) 270 S. W. 1S7, 188, par. 4; Ætna Insurance Co. v. Mills, 176 Ark. 684, 3 S.W.(2d) 999, 1000, par. 5. The weight of opinion evidence as to the value of personal property is for the court or jury trying the case. Rogers & Adams v. Lancaster, supra; McElwrath v. Dixon (Tex. Civ. App.) 49 S.W. (2d) 995, 997, par. 11; Wagner & Chisholm v. Dunham (Tex. Civ. App.) 246 S.W. 1044, 1046, pars. 4 and 5. Said assignments are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MARTIN, J.

license: Public Domain

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. FOSTER.
    No. 3889.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    Collins, Jackson & Snodgrass, of San Angelo, L. W. Allred, of Chillieothe, and Terry, Cavin & Mills, of Galveston, for appellant.
    C. Y. Welch, of Quanah, and W. E. Fitzgerald, of Wichita Falls, for appellee.
   MARTIN, J.

The respective parties in this case will carry the same designation as in the trial court.

Plaintiff was an employee of defendant and allegéd certain bodily injuries received in the course of his employment, which he alleges were due to the negligence of defendant and its agents.

The particular portion of his pleading that we deem necessary to quote here is as follows : “It is shown that at the time and place above alleged, defendant was then having unloaded from its cars and stacked on such premises certain switch ties, all freshly ereosoted and each weighing from seven hundred to one thousand pounds, and none of which could be safely handled, as defendant’s agents and foremen in charge of such work well knew, by less than four men; that well knowing that two men could not lift and carry such ties without danger of serious injury, defendant’s said foreman by it placed over plaintiff, required the same to be done in that manner; and that in carrying one of such ties, weighing more than nine hundred pounds, and while walking backward with it as he was expressly directed by such foreman, plaintiff was caused to stumble and fall over a switch block, negligently left in his path due to* the fault of the defendant.”

To the plaintiff’s petition the defendant pleaded, among other defenses, that “such accident, if any, was occasioned solely by the negligence of the plaintiff in walking backward and not exercising ordinary care to keep from stepping on anything that would or might cause him to fall or stumble” and further, “that such accident and injury was occasioned by the negligence of plaintiff in failing to look where he was walking and that such injury and accident, if any, was caused and contributed to be caused by the plaintiff not exercising ordinary care, as aforesaid.”

Plaintiff testified, in substance, that he was assisting in carrying, with one other, a 16-foot tie weighing about 900 pounds at the time of his injury, under the direction of Wash Callahan, a negro foreman in the employment of the defendant. He testified, in part: “I was facing him and I was walking backwards. That was the necessary way to walk in order to get.the tie where it belonged. I had an aisle way. I could not turn and both of us walked the same way. * * * As to what happened to me on that .occasion I stumbled and fell over a head block. * ⅜ ⅜ Those stacks were four feet apart so they could have aisle way between them and we could not walk down between the stacks because there were box cars of more ties on the track and there was not room enough to walk and turn around for a long time so we had to go down the aisle and then go to the end of the aisle and then turn and where we had to carry these ties to a 16-foot pile there was a block back there. * * * After we took them out I put them on a push car and pushed the car down as close to the pile as we could go with it and carried them from the push ear to the pile.”

Wash Callahan, the foreman, testified with reference to the events of the morning of the injury, in part as follows: “We got to arguing over packing an 8 foot tie. Four men was carrying them and I stopped it and put two men on there and he didn’t want to carry it (meaning plaintiff). As to how do they carry them, when four men has got them loading them on a push .car they would have lug hooks, but when we were taking them and putting them on an 8-foot stack, two men handled them. He didn’t want to- pack the ties, two men to one 8-foot tie, and I told him he couldn’t have four men on them, and me and him argued on that and I said, ‘You can suit yourself about it, you are not going to carry them that way.’ Four men had not been handling 8-foot ties under me. Four men with lug hooks were picking them up and setting them on the push car and when we would take them off to carry them to the stack there would be two men. George was working putting them on the push car and taking them off and carrying them to each stack. We had ties of other lengths than 8-foot. If we had a tie about 16-foot long, six men carried that. If we had a 10-foot tie, I would let ‘ six men carry it. We let six carry them until we got down to an 8-foot tie. * * ⅜ As to how many of these negroes were stacking ties, well, we had six stacking ties and two in the car and then I took and put two more in the car throwing 8-foot ties out and during the time George quit I put two more men in the car. Four men were there at the time George quit. ⅜ » * We made our stacks six feet from the track. As to whether I had ,any other stacks except six feet from the track, all of them were six feet from the track that we were working on that day. I measured them myself. He told me he wanted to get transferred to another gang and I told him he could go work on another gang. He turned and went to see Mr. Everett, the Assistant Foreman. He left our gang and never worked in our gang any more.” . •- •

The jury answered all special issued ’favorable to the plaintiff, and judgment was entered for him in the sum of $5,035.

The only defensive issues submitted by the court were the following:

Special issue No. 10: “Do you find from a preponderance of the evidence in this ease that the plaintiff, George A. Foster, was negligent, as the term ‘negligence’ has been here-inbefore defined, in walking backwards while assisting in carrying the cross ties being carried by him, if he was carrying same, at the time of the alleged injury?”

Special issue No. 11: “Do you find from a preponderance of the evidence in this ease that the plaintiff George A. Foster was negligent, as that term has been hereinabove defined, in failing to discover the presence of the head block over which he alleges that he stumbled at the time he was assisting in carrying the cross ties testified about?”

Special issue No. 12:, “Do you find from a preponderance of the evidence in this case that the stumbling over said head block, if any, at the time testified about was an unavoidable accident?”

To each of these issues the answer of the jury was “No.”

The issue of proximate cause was nowhere and in no manner submitted by the court to the jury in connection with the above issues of negligence, nor was the question of what amount, if any, the damages should be diminished in proportion to the amount of negligence, if any, attributable to plaintiff.

Defendant alleged the following objections to the charge of the court:

“To the charge as a whole because the same does not submit the pleaded defenses of this defendant finding predicate in the proof and defendant respectfully requests the proper submission of each of its pleaded defenses.”
“To the charge as a whole because contributory negligence as pleaded by this defendant is not properly submitted so that the judgment could be rendered on answers of the jury finding contributory negligence.”

It is urged that these objections were too general and cannot here be considered as raising the failure of the court to submit the issue of. contributory negligence. There may be' two distinct defenses based upon the negligence of the plaintiff in suits of this character, viz.: (1) Negligence which was the sole proximate cause of the accident and injury; and (2) negligence which contributed to proximately cause the accident and injury.

In a suit by an employee against a railroad company for injuries received in the course of his employment due to the negligence of the railroad, the first defense above mentioned constitutes a bar to recovery; but not so as to the second. In a suit of the character under consideration, contributory negligence by virtue of article 6440, R. S. 1925, is not a bar to recovery, but when found to exist, the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee. Construing a similar provision of the United States statutes, it has been said: “The statutory direction that the diminution shall be ‘in proportion to the amount of negligence attributable to such employee’ means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate the common-law rule completely exonerating the carrier from liability in such a case, and to substitute a new rule, confining the exoneration to a proportional part of the damages, corresponding to the amount of negligence attributable to the employee.” Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 33 S. Ct. 654, 657, 57 D. Ed. 1096, Ann. Cas. 19140, 172.

In other words, negligence of the employee which is the sole cause of the accident and injury may be pleaded in bar, but contributory negligence only in mitigation of dam- . ages. ,

Contributory negligence in this case seems to have been treated as a complete defense to plaintiff’s cause of action, and, if this assumption were correct, the omission to charge on proximate cause might be harmless error, in view of the negative response the jury made to the existence of negligence. Likewise, the exceptions noted above might, under such circumstances, be considered too general, but there is more in this case than a defective submission of an issue. There is, as we view it, an entire omission to submit a distinct and affirmative defense which it is made the mandatory duty of the court to do under article 2190. As contradistin-guished from an ordinary negligence case, there were, we think, three distinct elements of contributory negligence which should have been submitted in this case: (1) The existence of negligence; (2) whether or not such negligence contributed to proximately cause the accident and injury; and (3) the diminution, if any, of plaintiff’s damages which resulted from his own negligence.

That the issue of contributory negligence was present in this case admits of no doubt and that there was an omission to submit this defense is made obvious by the above. That defendant was entitled to have its defenses affirmatively and pertinently submitted is not only its right under the statute, but also under repeated authorities. Fox et al. v. Dallas Hotel Co., Ill Tex. 461, 240 S. W. 517; West Texas Transportation Co. v. Hash (Tex. Civ. App.) 43 S.W.(2d) 152.

We think the objection was sufficient to call the court’s attention to the entire omission of a pleaded defense, and we are unable to say that the omission to submit a defense of this character, which went only to the mitigation of damages, was harmless error. The omission to submit the third of the above recited elements of contributory negligence has pointedly been held to constitute reversible error. Missouri, K. & T. R. Co. v. Pace (Tex. Civ. App.) 184 S. W. 1051.

Special issue No. 12 quoted above is objected to because “same placed too great a burden upon tbis defendant and tbe burden of proof is improperly stated.”

Tbe giving of practically the same identical charge has been several times held to be error. Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Com. App.) 7 S.W. (2d) 521, 522; U. S. Torpedo Co. v. Huff (Tex. Civ. App.) 41 S.W.(2d) 296; Stedman Fruit Co. v. Smith (Tex. Civ. App.) 45 S.W.(2d) 804; Texas & P. R. Co. v. Edwards (Tex. Com. App.) 36 S.W.(2d) 477; El Paso Elec. Co. v. Portillo (Tex. Civ. App.) 37 S.W.(2d) 219; Central States Power & Light Corp. v. Brown (Tex. Civ. App.) 38 S.W. (2d) 892.

The plaintiff insists that the error was harmless because the issue of “unavoidable accident” was not raised by the evidence. On such a question precedents are of little value as each case turns upon its own particular facts. In our opinion there is more cogent evidence of an unavoidable accident in this case than the recited facts show in the Rosenthal Case, supra.

“The issue of ‘unavoidable accident’ arises only when ‘there is evidence tending to show that the accident in controversy, which is charged to have resulted from the negligence of the defendant, happened from some unknown cause, or in a manner which cannot be explained, or under circumstances differing from those relied on and constituting a part of plaintiff’s case, and which circumstances rebut the charge of alleged negligence for which the defendant is responsible.’ ” Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108, 1112.

The jury in this case may not have believed that two men could carry a 900-pound tie as testified to by plaintiff, but may have believed from the facts and circumstances in evidence that he was accidentally injured when carrying a tie of lesser length and weight by accidentally stumbling due to unexplainable causes. Stated otherwise, the conclusion might be inferable from all the facts and circumstances that plaintiff was actually injured in the course of his employment while carrying ties, but that it was due to an unavoidable accident not traceable to either the negligence of the plaintiff or the defendant. Without tediously reciting all the facts and circumstances, we are of the opinion that this issue was in the case, though weakly, perhaps.

It is further insisted that special issue No. 10 above quoted was on the weight of the evidence in that -it assumed that plaintiff was carrying a cross-tie when same was a disputed issue. We think the evidence makes an issue as to whether or not plaintiff was carrying a tie at the time of the injury. There are, therefore, two Issuable fact controversies embodied in this one question and in the form submitted it was error. Texas & P. R. Co. v. Bryan (Tex. Civ. App.) 15 S.W. (2d) 1098; Friesenhahn v. Tips Engine Works (Tex. Civ. App.) 283 S. W. 341. The issue as to whether plaintiff was carrying a cross-tie should be submitted separately on another trial.

Special issue No. 4 was in the following language: “Do you find from a preponderance of the evidence in this case that it was negligence on the part of the defendant or its foreman to require and direct plaintiff to assist in handling the switch ties in the manner in which they were?”

The substance and effect of plaintiff’s allegations charging negligence quoted above were that the defendant well knew that two men could not lift and carry such ties without danger of serious injury. It is correctly insisted by defendant that the use of the particular language “in the manner in which they were” contained in said special issue did not confine the jury to the negligence pleaded. This authorized a jury finding of negligence against defendant based upon any fact relating to the manner in which the ties in controversy were being handled on the morning of the injury, though such facts were not pleaded nor relied on.

We have recited literally some of the testimony to show the manner of handling the ties on the morning of the injury, some of which might have been appropriated by the jury as .a basis for a finding of negligence and which would find no support in the plaintiff’s pleadings. Safety First Bus Co. v. Skibinski et al. (Tex. Civ. App.) 36 S.W.(2d) 288; Ft. Worth & Denver City R. Co. v. Jenkins (Tex. Civ. App.) 42 S.W. (2d) 267.

The same error is claimed to exist as to defensive issues submitted, These should be corrected on another trial, so as to make them conform to the pleadings, though we have not thought it necessary to specifically decide that in the form given any of them would constitute reversible error.

It is insisted by appellee that it was the duty of appellant to prepare and present written instructions to cure some of the defects in the court’s charge above discussed, and having failed to do this, cannot now complain. It has been recently and pointedly decided that such was not necessary. Morrison v. Antwine (Tex. Civ. App.) 51 S.W.(2d) 820, 822.

Other errors assigned are either such as are believed to be without merit or are such as will not likely again occur.

For the errors mentioned, the judgment is reversed and the cause remanded.


author: GRAVES, J.

text:
    STATE v. HOGG et al.
    No. 9872.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 19, 1932.
    Rehearing Denied Nov. 10, 1932.
    O’Brien Stevens, Cr. Dist. Atty., of Houston, James V. Allred, Atty. Gen., and P. O. McKinsey, Asst. Atty. Gen., for the State.
    David M. Picton, Jr., Stephen L. Pinckney, and Wm. G. B. Morrison, all of Houston, for appellees.
   GRAVES, J.

This action arises under the inheritance or transfer tax laws of the state of Texas, as embraced in chapter 5, title 122, Revised Civil Statutes of 1925, articles 7117 to 7144, and amendments of 1927 and 1929 (Vernon’s Ann. Civ. St arts. 7117-7144). •

The state of Texas, appellant, sued Mike Hogg as executor of the will of W. C. Hogg, who died September 12, 1930, and the twenty-three other appellees herein, to and for the use of whom bequests of property had passed under the will of W. C. Hogg, to recover inheritance taxes claimed to be due the state by virtue of these statutes by reason of the bequests so made such beneficiaries.

The controversy was1 purely one of law and was tried upon an agreed statement of facts, which, with certain documents, constituted all the evidence. There were two legal questions involved: First, were the bequests made to the appellees, other than Mike Hogg, executor, taxed under the law as it stood in force at the time of the death of W. C. Hogg; second, if the bequests were subject to such a tax, should the penalty-interest of 2 per cent per month, beginning with the date of notice of the assessment thereof, be in the circumstances charged against the bequests and the appellees, the county judge having failed to certify any such claimed amount to the ap-pellees themselves?

The cause was tried before the court below without a jury, the contention of the appel-lees, that the bequests to them were not subject to the inheritance tax because they were not related to the testator, were residents of the state of Texas, and were to use the bequests within this state, was sustained, with judgment that the state take nothing following.

The trial court filed findings of fact, according with the agreed stipulation of both sides, first outlining the provisions of and procedure taken concerning the will involved, including the description and enumeration of the twenty-three bequests that were made therein to these appellees, with the calculations of the proper officials of the respective amounts of the taxes so claimed against them, and thus continuing:

“I find that none of the above named defendants (the appellees) are related to the decedent W. O. Hogg in any degree. That all of the said persons and defendants are residents of the state of Texas and that all of the said bequests, devises or gifts are to be used within the State of Texas.

“I further find that the said County Judge did calculate and determine an inheritance tax alleged to be due upon such property and bequests above mentioned according to the value thereof as shown in the appraisement and that a statement of the same was furnished to the Comptroller of Publio Accounts of the State of Texas for verification, that the said Comptroller found the said tax to be correct and so advised the County Judge and that said calculation and determination of the tax against the defendants named above as made by the County Judge and approved by the Comptroller was in the amounts above stated. I further find that the 'County Judge of Harris County, Texas, failed to certify such amounts to any of the defendants, except Mike Hogg as he is the Executor of the said estate, as the persons to whom and for whose use the property passed, and that neither the said County. Judge nor the Comptroller, nor any other official or officer of the State of Texas or the County of Harris ever certified the amounts of such tax to the defendants or gave to or served upon any of the defendants any notice of such assessment.

“I further find that Mike Hogg, as Executor of the will and estate of W. C. Hogg, deceased, has paid any and all inheritance taxes which were lawfully due to the ¡State of Texas from the Estate of W. C. Hogg, deceased, and from the legatees, devisees or ben-efieiaries under the will of W. O. Hogg, and upon the property passing to or for the use of the legatees, devisees or beneficiaries under said will, which is subject to tax under the laws of the State of Texas and that all liens securing the same have been satisfied, and that the said Executor paid the said tax in the sum of Eight Thousand, Four Hundred and Twenty-two and 62/100 dollars ($8,422.62) into the hands of and at the office of J. W. Hall, the Tax 'Collector of Harris County, Texas, on November 5, 1931, and within the time provided by law, and that the said tax collector issued receipt therefor under his seal, and that the said receipt has been countersigned by Geo. H. Sheppard, Comptroller of Public Accounts for the State of Texas, under his seal and that said receipt has been duly recorded in the Tax Receipts Records of Harris County, Texas, in volume 2, at page 20, and that there are no other inheritance taxes due to the State of Texas from the said estate or the Executor or the legatees, dev-isees or beneficiaries under the said will.

“I further find that neither the defendants in this suit nor the Executor of said estate, nor the Estate of W. C. Hogg, deceased, nor any of the bequests, devises or gifts passing to or for the use of the defendants under said will are indebted to the State of Texas for Inheritance taxes in any sum or amount. I further find that, no lien exists against the said bequests or property in favor of the State of Texas. I further find that neither the said Mite Hogg as Executor nor any of the defendants herein are liable for or owe the State of Texas any interest upon the amounts assessed against them by the said County Judge and Comptroller as penalty and that no tax lien exists to secure the taxes claimed .or the penalties, costs or attorney’s fees as alleged and claimed by the plaintiff herein. That the defendants in open court stipulated and agreed that they waive any defenses by.reason of the fact that this suit was filed before nine months from the date of the assessment made by the County Judge.”

There were then appended, among others relating to the 2 per cent, penalty-interest, these conclusions of law:

“1. That article 7117 of the Revised Civil Statutes of Texas of 1925, as amended by the First Called Session of the 41st'Leg. in 1929, ch. 50, p. 109, of the Acts of said session (Vernon’s Ann. Civ. St. art. 7117), provides that all property within the jurisdiction of the State of Texas which shall pass absolutely by will, shall upon passing to or for the use of any person, corporation or association, be subject to a tax for the benefit of the State’s general revenue fund ‘in accordance with the following classification’, and that the Legislature has specified certain fixed classifications which are subject to tax.

“2. That articles 7118 to 7122 which imme diately follow the above mentioned article comprehend and classify the classes of persons and property which are subject to tax. The said classes being taxed at different rates -and with different exemptions. Article 7118 designated as ‘Class A — Wife and 'Children’ classes husband and wife and direct lineal descendants or ascendants provides for an exemption of $25,000.00 with a tax rate beginning at one per cent. Article 7119 ‘Class B — Domestic Bequests’, classifies property passing to religious, educational or charitable organizations located within the State and the bequest is to be used within the State, or to any city, town or county within this State, or to the State of Texas or to the United States, to be used within this State; and provides for an exemption of $25,000.00 with a tax rate beginning at one per cent. This Act was amended by the 40th Legislature in 1927 at the regular session, chapter 62, p. 87, § 1 (Vernon’s Ann. Civ. St. art. 7119). Article 7120 ‘Glass C — Brother or Sister’,, classifies brothers or sisters or their direct lineal descendants and provides for an exemption of $10,000.00 with a tax rate beginning at three per cent. Article 7121 ‘Glass D>, classifies uncles or aunts or their direct lineal descendants and provides an exemption of $1,000.00 with a tax rate of four per cent. Article 7122 (amended by acts 40th Leg. [1927], c. 62, § 2 [Vernon’s Ann. Civ. St. art. 7122] ‘Class E— Foreign Bequest’, classifies any other person within or without this State or any religious or charitable organization or institution within or without the State or the United States and the 'bequest, devise or gift is to be used without the State of Texas and provides for an exemption of $500.00 and a rate of tax beginning at five per cent. That the Legislature in said Articles has used four bases for classification, to-wit: (a) The kinship of the devisees or legatees to the decedent; (b) the domicile of the devisee or legatee; (c) bequests, devises or gifts to be used within the State of Texas; (d) bequests, devises or gifts to be used without the State of Texas. That the said Statutes grant a high exemption and provide a low rate of tax if the devise, bequest or gift is to be used within the State of Texas and provide a very low exemption and a materially higher rate of tax if to be used without the State of Texas. That the question of whether or not a devise, bequest or gift is to be used without the State was a material consideration that the Legislature had in mind and was one of the material elements of the classification made by Legislature.
“3. That the property mentioned in article 7117 was not subject to tax unless the gift, devise or bequest was classified or fell within one of the classifications set forth in articles 7118, 7119, 7120, 7121, or 7122.
“4. The property passing to or for the use of any natural person not related to a decedent has not been classified for inheritance tax purposes or made subject to tax under the provisions of the inheritance tax laws of Texas, except under article 7122, and under the said Article such property, bequests, devises or gifts made to such natural persons not related to a decedent are subject to tax only when the bequest, devise or gift is to be used without the State of Texas.
“5. That property passing to or for the use of any natural person not related to the decedent, when the bequest, devise or gift is to be used within the State of Texas has not been classified by and does not fall within the provision of article 7122, or by or within the provision of any other statutes in force in the State of Texas. And that the be quests, devises or gifts and the property passing tó or for the use of the defendants herein are not, therefore, subject to inheritance taxes under the laws of the State of Texas in fprce at the time of the death of the decedent, W. C. Hogg.
“6. That the words ‘and the bequest, devise or gift is to be used without this State’ (contained in article 7122, Class El — Foreign Bequest, Revised Civil Statutes of Texas) were intended by the Legislature to apply to and •be taken in conjunction with each of the classes of devises mentioned in said Article before the words quoted above, to-wit: ‘passing to or for the use of any other person within or without this State or to any religious, educational or charitable organization or institution located without the State of Texas, or to any religious, educational or charitable organization or institution located in the State of Texas or to the United States.’
“7. That article 7122 was amended by the 42nd Legislature in 1931, chapter 72, § 1 (HB, No. 741), (Vernon’s Ann. Civ. St. art. 7122) that the caption of said amendment reads: ‘An Act amending Article 7122, Revised Civil Statutes, 1925, as amended by the acts of the 40th Legislature, Regular Session, Chapter 62, Section 2, page 87, relating to inheritance taxes providing that property passing to or for the use of persons not related to a decedent shall be subject to the payment of inheritance taxes, and declaring an emergency.’ The said amendment merely added the word ‘person’ to the general clause which follows the words, ‘and the bequest, devise or gift is to be used without this State’, the said word ‘person’ having never theretofore been inserted therein. That section 2 of said amendment reads ‘all laws and part of laws in conflict with this Act are hereby repealed.’ That section 3 of the said amendment reads ‘The fact that it is doubtful whether bequests or devises of property passing to or for the use of persons who are not related to a decedent is subject to taxation if to be used within this State, * * *’. That this amendment of 1931 while not in or of itself controlling of the decision herein is per se a legislative construction of the act amended and that the Legislature itself placed a construction thereon and the words of the act declare that there was a doubt or uncertainty in the minds of the Legislature and that the Legislature in the amendment removed and resolved all doubt that existed.
“8. That chapter 5 (inheritance tax) of title 122 of Revised Civil Statutes of 1925, and particularly article 7117 and 7122 are taxing statutes and impose a tax burden, and are therefore to be construed strictly against the State and liberally in favor of the persons upon whom the tax may fall and upon whom it is sought to impose the burden and if there is any uncertainty or doubt, that the doubt must be resolved in favor of the taxpayer and that the provisions of these statutes should not be extended by implication beyond the plain import of the language used nor should their operation be enlarged to apply to subjects not specifically included, therein.
“9. I conclude as a matter of law that article 7122 — Class E — Foreign Bequests (as amended) does not classify, or fix a tax upon property or bequests, devises or gifts passing to or for the use of natural persons who are not related to a decedent when the bequest is to be used within the State of Texas, and that the statute does not fix any tax against or upon the bequests, devises or gifts passing to or for the use of the defendants herein.
“10. That the controversy now before the Court with respect to the tax sought to be assessed against and collected from the defendants and the bequests, devises or gifts passing to or for their use under the will and codicil of W. C. Hogg, does not involve an exemption from taxation in favor of the defendants or ahjf of them but involves only the question of whether or not the said bequests, devises or gifts passing to or for the use of defendants jointly or severally have been classified,by the Legislature under the provisions of article 7117 and the classification articles following. That the Legislature has failed to classify bequests, devises or gifts passing to or for the use of natural persons within or without this state who are not related to the decedent when the bequest is to be used within the State of Texas. * * *
“12. I conclude that under the provisions of the said statutes in force at the time of the death of W. C. Hogg the Legislature failed to classify the property passing to or for the use of the defendants as natural persons residing within the State of Texas and the bequests are to be used within the State of Texas, and that the said bequests or devises are not therefore subject to tax. If it were not clearly apparent to this Court that the said devises and bequests made to the defendants in the said will are not subject to such inheritance tax I conclude that under the language used in article 7122, R. O. S. 1925 (as amended by 40th Legislature 1927, ch. 62, page 87, § 2 [Vernon's Ann. Civ. St. art. 7122]) there is much doubt and uncertainty as to whether the subject or property comes within the provisions of the Act that all such doubt and uncertainty must be resolved in favor of the defendants and against the State.”

Since the construction the learned trial judge thus gave the specific section of the law under which the state sought to enforce this tax — article 7122, Class E, Foreign Bequests, as amended — meets with the full approval of this court, it is, under a feeling of inability to utter an improvement, adopted as its own conclusion; further, since that one holding •determines the whole controversy adversely to the state, the issue raised as to the penalty for delay becomes immaterial.

There seems to be extant no prior appellate decision of this exact question, but, we think, ■both the legislative history of our inheritance tax act, together with its finally-evolved verbiage as it stood at the applicable date here, that of the death of W. C. Hogg on September 12, of 1930, and the rationale of the quoted conclusions from, below vindicate this first one; from that history it seems clear the ultimate result at least, whatever may have been the legislative intent, was neither to tax nor to classify for taxation, up to that •time, resident nonrelated devisees upon bequests to be used within the state, and that such omission is reasonably, if not necessarily, inferable from the use of the conjunctive •clause, evidently from the context as a whole applicable to all classes previously named in that section of the act, ‘‘and the bequest, devise, or gift, is to be used without this State.” The rule of interpretation, known as the doctrine of the last antecedent, through the operation of which it is contended by able counsel for appellant that this clause refers back only to the recitation, “any religious, educational or charitable organization or institution located in the State of Texas or to the United States,” is in our opinion defeated by the consideration that the entire act requires its extension back to all the preceding disjunctive clauses to which it is appended. 36 Gyc. 1123.

If this is not the clear import of the statute, then, as the Legislature itself thought in 1931, in again amending it after these bequests had already vested (General Laws, Regular Session 42nd Leg. c. 72, p. 109 [Vernon’s Ann. Civ. St. art. 7122]), its meaning is ■doubtful, and the trial court was still correct, it being a tax law, in applying the canon stated in its eighth conclusion, and holding it not to have imposed the tax claimed. Art. 7122, R. C. S.; 36 Cyc. 1172B, 1189 (9); 37 Cyc. 1556 (3); State v. San Patricio Canning Co. (Tex. Civ. App.) 17 S.W.(2d) 160; Underwood v. Childress Ind. School District (Tex. Civ. App.) 149 S. W. 773; City of Austin v. Nalle (1893) 85 Tex. 520, 22 S. W. 668, 960; Franklin Fire Ins. Co. v. Hall (1923) 112 Tex. 332, 247 S. W. 822; City of Tyler v. Cocker, 58 Tex. Civ. App. 605, 124 S. W. 729; State v. H & T. C. Ry. Co. (Tex. Civ. App.) 209 S. W. 820; Yellow Cab Co. v. Pengilly (Tex. Civ. App.) 11 S.W.(2d) 560; Crooks v. Harrelson, 282 U. S. 55, 51 S. Ct. 49, 75 L. Ed. 156; Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Field, 255 U. S. 257, 41 S. Ct. 256, 65 L. Ed. 617, 18 A. L. R. 1461; Miller v. Standard Nut Margarine Co., 284 U. S. 498, 52 S. Ct. 260-263, 76 L. Ed. 422; May v. Heiner, 281 U. S. 238, 50 S. Ct. 286-288, 74 L. Ed. 826, 67 A. L. R. 1244.

An affirmance has been entered.

Affirmed.


author: WALKER, O. J.

text:
    HARRIS v. O’BRIEN, Judge, et al.
    No. 2391.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 3, 1932.

      E. L. Nall, of Beaumont, for relator.
    J. A. Harrison and Frank Vaughn, both of Beaumont, for respondents.
   WALKER, O. J.

This is an original proceeding filed in this court by N. M. Harris, as relator, complaining of the Hon. George C. O’Brien, judge of the Fifty-Eighth judicial district court in and for Jefferson cóunty, Tex., and W. W. Harder, as respondents, praying that a writ of mandamus be issued against Judge O’Brien directing him to enter a final judgment in cause No. 36620, N. M. Harris v. W. W. Harder, on the docket of the Sixtieth district court in and for Jefferson county, Tex. For grounds of relief, relator alleged the following facts: On the 18th of May, 1925, relator purchased from J. W. Priest and wife lots 1, 2, 3, and 4 of the Fletcher subdivision of the Oakwood addition to the city of Beaumont, Jefferson county, Tex., for $3,250, of which $1,200 was paid in cash and the balance in monthly payments of $25 each, with 8 per cent, interest beginning on June 20, 1925, with vendor’s lien reserved to secure the payment of the unpaid purchase price. On January 8, 1927, relator sold and conveyed to respondent W. W. Harder 40 feet out of the center of lots 1 and 2 for $975, of which $25 was paid in cash and the balance as follows: Three monthly payments of $25 each for the months of February, March, and April, with interest at 8 per cent., and the balance in monthly payments of $15 each, with 8 per .cent, per annum interest, beginning with the May, 1927, payment. On September 8, 1927, relator sold to respondent W. W. Harder 45 feet off the front end of lots 1 and 2 for $1,275, of which $16 was paid in cash and the balance in monthly payments of $15 each, with interest at 8 per cent, per annum. Relator’s deeds to respondent contained the usual warranties of title and reserved the vendor’s lien to secure the unpaid purchase money. Relator failed to pay off all the J. W. Priest vendor’s lien notes when due and Priest instituted suit thereon and secured judgment for the unpaid balance on the 28th of September, 1931, with foreclosure of vendor’s lien, with stay of order of sale to December 15, 1931. Respondent Harder failed and refused to p&y the vendor’s lien notes given by him to relator, whereupon relator filed suit against respondent Harder for the unpaid purchase price on the property sold by relator to respondent and to foreclose the reserved vendor’s lien, to which action respondent replied by general and special demurrers, general denial, and by specially pleading relator’s warranty, and also by specially pleading certain improvements made upon the property in good faith and for damages. That ease, upon the issues made by the pleadings, came on for trial on the 11th day of December, 1931, before Judge O’Brien, without a jury, and on that date Judge O’Brien entered the following judgment in that cause:

“N. M. Harris v. W. W. Harder. No. 36620 “Decree Recorded Vol. 18, p. 201 60th Dist. Court
“December 11, 1931: This day came on to be heard the above entitled and numbered cause, a jury being waived, and all the parties with their attorneys being present in Court; and the evidence and argument of counsel having been heard, it is ordered, adjudged, and decreed by the Court that1 defendant have judgment as against plaintiff on plaintiff’s warranty for improvements and damage’s sued for, but it is further ordered, adjudged and decreed that, after the plaintiff will have complied with his warranty, conveying said property to defendant, and having first paid off the liens and encumbrances against said tract of land, and delivered to defendant his warranted title as aforesaid, and not until then, shall the following judgment against the defendant be enforced and complied With, in the manner following:
“It is ordered and decreed by the court that the lien as it existed on December 11, 1931 on 85 feet off the front end of Lots One (1), Two (2) and Three (3) of the Fletcher Subdivision of the Oakwood Addition to the City of Beaumont, in Jefferson County,Texas, he, and the same is hereby foreclosed and the Clerk of this court, after said warranty on the part of the plaintiff, will have been complied with as aforesaid, shall issue an order of sale, directed to the sheriff or any constable of Jefferson County, Texas, commanding him to seize and sell the above described, land and premises as under execution and that he apply the proceeds thereof to the payment of said debt, to wit: $1438.56, together with interest from December 23, 1931; and if the said land and premises shall sell for more than sufficient to pay off and satisfy said sum of money together with all court costs incurred, then the said officer is hereby directed to pay over the excess to the defendant; but if the said land and premises shall not sell for enough to pay off said judgment, then the said officer shall make the balance as under execution. And it is further ordered that the said officer place the purchaser of said property in possession thereof within thirty days after the- date of sale; and said order of sale when issued shall have all the force and effect of a writ of possession. But it is ordered and decreed as aforesaid that said foreclosure and sale proceedings will not be enforced as aforesaid until the plaintiff will have complied with his warranty contained in the deed conveying the defendant said property.”

Relator has not paid the judgment recovered against him by Priest on the 28th of September, 1931, but on the 16th of December, 1931, respondent Harder purchased the Priest judgment and on the 8th day of July, 1932, took from Priest a written assignment of that judgment. After respondent Harder became the owner of the Priest judgment, re: lator (quoting from his petition) “in due time filed his motion in Cause No. 36620, and being the cause in which said interlocutory decree was entered, setting forth that his warranty was now protected by the said W. W. Harder having acquired the J. W. Priest judgment and that the Court could determine the issues between the parties and enter final judgment in said cause; that said motion to enter final judgment came on to be heard before the Court and the Court, after hearing said cause and the evidence adduced thereunder, by decree entered on September 1, 1932, held that the judgment of December 11, 1931, was a final judgment and was in no wise an interlocutory judgment and refused to disturb the same or enter any other decree in said cause,” whereupon this proceeding was filed in this court.

Opinion.

We agree with relator that the decree in cause No. 36620, N. M. Harris v. W. W. Harder, as copied above, was interlocutory and not final. The issues made by'the pleadings in that suit were (a) the amount of the unpaid balance due by Harder on the vendor’s lien notes executed by him to relator ; (b) the unpaid balance due by relator on the vendor’s lien notes executed by him to Priest; and (c) the value of the improvements placed by respondent Harder upon the property, and the amount of the damages suffered by him by reason of the alleged breach by relator of his warranty. The decree did not determine the value of Harder’s improvements and the amount of damages suffered by him. Even if the decree was sufficient to award Harder the amount sued for in his cross-action, the issue was not finally determined because no provision was made for its collection. While the decree, in effect, awarded respondent Harder judgment against relator for the amount due by relator under the Priest judgment, and awarded relator judgment against respondent Harder for the amount due by him to relator, no attempt was made to set one recovery off against the other and to strike a balance between the two recoveries, to be collected under process of court. But, instead of striking such a balance, the decree merely postponed relator’s right of process until he paid the Priest judgment, and required such payment before process could issue. These omissions in the decree, we think, made it merely interlocutory. The issues of improvements in good faith ¿nd of damages should have been finally adjudicated. Having determined that relator was liable to Harder for the amount of the Priest judgment, and also having determined that respondent Harder was liable to relator for the unpaid balance on his vendor’s lien notes, the decree should have struck a balance between these two amounts, with a definite statement of affirmative relief in favor of relator for the balance, and should not have denied relator relief except upon condition that he comply with his warranty. Under the recitations of the decree, the clerk was without affirmative direction for issuing an order of sale: Under the decree itself, he was required to hear proof as to whether or not relator had paid the Priest judgment. This required a judicial discretion on the part of the clerk which he was without power to exercise. In Kuehn v. Kuehn, 242 S. W. 719, 720, Judge Spencer, speaking for the Commission of Appeals, announced the following proposition: “It is the unquestioned rule in this state that, in order to constitute a final judgment, there must be an express adjudication to that effect. It is not sufficient that the court make a ruling which should logically lead to a final disposition of it, but the consequences of the ruling to the parties must also be declared.”

In Walker v. Mears, 28 Tex. Civ. App. 210, 67 S. W. 167, 168, it was said: “There can be but. one final judgment *, ⅜ ⅜ and that must settle all the issues between the parties raised by tbe pleadings. What is found by the verdict for one party should be set off against the amount found for the other, and judgment rendered for the balance in favor of the party entitled thereto.”

In Spiva v. Williams, 20 Tex. 442, the judgment was as follows: “It is therefore considered by the Court, that the said plaintiff have and recover of and from the said defendant, the sum of nine hundred seventy-eight 3¾00 dollars, principal and interest, and ten per cent, interest on the same from the date of this judgment until paid, subject to an offset agreed upon by said parties aforesaid, and all costs in this behalf expended, for which execution may issue.”

That judgment was held to be interlocutory by the following conclusion: “The very object of a suit is to adjudicate and declare the respective rights of the parties, in a shape so that the ministerial officers can. with certainty carry into execution the judgment of the Court, without the ascertainment * ⅞ * of additional facts. It is obvious that such is not the case here.”

General Motors Acceptance Corp. v. Boden-heim, 37 S.W.(2d) 312, seems to be directly in point in support of relator’s proposition that the failure to strike a balance between the amount due by relator to respondent Harder and the amount due by respondent Harder to relator rendered the decree interlocutory. The following statement from the opinion reflects the holding in the Bodenheim Case: “May 22, 1926, appellee, G. A. Bodenheim, purchased property (described as a ‘compressor’ and ‘coil’) of the appellant, General Motors Acceptance Corporation, paying a part of the purchase price in cash and agreeing to pay the remainder thereof, to wit, $336, in monthly payments of $14 each. This suit by appellant to recover $252 of the $336 alleged to be due and unpaid, with interest and attorney’s fees, was commenced July 6, 1928. Appellee claimed the compressor and coil were not as warranted by the seller, and that, because they were not, he had been damaged in the sum of $350. The trial to the court without a jury resulted in a judgment in appellant’s favor against appellee for $364.66 and foreclosing a lien on the compressor and coil created to secure same, and in appellee’s favor against appellant for $350, the amount of damages claimed by the former. For some reason not stated on the record, whereas it should have been (article 2066, R. S. 1925), the court, in violation of the general rule entitling the successful party to recover the costs of the suit (article 2056, R. S. 1925) in his judgment ordered the costs to be ‘taxed equally against both plaintiff and defendant.*' The appeal was prosecuted by the acceptance corporation.”

After stating the case as above, Judge Willson of the Texarkana Court of Civil Appeals, rendered the following decision: “Having determined appellee was entitled to recover of appellant a specified sum and that appellant was entitled to recover of appellee a different specified sum, the court should have set off the one sum against the other, and, having done so, should have rendered judgment for the balance in favor of the party entitled thereto. As the court did not do that, the judgment is not a final one from which an appeal could be prosecuted,” citing article 2211, R. S. 1925; Walker v. Mears. 28 Tex. Civ. App. 210, 67 S. W. 167; Eastham v. Sallis, 60 Tex. 576; Kinney v. Tel. Co. (Tex. Com. App.) 222 S. W. 227. “This court, therefore, cannot do otherwise than dismiss the appeal.”

Stratton v. Dewey (C. C. A.) 79 F. 32, sustains relator’s proposition that the decree was rendered interlocutory by the condition that relator could have his order of sale only by paying the amount of his warranty and affirmatively denying him the order of sale unless and until that condition was complied with. In that case the court held that a judgment granting relief upon the party complying with specified conditions and providing that if they are not complied with the relief shall be denied, is not a final decree.

But the fact, that the decree in issue was interlocutory does not entitle relator to a mandamus against Judge O’Brien. This conclusion merely leaves the ease upon the docket of the trial court subject to such further orders as may be made therein when the case is called for further disposition. There is no complaint by relator that Judge O’Brien refused to give him a setting of his case for final disposition, nor is there any suggestion that he has ever asked for a further hearing in his cause. The prayer is that we direct Judge O’Brien to enter an order crediting relator’s judgment against Harder with the amount of the Priest judgment, and that order of sale issue in his favor for the balance. This relief would result in a trial of the ease by us, with' a decree as to the character of the judgment to be entered by the trial judge. Such relief is beyond our jurisdiction to grant.

For the reasons stated, all relief prayed for is refused.


author: CRITZ, J. CURETON, C. J.

text:
    MILLER et al. v. KOUNTZE CORPORATE SCHOOL DIST. et al.
    No. 1592—5967.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1932.
    A. D. Lipscomb, Howth, Adams & Hart, and Elton Cruse, all of Beaumont, for plaintiff's in error.
    Oswald S. Parker and W. D. Cordon, both of Beaumont, and James F. Parker and A. L. Bevil, both of Kountze, for defendants in error.
   CRITZ, J.

This suit was originally filed in the district court of Jefferson county, Tex., on October 2, 1928, by E. J. Miller and J. H. Yent-zen against Kountze corporate school district, and a number of other parties.

We shall hereafter refer to the parties in the order in which they appeared in the district court, to Miller and Yentzen as plaintiffs, and the 'Kountze corporate school district et al. as defendants.

[I] The plaintiffs filed this suit in the district court of Jefferson county on October 2, 1928. Defendants duly filed their plea of privilege to be sued in the district court of Hardin county, Tex. On January 21, 1929, the district court of Jefferson county heard and sustained the defendants’ plea of privilege, and ordered the case transferred to the district court of Hardin county. Plaintiffs excepted to this order and gave notice of appeal, but filed no appeal bond and never took any steps to perfect the' appeal. The order therefore became final without appeal.

An examination of the statute, article 199, R. O. S. 1925, shows that Hardin county is a part of the Seventy-Fifth judicial district, composed of the counties of Hardin, Liberty, Tyler, and Chambers. Under the above statute the district court of Hardin county has three 4-week terms per year beginning on “the first Monday in January and on the nineteenth and thirty-third Mondays after the first Monday in January of each year.”

An examination of the record discloses that the transcript in this case was not filed in the district court of Hardin county until August 17, 1929.

From the statement we have made it will appear that, at the time the order was made on January 21, 1929, by the district court of Jefferson county transferring the case to the district court of Hardin county, the district court of Hardin county had twelve days remaining of its January term. It further appears by calculation that the next or second term of the Hardin county district court be--gan on May 20, 1929, and expired by operation of law on June 15, 1929. The third term of the Hardin county district court began on the 26th day of August, 1929, and expired on the 21st day of September, 1929.

It will appear from the statement above that plaintiff, having filed his transcript in the Hardin county district court on August 17, 1929, allowed twelve days of the January, 1929, term of the district court of Hardin county, and all of the May term, 1929, to expire before filing the transcript of the case in the district court of Hardin county. They filed it before the August, 1929, term began.

The record further shows that the case was not finally called for trial and dismissed until June 6, 1930. On that date the district court of Hardin county sustained defendants’ motion to dismiss and plea of limitation, and finally dismissed the case. On appeal this judgment was affirmed by the -Court of Civil Appeals. 35 S.W.(2d) 1076. Plaintiffs bring error. We refer to the opinion of the Court of Civil Appeals for further statement.

It appears from the statement we have made and the record that the District Court of Hardin County dismissed this case on two grounds: (a) Because the plaintiff allowed an unreasonable time to elapse between the sustaining of the plea of privilege by the district court of Jefferson county, and the filing of the transcript and papers in the district court of Hardin county; (b) because plaintiffs’ petition shows upon its face that the cause of action therein attempted to be alleged was barred by limitation at the time the original petition was filed in the district court of Jefferson county as to'all issues and all defendants.

If either of the above grounds of dismissal are good, the judgments of the two lower courts should be affirmed; if both are erroneous, such judgments should be reversed and the cause remanded to the district court.

Articles 2019 and 2020, R. C.- S. 1925, read as follows:

“Art. 2019. If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.”
“Art. 2020. When a plea of privilege is sustained, the court shall order the venue to be changed to the proper court of the county having jurisdiction of the parties and the cause. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed.”

An examination of these statutes shows that they provide in substance that, when a plea of privilege is sustained, the cause shall not be dismissed, but transferred to the proper court of some county having jurisdiction of the parties and the cause. It is also provided that the clerk shall make up a transcript of the orders of the original court, etc., and send it with the papers to the clerk of the court to which the venue is changed. It will be noted that the statutes nowhere expressly limit the time in which the transcript and papers can be filed in the court to which the case is removed. Furthermore, the statutes do not, by any express language, define whether it is the plaintiffs’ or the defendants’ duty to see that the transfer is effected, and the case duly filed in the second court. Under such conditions, since the plaintiffs were prosecuting the suit, we think it was their duty to, within a reasonable time, take steps to effect the actual filing of the cause in the second court.

Defendants contend that, since it was the duty of the plaintiffs, after the cause was ordered transferred, to actually effect the consummation thereof, their delay in doing so from January 21, 1929, until August 17, 1929, during which time a part of the January, 1929, and all of the May, 1929, terms of the district court of Hardin county expired, constituted in law and in fact an abandonment of the suit by the plaintiffs. In this connection defendants contend that they were injured by the delay, in that they were not in as good position to secure testimony when the case was called for trial as they would have been in had the transfer been made promptly. Defendants offered testimony to support their contention of injury, and we presume in favor of the judgment of the trial court that such testimony is true. There is no testimony in the record showing that during the time intervening between the sustaining of the plea of privilege and the filing of the cause in the second court the plaintiffs did any act or made any statement which would lead the defendants to believe that they intended to abandon the suit.

Under the above record, we hold as a matter of law that the trial court erred in dismissing this suit on the ground of abandonment. The record before ns shows that the plaintiffs have not been guilty of any negligence in bringing it to trial after its actual filing in the district court of Hardin county. We do not think that the delay in effecting the actual transfer of the cause from one court to the other, was sufficiently long to constitute an abandoned suit in the sense that the Hardin county district court, by such delay, lost jurisdiction to try it. Loftus v. Beckmann (Tex. Com. App.) 1 S.W.(2d) 268. If the case had been promptly transferred, and the trial delayed until August 17, 19-29, certainly no court would permit it to be treated as an abandoned suit. We see no difference in the two instances; that is, we see no difference between delaying the transfer and delaying the trial after transfer as applied to the law of an abandoned suit.

In the case of Flanagan v. Smith, 21 Tex. 493, our Supreme Court held that, where plaintiff failed to take action by continuance or otherwise in a case in the justice court for four years, he released the defendant and abandoned the suit. It was also there held that a shorter time may justify the same conclusion under some circumstances. We are aware of no authority in this state which holds that the delay which here transpired would deprive the court of jurisdiction to try the case or work a release of the cause of action. If the plaintiffs had done some act, or made some statement during the delay, which justified the defendants in concluding that they did not intend to prosecute the suit further, and if defendants had acted to their injury, on such acts or statements, we would have a different question. No such ease is presented here. All the plaintiffs were guilty of was a mere failure to effect the transfer for the time shown.

Our holding to the effect that the trial court erred in dismissing this cause as- an abandoned suit makes it necessary for us to pass on the question as to whether the plaintiffs’' petition is subject to the special exception that it affirmatively discloses upon its face that the cause of action therein attempted to be alleged was barred by the two-year statute of limitation as to all the defendants and all of the relief sought at the time the suit was filed in the district court of Jefferson county on October 2,1928.

The petition is very long and complicated. It is therefore not expedient for us to attempt to make a full statement of all its allegations. In its opening paragraph it states that plaintiffs complain of Kountze corporate school district (later alleged to be an independent school district duly incorporated under the laws of Texas), J. B. Hooks, W. R. Robertson, Thomas B. Coe, J. O. Fountain, Bud Hooks, Nick Matthews, Frank Crews, James F. Parker, J. C. Alsup, E. L. Adams, L. M. Adams, W. B. Uvesay, N. E. Widemann, and E. M. Pitts.

The petition then alleges that about November 6, 1925, plaintiffs and the school district entered into a certain written contract whereby the plaintiffs agreed and bound themselves to build for the district a certain sehoolhouse at an agreed price of $15,700, payable 85 per cent, on estimates approved by the architect, and the balance when the job was finished and accepted. It is then alleged that, at the time the above contract was entered into, the district had $20,000 of funds on hand in its depository bank lawfully available to pay for said building and carry out the contract. It is here alleged that the defendants, E. E. Adams, L. M. Adams, E. M. Pitts, and J. O. Fountain were the sureties on the depository bond.

The petition then alleges that the plaintiffs began the building of the sehoolhouse and furnished labor and material therefor to the amount of $2,954.60; that the estimate for same was approved by the architects and check was issued to them for 85 per cent., leaving a balance due on this estimate of $445.19; that this check was paid; that plaintiffs then continued work on such building, and prior to February 10, 1925, furnished additional labor and material to the extent of $3,589.70; that the architects approved this estimate, and check was issued to the plaintiffs for $3,051.25, being 85 per cent, of such sum; that, when this check was issued and delivered to the plaintiffs, the depository bank was insolvent and under control of the state banking department, and therefore such check was never paid; and that, in addition to the labor and material represented by the above estimates, plaintiffs made additional expenditures for labor and material during the two weeks ending February 24, 1925, in the sum of $3,500, for which the architects approved their estimate, but no check has ever been issued to them therefor. From the above the plaintiffs alleged that they hold unpaid estimates duly approved against the district in the total sum of $7,834.89.

The petition then alleges that the fund on deposit in the depository bank has been made away with by the defendant J. O. Fountain, who was president of said bank, by defalcation, but that the defendants and each of them have unlawfully refused to take any steps to recover the ’ school fund from said Fountain or any of the sureties on the depository bond of such bank.

It is then alleged that, after the happening of the above events, the school district notified plaintiffs that it had no funds to complete said building, and released them from any further obligation to complete the same, but that no part of the sum owing to the plaintiffs has ever been paid. It is then alleged that, if the plaintiffs had been permitted to complete such building, they would have made a profit of $1,500. From the above the plaintiffs conclude and allege that they have been damaged in the sum of $9,-334.89, with interest from the date they would have completed said building, which they allege would have been not later than March 15, 1925.

It is difficult to make a statement of the balance of the plaintiffs’ petition. We therefore reproduce it. It is as follows:

“IS. That plaintiffs believe that the defendant school trustees above named made no effort to collect upon the said bond executed by and on behalf of said bank as depository, but have colluded with said bank officers and sureties on said bond to allow the said officers and sureties to escape payment of their obligation, the payment of which, if made, would inure to the benefit of these plaintiffs for the protection of their rights as herein alleged ; that as excuse for said failure to pursue said officers and sureties, it is asserted by defendants that said officers and bondsmen are insolvent, but if the said bondsmen are apparently insolvent, it is because (as plaintiffs believe and so charge), the said bondsmen have transferred all of their property and effects, subject to execution, upto defendant, J. B. Hooks and plaintiffs believe that such transfers were colorable and on some species of trust, and that the property so transferred is held by defendant, J. B. Hooks, for the benefit of said bondsmen; plaintiffs believe and would show to the court that such property, so transferred to the said J. B. Hooks, is sufficient to make good the defalcations of the said bank officers and sufficient to enable the said school district to collect sufficient funds for the payment of its said indebtedness to plaintiffs, and, in view of the failure of said trustees to sue for the plaintiffs’ benefit, the plaintiffs are entitled to sfie said bondsmen and said J. B. Hooks as they are herein sued. The property referred to as being in the hands of said J. B. Hooks is all that property which has been transferred to said J. B. Hooks, since the date of the purported contract of plaintiffs with said district, by each and all of the said sureties on the bond of said bank.
“17. The said bond is described as follows: “On or about the time of the deposit of the funds of the said Corporate School District in said bank, the said bank executed a bond, approved by the school board on Feb. 12, 1925, in the sum of Thirty Thousand Dollars ($30,-000.00), with the said E. L. Adams, L. M. Adams, E. M. Pitts and J. O. Fountain as sureties, and the said bank and said sureties obligated themselves in the sum of Thirty Thousand Dollars ($30,000.00) unto J. B. Hooks, President of the School Board of Kountze In-pendent School District so called (intending to name thereby the Kountze Corporate School District of Hardin County, Texas) and his successors in office, conditioned that said bank would faithfully discharge its duties as depository of the said funds; that thereupon the said trustees of such district deposited in said bank the said funds so realized from the sale of bonds in the amount of $20,-000.00, for which sum the said bank and its sureties became liable under the provisions of said bond, and no part of said sum has been paid to said school district or to anyone for its account so far as known to these plaintiffs, except the payment made to these plaintiffs on the first estimate as hereinabove set out; that all of the said sums remain now due and payable, and the aforesaid bank is wholly insolvent; its affairs wound up by receiver appointed under the state law, and its corporate charter forfeited; that all of the funds of said bank were appropriated to his own use by the manager thereof, the said J. O. Fountain, or to the use of him and the sureties on the said bond, or to him and them and trustees of said school district, all to the damage and injury of plaintiffs in the amount of about Nine Thousand Five Hundred Dollars ($9,500.00), in violation of the Constitution of the United States as aforesaid.
“18. Plaintiffs further show to the court that defendant school district, besides the money obtained from bonds above referred to, which has been lost through defalcation of the said bank officer or officers, and through failure of the defendant school trustees to pursue the sureties on said bond, the defendant school district has obtained the sum of about Ten Thousand Dollars ($10,-000.00) as the result of an insurance policy on another and different building in the same district, which was destroyed by fire and now has the said sum of $10,000 available for payment of the costs of construction of buildings, but the defendant school trustees, and each of them, wholly fail and refuse to appropriate or pay any part of said sum upon the above claims of plaintiffs; that the said school trustees are now proposing to expend said $10,000.00 in payment to other persons not parties to this suit for material and labor to be mingled indistinguishably with the material and labor placed by said plaintiffs upon said building, and for the completion of same; that said course on the part of said trustees would result in consuming all of the said $10,000.00 and would be wholly inequitable, unjust and unconscionable; that without this court’s most gracious writ of injunction to prevent defendants from so appropriating said funds to the exclusion of plaintiffs, and from mingling the proposed new improvements with the improvements constructed at the cost of plaintiffs, the plaintiffs have no plain, adequate and complete remedy.”

We interpret the prayer to ask for relief as follows; (1) A temporary injunction to be made permanent on final hearing. The temporary injunction was not granted and we are not interested in this feature further; (2) that the defendants, who are trustees, be required to pay the plaintiffs’ demand against the district out of a fund of $10,000 on hand belonging to the district, which is alleged to be the proceeds of a fire insurance policy on another school building which was burned; or (3) that plaintiffs have judgment against all of the above trustees individually and personally and against J. O. Fountain and the other sureties on the depository bond, individually and personally; or (4) that a mandamus issue to the defendants who are school trustees requiring them to institute suit against the sureties on the depository bond, and against J. B. Hooks, as assignee of the property of such sureties, and requiring them, upon collection of such funds, to apply them pro tanto to the payment of plaintiffs’ claims; or (5) that plaintiffs have judgment directly against the defendants who are sureties on the depository bond and J. B. Hooks for such amount as the - district could recover from them; and (6) for costs of suit and general and equitable relief.

The petition contains other matter, but we deem our statement sufficient to answer the purposes of this opinion.

Now it must be borne in mind that we are not here passing on the general demurrer; neither are we passing on whether this petition is subject to special exception or exceptions as to form or substance except the bare issue as to whether it shows upon its face that all causes of action against all parties defendant are barred by the two-year statute of limitation. This being the case, we take it for granted for the sole purpose .of passing on the exception of limitation that the petition otherwise states a cause of action against some of the defendants.

Article 5527 provides in substance that actions for debt evidenced by or founded on a contract in writing are governed by the four-year statute of limitation. It is settled that the term “action fór debt” as used in the above article includes all suits brought to recover money without regard to any technical distinction between debt and damages. Texarkana & Ft. Smith Ry. Co. v. Houston Gas & Fuel Co., 51 S.W.(2d) 284 (Tex. Com. App. opinion adopted) and' authorities there cited. We think that, when we come to consider the plaintiffs’ petition as a. whole, they are attempting to assert a cause of action against some of the defendants based on the two written contracts, viz. their contract with the district, and the depository bond. It does not appear on the face of the petition that any cause of action plaintiffs have against the district, whether for debt or damages, is barred by limitation; and neither does such appear as to any'cause of action the district has on the depository bond. Such being the case, it appears to us that, if it be admitted that the plaintiffs have a right to require the trustees to pay them out of the alleged $10,-000 fund, or if they have the right to compel the trustees to sue the sureties on the bond, and pay them out of any judgment recovered by such action, or if they have the right to pursue such bond directly, none of such rights are barred by limitation, because the four and not the two year statute would apply.

Again referring to the effect of this petition, we wish it to be distinctly understood that we are not passing upon the question as to whether the plaintiffs can recover in this action under the allegations of their petition. That matter is not before us. We are merely passing on the special exception to the effect that the petition shows upon its face that any cause of action therein alleged is barred by the two-year statute of limitation. In respect to that matter, we hold that the trial court erred in sustaining such exception.

We recommend that the judgments of the Court of Civil Appeals and district court be both reversed, and the cause remanded to the district court.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LATTIMORE, J.

text:
    LOVE v. STATE.
    No. 15376.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Williford & Williford, of Fairfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

The motion for new trial was overruled January 27, 1932, and notice of appeal then given. The appellant was allowed seventy days in which to file statement of facts and bills of exception. Appellant has two bills of exception. Both were filed April 23, 1932. Manifestly this is beyond the seventy days granted by order of the court. On April 4, 1932, the court made an order extending the time for filing the statement of facts, but no mention is therein made of the bills of exception.

Appellant complains on appeal of the lack of sufficient- testimony corroborating that of an accomplice. Said accomplice testified that he was at a still on the 13th of July, 1931, when appellant was there. He said appellant was there when he got there. We quote: “He was there making whisky when I first got there, but he was not there when the laws came.” This witness said he went down to the still about 5 o’clock in the afternoon; that there were barrels of hops at the place; a fire was under the still and whisky was there. He said he saw appellant pour up something into a jar, and he saw him pouring whatever this was into a barrel. He further testified that appellant left the still fifteen of twenty minutes before the officers got there. This was the testimony of the accomplice.

Three officers raided the still on the night of July 13th and found a quantity of whisky, mash, etc., and a still in operation, having fire under it and whisky running out of the coil. One of these officers was Bob Reeves. Reeves testified that he was with the other officers who made the raid, and as to what they found. He also testified that on that saíne afternoon approximately two and a half hours before the raid, he was near said still and saw appellant there. We quote: “He was firing up his pot. He had built a fire and was getting ready to work. I suppose I watched him anywhere from three to five minutes, and, according to my best judgment, I would say I was about forty steps from him and the still. ⅜ ‘ ⅜ * He is the only one I saw there at that time, and he had built a fire under the still; I saw him building it. He had the fire going and was around the still. I say I saw him build this fire. * * * He was standing up, moving around as you would do in performing any other duties.” It seems hardly necessary to indulge in a discussion of the fact that this testimony was corroborative of that given by the accomplice. The officer testified that he saw appellant engaged in the preliminary operations incident to and necessary in the manufacture of intoxicating liquor and apparently in charge of said still. The accomplice testified that he saw appellant later on the same afternoon engaged in the actual manufacture of intoxicating liquor at said place with said still.

Finding no error in the record, the judgment will be affirmed.

HAWKINS, J., not sitting.