text:
    GULF REFINING CO. v. ROGERS et al.
    No. 1302.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1933.
    Rehearing Denied Feb. 16, 1933.

      Seay, Seay, Malone & Lipscomb, of Dallas, and Bryan & Maxwell, of Waco, for appellant.
    Witt, Terrell & Witt, C. S. Parmer, and Munroe & 1-Iolt, all of Waco, for appellees.
   ALEXANDER, Justice.

This suit was brought by Elbert Rogers and the Texas Employers’ Insurance Association against the Gulf Refining Company and Dan Russell to recover damages for personal injuries alleged to have been sustained by Rogers. The defendant Gulf Refining Company owned a gasoline filling station at West, Tex., which station was operated by Dan Russell under a written contract. Elbert Rogers drove his automobile into the filling station for the purpose of having the tank filled with gasoline. Ernest Johnson, one of the employees at the station, undertook to service the car, and in doing so negligently spilled gasoline on the floor thereof. The gasoline came in contact with a hot exhaust pipe, causing it to ignite, and as a consequence Rogers was severely burned. Rogers was an employee of the Western States Grocery Company, and was insured under the Workmen's Compensation Act (Vernon’s Ann. Civ. St. arts. 8308-8309) by the .Texas Employers’ Insurance Association. The plaintiffs alleged that Dan Russell and Ernest Johnson were the agents and employees of the Gulf Refining Company, and that the latter was responsible for their acts. Rogers sought to recover damages for the personal injuries sustained by him, and the Texas Employers’ Insurance Association sued to recover for the medical bills and compensation that it had been required to pay, and would be required to pay in the future to Rogers, under the Workmen’s Compensation Act.

A trial by jury resulted in a verdict and judgment against the Gulf Refining Company and in favor of Rogers in the sum of $23,971.-60, and in favor of Texas Employers’ Insurance Association in the sum of $1,02S.40. The Gulf Refining Company appealed.

The appellant contends that Dan Russell was operating the filling station as an independent contractor, and that Ernest Johnson, whose negligence caused the injury, was a servant of the said Dan Russell, and not a servant of the appellant. The appellees alleged, and the jury found, that Dan Russell was not an independent contractor, but was an agent of the Gulf Refining Company, and that Ernest Johnson was appellant’s employee. Appellant contends that the evidence was insufficient to support the verdict. The appellant owned the filling station. It introduced in evidence a written contract be- ■ tween itself and Dan Russell by which it appointed Russell its commission agent to sell its gasoline, oil, and other products through said station. It agreed to deliver the station and all equipment to said Russell, and he, for a certain commission on the products so sold, agreed to employ all help, and to operate the station at his own expense. ' The products were to be consigned to -Russell, title to remain in appellant until the goods were sold, and he was to sell same at such prices only as appellant might fix from time to time. He was to sell for cash only, except that he could sell on credit to such persons and on such terms as authorized by appellant. He was not permitted to sell any other products of petroleum on the premises except those so furnished by appellant. He was authorized to conduct any other business on said premises not inconsistent with the storage and sale of appellant’s products; but in the event he elected to do so he was required to maintain a sign on the door of window of the building indicating the portion of the business which was his own personal business, and was not to use the company’s name in connection therewith. The contract bound , Russell to be responsible for all damages to the public caused by him or his servants. It ' could be terminated at any time at the will of either party. The testimony showed that the representatives of appellant made regular and frequent inspections of the filling station, cheeked the books and credit accounts, and suggested to the employees and directed them as to the manner in which the station should be run. They gave said employees instructions about keeping the station clean, and about keeping towels, soap, ice water, etc., for the customers. .They instructed the employees how to service cars; and, if an employee failed to service a car properly, he was corrected by said representatives and shown how to do the work. There was evidence that said representatives of appellant instructed Russell that employees about the station whose services were unsatisfactory to the Gulf Refining Company should be dismissed, and that on one occasion, after the accident in question, one of said representatives instructed Russell to discharge one of the employees, and that, rather than do so, Russell surrendered the station. Russell was authorized to and did sell gasoline on credit to holders of courtesy cards issued by the appellant from its home office without inquiry as to the financial standing of the purchasers. When such sales were made, Russell would later receive his commission thereon from the company’s home office. The company filled the gasoline tanks and supplied necessary oils when needed without consulting Russell. The station was equipped with a regular “Gulf Refining Company” sign, about thirty feet in length, and with another one of the company’s regular, “That Good Gulf Gasoline,” signs. All records were required to be kept on appellant’s stationery, and the employees wore Gulf Refining Company uniforms. Rogers testified that he went to the station because he thought it was a Gulf Refining Company station, in order to receive the service usually supplied by company-owned and operated stations.

In determining whether or not one is an employee or an independent contractor, the most important element to be considered is whether or not the employer has the power or right to control and direct the employee in the. material details as to how the work is to be performed. If the employer has the power to control the workman in the manner in which the work' is to be performed, the workman is an employee and not an independent contractor. King v. Galloway (Tex. Com. App.) 284 S. W. 942; Maryland Casualty Co. v. Kent (Tex. Com. App.) 3 S.W.(2d) 414; Texas Employers’ Ins. Ass’n v. Owen (Tex. Com. App.) 298 S. W. 542; Maryland Casualty Co. v. Donnelly (Tex. Civ. App.) 50 S. W.(2d) 388.

It will be seen that under the contract between appellant and Russell, the company had the right to control Russell in many respects with reference to the manner and means by which he was to perform the services contracted for. The gasoline and other products were to be consigned to Russell; the title thereto to remain in the company until sold by him. He could sell for cash only, except when specially authorized by the company. He was authorized to handle only the petroleum products of the company. He could sell only at such prices as fixed by it. He was required to make regular reports as to the manner in which the business was being conducted, and the company could terminate the contract at any time that it saw fit. Contracts very similar to this have been held to create the relation of master and servant, and not that of employer and independent contractor. Maryland Casualty Co. v. Kent (Tex. Civ. App.) 271 S. W. 929; Id. (Tex. Com. App.) 3 S.W.(2d) 414; Dr. Pepper Bottling Co. v. Rainboldt (Tex. Civ. App.) 40 S.W.(2d) 827, par. 1, and authorities there cited.

Moreover, Elbert Rogers was not a party to the written contract between the Gulf Refining Company and Russell, and the terms thereof are not conclusive against him in determining the relationship actually existing between the contracting parties. He was entitled to establish the facts showing the relation as it actually existed at the time of the injury. Norwich Union Ins. Co. v. Chancellor (Tex. Com. App.) 5 S.W.(2d) 494, par. 5. Even though the contract as originally entered into nominally created the relationship of employer and independent contractor, yet if such contract was a subterfuge, or if the employer thereafter'assumed and actually exercised control over the means and methods by which the work was to be performed, the relation of master and servant existed between it and Russell and his employees, and the mere fact that the contract as written was so drawn for the purpose of creating the relation of independent contractor would not relieve the company of liability for the negligence of such servants. 39 C. J. 37; Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399; Oriental Investment Co. v. Barclay, 25 Tex. Civ. App. 543, 64 S. W. 80 (writ denied); Texas Building Co. v. Reed (Tex. Civ. App.) 160 S. W. 211. The written contract was appárently so drawn for the purpose of creating the apparent relationship of employer and independent contractor, and of avoiding liability for the negligence of the employees about the station; but the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately assumed control, and proceeded to direct the method by which the work contracted for should be performed. By reserving the right to terminate the contract at will, it retained the means of compelling submission to its orders. Having elected to assume control and to direct the means and methods by which the work was to be performed, it must be held liable for the negligence of those performing such service under its direction. We think the evidence was sufficient to sustain the verdict of the jury.

The appellant contends that the court erred in refusing to grant its application for continuance. .The appellant, as a defense to the suit, alleged that Dan Russell was operating the station as an independent contractor under the written contract heretofore referred to, and that Ernest Johnson, whose negligence caused the injury, was an employee of Russell and not an employee of appellant. Two days before the case went to trial it filed a cross-action against Russell and sought to recover over against him for any damages that might be recovered against it. The contract provided that Russell should be responsible for any damage caused by him or his employees. Russell, in answer to the cross-action, alleged that the written contract was a subterfuge and a blind, and was not entered into in good faith, and did not speak the true relationship existing between the parties. He alleged that Ernest Johnson was employed by, and was under the control of, the Gulf Refining Company. This answer was filed a day before the case went to trial. The appellant filed its first application for a continuance, in which it alleged that G. L. Kerr, its district sales manager, represented it in executing the contract in question; that it had arranged with the said Mr. Kerr to be present, and that he would have been present at the trial and would have testified that the contract was not a subterfuge, but was entered into in good faith and constituted the entire contract between the parties, but that three days prior to the beginning of the trial the said Mr. Kerr died, and that by reason of the distance between Waco and Houston where its offices were located the company had not had opportunity to procure the testimony from any other source, and would not be able to do so during the trial. The court overruled the motion. In this we do not think the court erred. Since the witness Mr. Kerr was dead, delay would not have produced his testimony. The application did not allege that the evidence could be secured from any other source. In fact, it indicated the contrary. It did not give the names of any other witnesses by whom it expected to prove the facts, nor that it had reasonable assurance of procuring such evidence in the event the motion was granted. It was apparently seeking delay in order that it might make an investigation to see if it could procure such evidence. The trial lasted four days, and the amended motion for new trial was not filed until more than one month after the trial was concluded ; yet no showing was made in such motion that such evidence could or would have been produced from any other source at the next term of court. Therefore, the delay in the trial of the case would not have benefited appellant, and there was no error in overruling the motion. 9 Tex. Jur. 747.

Appellant complains of the action of the court in permitting Russell and other witnesses to testify that a Mr. Johnson and a Mr. Akers gave instructions to the employees as to how the station should be operated. It contends that since the contract between the company and Russell was in writing and was unambiguous, parol testimony • showing the manner in which the contract was carried out was inadmissible. The record shows that Johnson and Akers were the representatives of the company, who had authority to transact the business of the company in the respects mentioned. This evidence was admissible to show that the company actually controlled the manner in which the station was operated, and the court did not err in admitting same.

The appellant, by various assignments, complains of alleged improper argument made before the jury by counsel for the appellee. Most of the argument so complained of was not objected to at the time it was made, and no request was made to have' the court instruct the jury not to consider same. Some of the argument is objectionable, and would doubtless require a reversal of the case but for the fact that the trial court appended to the bills of exception qualifications showing that the argument complained of was provoked by counsel for appellant. The most objectionable argument was that made by Mr. Witt, attorney for the appellee, in which he, after discussing the terms of the contract between the company and Russell, said: “Well, if that contract, in the court’s mind, determined that they were not responsible the court would not have submitted to you these issues for you to determine under the facts and circumstances in this case.”

It will be noted that by the above statement counsel did not tell the jury that the court by refusing to instruct the jury to return a verdict for the defendant had thereby determined that the defendant was liable, as was done in the cases of Gulf, T. & W. Ry. Co. v. Culver (Tex. Civ. App.) 168 S. W. 514, and St. Louis, B. & M. Ry. Co. v. Green (Tex. Civ. App.) 183 S. W. 829. Prior to the making of the argument here complained of, counsel for appellant had taken the position before the jury that the contract in question, as a matter of law, relieved the company of all liability; that this was a matter of law for the court to determine; and that the court would so determine said issue in appellant’s favor at the proper time. The remarks of counsel for appellee were in reply to such argument, and had the effect only to tell the jury that such statements were untrue, and that the court had already passed on the question and had refused to hold, as contended for by the appellant, that appellant as a matter of law was not liable. The effect was to tell the jury that the court had determined that liability or nonliability involved a question of fact for the determination of the jury. Such statement was true. When counsel for appellant elects to discuss forbidden matters before the jury, and in doing so he assumes an incorrect position with reference thereto, he invites a discussion thereof by appellees’ counsel, and must be held responsible for the consequences. In each of the other instances in which the appellant complains of alleged improper argument, the bills of exception show that the argument complained of was in reply to, and was provoked by, the argument of opposing counsel. There is therefore no reversible error. Casualty Reciprocal Exchange v. Stephens (Tex. Com. App.) 45 S.W.(2d) 143, par. 15, and authorities there cited.

The appellant asserts that the judgment is excessive. The judgment was for the total sum of $25,000. At the time of the accident Rogers’ clothes caught fire, and his feet, legs, hands, arms, and face were badly burned. In extinguishing the fire the skin was torn from his feet and legs, and the skin and flesh caused to slip from the bone on his right arm. The flesh and tendons on his right arm were so badly burned that when the wound healed they grew together in a solid mass, and, as a consequence, he lost the entire use of his right hand. The fingers on his right hand were left.stiff in an extended position, making it difficult to care for and protect his hand. He was in the hospital for approximately one month, and was under treatment for three months, during which time he suffered great pain. The injury occurred about one year prior to the trial, and up to the time of the trial Rogers had not been able to do any work. There was testimony that at the time of the trial the flesh on his hand would sometimes crack and bleed. At the time of the injury he was 25 years of age, had completed the seventh grade work in school, and was dependent on manual labor for a living. Prior to his injury he had been in the same employment for two years, was earning $30 per week, with good prospects of a raise to $40 per week. He had received five raises from the same employer within said two-year period. He has not only lost the use of his right hand, but his hand and arm have been rendered ugly and unsightly, and very sensitive to cold. While the verdict is rather large, we do not consider it so manifestly excessive as to require a reversal of the case. Houston, E. & W. T. Ry. Co. v. Chambers (Tex. Civ. App.) 279 S. W. 290.

The appellant filed a cross-action against Dan Russell and sought judgment against him for such amount as might be recovered by Rogers against appellant. The trial court refused this relief. The Written contract between the company and Russell bound Russell to operate the station at his own expense, and to pay all damages to the public occasioned by Russell, his servants or employees. It further provided that neither Russell nor any employees that he might have should be deemed employees Of the company. Ernest Johnson, the employee whose negligence caused the injury, was employed by Russell and paid by him. He therefore came within the terms of the contract as one of the employees for whose negligence Russell agreed to be liable. Even though Russell was not an independent contractor, but was an agent of the company, as found by the jury, so as to make the company liable to third parties for the negligence of the employees selected by Russell, this did not prevent Russell from contracting to respond in damages for injuries committed by those so selected by him. Under the contract he agre.ed as between himself and the company to be responsible for the damages caused by such employees. While such provision was not binding on third parties, it was binding as between himself and the company. There was no finding by the jury that the parties to such contract did not intend that it should be binding as between them. The commissions received by Russell furnished a sufficient consideration for his agreement to assume liability for the damages caused by the employee selected by him. Since Russell obligated himself to pay all damages caused to third parties by such employees, the company was entitled to judgment over against Russell for the amount recovered against the company by Rogers.

The judgment of the trial court, in so far as it refused a recovery by the company over against Russell, is reversed, and judgment is here rendered in favor of the company against Russell for the amount so recovered by Rogers against the company. We have considered all other assignments of error, and find same without merit. The judgment of the trial court in all other respects is affirmed.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    GOLDSMITH et al. v. MITCHELL.
    No. 8967.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1933.
    Rehearing Denied Feb. 15, 1933.
    McCollum Burnett, of San Antonio, for appellants.
    Alex F. Cox, of Beeville, for appellee.
   SMITH, Justice.

Virginia C. Goodson died on September 10, 1919, leaving a will which had been executed by her on August 30, 1916, and which was duly probated after her death. In her said will the testatrix devised a life estate in all her property, consisting of lands, moneys, and securities, to her two daughters, Florence and Ina Goodson, in equal shares. The will contained these further provisions:

“It is also my will that at the death of my d'aughter Ina that all of the remainder of the property acquired by her under this will shall go to her children, if she have any living, and in the event she has no children, then it shall go to and vest in fee simple in my nephew, Russell Goldsmith.

“It is also my will that at the death of my daughter Florence that all of the remainder of the property acquired by her under this will shall go to and vest in fee simple in my nephew, Russell Goldsmith. ⅜ * *

“The residence or whereabouts of my daughter Ina being at this time unknown to me, it is my express desire and will that my executor, Sam C. Mitchell, shall control and manage the property herein willed to her until such time as she, if living, or, if not living, the person or persons entitled to said property under this will, shall demand that said property be delivered to her, him or them.

“It is also my express desire and will tliat my said executor, Sam C. Mitchell, shall control and manage the property herein willed to my daughter Florence so long as she may lire, and as soon as practicable after my death, that she be placed in the Masonic Home for widows and orphans of Texas, using the income of the property herein willed to her to pay the charges for her care and maintenance in said home, and if said income be found to be insufficient for said purpose, then I hereby authorize and empower my said executor to sell and dispose of any of said property that he may think best, and in the manner he may deem meet and proper, and provide means for her care and maintenance, and to execute, acknowledge and deliver all proper writings, deeds of conveyance and transfers thereof.”

In due course following the death of the testatrix, Sam C. Mitchell qualified as independent executor and assumed, and has ever since exercised, control and management of-the estate, as provided in the will.

Florence Goodson, one of the devisees, is still living, being an inmate of a hospital at Arlington, Tex., where she is cared for at the expense of the estate in question.

The other devisee, Ina Goodson, disappeared from her home, at Beeville, about the year 1904, at the age of eighteen, and has never returned. Her whereabouts remained a mystery through all the years, although, besides all efforts of her family to locate her, Mr. Mitchell, the executor, advertised extensively for her in Beeville, St. Louis, Los An-geles, and perhaps other newspapers, and through radio broadcasts. She has never been heard of, except through apparently vague rumors, futile gossip, and vain speculation, in which her disappearance was sought to be coupled with the simultaneous disappearance of a young man of the community. But to all intents and purposes she has been dead for twenty-nine years to the small world of her family and the environment and friends and acquaintances of her known life.

In the meantime Executor Mitchell has been managing and conserving the estate, with apparent fidelity, care, and good judgment. He has provided for Florence Goodson, now and for years past-a mental invalid. He has provided for her out of the Virginia O. Goodson estate at large; that is to say, out of that estate generally, without charging the outlay to the particular interest therein devised to the said Florence Goodson. In short, he has charged one-half the expense of maintaining Florence Goodson to the estate devised to Ina Goodson, with remainder over to Bussell Goldsmith.

Now, this suit was brought by the widow and children of Bussell Goldsmith, now deceased, who was the residuary legatee under the will of Virginia C. Goodson, against Sam O. Mitchell, independent executor of said estate. The objects of the suit are to evoke a declaration of the death, without issue, of Ina Goodson; to obtain a construction of the will of Virginia C. Goodson to the effect that Florence Goodson was to be provided for exclusively out of the income or proceeds of that portion of the estate in which a life estate was devised to her, to wit, one-halt', leaving a life estate in the remaining one-half to Ina Goodson, with remainder, intact, over to Bussell Goldsmith, now deceased, and, as stated in their brief, appellants “ask that they be adjudged to be the owners in fee simple under the will of Virginia C. Goodson, and as the heirs of Bussell Goldsmith, deceased, of an outright one-half of the estate of Virginia C. Goodson freed of any interest therein by or on behalf of any other person, and that they be given possession of all that one-half of the personal property belonging to said estate; and said appellants also claim in this suit that they are entitled in the same capacity to all of the other half of the Virginia C. Goodson estate which may remain at the death of Florence Goodson, but that such half of said estate should remain in the control and possession of the executor of Virginia C. Goodson’s will, who is appellee herein, until such time of the death of Florence Goodson, appellee appropriating the income from such half of said estate for the support of Florence Goodson; and also, if it should become necessary to appropriate, fertile purpose of such support, any portion of the principal of such half of said estate; but that appellee be left in control of all the real estate belonging to the Virginia 0. Goodson estate without any present partition of same, but rendering to appellants one-half of the income thereof during the life of Florence Goodson, less proper charges against such half of said estate as are necessary for the proper management and control thereof, leaving appellants entitled to the full possession and control of all that remains of both personal property and real estate of said half of Virginia O. Goodson estate at the time of the death of Florence Goodson.”

The Goldsmiths’ petition, in which all these matters were set out, was demurred to, both generally and specially, by Mitchell. The trial judge, pressed for a ruling, declined to pass upon the demurrers in limine, but took them under advisement while hearing the case on the merits, in the absence of a jury. After some weeks’ consideration, the court not only sustained all the demurrers, general ■and special, aimed at the plaintiffs’ petition, but rendered judgment against the plaintiffs on the merits, in view of full evidence which apparently supported the allegations in the plaintiffs’ petition, and which was not sought to be controverted by Mitchell, the defendant executor. The Goldsmiths, appealing, have presented an elaborate and able brief, which appellee has not seen fit to answer. This failure on the part of appellee to pursue the matter into this court and here combat appellants’ case amounts, under the circumstances, almost to confession of error.

We are of the opinion that the allegations in appellants’ petition presented a good cause of action against both the general, as well as most of the special, demurrers urged against them. As a matter of practice the ruling of the court sustaining the demurrers at the conclusion of the trial was nullified by the contemporaneous judgment of the' court on the merits, and this appeal must therefore be disposed of as if no demurrers were interposed or sustained below. Gay v. Pemberton (Tex. Civ. App.) 44 S. W. 400; Kneale & Watkins v. Thornton (Tex. Civ. App.) 88 S. W. 298.

We are of the opinion that appellants proved the death of Ina Goodson, through presumption based upon her long and unexplained absence, as provided in article 5541, B. S. 1925, as follows: “Any person absenting himself for seven years successively shall be presumed to be dead, unless proof be made that he was alive within that time.”

We are of the opinion further, that as the record show's that eighteen-year-old Ina Goodson was unmarried at the time of her disappearance, the presumption obtains that she continued in that status throughout her life, and died therein, and that therefore she died without issue. Wells v. Margraves (Tex. Civ. App.) 164 S. W. 881 (writ refused).

So is it probable, if not obvious, from the language of the will in question, that Florence Goodson should be cared for out of one half of the estate, and that no part of the expense thereof should be charged to that half of the estate in which a life estate was devised to Ina Goodson. Therefore, appellants, as residuary legatees after the proven death of Ina Goodson, without issue, may justly complain of the action of appellee in taking any part of those expenses out of the Ina Goodson portion of the estate, and may require an accounting of him.

Appellants did not implead Florence Goodson as a party defendant in the suit, and the trial court' sustained a special exception directed at that omission, holding that Florence Goodson, being one of the two legatees, was a necessary party to the action. Appellants complain of this ruling, asserting that administration of the estate had progressed to a point where the presence of the executor only was necessary to a proper adjudication of the matters involved. The question is not without its difficulties, but we have concluded that Florence Goodson should have been impleaded, as held by the trial court.

The demands of appellants require a construction of the will in some of its aspects, which consideration, alone, would require Florence Goodson’s presence in the suit.

Appellants’ demands also require a division of the personal property belonging to the estate, or the income therefrom, between appellants upon one hand and Florence Good-son upon the other. The personalty consists of moneys, notes, Liberty bonds, and the like. Appellants’ demands require an adjudication of the estate the several legatees have in those assets, and an equitable division thereof between the two sets of legatees. Appellants’ demands further require a determination of the question of the apportionment, between the shares claimed by the legatees, of the disbursements made by the executor in the course of his administration. All these questions directly affect Florence Goodson and her interest in the estate, and the executor has the right to demand her presence at 'their adjudication, so that she as well as appellants may be bound by such adjudication, that he may safely proceed in due course to distribute the estate in accordance with the intention of testatrix as expressed in hex-will and as judicially ascertained by the courts when brought into question, as in this case. Alexander v. Berkman (Tex. Civ. App.) 3 S.W.(2d) 864, S71 (writ refused). As was said by Chief Justice Gallagher in the cited case: “He [the executor] is not required to decide conflicting claims at his peril, but has a right to have such claims adjudicated in an action to which all claimants are made parties, so that all of them may be bound by such adjudication, tie is not required, and should not be required to litigate such issues with a garnishing creditor in one suit, and with the legatees and othei- claimants of the funds in his hands in another suit. He has a right to have all parties interested bound by a common finding of fact.”

But the omission of Florence Good-son as a party defendant was a matter that could and should have been remedied in the trial court. -I-Iad the trial court sustained the exception to appellants’ petition on that account, and then and there allowed appellants an opportunity to amend and implead the said Florence Goodsop, it will be presumed that appellants would have cured the omission by that means. But, since the court elected to render judgment on the merits and thus inferentially hold that appellants had asserted a good cause of action, we think justice requires that the judgment be reversed, and the cause remanded in order that appellants may yet have their full day in court.

Reversed and remanded.


author: DUNKLIN, justice.

text:
    STANDARD ACC. INS. CO. v. STATE, for Use and Benefit of Stangel.
    No. 12755.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 7, 1933.
    Rehearing Denied Feb. 18, 1933.
    Bryan, Stone, Wade & Agerton and Brandon Stone, all of Fort Worth, for appellant.
    Billingsley & Billingsley, of Fort Worth, for appellee.
   DUNKLIN, justice.

W. J. Stangel, as beneficiary under a statutory bond executed by Harvey P. Shead as notary public of the county of Tarrant and in the name of the state of Texas, instituted this suit against Shead and the Standard Accident Insurance Company as surety on the bond to recover the sum of $1,900, the amount named in the bond.

According to allegations in the petition, one Thomas C. Tripp, professing to be the agent of George F. Bond, negotiated a sale of a lot of land situated in the city of Fort Worth to the plaintiff and showed to him an abstract of title purporting to evidence title in George F. Bond, and induced the plaintiff to purchase the same for a consideration of $1,050. The consideration paid for the supposed purchase consisted of a cheek of even date with the deed, payable to the order of George F. Bond, drawn on the Exchange State Bank of Fort Worth for the sum of $847.25, and another check of the same date in the sum of $292.75, payable to the order of Hilburn & Cambrón, real estate agents, drawn on the same bank. It was alleged that the notarial certificate of Shead to the deed was false and fraudulent, in that no such person as George F. Bond ever ■appeared before him and acknowledged the execution of the deed; that the name of George F. Bond signed to the deed was written by Tripp; and that plaintiff relied upon the truth of the certificate and was induced thereby to purchase the lot and pay the consideration above mentioned; and further that George F. Bond was in fact a fictitious person.

According to further allegations in the petition, the purported deed appearing in the abstract as having been executed by N. F. Du-gan, of Albany, Ga., to George F. Bond, was a forgery; and after plaintiff’s supposed purchase, Dugan, who was the real owner of title, dispossessed him; and therefore the consideration plaintiff paid for the property has been totally lost to him.

Another allegation in the petition was to the effect that Shead was guilty of negligence in giving the certificate of acknowledgment.

The defendant Standard Accident Insurance Company filed an answer containing numerous special exceptions to the plaintiff’s petition, including the defense of limitation of two and four years; also that since title was never vested in any person by the name of George P. Bond, but was vested in N. E. Du-gan, the fictitious acknowledgment was not the proximate cause of plaintiff’s loss; and further that the proximate cause of plaintiff’s loss was his reliance upon the representations of Thomas C. Tripp that George P. Bond owned the lot evidenced by the abstract of title to the same, and an opinion given thereon by Dan E. Bydick, plaintiff’s attorney, that title was in George P. Bond at the time the deed was made.

There were further allegations in the answer to the effect that plaintiff’s loss could not in any event exceed $202.75, the amount of the check given to the real estate agents; that the check which plaintiff gave, payable to George P. Bond, was drawn on the Exchange ¡State Bank of Port Worth, Tex., and was indorsed, “Geo. P. Bond, by Shead & Tripp, by Thomas G. Tripp,” and was delivered to the Texas National Bank of Port Worth, and that bank then indorsed and delivered the check to the Exchange State Bank of Port Worth, and it was paid by the latter bank. It was further alleged that the plaintiff therefore has a valid and subsisting cause of action against both of said banks which he is asserting in another suit pending on the docket of the court in which this suit was filed.

The defendant Harvey P. Shead filed a formal answer, embodying a general demurrer and a general denial only.

The trial was before a jury, and-following are special issues with their findings thereon, omitting instructions submitted on some of those issues upon the hypothesis of certain answers to other issues:

“1. Did a man purporting to be George P. Bond appear before Harvey P. Shead and have his acknowledgment taken by the defendant Shead to the deed in question? Answer: No.

“2. Did the defendant, Harvey P. Shead, believe at the time said acknowledgment was taken that the man appearing before him was in fact George P. Bond? Answer: No.

“You are instructed in connection with the taking of acknowledgments that the Statutes of Texas provide as follows: ‘No acknowledgment of any instrument of writing shall be taken unless the officer taking it knows or has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in a certificate, that the person making such acknowledgment is the individual who executed and is described in the instrument.’

“3. Did the defendant, Harvey P. Shead, faithfully perform his duties as a notary public under the statute as cited above in making the certificate of acknowledgment in the deed in question? Answer: No.

“4. Was the failure of the defendant, Harvey P. Shead, to perform his duties as notary public, under the statutes, the proximate cause of the damage to the beneficial plaintiff, W. J. Stangel? Answer: Yes.

“5. At the time of taking the acknowledgment to the deed in question, did Harvey P. Shead know that the person, if any, who appeared before him and acknowledged such deed was Geo. P. Bond? Answer: No.

“6. In accepting the deed in question did the plaintiff, W. J. Stangel, rely upon the acknowledgment of Geo. P. Bond before Harvey P. Shead, as shown by the certificate thereon ? Answer: Yes.”

Upon that verdict of the jury, supplemented by the finding by the trial judge that plaintiff had sustained damages in the sum of $1,050 as prayed for in his petition, the amount paid by him for the lot, judgment was rendered against Shead, as principal, and the Standard Accident Insurance Company, as surety, for the sum of $1,000, and against Shead for an additional sum of $50. Judgment was further rendered in favor of the Standard Accident Insurance Company on its plea over against Harvey P. ¡Shead for the sum of $1,000.

Harvey P. Shead has not prosecuted any appeal from the- judgment, but an appeal has been presented here by the Standard Accident Insurance Company.

Article 5953, Revised Statutes 1925, reads:

“Any person appointed a notary public, before entering his official duties, shall execute a bond for one thousand dollars, to be approved by the county clerk of his county, payable to the Governor, conditioned for the faithful performance of the duties of his office; and shall also take and subscribe the official oath, which shall be indorsed on said bond, with the certificate of the officer administering the same; said bond shall be recorded in the office of the county clerk, and deposited in said office, and shall not be void on the first recovery, and may be sued on in the name of the party injured from time to time until the whole amount thereof has been recovered.”

Chapter 2, title 115, Rev. Civ. Statutes of 1925 (article 6602 et seq.), prescribes the duties of a notary public and other officials authorized to take acknowledgments of deeds and other instruments for registration, and articles 6903 and 6604 of that chapter read:

“Art. 6603. The acknowledgment of an instrument of writing for tile purpose of being recorded shall be by the grantor or person who executed the same appearing before some officer authorized to take such acknowledgment, and stating that he had executed the same for the consideration and purposes therein stated; and the officer taking such acknowledgment shall make a certificate thereof, sign and seal the same with his seal of office.

“Art. 6604. No acknowledgment of any instrument of writing shall be taken unless the officer taking it knows or has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is'described in the instrument.”

Article 6623 of the same chapter reads: “Any person injured by the failure, refusal or neglect of any officer whose duty it- is to comply with any provision of this chapter shall have a right of action against such officer so failing, refusing or neglecting, before any court of competent jurisdiction, for the recovery of all damages resulting from such neglect, failure or refusal.”

Shead’s certificate of acknowledgment to the deed in controversy here was in accordance with the terms of article 6603.

■[1-3] In briefs for appellant, counsel say that if George F. Bond was a real and not a fictitious person, and if title stood in his name, then the false certificate of the notary that he appeared and acknowledged the execution of the instrument would have given plaintiff a right of action, and the measure of his damages would have been the market value of the lot, not to exceed the amount of the notary’s bond sued on. But it is further insisted that since no title was ever vested in any person by the name of George F. Bond, then the lack of such title and, not the false certificate of the notary, was the proximate cause of plaintiff’s loss; and further that in the latter event plaintiff was not entitled to more than nominal damages by reason of the fact that he really lost nothing of value by reason of the false certificate. Numerous authorities are cited which apparently support those contentions, such as Ross v. New Amsterdam Casualty Co., 56 Cal. App. 254, 205 P. 43, by the California District Court of Appeals; State ex rel. Scruggs v. Packard, 199 Mo‘. App. 53, 201 S. W. 953, by the Kansas City Court of Appeals; Anna Mlekus v. Maryland Casualty Co., 192 Wis. 472, 213 N. W. 287, 51 A. L. R. 1478; State ex rel. Park National Bank v. Globe Indemnity Co., 29 S.W. (2d) 743, by the Kansas City Court of Appeals ; and other decisions cited in those cases.

Many authorities are cited by appellee to sustain the recovery, among which is the case of People v. Butler, 74 Mich. 643, 42 N. W. 273, 276, in which it appeared that a notary had given a false certificate of acknowledgment to a mortgage, which,he himself had forged, and by representing himself to be the agent of the one whose name was signed to the mortgage, he collected the money advanced by the plaintiff therefor, thus taking advantage of the forgery. In that case the Supreme Court of Michigan had this to say: “The defendant is surety upon the bond of Ashley, which is conditional, that he will faithfully discharge the duties of his office. If he had done so no loss would have occurred, as the mortgage, if produced, would have been genuine, and the certificate a true one. He actually obtained the money, and did it by means of his office enabling him to make a certificate of acknowledgment. This certificate is false, and the condition of his official bond is not kept and performed. He has not faithfully discharged the duties of his office, but has prostituted it to obtain this money. If the surety on this bond could not be held liable under the circumstances here shown, then there is no safety to the public in official bonds. We think the proximate cause was the false certificate, and the defendant must be held liable. * ⅜ * What, Ashley did in the present case he was enabled to do by reason of his official position, — his authority to take the acknowledgment of the mortgage. It does not lessen his liability on his bond because he coupled with the act of making the false certificate a false statement that he was the agent of King and wife to make the loan and receive the money. The mortgage and note would not have been taken by Eddy, nor the money paid, had it not been for the certificate stating that King and wife had acknowledged the execution of the mortgage.”

In State ex rel. Meinholtz v. American Surety Co. of New York (Mo. App.) 254 S. W. 561, 563, the following is said:

“It is not necessary that Orone’s false acknowledgment constituted the sole cause of relator’s loss. This rule is firmly fixed in our decisions. See the ruling of this court in State ex rel. Savings Trust Co. v. Hallen (Mo. App.) 196 S. W. 1067.

“The wrongful act performed by Crone during his term of office, that is, in.affixing the false acknowledgment to the deed of trust, certainly induced the loss to relator, for without the false acknowledgment relator would not have relied thereon, and the deed of trust could not have been recorded and would not have appeared in the certificate of title, and relator would not have bought such spurious deed of trust. Whatever else may have contributed to cause the loss to relator, the wrongful conduct of the notary indeed was the proximate cause of the loss. [Citing numerous other decisions by the appellate court of Missouri.]

.“In State ex rel. v. Ogden, supra [187 Mo. App. 39, 172 S. W. 1172], Judge Trimble, for the Kansas City court of appeals, clearly and succinctly states tlie rule thus (187 Mo. App. 39, loe. c'it. 47, 48, 172 S. W. 1172, loe. eit. 1174): ‘The iaet that the fraudulent certificate was one of a number of things inducing relator to part with his money and thereby suffer a loss does not prevent the certificate from being a cause, and a proximate cause, of such loss. For, though the official fraudulent act of the notary be accompanied by other acts assisting in the production of the loss,. yet if there is a natural and continuous sequence from such fraudulent official act to said result, and, but for that act, the result would not have happened, then such act is the cause, and the proximate cause, of the result, even though another cause may have arisen and joined in producing the result.’ ”

To the same effect are the decisions in Boden v. Harter, 240 Ky. 138, 41 S.W.(2d) 920, and the same case in American Surety Co. v. Boden, 243 Ky. 805, 50 S.W.(2d) 10.

In many of the decisions cited a discussion of proximate cause was intermingled with that of the measure of damages, while in others it was held that the measure of damages where the person, who, according to the certificate, purported to acknowledge the certificate, really owned the property, was what the plaintiff would have realized had that person signed and acknowledged the deed in fact. Those decisions are distinguishable from this case, since it affirmatively appears that George F. Bond, if there was such a person, never owned any title to the land in controversy. Shead’s fictitious certificate of acknowledgment was in direct violation of his duties as prescribed by the statutes and was therefore negligence per se. His bond, which was signed by himself and appellant as surety, was a contract binding them to answer in damages for that tort to any one who was injured thereby, and therefore the suit was in covenant to answer for the tort. It is a familiar rule that all tort-feasors are answerable, jointly and severally, for the wrongs committed through their joint participation therein; and we believe it clear that notwithstanding the fact which is apparent on the face of the record that Tripp participated in the fraud perpetrated upon plaintiff Stangel, the act of Shead in giving a false certificate which the jury found induced the plaintiff to part with his money was, to say the least, a proximate cause of that loss, if not the sole proximate cause. And it is to be noted here that there is an absence of any finding by the jury that there was any other contributing proximate cause, nor did appellant request the submission of such an issue. 20 R. C. L. § 89, p. 102; Ormsby v. Rateliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Appellant insists that if plaintiff is entitled to recover, then $202.75, the amount paid to the real estate brokers, would be the. extent of his damages. In that connection it is argued that' although there was no finding by the jury that George. F. Bond, wh-o purported to sign the deed, was in fact a fictitious person, yet, as against plaintiff, it must be presumed he is so, since plaintiff in his petition expressly alleged that such was true; and that since the bank had no lawful authority to pay the draft drawn in favor of George F. Bond, a fictitious person, it still owes the plaintiff the amount so paid out and charged to his account, and therefore plaintiff has not sustained any loss by reason of the giving of the check payable to the order of George F. Bond for the sum of $847.25. With this contention we are unable to agree. As the jury found, and as the evidence abundantly shows, Stangel, in reliance on the false certificate of the notary, not only gave that check, but honored it by permitting it to be charged to his account in the bank, and thereby sustained the loss of the amount. The course followed by Stangel was the one fully justified and to be reasonably expected if the notarial certificate had been true. The check was issued in the name of the very person who Shead certified had signed the deed and who, therefore, he knew would receive the consideration for the deed. If George F. Bond was a fictitious person, Shead was chargeable with knowledge of that fact and that the check would be collected by some one claiming the right to collect it in that name, as was done. It does not lie with Shead or his surety on his official bond now to complain that plaintiff should have known that George F. Bond was a fictitious person and should not have issued the check in his name, or that after its issuance and payment should have looked to the bank for reimbursement of the amount so paid by it on the check; which would -be the logical effect of the contention now under discussion. Furthermore, plaintiff’s cause of action, which included the measure of damages, accrued as soon as his check was cashed by the bank and charged to his account. The time of its accrual did not depend upon the contingency of his ability, if any, at a later date when he discovered the fraud, to compel'the bank to restore to him the amount it had paid on the check and’which payment he had recognized as proper three or more years prior to his discovery of the fraud practiced on him and the institution of this suit. Aim it is to be noted that the right of plaintiff, if any, to that relief against the bank could ¿lot be conclusively determined in this case', since the bank was not a party to this suit, and therefore a determination of that issue against it would not be binding upon the bank in another suit against it for the same relief. If the alleged right of action in plaintiff to hold the bank liable for the check, which was charged •to his account, would preclude a recovery in this case, then it seems to us the same could be said of plaintiff’s right of action, if he had elected to assert it, against Tripp for the amount of the check which he collected, a proposition which we 'believe to be manifestly untenable.

Decisions cited by appellant, to the effect that a bank on whom a cheek is drawn has no' right to charge the same to the drawer’s account if the check is paid on a forged indorsement of the payee’s name, are distinguishable from this case, for the reason that in those eases the payee was not a fictitious person, but a real person who was the rightful owner of the cheek and entitled to collect it, and who was the only one the drawer intended should collect it; the cases so cited being such as First National Bank v. Whitman, 94 U. S. 343, 24 L. Ed. 229; State ex rel. Missouri Abstract Co. v. Globe Indemnity Co., 222 Mo. App. 918, 9 S.W.(2d) 668.

For the reasons just indicated, we conclude that there is no merit in appellant’s contention that the false certificate given by Shead was not the proximate cause of plaintiff’s loss and that he was entitled to only nominal damages resulting from the giving of the check payable to George F. Bond for the sum of $847.25, rather than the amount of that check for which he was awarded a recovery. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; 8 R. C. L. pp. 429 to 434; Brittain v. Monsur (Tex. Civ. App.) 195 S. W. 911.

And it is to be noted further that no issue of contributory negligence on the part of plaintiff for failing to sooner discover that George F. Bond was a fictitious person, and thereafter to take steps against the bank for reimbursement of the amount of the check so issued in his name, was submitted to the jury; and no complaint is made here of a failure of the court to submit such an issue. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Nor did the court err in refusing to admit in evidence the petition filed by plaintiff Stangel in another suit to collect from the bank the amount paid on the check in favor of George F. Bond, on the theory that Bond was a fictitious person and therefore the bank could not rightfully charge it to plaintiff’s account. Counsel for appellant say in their briefs that the evidence so offered was to show that plaintiff had repudiated the payment of the check; but we fail to perceive how it can be said that such a suit amounted to a waiver of the rights asserted by plaintiff in this suit, and hence the evidence offered was immaterial to any issues in this controversy.

This suit was upon Shead’s official bond evidencing a contract in writing to pay any person injured by failure of Shead to faithfully perform his duties as a notary. In the absence of that written obligation it may be that an action against Shead for damages would be barred by the statute of limitation of two years; but the suit on his official bond would, be governed by the statute of limitation of four years, and it was instituted within that period and therefore was not barred as insisted by appellant; irrespective of the further question whether the running of limitation would not begin until plaintiff discovered the fraud, until March, 1924; the suit having been instituted in February, 1927. Hillman v. Gallagher, 103 Tex. 427, 128 S. W. 899.

Before the deed in controversy was executed a contract purporting to be signed by George F. Bond, agreeing to sell the property to plaintiff but with no certificate of acknowledgment thereto, on which plaintiff deposited $50 as forfeit money after also executing it. That contract was in evidence, and appellant has assigned error to the refusal of the court to admit in evidence the proffered testimony of the plaintiff that he did not know that there was no certificate of acknowledgment in the name of George F. Bond to that contract. Appellant insists that such testimony would have tended to show that plaintiff did not rely on Shead’s certificate of acknowledgment to the deed. We cannot say that the ruling df the court that that testimony was immaterial was reversible error, in view of all' the circumstances in evidence. And we have reached the same conclusion on another assignment of error to the action of •the court in sustaining an objection to a question propounded to Dan' E. Lydick, who, as attorney for plaintiff, examined the abstract and passed on the sufficiency of the deed, as to whether or not he knew a deed without an acknowledgment of the grantor would pass title; the ruling of the court being that such testimony was immaterial.

Complaint is made of a statement by counsel for plaintiff in his argument to the jury,_ to the effect that Shead, who had testified that he was an attorney at law, owed a higher duty when acting as a notary than other notaries. Counsel for appellant objected to that argument at the time as “not correct,” ■but the objection was overruled. Since the falsity of Shead’s certificate was established by an overwhelming weight of the evidence and was in violation of the express provisions of the statutes, it is improbable that the argument resulted in injury to appellant.

All assignments of error are overruled, and the judgment in favor of plaintiff Stangel against appellant is affirmed. The judgment in favor of appellant over against Shead, of which no complaint is made, is left undisturbed.


author: PELPHREX, Chief Justice.

text:
    ACOLA v. J. I. CASE CO.
    No. 2783.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1933.
    Rehearing Denied Feb. 16, 1933.
    E. T. Denny and Cantey, Hanger & Me-Mahon, all of Fort Worth, for appellant.
    Lewis B. Lefkowitz and Smith, Deal, Shook, Spence & Bowyer, all of Dallas, for appellee.
   PELPHREX, Chief Justice.

An examination of the record in this case reveals that judgment was rendered on the 29th of January, 1932, as of January 27th; that on January 29th a motion for a new trial was filed and an amended motion filed February 4th; that on the same day said amended motion was overruled and notice of appeal given to the Court of Civil Appeals for the Fifth Supreme Judicial District; that on May 5th a motion for leave to file transcript was filed in said court by appellant; that on May 7th, the said motion was granted and the transcript filed on May 8th; and that the ease was thereafter transferred to this court by the Supreme Court.

It appears in the motion filed that the transcript was not tendered for filing in the Court of Civil Appeals for the Fifth District until the 61st day after the motion for a new trial was overruled, but, in fact, the motion was in fact filed on the 91st day.

Article 1839 as amended by Acts Forty-Second Legislature, (1931) c. 66, § 1 (Vernon’s Ann. Civ. St. art. 1839), reads: “In appeal or Writ of Error the appellant or plaintiff in error shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error; provided, that for good cause shown before the expiration of such sixty day period, the Court shall permit the transcript to be thereafter filed upon such terms as it shall prescribe.”

The amendment was enacted with the following emergency clause (section 3): “The fact that the crowded condition of the dockets of the trial and Appellate Courts of the State demands that the laws governing the practice and procedure therein be so amended as to expedite and simplify the business of the Courts as soon as possible creates an emergency and an imperative public necessity. * ⅜ ⅜ ”

Under this amendment this court has decided that we had no power to permit the filing of a transcript after the 60-day period, unless a motion to extend the time had been filed within such period.

A like view appears to have been taken by several of the other Courts of Civil Appeals. Walker et al. v. Lyles et al., 45 S.W.(2d) 315 (Texarkana); Reasonover v. Reasonover, 46 S.W.(2d) 382 (San Antonio); Reed v. Great American Indemnity Co., 47 S.W.(2d) 860 (Eastland); Reese et al. v. Owens et al., 48 S.W.(2d) 697 (Beaumont).

On the other hand, the Dallas Court of Civil Appeals, with Chief Justice Jones dissenting, held that, on a showing by the appealing party that he had exercised reasonable diligence to file during the 60 days, he would be entitled to an extension without regard to whether the matter was brought to the attention of court before or after the expiration of the 60-day period. Hamilton Motor Co. v. Muckleroy (Tex. Civ. App.) 46 S.W.(2d) 451.

The only eases in which the Supreme Court has had the question before it, as far as we have been able to ascertain, were in the ease of Reasonover v. Reasonover, supra, in which a writ of error was refused, and in the recent case of Van Horn et ux. v. Hidalgo County Water Control & Improvement District No. 1, 51 S.W.(2d) 641, 642, also by the San Antonio Court of Civil Appeals.

In the latter ease plaintiff in error filed a motion for an extension of time to file the record, after the expiration of the 60-day period. The motion was granted over the protest of defendant in error, but no motion for a rehearing was filed. The cause was later submitted, and the judgment reversed and the cause remanded. Defendant thereupon filed a motion for a rehearing, and prayed that the order granting the motion to extend the time for filing the record be set aside; that the record be stricken; and that the judgment be either affirmed on certificate, or, in the alternative, on the merits. The court, after reciting the facts above, and discussing its previous holdings and the holdings of other courts on the effect of the amendment, said: “We conclude, in view of the course the matter has taken, that it is now too late, if we were so disposed, to reopen the question and strike the record.”

The Supreme Court, in granting a writ of error, made the following notation: “The Hon. C. C. A. erred in granting the motion of plaintiffs in error for an extension of time for the filing of the transcript and statement of facts in this cause.”

From the fact that the Supreme Court refused a writ of error in the first case and granted the writ with the notation above quoted in the latter case, we think we are justified in concluding that the Supreme Court feels, as this court has felt, that a Court of Civil Appeals has no power to entertain a motion to extend the time for filing the transcript, where the motion is filed after the expiration of the 60-day period.

The Dallas Court of Civil Appeals granted the motion in this case before the writ was refused in the Reasonover Case and before the writ was granted in the Van Horn Case; therefore they had no way of knowing the attitude of the Supreme Court on the question. With this condition existing and appearing from the record before us, the question arises as to what action we should take, if any.

That is, should we proceed to dispose of the cause and consider the transcript before us for all purposes, or should we, by reason of our opinion that the Dallas court had no jurisdiction to entertain the motion which it granted, now strike the transcript from the record.

■ We have concluded that the transcript, under the facts related, has no place in the record; that the action of the Dallas court in permitting it to be filed was beyond the power of that court; and that we should now strike the same.

It is therefore ordered that the transcript be stricken from the record, and that the appeal be dismissed for failure to file the transcript within the time provided by law.

On Motion for Rehearing and to Certify.

Appellant has called our attention, in his motion for rehearing, to the fact that we were in error in our original opinion in stating that the motion to permit the filing of the transcript was not filed in the Dallas court until the 91st day after the overruling of the motion for a new trial.

After an examination of the transcript, we have concluded that in that statement we were in error.

We mistook the filing date on the amended motion for a new trial to be the filing date on the .order overruling the motion. However, the record shows that the motion for a new trial was overruled on March 4, 1932, and that the motion to permit the filing of' the transcript in the Dallas court was not filed there until May 5,1932.

In the motion for leave to file, it is alleged! that 60 days were allowed to go by without the transcript being filed and that on May. 4, 1932, the 61st day, the transcript was delivered to the clerk of that court.

The question involved is, therefore, the same as it would have been if the transcript had been filed, as we stated in opr original opinion, on the 91st day.

We agree with appellant that the jurisdiction of an appellate court does not depend upon the filing of the transcript therein, and we did not so hold in our former opinion.

We merely held that the Dallas Court of Civil Appeals had no power to consider the motion filed before it in view of the provisions of amended article 1839.

Appellant further argues that we should not presume that the order overruling the motion for new trial was entered in the minutes of the lower court not later than March 5,1932, but should, in the absence of a definite showing as to the date it was actually entered, indulge the presumption that it was entered at a later date, as was done by the Dallas Court of Civil Appeals in Hamilton Motor Company v. Muckleroy, 46 S.W.(2d) 451.

In the present case, however, we find that appellant himself, in his motion for leave to file the transcript, admits that the transcript was tendered after the statutory period.

There also appears in the record the following notation in connection with the motion for a new trial: “Entered as of March 4, 1932.” With these facts in the record, there appears to be no ground upon which we might presume that the transcript was filed within the 60-day period.

Appellant in his motion to certify has asserted that our decision is in conflict with City of Eagle Lake v. Lakeside Sugar Refining Co. (Tex. Civ. App.) 144 S. W. 709 (writ refused); Warren v. Pace (Tex. Civ. App.) 259 S. W. 627; Evans v. Galbraith-Foxworth Lbr. Co. (Tex. Civ. App.) 43 S.W. (2d) 481; Walker v. Lyles (Tex. Civ. App.) 45 S.W. (2d) 315; Hamilton Motor Co. v. Muckleroy, supra.

We have carefully examined these authorities, and find that they are not in such conflict with our holding as would, in our opinion, call for a certification of the question to the Supreme Court. While the Dallas court, in the Muckleroy Case, held that a motion could be considered after the expiration of the’ 60 days, yet, it had already held that the transcript had been timely filed, leaving the holding on the question of when the motion should be filed, and from which Chief Justice Jones dissented, unnecessary.

The motions for rehearing and to certify will both be overruled.


author: FLY, Chief Justice.

text:
    FAIRBANKS et ux. v. AINSWORTH et al.
    No. 8970.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1933.
    Rehearing Denied Feb. 15, 1933.
    G. D. Fairbanks, of Brownsville, for appellants.
    Ralph A. Dunkelberg, of Brownsville, for appellees.
   FLY, Chief Justice.

This is a suit filed by appellees, J. W. Ains-worth and C. W. Colgin, against appellants, G. D. Fairbanks and his wife, Margaret Mc-Allen Fairbanks, to recover on a certain promissory note of $1,197.94, executed by Mrs. Fairbanks for groceries purchased by her, and on an open account; said groceries being for herself and her children. Mrs. Fairbanks promised to pay the note out of her separate property. It was also sought to charge the community estate of the husband and wife. G. D. Fairbanks alleged that he had not abandoned his wife, but did not live with her and did not authorize the purchase of the groceries; that they were purchased by Mrs. Fairbanks and used in her household for herself and her children by a former husband and her relatives. The. husband, also alleged that she had sufficient separate property to secure payment of the amount due for the groceries. The court rendered judgment that appellees take nothing against G. D. Fairbanks or his separate estate, but rendered judgment against Mrs. Fairbanks for $1,386.-55, holding her separate estate and the community property liable for the debt, and authorizing execution against said estates.

The first proposition is that credit has been extended to a married woman on a contract for payment out of her separate estate, and the community estate cannot be lawfully bound for debts made by her for herself and her children; said children not being those of her present husband. It is the general rule that the husband is liable for necessaries furnished the wife, but, where necessaries are sold to the wife on her own responsibility and in view of her separate estate, the husband will not be liable for the same. Crosby v. Harris (Tex. Civ. App.) 234 S. W. 127; Colonna v. Kruger (Tex. Civ. App.) 246 S. W. 707. The question as to whether the wife had bound herself bo pay for the groceries out of her separate estate was one of fact, and the court found that she had so contracted. There was testimony to support the conclusion.

The credit was extended to Mrs. Fairbanks and her .separate estate alone, and the groceries were shown to be necessaries for her and her children. We think the separate estate alone, of the wife, was liable for the debt, and that it was error to render a judgment binding the community estate.

The judgment will be so amended as to exclude the community estate from liability for the debt for the necessaries sold to the wife alone on her credit secured by her separate estate, and, as amended, the judgment will be affirmed.

On Motion for Rehearing.

The testimony showed that appellees had been dealing with Mrs. Fairbanks for several years and looked to and received payment from her. The goods were sold to her on her own credit and not that of her husband. The husband was not looked to for payments; he never at any time paid any of her debts for twenty years or more. . She paid them out of her own money. The necessaries were furnished to her, and the community property was not contemplated in any of the transactions. For twenty years credit had been extended to Mrs. Fairbanks; the credit, of course, being based on her separate property and none in which the husband was interested. She had paid all former bills and on putting the last account in the shape of the promissory note the husband was not consulted, but the note was signed by the wife who had contracted the account. The evidence showed that the children furnished with necessaries were not the offspring of G. D. Fairbanks, but those of the wife by a former husband, and at least one a grandchild of Mrs. Fairbanks. It is a severe strain on the law for necessaries to include these various relatives of the wife in no way related to the husband, and the plea for necessaries would be much more appealing had they not been purchased by a wife not living with her husband but conducting her own affairs, independent of the husband, and for another man’s children and grandchildren. She should pay for the groceries purchased by her out of her separate estate, upon which the credit was undoubtedly extended.

The motion for rehearing is overruled. .


author: GRAVES, Justice.

text:
    SIMONS et al. v. GALVESTON, H. & S. A. RY. CO. et al.
    No. 9791.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 19, 1933.
    Rehearing Denied Feb. 9, 1933.
    Eose & Sample, of Edna, for appellants.
    M. L. Cobb, Co. Atty., of Edna, for county et al.
    Baker, Botts, Andrews & Wharton, of Houston, and Proctor, Vandenberge, Crain & Vandenberge, of Victoria, for Galveston, H. & S. A. Ry. Co. et al.
   GRAVES, Justice.

Without complying with the procedure prescribed in R. S. 1925, arts. 6703-6705, and without prior written request from or notice to appellants, or any one else other than the two appellee railway companies, that such action would be taken, the appellee commissioners’ court of Jackson county, pursuant to a transaction initiated and carried out between themselves and the railway companies alone, vacated, closed, and abandoned the public crossing over the latters’ railroad on Lavaca street near the town of Edna at cattle guards 67A and B, with permission to the companies to extend their fences across the same “to the effect that all public travel may be excluded therefrom,” which obstructing fences were at once erected, and, in consideration as well as in lieu thereof, accepted from the companies an easement for the purpose and opened another public crossing over their railroad about 1¾ miles west of Edna at the station thereon of Matilda, otherwise known as cattle guards 68A and B.

Appellants thereafter, in this proceeding against both the railway companies and the members of the commissioners’ court, sought a mandatory injunction against all the parties requiring the removal of such obstruction therefrom, the reopening of the crossing at cattle guards 67A and B, and that the commissioners’ court be required to henceforth permanently maintain and keep it open as a public one for the use of themselves and the public as such,- contending that the closing thereof violated the rights vouchsafed to them by article 1, § 17, of the Constitution of the state of Texas, and by the Fifth Amendment to the Constitution of the United States, in that it took their property without adequate compensation therefor and without due process of law, since they were abutting owners on Lavaca street south of such closed crossing and near to the railway right of way.

The trial court, sitting without a jury, and after hearing the evidence for both sides, refused the injunction prayed for in a general judgment to that effect, filing no findings of fact or law in support thereof.

On the appeal, this court approves the adverse action thus taken below; in the first place, while appellants showed themselves to be abutting owners on the opposite sides of Lavaca street south of and 75 feet distant from the 100 foot wide right of way of the railway companies and of the closed crossing, they wholly failed to show that they had any private or other or different right in the crossing than that possessed by the general public, since their property did not abut upon the railway right of way or the crossing, being separated therefrom at all points by the 75-foot width of Hickory street; in other words, they merely showed that they, in 'company with all the rest of the public, had only enjoyed a right of travel over the crossing as a public way during the time it had been open and maintained by the county as such, and that they had acquired their several properties so adjacent to but not abutting on it while it was being thus used, but they did not establish that a private easement therein had ever inured to themselves by contract, or otherwise, as running with their lands as abutting upon it; wherefore, whatever damage, inconvenience, or impediment they suffered from its closing was different in degree only—simply resulting from being nearer to it—and not in kind from that cast upon the balance of the community in general.

They grounded their pleading for the drastic remedy invoked on the averment that there had been an irrevocable dedication of this sti’ip to the public as a crossing, but the most they proved was a permissive use of and maintenance of it by the county as such for perhaps long enough—from 18 to 40 years ■—to have matured a prescriptive right to it as such in the general public at the time of this abandonment, which right they did not declare upon; but, even so, that merely gave them such rights in it as inhered in the public generally, and did not vest in them individual and private easements or privileges not subject to deprivation by the public authorities.

The undisputed evidence shows that no such dedication to the public had ever been made; on the contrary, that, in the transaction between Mrs. Flourney, the original owner of all the land involved, and one of the railway companies by which she conveyed to it the 80<hacre tract of land upon which a part of the town of Edna was established, as well as the 109-foot wide right of way for its railroad through the town, the fee-simple title to this entire right of way, inclusive of the strip across it here involved, also of the additional strips for sidetracks, switches, and depot grounds, was expressly reserved in the railway company, and ever thereafter so remained.

The appended sketch, with the notations thereon, constructed from the maps in evidence, none of which ever delineated any crossing over the railroad right of way at Lavaca street, or elsewhere throughout its 100-foot width across the entire 800-acre town-site tract—on the contrary indicating that there were no crossings anywhere— gives an approximate idea of the relative locations of the appellants’ different tracts of land with reference to this crossing, Lavaca street, the railroad right of way, the depot grounds, and the town of Edna proper:

It tends to confirm, too, the correctness of the above-made statements as to the physical facts surrounding those lands, the most material of which is that they merely abutted —directly opposite each other — that part of Lavaca street that lay south of Hickory street, which itself was 75 feet distant from the railroad right of way and this crossing over it, hence they nowhere touched either; indeed, only the appellant Simons’ tract was located within the original 800-acre town-site tract; the 66 acres of the appellants Rose and Sample lying outside of it on the west.

Mere averment and proof, therefore, that they had bought their lands before this abandonment of the 67A and B crossing, under descriptions that referred to these maps, got them nowhere toward showing that they had thereby acquired such a private easement, or property right, over this crossing they neither abutted on nor had contracted with anybody to keep open, that the governing body of the county lacked the power to vacate in the public interest.

The undisputed facts thus outlined differentiate the ease here made from those relied on by appellants, of which the two leading ones are Meyer v. Railway Company (Tex. Com. App.) 50 S.W.(2d) 268, and Commissioners’ Court of Harris County v. Kaiser (Tex. Civ. App.) 23 S.W.(2d) 840, in both of which injunctive relief was allowed upon the theory and finding that those lands were not only directly abutting upon the streets or roads involved, but that the owners had acquired private easements therein through contract or purchase; in consequence, they clearly rest upon a different principle of law from that which must control here upon the situation obtaining in this instance; that is, that these litigants were not abutters, nor had they acquired any such private easements necessarily incident to and inseparably connected with their lands as a part thereof at the time they purchased, but, on the contrary, merely became merged with the rest of the public in the right to use this crossing as a public way so long as the county in the interest of all its citizens saw fit and was in position to keep it open as such.

The prescriptive use shown of this crossing would at best only create a public easement or right to maintain it as a public way, which would at all times remain under the control of the commissioners of Jackson county while acting in good faith and presumably at least for the best interests of its citizens, and would not in such circumstances create any private rights in individuals owning land not abutting upon it.

The use and maintenance of such crossing by the county even for the long time shown, acquiesced in by the railway companies, in no way deprived them of their ownership of the land in fee, and, on the abandonment of the crossing as a public way by the county, the land itself reverted to the railway companies, and left them in position to accordingly do with it as they chose; 37 Oyc. page 202, and cited authorities; Mitchell v. Bass, 26 Tex. bottom page 380, as to reversion of the land to the railway company upon discontinuance of the public crossing.

It follows that the sole question here is that of the power of the commissioners’ court over a public crossing as such and over the public easement therein owned and controlled by the county, and under the dominion of that court as its governing body; there being, under the undisputed facts of this case, nothing else involved, it follows under a long line of well-settled authorities that that court, presumably acting in good faith and in the public interest, there being no suggestion in this record impugning either, had the power to so release its only interest in this crossing, and that in so doing it prejudiced no existing rights of appellants. 13 R. C. L. pp. 70 and 75; Dallas Cotton Mills v. Industrial Co. (Tex. Com. App.) 296 S. W. 503, at page 504, bottom column 2; Johnson v. Lancaster (Tex. Civ. App.) 266 S. W. 565; Port Worth & D. S. P. Railway Co. v. Judd (Tex. Civ. App.) 4 S.W.(2d) 1032, at page 1037(21); Kingshighway Supply Co. v. Banner Iron Works, 266 Mo. 138, 181 S. W. 30; Kemp v. City of Seattle, 149 Wash. 197, 270 P. 431.

Appellants Rose and Sample had another 50-acre tract of land involved in the application, which lay a considerable distance further to the west, as also appears on the above sketch, but, as the considerations already stated apply with even greater force to it al--so, it has been deemed unnecessary to do other than refer to it.

None of appellants’ properties were physically appropriated or invaded, nor were they deprived of ready means of ingress and egress in relation thereto, since there were left open and untouched the existing streets of Lavaca and Hickory, which, respectively, lay between them and formed their common northern boundaries; Hickory, on the east, led to a present crossing over the railroad at Colorado street only a few blocks away, which itself, at about the same distance to the north, connected with paved state highway No. 12 that appellants alleged they were inconvenienced in reaching by the abandonment of the closer crossing at Lavaca, hence were in a way peculiar to themselves — and irreparably — damaged; on the west, Hickory street led on to the new substituted crossing at Matilda, 1¾ miles distant in that direction, while Lavaca to the south still connected with what was known as the “Low Water Bridge Road,” which afforded outlets from that junction in both directions.

As regards the invoking of the Fifth Amendment to the Constitution of the United States, in view of the fact that it is a limitation upon the powers of the general federal government only, and has nothing to do with state agencies, it is not, thought to have any application here. Corrigan v. Buckley, 271 U. S. 323, 46 S. Ct. 621, 70 L. Ed. 969; Talton v. Mayes, 163 U. S. 376, 16 S. Ct. 986, 41 L. Ed. 196.

Neither, in our opinion, was it necessary for the procedure outlined in R. S. 1925, arts. 6703 and 6705, to have been followed in this instance, since it seems to have been held that they have no application to a public road or crossing that has not been originally laid out and located by a jury of view, as the undisputed facts recited show was not the case here. Morriss v. Cassady, 78 Tex. 518, 15 S. W. 102, 104; Uvalde County v. Oppenheimer, 53 Tex. Civ. App. 137, 115 S. W. 904, 907; Fort Worth, etc., v. Judd (Tex. Civ. App.) 4 S.W.(2d) 1032, 1038.

The effect of the county’s action in this instance-was nothing more than to release and abandon its so-acquired public easement in this crossing, notwithstanding the provision that it was done ‘To the effect that all public travel may be excluded therefrom,” because it had no other interest, and, since the absolute title to the land itself was at all -times in the railway companies subject only to that easement while effective, the rights of full ownership to it in other ¡respects reverted to the railway companies on the releasing of that interest.

Further discussion becomes unnecessary, since these conclusions determine the merits of the appeal; the judgment of the trial court will therefore be affirmed.

Affirmed.

On Motion for Rehearing.

After careful reconsideration of the cause on appellants’ motion for rehearing, it is thought the original disposition of it should be adhered to; it seems to this court that the arguments and authorities adduced on the motion disclose that appellants fail to differentiate between an action for damages in such a case and one for mandatory injunction alone, as was their suit in this instance; in other words, while they offered proof tending to show that the closing of this crossing had resulted in a depreciation in the value of their nearby lands, they wholly failed to declare upon that as a ground of recovery sought, but limited their prayer to a reopening and subsequent maintenance by the county of the closing as a public way, so that a right of travel over it was alone involved.

It is now well settled in Texas that easements over such ways may be either of a public or a private character, and that these two separate and distinct rights may coexist in contemporaneous and harmonious operation, or the one may be destroyed without necessary impairment of the other — that is, that the public authority may vacate and close, or relinquish, a public easement therein, without impairing the private rights, .if any such exist. Dallas Cotton Mills v. Industrial Co. (Tex. Com. App.) 296 S. W. 503, Kahn v. City of Houston (Tex. Com. App.) 48 S.W.(2d) 595, 596, Bowers v. City of Taylor (Tex. Com. App.) 16 S.W.(2d) 520, and Id. (Com. App.) 24 S.W.(2d) 816.

But in this instance, as originally brought out, there had never been any dedication — irrevocable or otherwise — to the public of this crossing as such, nor did the parties to this cause claim under a common source proprietor who had platted and dedicated the same as a public way, with direct reference to which they had purchased; to put it differently, the appellants, in effect, admitted that their sole claim rested upon a prescriptive right to a continued use of it as a public highway that they had acquired in common with all the rest of the public; when, at the time they purchased, their property was adjacent to but not abutting on it, and they were at least charged with knowledge of the undisputed fact shown upon the records reflecting the title to the railroad right of way, including the maps and plats thereof, that there had never been any dedication or conveyance of this strip across it to the public for any purpose; since, therefore, there had never- — through dedication to the public nor by contract with others that the public authority was bound to respect — passed, into the appellants any individual or private right to keep this passageway forever open as a privilege that ran with their property, there was nothing prohibiting the county commissioners, while acting in good faith and presumptively at least for the public good, from releasing the merely public easement, that alone existed in it.

The motion will therefore be' overruled.

Overruled.