text:
    WICHITA FALLS & S. R. CO. v. WADE.
    No. 12748.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 24, 1932.
    Rehearing Denied Feb. 18, 1933.
    Bullington, Humphrey & King, of Wichita Falls, for appellant.
    E. W. Napier, of Wichita Falls, for appel-lee.
   DUNKLIN, Justice.

J. A. Wade instituted this suit against the Wichita Falls & Southern Railway Company and the Wichita Falls & Southern Railroad Company, to recover damages for injuries alleged to have been sustained by him which, according to allegations in his petition, resulted from a fall while he was walking along a pathway leading from the roundhouse and shops maintained by defendants -for the purpose of repairing and servicing their locomotives, and in which shops he was employed as a boiler washer.

According to allegations in his petition, the cause of his fall was the slipping of his feet on ice formed from water which had escaped from a vat maintained by the defendants near the door of the blacksmith shop and used for cooling irons. He alleged that at the time of his injury he was engaged in the employment of defendants and was in the performance of his duties as a boiler washer at the roundhouse; that about 8 o’clock in the evening of January 8, 1930, and when he fell, he was walking from the roundhouse to a scrap pile situated near the roundhouse on the premises of defendant; and that as a result of his fall he sustained a fracture of his backbone, which has caused him great physical pain and has totally and permanently incapacitated him for earning a livelihood by physical labor as he had done before the injury. He further alleged that on the night of the injury the weather was very cold, and by reason of the fact that the premises were dark and without lights he was unable to discover the ice upon which he slipped; that the path he was traveling was the one in common use by the defendant’s employees; that the vat referred to was lower at one end than at the other and on account thereof water overflowed from it and ran down and formed the pool which froze. It was further alleged that defendant was guilty of negligence in maintaining the premises in that condition, which was an unsafe place to work.

Both defendants filed answers to the suit, and upon a final trial judgment was rendered denying plaintiff any recovery against defendant Wichita Falls & Southern Kailway Company, of which no complaint is made here, but awarding him a judgment against the defendant Wichita Falls & Southern Kail-road Company for the sum of $20,000. From this judgment that defendant has prosecuted this appeal, and it is the only defendant hereinafter referred to in this opinion.

In addition to a general demurrer and several special exceptions, the defendant filed a general denial and also a special answer, alleging that it maintained the roundhouse and shops on its premises and the blacksmith shop mentioned in plaintiff’s pleadings, and that at the time of his alleged injury he was in the employment of defendant as a boiler washer and was engaged in the service of washing out boilers and engines used by defendant in hauling cars and passengers in interstate commerce and therefore his alleged cause of action, if any he has, arose under the Federal Employers’ Liability Act (45 TJSCA §§ 51-59).

The answer of defendant contained further allegations in substance that plaintiff was furnished a safe place to work in the roundhouse with proper tools and equipment, well lighted and well heated, and free from any defects ' or hazards; that of his own choice, and not under defendant’s direction, plaintiff elected to go outside of the roundhouse to a place where he was not required to go in the discharge of his duties and there hunt for a piece of pipe which he had himself provided for his own convenience but which was not necessary to the performance of his duties; that he voluntarily chose the route he traveled rather than another path in use by its employees which was -free from ice and snow, and that if injured at all as alleged, the injury was the result of his own deliberate selection of a way and means in which to do his work; that the dangerous condition of those premises, if any, was open and obvious to the plaintiff and he was charged with knowledge thereof and by reason thereof he assumed the risk of injury therefrom; that the presence of snow and ice developed in the progress of the work and was a condition necessarily incident to such work, and, therefore, a danger which plaintiff assumed as an ordinary and obvious risk of his employment.

There was a further plea of contributory negligence upon the part of plaintiff based upon the facts set forth in the pleadings just noted.

The record shows uncontroverted proof of the following facts: It was plaintiff’s duty to wash boilers of defendant’s engines, and in order to do so it was necessary to unscrew certain plugs in the boilers; no one was superintending or directing the manner of doing his work; he was furnished a helper in one X. V. Sanchez, who was subject to his directions; the inside of the roundhouse was warm, well lighted, and a suitable place to work; defendant furnished him all wrenches of various sizes and nozzles necessary to do his work; some time prior to the night when he claims to have been injured, he took a piece of scrap pipe, about 2½ to 3 feet long and 1% inches in diameter, flattened it at one end so that it would fit over the end of a wrench and thereby give him more leverage to unscrew the plugs in the boilers; he had selected and fashioned the pipe of his own volition and without any instruction from the defendant or any of its representatives; but by using it he could unscrew the plugs; according to his testimony, defendant’s superi- or officer knew of his use of the pipe some time before the alleged accident, and it had been used also by the boiler washer who worked in the daytime. Shortly after plaintiff had gone to work in the roundhouse on the night of January 8, 1930, he missed the iron pipe so used by him, and being unable to find it in the roundhouse where he usually kept it, he concluded that the clean-up boy had thrown it into the scrap pile where numerous pieces of scrap pipe had been deposited and which was north and west of the roundhouse, a distance of about 235 feet. He then started ■ for the scrap pile in order to recover the piece of pipe which he had used; and he testified that he slipped on the ice while on that errand at a place near the blacksmith’s vat, where he had previously seen a wet place and the next morning saw icicles on the rim of the vat, and the vat was the only source from which the ice on which he fell could have originated; he was fifty-seven years of age and had worked for defendant as boiler washer for about five years.

Registrations of the weather bureau at Wichita Falls showed that it was sleeting and snowing during the day of January 8, 1930, and a temperature of 22 degrees at 5 o’clock in the evening of that day, with a minimum during the night of that day of 17 degrees. The night was dark and cloudy, and the premises where plaintiff alleged he fell were darle, but he-carried his torch, used in the roundhouse for inspecting boilers, consisting of a b.owl that would hold a pint of oil in which there was a piece of iron pipe, and a wick through that pipe furnished the light, which was not protected by any chimney, and in the wind that was blowing it furnished “just an old flicker light,” as he described it. He further testified:

“Q. You could not see the ground. You could see what was on top. You could see that hy stooping over. You had light — you could find what you were looking for. * * * A. I did not know that there was any ice about there, and I knew. that there was snow on the ground, but I wasn’t figuring that snow was very slippery. * * *

“Q. How long had this old vat been there? A. I guess that it had been there for two or three years, maybe longer than that. ■

“Q. Was it a leaky box? A. It was leaking, yes. '

“Q. Had you ever seen that box leak or overflow before? A. Yes, I had never seen it, but of a morning in the summer time or in the fall, we would go out that way sometime in the morning, going to the car. line, and we would get in the water there and we knew where it came from. There was nothing else for it to come from but that old box. . '

“Q..You would get in the water? Do you mean that you would have to go through a pool of water? A. Go through a little pool of water to get out to the track.

“Q. Now, how long had it been since you had seen that leaking, water leaking and overflowing there? A. It had been a month or more since I had been out there and noticed that thing leaking water out there. * * *

“Q. Was there a pathway leading from the blacksmith shop door to this office? A. Yes, sir, there was a pathway leading from the blacksmith shop door to Mr. Shull’s office— there was a little trail there. * * *

“Q. What was it, was it a cinder path? A. A cinder path.

“Q. Who used that path? A. All of the day men used it. In going to Mr. Shull’s office and back to the roundhouse, it was just a continual go all day long.”

He further testified with reference to the pipe he used as follows:

“Q. This pipe that you had, that was something you had collected for yourself? A. It was something that I had collected for myself, in .order to relieve these plugs the easiest way possible. It was a piece of pipé about 2 ½ or 3 feet long and about 1% inches thick.

“Q. How did you make that pipe fit? A. I would take it to the anvil and mash it.

“Q. How long did it take to do that? A.

Oh, it did not take but a little bit to do that. A little longer than a minute, because you had to try your wrench in it to get it right. It wasn’t much trouble to do that.

“Q. It wasn’t near as much trouble as to go out to the scrap pile? ' A. It wasn’t as much trouble. I could have made it before I could have went to the scrap pite and got back, if I had a piece of pipe. * * *

“Q. And I believe that you also told me that when it was missing, it made you mad? A. Yes, it sure did. I ought not to have said that before. I was sure riled. * * *

“Q. There was some pipe there? A. Yes, sir.

“Q. You had a hack saw in the building? .A. Yes, sir.

“Q. And you could have cut a piece of pipe? A. I could have done it.

“Q. And nobody ordered you to go out there into the dark on that ground and around about the scrap pile to try to find that-piece of pipe? ' A. Nobody ’told me to go. I went on my own accord, hunting my pipe. I guess I was walking pretty peart.

“Q. Don’t you think that is pretty dangerous to step pretty peartly on ice and snow? A. We never think about a thing like that, working around the roundhouse.

“Q. You knew it was pretty risky, didn’t you? A. Yes, I knew it was risky.

“Q. Now, of course, you know as well as anybody else, don’t you Mr. Wade, that it is a whole lot more dangerous to go around in the dark] than it is with a light? A. Yes, it is more dangerous, but I had my old torch and I thought that it would keep lit, maybe. I had had that torch a long time. I knew the kind of light that it gave, and I knew how they would blow out.

“Q. Was it (the wind) blowing hard? A. It was blowing hard when I went out, and the wind whipped around in there.

“Q. When you stepped out of the door how far did you go before you knew that the wind was blowing? A. I did not get far away.

“Q. But you did not turn around and go back when you discovered that the wind was blowing hard? A. No, sir.”

According to his testimony no one else saw him fall, and although he suffered pain at the time he continued working and did not realize the seriousness of his injury for some time thereafter, when he was compelled to cease laboring.

According to the testimony of physicians, based on .X-ray tests and the truth of which appellant does not challenge, he is now suffering from a fractured spine, which is permanent and which has destroyed his ability to work in the future; although appellant denies that that condition was caused as alleged by him.

The jury, before whom the case was tried, returned special findings, including the following:

1. Plaintiff sustained an injury to Ms back on or about January 8, 1930, by a fall on ice while attempting to go from the roundhouse to the scrap pile to find the piece of pipe which had been fashioned by him for use in doing his work, and was following a route intended by defendant for Ms use in doing his work.

2. The ice upon which he fell was caused by overflow and leakage from' the vat of water near the door of the blacksmith shop.

3. The piece of pipe was reasonably necessary in the work in which plaintiff was engaged, and a reasonably prudent person in plaintiff’s situation would have gone to the scrap pile for the purpose of recovering the pipe he had been using.

4. The north end of the water vat was lower than its south end, and defendant was guilty of negligence in maintaining the vat in that leaky condition.

5. Defendant’s employees were also guilty of negligence in putting water in the vat on or about January 8, 1930.

6. Defendant knew of the presence of the! ice a sufficient length of time to have removed! the same by the use of ordinary care before plaintiff sustained his injury, and was guilty of negligence in failing to so remove it.

7. Defendant was also negligent in failing to discover the ice before, plaintiff’s fall and injury.

8. Plaintiff has sustained damages by reason of his injury in the sum of $20,000, which resulted solely from the injury to his back sustained by him on January 8, 1930, from falling on; the ice.

9. There was a further finding of damages at the rate of $15 a week for nurse hire from and after November 16, 1931, but the court refused to allow him a recovery therefor and cross-assignments have been filed by him here to the refusal of that additional relief.

. 10. In answer to special issues requested by defendant, the jury found that the slippery condition of the premises intervening between the roundhouse and scrap pile was' not obvious and apparent to plaintiff and that a person of ordinary prudence, situated as was plaintiff, would not necessarily have learned of that slippery condition, and that plaintiff in leaving the pathway leading from the door of the roundhouse to the office and taking another route was not guilty of negligence ; that plaintiff did not know that the ground was covered with ice and sleet when he attempted to go to the scrap pile from the roundhouse. -

,11. The piece of pipe for which plaintiff was searching when he started to the scrap pile was not selected by Mm for his own convenience, and he could not have obtained another piece of like character without going out of the roundhouse on the night, in question.

There were further findings in favor of plaintiff in answer to special issues requested by the defendant presenting different phases of contributory negligence which were to the same effect as those noted above.

There were further issues as to whether or. not the contributory negligence of the! plaintiff in several particulars, if the jury should find there was any such, próxima tely contributed to. his injury, and to each and all of those issues the jury answered, “No.”

The jury further found that the negligence of defendant and its employees so found by them was in each particular a proximate cause of plaintiff’s injury.

In. the absence of a challenge thereof by ap-pellee, we accept as true the statement in appellant’s brief that the evidence showed that plaintiff and defendant were engaged in duties involved in interstate commerce gnd that the Federal Employers’ Liability Act must control.

We quote the following from Labatt on Master &' Servant, vol. 4 (2d Ed.) p. 4987: “In dealing with the issues of the negligence of the master or the contributory negligence of the servant there is always a preliminary question to be determined by the trial judges, viz., whether there is any evidence on which the jury can properly find in favor of the party on whom the onus of proof lies.”

In the footnote to that text the following is quoted from Griffith v. Wapello Coal Co., 145 Iowa, 577, 122 N. W. 581: “Ip the absence of any evidence whatever that reasonable prudence required the installation of ai derailing switch, and that, had such switch been maintained, it could have been operated practically so as to prevent the injury to deceased, there was notMng to go to the jury on this assignment of negligence.”- Other decisions cited are to the same effect.

The case of Missouri Pacific Ry. Co. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 179, 72 L. Ed. 351, was a suit by Mary I. Aeby to recover damages for injuries sustained as the result of an accumulation of snow on the platform of the station which concealed a hole into -which plaintiff stepped. Plaintiff-was in charge of the railroad station where the accident occurred; and in the necessary discharge of Her duties she went out on the platform to place a truck for receipt of mail, baggage, and express. It was then dark and there - were no lights on the - platform. • Rain had fallen and frozen) and the snow covered holes in the ice into .which she stepped without knowledge; of their presence. We quote the' following from the opinion of the Su, preme Court in that case: :“Its duty in -respect of the platform did not make petitioner an insurer of respondent’s safety; there was no guaranty that the place would be absolutely safe. The measure of duty in such cases is reasonable care, having regard to the circumstances. * * * The petitioner was not required to have any particular type or kind of platform, or to maintain it ini the safest and best possible condition. * * * No employment is free from danger. Fault or negligence on the part of petitioner may not be inferred from the mere fact that respondent fell and was hurt. She knew that it had rained and that the place was covered with ice and snow. Her knowledge of the situation and of whatever danger existed was at least equal to that chargeable against the petitioner. Petitioner was not required to give her warning. * '* * It is a matter of common knowledge that almost everywhere there are to be found in public ways and on private grounds numerous places in general use by pedestrians that in similar weather are not materially unlike the place where respondent fell. Under the circumstances, it cannot reasonably be held that failure of petitioner to remove the snow and ice violated any duty owed to her. The obligation in respect of station platforms and the like owed by carriers to their passengers or to others coming upon their premises for the transaction of business is greater than that due their employees accustomed to work thereon. The reason is that the latter, familiar with the situation, are deemed voluntarily to take the risk of known conditions and dangers. * * * The facts of this case when taken most favorably to the respondent, are not sufficient to sustain a finding that petitioner failed in any duty owed to her. * * * .As negligence on the part of the petitioner is essential, we need not consider its. contentions in respect of assumption of risk and negligence on the part of respondent.”

In St. Louis, I. M. & S. Ry. Co. v. Schultz,, 115 Ark. 350, 171 S. W. 876, 878, in, denying plaintiff a recovery for injuries, the court had this to say:

“The master owes to the servant the duty of exercising ordinary care to make safe the place designated for the servant to do his work, but this duty extends to such parts of the premises only as the master has designated and prepared for the occupancy of the servant while performing his work according to the methods prescribed for doing the same, and to such other parts of the premises as the master knows, or by the exercise of ordinary care should know, that the servant is accustomed to using while performing his duties.

“But where the servant adopts methods for his own convenience contrary to the methods expressly prescribed by his employer, and where the servant occupies places about the premises in the performance of his duties that the master could not reasonably anticipate that the servant would occupy, then the master owes the servant no duty to make those places or methods safe, and his failure to do so is not actionable negligence.” Citing authorities.

To the same effect are the following decisions: Hettich v. Hillje, 33 Tex. Civ. App. 571, 77 S. W. 641, writ of error refused; St. L. & S. W. Ry. Co. v. Highnote, 99 Tex. 27, 86 S. W. 923; Patton v. T. & P. Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; Del. L. & W. Ry. Co. v. Koske, 279 U. S. 7, 49 S. Ct. 202, 73 L. Ed. 579; St. L. & S. F. Ry. Co. v. Mathis, 101 Tex. 342, 107 S. W. 530. See, also, Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Garrett v. Hunt (Tex. Com. App.) 283 S. W. 489. And under the authorities cited we have concluded that the evidence was insufficient, prima facie, to sustain plaintiff’s allegations or defendant’s negligence.

It is a further rule that when negligence of the defendant for which a recovery is sought is established, the ’burden is upon plaintiff to further show that such negligence was the proximate cause of the injury complained of. Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764.

Texas & P. Ry. Co. v. Bigliam, 90 Tex. 223, 38 S. W. 162,164, was a suit by Bigham to recover of the railroad company damages for personal injuries to himself as a result of being run over by a herd of cattle as they broke out of the gate of a pen in which they had been confined and which was furnished by the railroad company for that purpose, and also for damages sustained in the loss of cattle which escaped. The gate was out of repair, and it was held that the evidence was sufficient to show a right of recovery for the loss of the cattle for negligence in maintaining the gate in that condition. But it was further held that the cause of action for personal injury to the plaintiff was not sustained ■for lack of showing that the negligence charged in maintaining the gate with defective fastenings was the proximate cause of plaintiff’s personal injuries. In that connection the court had this to say: “Ought the agents of the company to have foreseen that, as a result of the imperfect fastening of the gate, the injury, or any injuries similar in character, would probably result? In our opinion, nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff. The act of the defendant in permitting the fastening to its gate to become insecure was in itself lawful; and since it was clearly out .of the range of reasonable probability that an injury to the person of any one should result, it should be held as a matter of law that the negligence of the company gave no right of action for such injuries.”

See, also, Gulf, C. & S. F. Ry. Co. v. Bennett, 110 Tex. 262, 219 S. W. 197, which, cites with approval the Bigham Case and other decisions to a like effect.

The quotation from the Bigham Case is applicable to this case. In other words, it may be said that there is a lack of evidence reasonably tending to show that the defendant company should have anticipated the combination of events which resulted in the injury complained of; and therefore to show that the alleged unsafe condition of the premises was the proximate cause of plaintiff’s in-. jury.

The undisputed facts in this case show that prior to his alleged injury plaintiff knew of the leakage of the water vat near the blacksmith shop and the course of its flow over the adjacent premises. He also knew, or must necessarily have known in the exercise of proper care for' himself, of the freeze, and that any overflow from the vat would likely freeze and accumulate in the pathway which he followed while attempting to reach the scrap pile. He also knew that by reason of the darkness he would not be able to see the condition of the pathway he traveled. The place assigned to him for work was-within the shops where tools were furnished to him by the master, and there was no fact or circumstance in the evidence which tended to prove, even remotely, that the master was put on notice that the plaintiff would have occasion to use the premises where he claims to have been injured for the purpose of searching the scrap pile for the lost tool which he himself had prepared, notwithstanding defendant’s knowledge of his prior use of that tool and of the fact that it enabled him to better perform the services of his employment. And under such circumstances, tested by the rule announced in the foregoing decisions, supplemented by the decisions of St. Louis S. W. Ky. v. Hynson, 101 Tex. 543, 109 S. W. 929, and Bonnet v. G. H. & S. A. Ry., 89 Tex. 72, 33 S. W. 334, decided before the defense of assumed risk of the negligence of a railroad company was barred by article 6437, Kev. Civ. Statutes, we believe that the defense of assumed risk was conclusively established, independently of the issue of defendant’s negligence.

From the foregoing conclusions it follows that the court erred in refusing the defendant’s request for an instructed verdict.

Appellant urgently insists that the evidence was insufficient to show that plaintiff’s injury of which he complained was caused by falling on the ice, as claimed by him. That contention is based chiefly on the testimony of plaintiff himself, to the effect that after his fall he sat down at that place for several minutes, then went back to the boiler room, and after about 30 minutes his pain ceased sufficiently for him to resume his work, although ho did not do much work that night, and laid off the next day; and continued to hold his job until December 27, 1930, nearly one year from the time of his alleged fall, and never complained to his employer that he had been injured until in January, 1931, after he had quit the employment, and never told his physician who had been treating him for illness since the year 1928 of receiving such a-n injury, and never put in a claim for indemnity with the Accident Insurance Company, with whom he carried an accident policy. But he further testified that he told several persons of having sustained the injury complained of, one of- whom was Y. Y. Sanchez, his helper, who was not offered as a witness upon the trial, although he was isworn and put under rule as a witness.

We overrule this assignment, but we have noted it and the foregoing testimony to show the materiality of other assignments to alleged improper arguments; one of which was to remarks of plaintiff’s counsel in his argu- • ment to the jury which is shown in a bill of exception as follows:

“Now you may disbelieve Wade and his wife, and I am going to tell you that the strongest circumstance, and the one that you cannot get away from is the fact that he was hurt and told Mr. Y. V. Sanchez — and where is Y. V. Sanchez? Why, he is working out there and on their pay roll, drawing their money — they could get him here at the courthouse, but you did not hear him testify—

“Mr. Humphrey: We object to that argument. He was a witness up here a-nd as the court well knows and Mr. Napier well knows, subject to subpoena, and we object to that argument as highly prejudicial and improper.

“The Court: Objection overruled.

“Mr. Humphrey: Note our exception.

“Judge Napier: Now, would not I have been Billy to have brought their employee here to testify, one of two things would have happened: If he had helped me he would have lost his job, and the chances are that he might not -have helped me.

“I do not know; but if they had put him on the witness stand, then I would have a chance to cross examine him. If I put him on the stand, I cannot ask him leading questions, and I am bound by every word that he says, and if he tells something else, you know, it is just like buying a pig in a poke, and of course lawyers just don’t do that, and it was foolish. Birt he was here, and if they wanted to know the truth about this thing, they could have put him on the stand, and when old man Wade said under oath, T told Sanchez that,’ the thing for them to have done was to put .Sanchez on the stand and asked ¡him ‘Mr. Sanchez did Mr. Wade tell you that night that he fell and hurt his back?’

“Did he tell you that he went put on the ice an January 8, 1930, and fell and hurt his back? That is what they would have done unless they knew that statement there shows and they know what that statement was—

“Mr. King: We object. There is no evidence here of any statement of Sanchez.

“Mr. Napier: I will withdraw that remark about the statement. Maybe they did not take the statement.

“Mr. King: We ask to have a bill to all of this and ask to have the jury instructed that they are not to consider it.

“Mr. Napier: I withdraw the statement. There is no evidence they got a statement from Sanchez. Mr. Wade talked to Sanchez—

“Mr. King: Our bill goes to all of this as improper and prejudicial — outside of the record and wholly improper argument.

“The Court: You may have your bill.

“To which argument and statements of plaintiffs counsel defendant then and there in open court excepted for the reasons and objections stated above, as the facts showed that the witness Y. Y. Sanchez was present at the trial of the case, was in attendance upon the court, was sworn as a witness for defendant in the case by the court and placed by the court under the rule.

“Which objections the court then and there overruled and permitted plaintiff’s counsel to argue as aforesaid.”

' By another assignment complaint is made of a further argument of plaintiff’s counsel to the jury to which defendant objected at the time, and which objection was overruled by the court, as follows:

“Now this court gives you some definitions —gives you a definition of proximate cause.

“You will find that there are some issues in here which you ask to determine whether certain things was the proximate cause of this man’s condition, and who is responsible. What the court wants to find out here is who is responsible for this man’s condition.

“That is not the legal definition but that is about what that issue means, so you be very careful before you sign any verdict, which finds old man Wade guilty of any kind of negligence. * * *

“Now, Gentlemen, I haven’t time to discuss all of these issues, but I am going to tell you now that these issues in which the court asks you if something that old man Wade did was a proximate cause or a sole cause or any sort of cause, I am going to tell you now that yo.u ought to be very careful, and you ought to know what you are doing when you sign a verdict that answers those issues, each of those issues.”

We have concluded that those assignments also should be sustained. Robbins v. Wynne (Tex. Com. App.) 44 S.W.(2d) 946, and decisions there cited; 3 Texas Jurisprudence, p. 1260, and decisions noted. The statement as to the legal significance of the term “proximate cause” in the argument last quoted, of itself, constitutes reversible error under the decision in Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765, which has been frequently cited with approval in opinions of our Supreme Court and Commission of Appeals; and injury to appellant was all the more probable in view of the action of the trial judge in overruling the objection to that argument urged when it was made.

For the reasons noted, the judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing of appellant by reason of this suit; and for the same reasons appellee’s cross-assignments of error are overruled. The judgment in favor of the Wichita Falls & Southern Railway Company is left undisturbed.


source: Caselaw Access Project

author: DUNKLIN, Justice.

license: Public Domain

text:
    DEEN v. SNYDER.
    No. 12742.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 10, 1932.

      Taylor, Muse & Taylor, of Wichita Falls, for appellant.
    A. H. Britain, of Wichita Falls, and E. A. Rice, of Cleburne, for appellee.
   DUNKLIN, Justice.

C. C. Deen has prosecuted this appeal from a judgment sustaining a general demurrer to a petition filed in his suit against George P. Snyder.

The suit was to recover damages for libel alleged to have been committed by the defendant by the publication of certain advertisements in the Wichita Daily Times, a newspaper published in the city of Wichita Fails, which followed certain advertisements in the same paper by the plaintiff. Those advertisements with the respective dates of their publication were as follows: ■

Advertisement by plaintiff, dated January 4, 1931:

“Now in Wichita Falls

“Dr. C. C. Deen of Glen Rose, Texas

“Let this famous Magnetic Masseur give you relief. Dr. C. C. Deen, Magnetic Masseur, formerly associated with the Geo. P. Snyder Sanitarium of Glen Rose, Texas, will be in Wichita Falls for a few weeks beginning Monday, January 5, and will be located at the Holt Hotel, Room 219.

“Dr. Deen treats all manner of chronic diseases successfully without the use of drugs or the knife. He invites your investigation of his method of treatment. C. C.'Deen is the first doctor from the George P. Snyder Sanitarium of Glen Rose, Texas, ever to be in Wichitá Falls.

“Consultation Free

“Room 219, Waiting room on second floor. Phone 21162.”

Advertisement by defendant of date January 26, 1931:

“Geo. P. Snyder Sanitarium of Glen Rose, Texas, has no representative in Wichita Falls or any other place. Any advertisement using the name of George P. Snyder Sanitarium is unwarranted and without authority.

“Geo. P. Snyder.”

Advertisement by plaintiff published August 2,1931:

“Back in Wicbita Falls

“Dr. C. O. Deen of Glen Rose, Texas.

“Let this famous Magnetic Masseur give you relief. Dr. O. O. Deen, Magnetic Masseur, formerly of the Snyder Sanitarium of Glen Rose, Texas, has returned to Wichita Falls and will begin treating Monday, August 3, Dr. Deen specializes in Chronic and nervous disorders.

“Consultation Free

“Office Holt Hotel, Room 208, Waiting Room on second floor, Phone 21162. Residence-1662 Ardath. Phone 21682.”

Advertisement by plaintiff published August 16, 1931:

“For Health’s Sake

“Dr. C. C. Deen, Magnetic Masseur from Glen Rose, Texas. Your health is your most precious asset. Guard it carefully.

“Dr. Deen has a most unusually effective scientific treatment and has given relief in hundreds of cases after others have failed.

“Consultation Free

“Office Holt Hotel, Phone 21162. Residence 1662 Ardath St., Phone 21682.”

Advertisement by defendant of date August 16, 1932:

“A Correction

“My attention has been called to an advertisement appearing in your paper. The fact that our institution has made thousands of friends among its patients does not authorize anyone to solicit patronage based on the reputation of our institution, and no one has been, or is authorized so to do.

“Geo. P. Snyder Sanitarium,

Glen Rose, Texas.”

According to allegations in plaintiff’s petition, the designation of himself in his advertisements as a doctor was unauthorized by him and was inserted by the advertising representative of the newspaper through a misunderstanding; but in all other respects the statements in the advertisements were true.

It was further alleged that the purpose of the first advertisement published by defendant, of date January 26, 1931, was to destroy plaintiff’s opportunity to practice his profession in and around Wichita Falls and injure plaintiff’s reputation as a practitioner and his good character and standing as a citizen, and to humiliate him and injure his credit; and that the same did place plaintiff in the attitude of being a deceiver and faker who would attempt without authority to use the defendant’s name for the purpose of gaining patronage therefrom.

The same innuendos were pleaded with respect to the second advertisement published by defendant on August 16, 1931, with further allegations that the advertisements published by plaintiff were true, while the statements in those published by defendant were untrue, and by reason thereof plaintiff has suffered a loss of practice from persons residing in Wichita Falls who otherwise would have been his patrons, and also personal humiliation and injury to his reputation as a citizen and practitioner; for all of which he prayed for damages in the sum of $2,500 for injury to his practice, and for the same amount for injury to his reputation as a man.

Plaintiff has prosecuted this appeal from a judgment of the trial court sustaining a general demurrer to his petition and dismissing his suit after he had declined to amend.

Article 5430, Rev. Statutes, reads as follows: “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to inj.ure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

In Funk & Wagnalls New Standard Dictionary the word “defame” is defined as follows: “To injure or endeavor to injure the good name or reputation of, by speaking or publishing evil or false reports concerning; calumniate; slander; libel; to bring disrepute upon; disgrace; dishonor, to charge, indict, especially to accuse falsely.”

For other definitions to the same effect, see Webster’s New International Dictionary and 1 Words and Phrases, Second Series, page 1263. Since the term “libel” is fully defined in the statutes, no other definition can be considered in arriving at a conclusion as to whether a publication constitutes libel. Times Pub. Co. v. Ray (Tex. Civ. App.) 1 S. W.(2d) 471.

Whether or not the advertisements published by the defendant were libelous per se is to be determined by the test announced by Chief Justice Gaines in Belo & Co. v. Smith, 91 Tex. 221, 42 S. W. 850, 851, as follows: “The question is: What effect would the publication have upon the mind of the ordinary reader? What construction would he have put upon it? For in defamatory language, it is not so much the idea which the speaker or writer intends to convey, as what he does in fact convey. It is the effect upon the character of the person alleged to be defamed by the utterance which the law considers, and therefore the utterer uses the language at his peril.”

There is a further rule that the language charged to be libelous must be construed in the light of accompanying statements in the article, and must he interpreted in the sense that the ordinary reader would understand them. Express Pub. Co. v. Keeran, 284 S. W. 913, by the Commission of Appeals.

In Houston Chronicle Pub. Co. v. Thomas (Tex. Civ. App.) 262 S. W. 243, 246, it is said: “The law is well settled that unless the language used is reasonably susceptible of a defamatory meaning it cannot form the basis of a charge of libel.”

It is a further rule that it is the province of the court to determine whether or not language charged to be libelous is ambiguous or unambiguous; if unambiguous, whether or not it is libelous per se; and if ambiguous, whether or not by reason of the ambiguity evidence is admissible to establish a meaning by innuendo which would be libelous. If the language is unambiguous and is not on its face libelous, then it is the duty of the court to instruct a verdict for the defendant. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167; Webster v. Nunn (Tex. Civ. App.) 248 S. W. 711; Caylor v. Nunn (Tex. Civ. App.) 235 S. W. 264; A. H. Belo & Co. v. Looney (Tex. Civ. App.) 246 S. W. 762; Express Pub. Co. v. Isensee (Tex. Civ. App.) 286 S. W. 926; Moore v. Leverett (Tex. Civ. App.) 33 S.W.(2d) 838.

A further rule is that a publication which is not actionable per se cannot be made so by an .innuendo. Enterprise Co. v. Wheat (Tex. Civ. App.) 290 S. W. 212, and decisions there cited; Express Pub. Co. v. Wilkins (Tex. Civ. App.) 218 S. W. 616; 17 R. C. L., p. 396, § 151; Blum v. Kusenberger (Tex. Civ. App.) 158 S. W. 779.

Tested by the foregoing rules of construction, we have ¡reached the conclusion that there is no ambiguity in the advertisements inserted in the newspaper by the defendant, and that the same are not libelous per se. Both publications made by defendant were plain and unambiguous statements, and no one could reasonably impute to those publications any other meaning, when read in the light of prior advertisements by the plaintiff, than that he was not a representative of defendant, and that he was not authorized by defendant to solicit patronage upon the .reputation of defendant’s sanitarium maintained at Glen Rose.

And since it appeared from plaintiff’s petition that the defendant’s sanitarium had an established valuable patronage at Glen Rose, we believe the advertisements by plaintiff were of such a character as to provoke the advertisements made by defendant with reference thereto, and which the defendant had the legal right to make in the protection of his established business, which was a property right. Moore v. Leverett (Tex. Civ. App.) 33 S.W.(2d), 838; Brooks v. Heartfleld (Tex. Civ. App.) 2 S.W.(2d) 510; Humphreys Homeopathic Med. Co. v. Bell, 15 Daly, 6, 2 N. Y. S. 50.

By article 739, Revised Criminal Statutes of Texas (Penal Code 1925) as the same read at the time of the publication of plaintiff’s first advertisement in the Wichita Falls newspaper, it is provided that no person shall practice medicine in any of its branches upon any human being'within the limits of this state who has not registered in the district clerk’s office of the county in which he resides lawful authority to so practice medicine, together with an affidavit by him showing, among other things, that he holds a license to so practice, and that he is the identical person shown in the license; the article further providing that the holder of the license must have the same recorded upon each change of residence to another county, and to make the same affidavit.

That article of the statutes was amended by the Acts of the Eorty-Second Legislature, c. 49, page 75, § 3 (Vernon’s Ann. P. 0. art. 739), which became effective April 13, 1931, prior to the dates of the two last advertisements published by plaintiff himself, so as to require that the license to practice must be issued by the Texas board of medical examiners, and that the license must be recorded, and the same showing made in each and every county in which the practitioner may maintain an office or may designate a place for meeting, advising with, treating in any manner, or prescribing for patients.

Article 740 of the same statutes provides that the provisions of that chapter shall not apply to certain individuals, including the following: “Masseurs in their particular sphere of labor who publicly represent themselves as such.”

Article 741 of the same chapter reads as follows:

“ ‘Practicing medicine’

“Any person shall be regarded as practicing medicine within the meaning of this chapter:

“1. Who shall publicly profess to be a physician or surgeon and shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof.

“2. Who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.”

Article 742 reads: “Any person practicing medicine in this State in violation of the preceding articles of this chapter shall be fined not less than fifty nor more than five hundred dollars, and be imprisoned in jail not exceeding six months. Each day of such violation shall be a separate offense.”

In Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956, the Court of Criminal Appeals sustained the conviction for unlawfully practicing medicine within the meaning of article 741 who advertised as follows:

“Prof. J. M. Newman, The Masseur Doctor

“Has Located in Boerne at the Boerne Hotel Room No. 21 Upstairs. He is the doctor that cures Consumption, Appendicitis, as well as all other diseases. Now is your time to be healed. Come and see him while he is here.”

In that opinion the Court of Criminal Appeals, opinion by Justice Ramsey, had this to say: “The first statement in the advertisement put out by appellant characterizes him as a masseur doctor. He advertised himself to be the doctor, and to cure consumption, appendicitis, as well as all other diseases, and warns the public that ‘now is your time to he healed.’ Pursuant to his invitation, many people did call to see him, to be healed of their troubles. Can it be said that this man was not holding himself out as a physician, as one who treated and cured diseases? Can it be said that he did not, in the sense that the Legislature understood this term and method or system of treatment, know he is not exempt on the mere ground that he does not use drugs and medicines or surgical instruments?”

Then follows an approved quotation of an announcement in People v. Allcutt, 189 N. Y. 517, 81 N. E. 1171, which answered those questions adversely to appellant, and in the motion for rehearing in that case a further argument is made in support of the conclusion in that opinion.

In Milling v. State, 67 Tex. Cr. R. 551, 150 S. W. 434, 435, the same court sustained a conviction for practicing medicine in violation of article 741. The defense in that case was that the defendant practiced simply and solely as a masseur and so advertised himself ; but the court observed that notwithstanding the defendant represented himself merely as a masseur, he undertook to cure diseases for pay, which he could not do without properly registering his certificate as required by article 739, and further said: “In other words, he could not hold himself out as a masseur, claiming to treat diseases without pay, and as a matter of fact treat human beings for disease and disorder as a doctor and indirectly charge them therefor, without a certificate registered, etc.” Dankworth v. State, 61 Tex. Cr. R. 157, 136 S. W. 788, is to the same effect.

We have reached the conclusion that the advertisements of plaintiff expressly and specifically as a doctor and offering to treat all manner of chronic diseases successfully without the use of drugs or the knife, was an offer to practice medicine within the meaning of- article 741 of the Penal Code above mentioned; and in the absence of any showing in plaintiff’s petition that he had complied with the provisions of article 739, requiring the procurement and registration of' a license to practice medicine issued by a proper authority, he showed no right to maintain the action of libel for that reason alone, independently of our foregoing conclusions; the burden being upon him to show that he was engaged in the lawful right to pursue the practice which he advertised to do. And the fact alleged by him that the newspaper added the word “Dr.” to his advertisement without his consent, avails him nothing in his suit, since the newspaper was his selected agent in the matter and he does not allege that he repudiated such unauthorized designation of himself as “Dr.” by any character of notice to the public, and published the second advertisement with the-same designation of himself as “Dr.” 17 R. C. L. p. 309; Hargan v. Purdy, 93 Ky. 424, 20 S. W. 432; Lathrop v. Sundberg, 62 Wash. 136, 113 P. 574, Ann. Cas. 1912C, 891, 33 L. R. A. (N. S.) 90, and notes to. the decision of that publication.

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


author: SELLERS, Justice.

text:
    ALBRIGHT et al. v. HOYT et al.
    No. 4274.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1933.
    Rehearing Denied Feb. 16, 1933.

      Lacy & Molhusen, of Longview, Geo. Pren-dergast, of Marshall, James T. Casey, of Long-view, and Wm. Hodges, of Texarkana, for appellants.
    T. B. Stinchcomb and Wynne & Wynne, all of Longview, and Prentice Wilson, of Dallas, for appellees.
   SELLERS, Justice.

On May 21, 1931, Elbert Hoyt brought this suit against Albert Albright, John Albright, and James S. Smith, in the district court of Gregg county, Tex., alleging, first, an action in trespass to try title to 21 ⅜ acres of land, a part of the Jefferson Moseley survey located in Gregg county. In the second count in his petition, the plaintiff Elbert Hoyt has alleged at considerable length his title, specifically alleging, among other, matters, a parol sale of the land to him by John Albright, and a written contract of sale to him by both Albert Albright and John Albright, and also alleged title by estoppel against John Al-bright.

The defendant John Albright answered by exception, general denial, and plea of not guilty. He further alleged that he was the owner of the fee-simple title to the land and that he had never at any time contracted, to sell the land to the plaintiff Elbert Hoyt, and further that, if it should be found by the court that he had sold the land to the plaintiff Elbert Hoyt, then he alleged that he had rescinded the contract and leased the land to the defendant James S. Smith for oil and gas purposes. The defendant Albert Al-bright failed to answer. The defendant Smith by separate answer alleged that he was an innocent purchaser of an oil and gas lease on the land involved for value without notice of the title held by the plaintiff. Mrs. Ada M. Raynes intervened in the suit, claiming certain mineral rights in the land involved through a conveyance from the plaintiff Hoyt.

Plaintiff Elbert Hoyt, a negro, testified on the trial that John Albright, a white man, on November 22, 1928, sold him the land involved for the sum of $550, to be paid, $50 in cash, $50 in three months, and the balance in four years, payable at $100 per year. No notes were made, and nothing was mentioned about interest on the deferred payments ; that John Albright was to make him a deed to the property when he finished paying for it. He further testified that he paid the $50 cash consideration and was placed in possession of the land by John Albright immediately after the purchase agreement was made, and that he had held possession continuously since that time through his tenants. He further testified that he had cleared up about one-half the land and placed permanent improvements on the property, specifying the particulars in which the property was improved. He further stated he was indebted to John Albright for materials to improve the place and for borrowed money, and that, when he made payments from time to time during the two years he had owned the property, such payments were placed on the indebtedness for the material and not on the land debt, John Albright indulging him more time in which to pay the land indebtedness; that he continued to make payments to John Albright until about the first of 1931, when oil was struck in Gregg county, at which time John Albright repudiated his trade with him and refused after a tender of the balance due him to make the plaintiff a deed to the property as he had agreed to do when the land was paid for. In April, 1931, John Albright executed an oil and gas lease on the property to James S. Smith.

John Albright testified that he owned the land in fee simple, having purchased it from his son, Albert Albright, in 1917. He denied that he had made any kind of contract with Elbert Hoyt to sell him the land, and stated, further, that he had only rented Hoyt the property, and that he was in possession as his tenant; that he never heard of Elbert Hoyt’s claiming the property until about the first of the year 1931. He further denied that any tender of the balance due on the property had been made him.

The plaintiff Elbert Hoyt made a tender in his pleading of whatever amount the court might determine he was still indebted to John Albright for the land, and thereafter actually paid the amount found by the jury into court.

The case was tried to a jury, and was submitted on special issues, the answers to which are fully supported by the evidence and establish, among other facts, the following:

(1) That John Albright contracted and agreed to sell the land in controversy to Elbert Hoyt for the sum of $550, payable $50 cash, $50 in three months, and the remainder in four years.

(2) That Elbert Hoyt paid the cash consideration of $50 to John Albright on November 22, 1928.

(3) That Elbert Hoyt went into possession of the land under a contract of purchase from the defendants John Albright and Albert Al-bright.

(4) That John Albright knew that Hoyt was in possession of the land claiming to have purchased the same.

(5) That Hoyt made valuable improvements on the land in good faith believing that he had a contract to purchase.

(6) That the value of the improvements made by Hoyt was $200.

(7) That the rental value of the land since November 22, 1928, was $60.

(8) That, at the time defendant Smith purchased the oil, gas, and mineral lease on the land, Hoyt was in possession of the land in person or by tenant.

(9) That, at the time Smith purchased the mineral lease, he knew that Hoyt was in possession of the land by his tenant.

(10) That Smith knew, or could have ascertained by the exercise of ordinary care, that Hoyt was claiming the land under a contract of purchase.

(11) That a balance of $500 is still due from Hoyt on the purchase price of the land.

(12) That Hoyt had not paid any additional sum on the purchase price after the payment of the original cash consideration of $50.

Upon this verdict of the jury the court entered judgment for specific performance of the contract of sale by John Albright and decreed title to the land to Elbert 1-Ioyt as against all defendants. He further decreed title for intervener against Elbert Hoyt for one-half interest in the mineral rights. He further decreed judgment for defendant Smith against defendant John Albright upon Albright’s warranty for the amount paid by Smith for the oil and gas lease upon the land, which was the sum of $7,116. Prom this judgment defendants John Albright and James S. Smith have duly prosecuted this appeal.

We have not undertaken to make a full statement of the many angles of this case, since this court has concluded that the judgment is supported by the parol sales agreement between John Albright and Elbert Hoyt, and therefore all reference to the contentions made about the written contract and title by estoppel are immaterial.

The first proposition in appellants’ brief makes the point that the judgment is void for the reason that the trial judge prior to the time of becoming judge of the 124th district court was a member of the firm of Campbell,'Hurst & Lee, and that, while this lawsuit was pending Mr. Lee examined an abstract of title to the land involved in this suit for a Mr. Hill, who is not a party to this litigation, and gave Mr. Hill an opinion as to the' title, and collected a fee for such services, a part of which went to Judge Hurst. But it was shown that Judge Hurst was not consulted, nor did he know anything about the title having been examined by Mr. Lee. All of this transpired before Judge Hurst was appointed judge of the 124th district court. Under the authority of Taylor v. Williams, 26 Tex. 583, we do not think such facts sufficient to show that Judge Hurst who tried the case was disqualified;

The record presents to our minds a parol sale of the land by appellant John Albright to the appellee Elbert Hoyt with the understanding that John Albright would make Hoyt a deed to the property when Hoyt had finished paying for it. But appellants insist that, notwithstanding John Albright had made a valid oral contract of sale of the property, yet it was an executory contract, and, when Hoyt defaulted in his payments, Albright had a right to rescind the contract, which he did by conveying an interest in the property to appellant Smith. This is a correct proposition of law, but it is not without its exceptions. The undisputed facts show that the balance to be paid on the land was $50 in three months and $100 a year thereafter. The jury’s findings established that no part of the consideration had been paid except the $50 cash at the time the trade was made. Therefore it follows that John Al-bright did not exercise his right of rescission immediately when the first installment became delinquent, but allowed Hoyt to continue for two years to improve the property and to remain in possession until the land became very valuable for oil. Under this state of facts, it would seem that Albright lost his right of rescission until he first gave Hoyt notice of his intention to rescind the contract and further gave him a reasonable time in which to pay the balance on the land and thereby protect his equities. Moore v. Brown, 46 Tex. Civ. App. 523, 103 S. W. 242; West Lbr. Co. v. Henderson et al. (Tex. Civ. App.) 238 S. W. 710; Erwin v. Daniels, 34 Tex. Civ. App. 378, 79 S. W. 61. The appellants further insist that Hoyt was given notice of Albright’s intention to rescind the contract about the first of 1931, and that he failed to make payment of the balance due on the land until April of that year, when Albright rescinded the contract and executed the lease on the property to Smith. We have carefully considered all the evidence offered on the trial of the case, and we fail to find any that could be construed as a notice to Hoyt by Albright that he recognized the contract and intended to rescind the same at a future date, if the balance due was not paid. All the evidence of John Albright is to the effect that he never made a sale of the property to Hoyt and recognized no right of Hoyt to the land whatever. If it is this character of notice that appellants rely upon to rescind the contract of sale, it is entirely insufficient. In other words, a notice to Hoyt by Albright that he did not make the contract and would not be bound by it will not constitute notice to Hoyt that Albright recognized the contract and intended to rescind the same if the balance was not paid within reasonable time. The notice required and the notice given are, in our opinion, inconsistent. Hill v. James et al. (Tex. Civ. App.) 7 S.W. (2d) 910.

We do not concur with the contention that Smith, under the record, is an innocent purchaser for value. Smith claims title under John Albright. When he purchased from Al-bright, Hoyt was in possession through his tenant. Such possession was notice to Smith of all titles claimed by Hoyt to the land. Cardwell v. Shifflet (Tex. Com. App.) 294 S. W. 519. And we do not regard the rule announced in Eylar v. Eylar, in 60 Tex. 315, 316, in conflict with our holding.

We shall not prolong this opinion with a discussion of all appellants’ propositions, but deem it sufficient to say that each of them has been carefully considered and is expressly overruled.

The judgment of the trial court is affirmed.


author: GALLAGHER, Chief Justice.

text:
    MILAM BLDG CO. v. DANNELLEY.
    No. 1335.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied March 2, 1933.
    Church & Graves and Meritt H. Steger, all of San Antonio, for plaintiff in error.
    Neil E. Beaton, of San Antonio, for defendant in error.
   GALLAGHER, Chief Justice.

Plaintiff in error, Milam Building Company, a corporation, instituted this suit against defendant in error, John L. Dannelley, to recover the sum of $332.50 alleged to be unpaid rent on a cer.tain room in the Milam building in the city of San Antonio. The parties will be designated as in the trial court. Plaintiff alleged that defendant, by written contract with it, leased room No. 524 in said building for the period of one year, beginning February 1,1929, and ending January 31, 1930, at a monthly rental of $47.50 per month; that it was stipulated in said lease contract that either party thereto should give the other at least three months’ notice prior to the end of the term of his or its desire to terminate the same at such time, and that a failure to give such notice should extend such contract for another year. A copy of said contract was attached to plaintiff’s petition and made a part thereof as fully as if copied therein. Plaintiff in error further alleged that defendant entered into possession of the rented premises and continued to occupy the same until the '30th day of June, 1930, when he vacated the same; that he did not, three months prior to January 31, 1930, the end of the original rental term, give it notice in writing that he desired to terminate said contract at that time, and that, because of such failure, such rental contract was automatieally extended for another term of one year from and after January 31,1930; that defendant paid the stipulated rental to and including the month of June, 1930, hut failed and refused to pay such rental for the remaining seven months of the alleged renewed or extended term, amounting in the aggregate to the sum sued for. The lease contract made a part of plaintiff’s petition, together with the rules and regulations which by the terms of such contract defendant was required to observe, cover fourteen pages of the transcript. The material elements of the actual rental contract, however, cover little more thap a page. The remainder of the instrument consists principally of reservations and limitations on the rights of the tenant, exemption of the landlord in certain contingencies from liability to furnish service, and granting it, in certain contingencies, the right to take forcible possession of the premises and to enforce its claims against the tenant by summary seizure and sale of his property. Three separate paragraphs of said contract are involved in this controversy. The first two appear on page 4 thereof, and are as follows:

“(10) The lessee shall, at least thirty (30) days before expiration of the term of this lease, or if the tenancy be from month to month, then at least thirty (30) days before the expiration of any month of his tenancy, give to the lessor written notice of his intention to surrender the premises at the expiration of said term, or of any month to month tenancy as the case may be. Should such notice be not given then the lessee agrees to pay for one additional month’s rent at the same rates as the next preceding month.”

“(11) Should the lessee hold possession of the said premises after the expiration of the term of this lease, then the lessee shall become a tenant .from month to month only, and at the rental and upon the terms herein specified for the last month of said term, and he shall continue to be such tenant from month to month until such tenancy shall be terminated by the lessor or until the lessee shall have given to the lessor a written notice of at least one month, of his intention to terminate the tenancy. But nothing either in this or the next preceding paragraph shall be construed as a consent by the lessor to the occupancy of the said premises by the lessee after the expiration of the term thereof. Any holding over against lessor’s will after the termination of this lease shall be a tenancy at will and shall be at a monthly rental double the amount stipulated for the last month of the lease, and the lessee shall be liable to lessor for all loss, damage or expense on account of such holding over whether such loss or damage be contemplated at this time or not.”

The third appears on page 9 of said contract, and is as follows: “In lieu of paragraphs ten (10) and eleven (11), it is agreed that unless either party hereto shall give to the other, at least three months prior to the end of said term, written notice of his or its desire and intent to terminate this lease at the end of said term, this lease shall continue, upon the terms and conditions then in force, for a further period of one year; and so on from year to year until terminated by either party hereto giving to the other written notice, at least three months prior to the expiration of the then current term, of his or its desire and intent to terminate this lease at the end of said term. Any holding over against lessor’s will after the termination of this lease shall be a tenancy at will and shall be at a monthly rental double the amount stipulated for the last month of the lease, and the lessee shall be liable to le-for all loss, damage, or expense on account of such holding over whether such loss or damage be contemplated at this time or not.”

Plaintiff, as above indicated, based its cause of action on the provisions of said last quoted paragraph, and made no reference to the preceding paragraphs numbered 10 and 11, respectively, but wholly ignored the same.

The defendant presented a general demurrer to plaintiff’s petition. The court sustained the same. Plaintiff refused to amend, stood on its petition as written, and perfected this appeal.

Opinion.

Plaintiff presents a single assignment of error, in which it complains of the action of the court in sustaining defendant’s general demurrer. It contends in that connection that the contract sued on shows on its face as a matter of law that paragraphs 10 and 11 thereof were by the agreement of the parties repealed and in legal effect eliminated therefrom and the subsequent paragraph substituted-therefor. Any theory that said subsequent paragraph! was by the conscious accord of the parties added to the contract after the prior pages thereof had been prepared, submitted, and considered by them, and for the purpose of expressing their final agreement with reference to the necessity of notice to terminate the same and the duration of the renewed or extended rental term which should arise on failure to give such notice, is excluded by the lack of such allegations in plaintiff’s petition, by its refusal to amend and explain the presence of such conflicting paragraphs in the instrument, and by the uneon-troverted statement in oral argument that a printed form containing all of said paragraphs was used in its preparation and execution. See, in this connection, 6 R. O. L. p. 847, § 237.

Plaintiff stresses the fact that said conflicting paragraph last quoted appears immediately above the date line and the signatures of the respective parties to the lease proper. Such signatures are, however, followed by, several pages of rules and regulations referred to in the contract and expressly made a part thereof. Plaintiff’s contention appears, therefore, to be based on the position ■of said conflicting paragraph and on the fact that it is introduced by the words, “In lieu -of paragraphs 10 and 11.” Defendant in that -connection invokes the rule that, of two inconsistent clauses or paragraphs in a contract, the first and not the last shall be given prevailing effect. 13 C. J. p. 535, § 497 ; 4 Page on Contracts, § 2037; Bean v. Ætna Life Insurance Co., 111 Tenn. 186, 78 S. W. 104; Employers’ Liability Assurance Corporation v. Morrow (C. C. A.) 143 F. 750, 755. The rule so announced has been recognized and .applied in this state. Penn v. Hare (Tex. Civ. App.) 223 S. W. 527, 529, par. 3; Prince v. Frost-Johnson Lumber Co. (Tex. Civ. App.) 250 S. W. 785, 790, par. 11. The above authorities, however, recognize a further rule that the inconsistency between two clauses or paragraphs of the same instrument may be so great as to avoid both for uncertainty. Said rules forbid our holding that the last of said conflicting paragraphs, merely by reason of its position in the instrument, controls, And, as a matter of legal construction, avoids or eliminates the preceding paragraphs 10 and 11 quoted above in connection therewith.

Plaintiff correctly contends that the ordinary meaning of the words “in lieu of” is in place of, instead of, or in substitution for. 31 C. J. p. 361. It does not necessarily follow, however, that, because the last of said conflicting paragraphs begins with the words, “In lieu of paragraphs 10 and 11, it is agreed,” etc., that said former paragraphs, though not in any way stricken or expunged, are thereby avoided as fully as if they had been actually so eliminated. The parties, by their execution of said lease contract, constituted the whole thereof the solemn repository of the mutual rights acquired and obligations assumed by them. Plaintiff has cited no case supporting its contention. The first case cited by it in this connection is National Sewing-Mach. Co. v. Wilcox & Gibbs Sewing-Machine Co. (C. C. A.) 74 F. 557. The issue involved in that ease was the rate of royalty to be paid for the privilege of selling and leasing a patented article. The contract provided, in substance, that, as long as the licensee restricted its sales and leases to the home market, it should pay a royalty of 40 per cent., but that, in event it made sales or leases in a foreign market, a royalty of 45 per cent, should be paid “in lieu of” the former 40 per cent, so stipulated. There the first clause in the contract was given full and continued effect until the happening of a named contingency, when the second clause would become binding and determine the rights of the parties “in lieu of” the former provision. The next case cited by plaintiff is Gossler v. Goodrich, 10 Fed. Cas. page 836, No. 5,631. The issue involved in that case was the construction of an act of Congress levying duties on certain imports. The act under consideration in terms provided that the duties imposed thereby should be “in lieu of” those imposed by the then existing laws. Said act, being subsequent in time to the laws in force when it was enacted, merely effected a change in the rata of duty. No question of conflicting provisions in the same enactment was involved. The third and last case cited on this point by plaintiff is State of Tennessee v. Bank of Commerce (C. C.) 53 F. 735. In that case the state granted a charter creating a corporation, and provided therein that said corporation should pay a specific tax on each share of its capital stock, and that the same should be “in lieu of all other taxes.” No other tax was imposed upon the corporation by the terms of its charter, so no question of conflicting provisions therein was involved. We have examined the accessible authorities listed in notes 26 to 41 to the text of 31 C. J. p. 361, cited above, and have found none supporting plaintiff’s contention. We therefore conclude that said paragraphs 10 and 11 were not in legal effect eliminated, and that there is an irreconcilable conflict between them and the other paragraph above quoted. Such ■being the case, it is immaterial whether control and effect should be given to said paragraphs 10 and 11 or whether all three paragraphs, when considered together, are so repugnant as to destroy each other on the ground of uncertainty. The cause of action declared on by plaintiff is founded solely upon said last paragraph, and its allegations will not support a recovery under the provisions of paragraphs 10 and 11. The action of the trial court in sustaining defendant’s general demurrer was proper, and its judgment is here affirmed.


author: MURRAY, Justice.

text:
    RIO GRANDE VALLEY GAS CO. v. GRAND RAPIDS STORE EQUIPMENT CORPORATION.
    No. 9000.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1933.
    Montgomery, Hall & Taylor, of Edinburg, for appellant.
    Griffin, Kimbrough & Cox, of McAllen, for appellee.
   MURRAY, Justice.

This is an appeal from a judgment in favor of the Grand Rapids Store Equipment Corporation, hereinafter called store equipment corporation, against the Rio Grande Valley Gas Company, hereinafter called gas company. The case was tried before the court without a jury in the district court of Hidalgo county, Tex. Judgment was rendered in favor of store equipment corporation and against gas company for the sum of $936.96, including principal, interest, and attorney’s fees. The suit was for the purchase price of certain office equipment ordered by the Rio Grande Valley Gas Appliance Company, hereinafter called appliance company, from the store equipment corporation, and payment being guaranteed by John W. Gaines as president of the ,gas company. The evidence is clear that the gas appliance company and the gas company jWere two separate and distinct corporations.

One C. W. Cassidy, as salesman for the store equipment corporation, took the order of the gas appliance company for the office equipment, and as the gas appliance company had no credit rating with the store equipment corporation, John W. Gaines, as president of the gas company, wrote a letter to the store equipment corporation guaranteeing the payment of the bill. Brian Norton, president of the gas appliance company was the son-in-law of John W. Gaines, president of the gas company.

The office equipment was shipped on or about July 26,1927, to the gas appliance company, delivered to it, and the freight was paid by it. The equipment was shipped on terms of thirty days net.

■This account was not paid at maturity, and this suit was filed February 5,1929, seeking to hold the gas company responsible upon its guarantee, the gas appliance company having in the meantime become absolutely insolvent.

The gas company, while admitting that its president had written a letter guaranteeing payment of this account, denied liability on the ground that such acts by its president were ultra vires and not binding on it.

We agree with this contention. It is clear, in this state that one corporation cannot lend its credit to another corporation. Articles 1348 and 1349, R. O. S. 1925.

Appellee contends that they sold this equipment direct to the gas company and that this is not a guarantee agreement but an original undertaking on the part of the gas company. Appellee contends that it did not have actual or constructive knowledge of any facts which would render this contract or agreement ultra vires. We cannot agree with tliis contention. Appellee knew through its salesman, C. W. Cassidy, that this office equipment was for the appliance company and not for the gas company. They knew that the equipment was to he shipped to the appliance company. The letter which it received from the president of the gas company can only be construed as guaranteeing the payment of this account. The body of the letter was as follows: “Rio Grande Valley Gas Appliance Company has placed with you an order for office fixtures aggregating $663.70. Please ship this at your earliest convenience, sending statement through the Rio Grande Valley Gas Appliance Co., to the Rio Grande Valley Gas Co., and the bill will be paid on maturity.”

This letter must be construed with the order previously placed by the appliance company with the store equipment corporation. This contract is set out in full in the statement of facts. It is five pages long. It reserves the title to the property until the purchase money is fully paid, and contains many other provisions and stipulations. It is signed by Rio Grande Valley Gas Appliance Company by Brian C. Norton, president, and no one else.

It is clear from this order and this letter that the appellee knew that this furniture was sold to the appliance company, and that the gas company was attempting to guarantee the payment of the account.

Appellee having actual knowledge of the fact that this equipment was for the appliance company, and that the gas company was only guaranteeing the payment of the account, is not now in a position to contend that the gas company is estopped to set up the ultra vires nature of its agreement. Thompson on Corporations (3d Ed.) vol. 3, § 2075, at page 710; 14a C. J. § 2162, at page 313.

However, appellee contends that, if this was an ultra vires agreement, the gas company received a benefit from same, in that the sale of appliances by the gas appliance company would enable the gas company to sell more gas. This was such an incidental and remote benefit as to be of no effect. North Side Ry. Co. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 53 Am. St. Rep. 778; City of Indianola v. Gulf, W. T. & P. Ry. Co., 56 Tex. 594; Bowman Lumber Co. v. Pierson, 110 Tex. 543, 221 S. W. 930, 11 A. L. R. 547; Taylor Feed Pen Co. v. Taylor Nat. Bank (Tex. Civ. App.) 181 S. W. 534, modified (Tex. Comm. App.) 215 S. W. 850.

It is contended by appellee that the purchasing of the equipment was within the implied corporate powers of the gas company, and the fact that the gas company exercised such power in an improper manner for the accommodation of another corporation would not affect the validity of the contract, as it was only appellee’s duty to determine that the making of the contract was within the general scope of the corporate powers of the gas company. This contention is not tenable where the appellee had actual knowledge that this equipment was ordered by the appliance company and only payment guaranteed by appellant. North Side Ry. Co. v. Worthington, supra.

Appellee further contends that appellant ratified this agreement by said Gaines later writing a letter admitting liability, and also prevented it from pursuing other remedies to collect its debts. It is clear that a president of a corporation cannot ratify his own ultra vires acts. This is the holding in the case of Hoffman v. M. Gottstein Inv. Co., 101 Wash. 428, 172 P. 573, 574. In which case is found the following language: “Manifestly he cannot ratify his own act, and it seems clear to us that none of the other officers or stockholders of the corporation have ever ratified the execution of this note in such manner as to estop the corporation from now denying its liability thereon.”

See, also, 14a C. J. § 2234 at page 376; Porter v. Winona, etc., Grain Co., 78 Minn. 210, 80 N. W. 965.

The record further shows that appellee was corresponding with the appliance company, trying to get them to pay this account at the same time it was corresponding with appellant. Judge Gaines’ letters to appellee contained many expressions sufficient to put ap-pellee on notice that appellant considered itself as only secondarily liable on this account.

The agreement entered into by appellant was ultra vires. Appellee was in possession of such facts as to prevent it from setting up its good faith in entering into this agreement, and is not in a position to plead estoppel against appellant.

The judgment of the trial court is reversed, and judgment here rendered for appellant.


author: HIGGINS, Justice.

text:
    UNITED STATES v. ROSE.
    No. 2762.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 2, 1933.
    Rehearing Denied March 2, 1933.
    O. W. Johnson, Jr., U. S. Dist. Atty., of Fort Worth, and Eric Eades, Chief Atty., Veterans’ Administration, of Dallas, and John W. Beveridge, Asst. U. S. Dist. Atty., of Fort Worth, for the United States.
    J. Cleo Thompson, of Dallas, for defendant in error.
   HIGGINS, Justice.

The United States of America prosecutes this writ of error from a judgment of the district court of Dallas county.

The cost bond upon the writ of error is in due form. The plaintiff in error’s signature to the bond was affixed “By A. M. Mood, Assistant United States District Attorney.”

Defendant in error moves to dismiss for want of a sufficient bond; the ground of the motion being that there is no act of Congress granting authority to an assistant United States district attorney to execute such a bond and thereby bind the United States on the same. It has been often held that a bond upon writ of error or appeal is good though signed by the sureties only.

Some of the cases so holding are Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722; Bridges v. Cundiff, 45 Tex. 437; Palmer v. Spandenberg (Tex. Civ. App.) 108 S. W. 477; and Duller v. McNeill (Tex. Civ. App.) 161 S. W. 45.

Since plaintiff in error’s signature to the bond is not necessary, it follows that it is. immaterial whether the assistant United States district attorney was authorized to affix its signature to such bond. The motion is overruled.

This proceeding originated in the probate court. The controversy is over the proper distribution of a fund belonging to the estate of George H. Rose, a deceased soldier. The fund is the proceeds of a war risk insurance policy. The judgment awarded the fund to the defendant in error, the surviving wife of the deceased.

Briefly stated, the pleading of the plaintiff in error alleges the following:

George H. Rose was a soldier during the World War, and his mother was the designated beneficiary of the policy. On October 15, 1918, Rose died intestate. The monthly installments payable upon the policy were paid to the mother until her death. Thereafter plaintiff in error made payments totaling $4,-485 to two sisters of the deceased soldier under the belief and upon the representation that they were the only heirs at law of the soldier. Thereafter defendant in error, Bennie Lee Rose, filed claim against the government for all the proceeds of the insurance policy and thereafter qualified as administra-trix of the estate of the soldier and as such sued plaintiff in error in the United States District Court and obtained judgment for $8,-602, which sum is now in her hands as ad-ministratrix.

In said suit plaintiff in error recovered judgment against the two sisters for the sums previously paid to them and said sisters have assigned to plaintiff in error their interest in •the estate of the deceased soldier. At the time of his death, the soldier was a resident of Oklahoma, and left surviving him his mother and said two sisters as his only heirs. The mother died intestate on June 20, 1922, leaving as her only heirs the plaintiff in error’s assignors. That under the laws of the United States and Oklahoma the surviving sisters of Geo. H. Rose are entitled to one-half of the fund in the hands of the administratrix. That under the law of Oklahoma the surviving wife of Rose was entitled to one-half of the fund and the other one-half would descend to and vest in the assignors of plaintiff in error as the heirs of the mother.

The prayer was that the administratrix be required to pay one-half of the fund to plaintiff in error.

The pleadings of defendant set up that the policy was issued to Rose while he was married to her, the premiums paid by him during coverture out of his monthly pay as a soldier, and she claimed the entire fund as the surviving wife under the law of Oklahoma.

In Singleton v. Cheek, 284 U. S. 493, 52 S. Ct. 41, 76 L. Ed. 419, 81 A. L. R. 923, the court, in referring to the Act of March 4,1925, § 14, amending section 303 of the World War Veterans’ Act of 1924 (38 USCA § 514), said: “By that amendment, the rule, which, upon the happening of the contingencies named in the prior acts, limited the benefit of the unpaid installments to persons within the designated class of permittees, was abandoned, and ‘the estate of the insured’ was wholly substituted as the payee. All installments, whether accruing before the death of the insured or after the death of the beneficiary named in the certificate of insurance, as a result, became assets of the estate of the insured as of the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary. The state courts, with almost entire unanimity, have reached the same conclusion.” See, also, Battaglia v. Battaglia (Tex. Civ. App.) 290 S. W. 296, and Turner v. Thomas (Tex. Civ. App.) 30 S.W.(2d) 558.

It is thus apparent from the pleadings that the question presented is controlled by the law of descent and distribution of the state of Oklahoma.

The courts of this state cannot take judicial notice of the law of Oklahoma. Such law must be pleaded and proven as facts. This is elementary.

There appears in the clerk’s transcript a stipulation signed by counsel, dated August 17, 1931, and filed prior to the trial. This stipulation agrees to certain facts.

Another agreement appears in the transcript filed some time subsequent to the trial. This agreement recites:

That the stipulation filed “on August 17th, 1931, is a full, true and correct statement of the facts adduced. on the trial of this cause and constitutes a statement of all the material facts in this proceeding in error to the honorable Court .of Civil Appeals for the Fifth Supreme Judicial District of Texas, sitting at .Dallas, Texas, with the following additions:

“That article 8418 of the Revised Daws of Oklahoma of 1910 was introduced in evidence as the Law of Oklahoma, which article is as follows:

“ ‘8418. Descent cmü, Distribution. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the following manner: * * *

“ ‘Second. If the decedent leave no issue, the estate goes one-half to the surviving husband or wife, and the remaining one-half to the decedent’s father or mother, or, if he leave both father and mother, to them in equal ishares; but if there be no father or mother, then said remaining one-half goes, in equal shares, to the brothers and sisters of the deceased, and to the children of any deceased brother or sister, by right of representation. If decedent leaves no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares: Provided, that in all cases where the property is acquired by the joint industry of husband and wife, during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said property remain, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation. * * * t

“And that the defendant in error, Bennie Lee Rose, testified in substance and effect as follows:

“That she married George H. Rose in Oklahoma prior to the time he enlisted in the United States Army and that up to the date that he was inducted into the military service, she lived with him continuously as his wife and faithfully performed all the duties of a wife, and that when he was inducted into the military service, she remained in Oklahoma at the place of their residence and looked after the family affairs and their joint interests and industry and the household of herself and her husband. That she knitted him various articles to be used in military life and sent them to him in camp. That she wrote him letters and received letters from him while he was in camp, continuously from the date he was inducted into the service up to the time of his death. That she sent him boxes of candy and other eatables. That at the time of his sudden death, she was preparing to visit him at his camp, which was requested of her by her said husband.”

This last-mentioned agreement is also signed by counsel for the respective parties, but does not bear the approval and signature of the trial judge. Article 2243, R. S., requires that the statement of facts be submitted to the judge “who shall, if he finds it correct, approve and sign it.”

The consideration and approval of a statement of facts is a judicial act. Stephenson v. Nichols (Tex. Com. App.) 286 S. W. 197; Gray v. Frontroy, 40 Tex. Civ. App. 302, 89 S. W. 1090.

The statutory provisions requiring such approval and signature by the trial judge are mandatory (Rea v. Fields [Tex. Civ. App.] 172 S. W. 191), essential to its validity, and omission thereof precludes consideration of the statement. Johnson v. Blount, 48 Tex. 38; McCaskey Register Co. v. Mann (Tex. Civ. App.) 283 S. W. 544; Love v. Spencer (Tex. Civ. App.) 273 S. W. 883; Argo v. Gulf, C. & S. F. Railway Co. (Tex. Civ. App.) 265 S. W. 1065; Texas E. Ry. Co. v. Gonzales (Tex. Civ. App.) 211 S. W. 347; Texas P. C. Co. v. Lumparoff (Tex. Civ. App.) 204 S. W. 366; Lingo Lumber Co. v. Garvin (Tex. Civ. App.) 181 S. W. 561; San Antonio, U. & G. Ry. Co. v. Yarbrough (Tex. Civ. App.) 179 S. W. 523; Rea v. Fields (Tex. Civ. App.) 172 S. W. 191; Rivers v. Campbell, 51 Tex. Civ. App. 103, 111 S. W. 190; Rice v. Reese (Tex. Civ. App.) 110 S. W. 502; Motl v. Stephens, 49 Tex. Civ. App. 8, 108 S. W. 1018; Brown v. Orange County, 48 Tex. Civ. App. 470, 107 S. W. 607. And this is true, though it is agreed to and signed by counsel for all parties. Dickey’s Estate v. Houston, etc. (Tex. Civ. App.) 300 S. W. 250; Goodner Wholesale Grocery Co. v. People’s, etc. (Tex. Civ. App.) 283 S. W. 1092; Magee v. Magee (Tex. Civ. App.) 272 S. W. 252; Amonette v. Taylor (Tex. Civ. App.) 244 .S. W. 238, 239; First Nat. Bank v. Henwood (Tex. Civ. App.) 183 S. W. 5; and many other cases which might be cited.

The statement of facts in this case is not signed by the trial judge, and it cannot properly be considered. In the absence of such a statement, it ¡must be assumed by this court that the evidence as to the law. of Oklahoma and other pertinent evidence adduced upon the trial' supports the judgment rendered. This ruling necessitates affirmance, but this court is always reluctant to dispose of an appeal upon technical grounds, and for that reason we have read the agreements of counsel above referred to and are of the opinion that, if the facts were properly before us for consideration, the judgment should be nevertheless affirmed.

Plaintiff in error asserts that under and by force of the federal statutes the fund is the separate and exclusive estate of the deceased soldier, and one-half thereof passed to the mother through whom plaintiff in error claims as assignee of the daughters and heirs of the deceased mother.

But there is nothing in the acts of Congress cited by plaintiff in error whiSh deal with that subject, and it is clear that under Singleton v. Cheek, supra, the question is controlled by the law of Oklahoma.

The defendant in error, as the surviving wife, under the law of Oklahoma, is entitled to all of the fund in controversy if it can be considered as property “acquired by the joint industry of husband and wife.” (St. 1931, § 1617).

The premiums upon the policy were paid by deductions made from the soldier’s pay. The wife stayed at their home, looked after the family affairs, their joint interests, and the household, knitted for the soldier and sent him eatables, all of which is more fully shown in the above quotation from the second agreement signed by counsel.

Under the rulings of the Oklahoma courts, we think that clearly the fund in controversy is to be considered as “acquired by the joint industry of husband and wife,” and all of the estate was properly awarded to the defendant in error. In re Stone’s Estate, 86 Okl. 33, 206 P. 246, 248; Flowers v. Flowers, 117 Okl. 209, 245 P. 622.

In construing the phrase “joint industry” in the Stone Case, the court said: “We think it has but one interpretation, that is, the industry of a husband and wife, each in his or her recognized sphere of marital activity, and that an attempt to force' the interpretation asked by counsel for plaintiff in error ‘that the industry or labor must be identical and in the same course of employment and endeavor’ would be to circumvent and abort the natural and socially contemplated marriage relation.”

In this connection we also refer to United ¡States v. Robinson (C. C. A.) 40 F.(2d) 14, where the court held that the proceeds of a war risk insurance policy were not the separate estate of the insured, but community property under the Louisiana law.

Affirmed.


author: DATTIMORE, Justice.

text:
    ALEXANDER, District Clerk, v. CITY OF FORT WORTH.
    No. 12895.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1933.
    Rehearing Denied Feb. 18, 1933.
    Greines & Greines, of Port Worth, for appellant.
    Wren, Pearson & Jeffrey, A. B. Culbertson, and Stuart & Morgan, all of Fort Worth, for appellee.
   DATTIMORE, Justice.

The city of Port Worth filed a suit in which an answer was filed. Thereupon the plaintiff dismissed the suit. The clerk taxed as costs a stenographer’s fee of $3. On “motion to re-tax costs” directed against any such charge, the clerk appeared, and the trial court ordered such charge stricken from the bill of costs. Alexander, district clerk, has appealed to this court where the cause was consolidated with (Tex. Civ. App.) 57 S.W.(2d) 354, but, it appearing that such consolidation is not warranted, the causes are severed.

At the outset we are met with a plea to the jurisdiction, on the ground that the appellant district clerk is not a party to the suit below, and that no party to such suit has appealed.

The question of the taxing of the fee was raised by a proceeding styled “motion to re-tax costs,” such application containing nothing except the complaint against the stenographer’s fee, and that only on the ground that there is no law for the taxing of same in this ease. To such complaint the appellant appeared in open court as recited in the order of the court.

The taxing of costs is a clerical act. Parker v. Boyd (Tex. Civ. App.) 42 S. W. 1031, as distinguished from the adjudicating of same, and the distinction is clear, though often so unimportant that the general practice is to attack the liability for costs under a motion to “retax.” What is really sought here is an adjudication that article 2075, Rev. Statutes, is unconstitutional, i. e., an adjudication that any charge for stenographer’s fee in any ease is unlawful. The motion, therefore, was in reality an application for an injunction against the clerk to restrain him from attempting to enforce a void statute.

In Lockart v. Stuckler, 49 Tex. 765, our Supreme Court pointed out that the application for an injunction was in reality a motion to retax costs, and then proceeded to consider the merits thereof. Also the prayer for injunctive relief must first be presented to the trial court. M., K. & T. Ry. v. Crane (Tex. Civ. App.) 32 S. W. 11, 13. In that case it was held that the cost dispute between an officer of the court and a litigant was not such a part of the judgment on the civil issues between the parties as that the Court of Civil Appeals had original jurisdiction of an application for injunction, under article 1823, Rev. Civ. Statutes of 1925.

Cases such as Nail v. Wolfe City Nat’l Bank (Tex. Civ. App.) 158 S. W. 1166, and M., K. & T. Ry. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W. 655, are thus distinguishable, in that those questions were the adjudicating of who must pay the costs. With this. the clerk had nothing to do, and the court’s action thereon is truly as much a part of the judgment adjusting the relation of the parties to each other as any other part.

In State v. Bigham (Tex. Com. App.) 280 S.W. 1062, no suit was ever filed in the district court. The judge in certifying on the sheriff’s right to fees for service generally as sheriff, and which are not “court costs,” acts in no judicial capacity. The opinion was not approved by the Supreme Court. The case is not in point.

If a suit for an injunction was in fact a motion to retax costs, and “The old Al-calde” could look to the substance and not the name, Hutson v. Clark (Tex. Civ. App.) 3 S.W.(2d.) 484, Galbraith v. Bishop (Tex. Com. App.) 287 S. W. 1087, and so doing proceed to dispose of the merits of the ease, we should do the same.

Thus we have concluded, after considerable doubt, that we have jurisdiction over this appeal in which the parties against whom relief is sought have appeared in the trial court and joined the issue on the merits.

Article 2075, Rev. Civ. Statutes, requires: “The clerks of all courts having official reporters shall tax as costs in each civil ease where an answer is filed, except suits to collect delinquent taxes, a stenographer’s fee of three dollars, which shall be paid as other costs in the case, and * * * into the general funds of the county.” This is attacked as being a violation of the equal rights clause (section 3, Bill of Rights) as well as the “uniform taxes” clause (article 8, § 1, of our Constitution).

In Texas Co. v. Stephens, 100 Tex. 628, 640, 103 S. W. 481, 485, it is said: “The considerations upon which classifications shall be based are primarily within the discretion of the Legislature. The courts * * * can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the businesses classified.” See, also, Ex Parte Faison, 93 Tex. Cr. R. 403, 248 S. W. 343.

The burden is thus on the person claiming the unconstitutionality. Nothing is shown in this record of any facts asserted, unless we can say that the face of the statute shows its own unreasonableness.

The statute fixes a fiat fee in each case where an answer is filed, tax suits excepted, and plainly it was intended to provide revenue for the fund out of which the reporter receives his salary, which salary is fixed by law, and is independent of the amount of stenographer’s fees collected by the clerk. The theory of the Legislature evidently was that in those eases where an answer is filed the court must have a stenographer on hand for the trial. Manifestly the official must be provided in advance. The court could not wait until the first witness was on the stand and then start a search for a reporter. Thus the gauge of the probability of the need of a reporter, which need manifestly must be provided for in advance, was considered by the Legislature to be the joining of issues by an answer filed. This seems to us highly reasonable. At any rate, we are not required to go further than to say, as we do, that the classification is not unreasonable. Of course, aqy classification may as to some individuals work more hardship than others. We all pay taxes to support public schools, and yet the man with a large family of children receives more benefit than another who is childless. But this is not any evidence that the tax is unjust. Likewise it is of no importance that in the case at bar the ease never actually came to trial.

Nor are we shown any reason why tax suits should not be exempted. We doubt if we can take judicial knowledge of the stench in public nostrils caused by the thousands of tax suits which have been customarily filed without any intention to prosecute the same, but with the result that the already groaning property owner is compelled to pay attorney’s fees and officers’ costs attached thereto ; or of the fact that less than 1 per cent, of such cases are ever set for trial, although some of us who have sat on trial benches are sadly aware of it. But the Legislature may have breathed in such an odor. At least we can say that the appellee has not discharged the burden of showing such exemption unreasonable.

The cause is reversed and remanded for further proceedings consistent with this opinion.

On Motion for Rehearing.

Appellee insists that the Legislature, having selected a class to be charged the stenographer’s fee — those suits in which answers are filed — could not exempt tax suits. Tax suits are filed by sovereignty. The proposition need be answered no further than in State v. T. & P. Ry. Co., 106 Tex. 18, 154 S. W. 1159.

The motion is overruled.