author: DUNKLIN, J.

text:
    CATTLE RAISERS’ LOAN CO. et al. v. FIRST NAT. BANK OF DECATUR.
    No. 12696.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 8, 1932.
    Rehearing Denied Nov. 5, 1932.
    Mayer & Rowe and S. C. Rowe, all of Fort Worth, for appellants.
    Thompson & Barwise, of Fort Worth, and C. T. Gettys, of Decatur, for appellee.
   DUNKLIN, J.

This case involves the question which of two chattel mortgages was entitled to priority over the other; one held and owned by the plaintiff, First National Bank of Decatur, and the other held and owned by the defendant Cattle Raisers’ Loan Company. Both of those chattel mortgages were executed by the partnership firm of S. A. Lillard & Sons, and both covered the same several hundred head of cattle owned by tlie mortgagors and located in Kinney comity.

The chattel mortgage held by the plaintiff First National Bank of Decatur was given to secure the payment of a promissory note executed by the mortgagors in favor of the City National Bank of Decatur for the principal sum of $10,000, dated May 1,1929, and maturing November 1, 1929. That mortgage was dated May 20, 1929, and filed for registration in the office of the county clerk of Kinney county on May 22,1929, and also filed for registration in the chattel mortgage records of Wise county on May 28, 1929. It was duly recorded in the chattel mortgage records of both of those counties. That chattel mortgage embodied this recital: “This O/M is given subject to a O/M to Cattle Raisers Doan Company for $22,500.00, which said loan is subject to renewal without prejudice to their lien.”

The chattel mortgage held and owned by the defendant Cattle Raisers’ Loan Company embodies this stipulation:

“This conveyance, however, is intended as a mortgage to secure second party, its successors and assigns, in the payment of all that certain indebtedness due and owing to it by first party, and evidenced by one certain promissory note, as follows:

“One note dated May 7th, 1929, due November 7th, 1929, for $22,500.00, and together with interest thereon at the rate of ten per cent per annum from maturity, and to secure all extensions of said notes, or any of them, or any part thereof, and any notes given in lieu of or in renewal of said notes, or any of them, or any part thereof; and as well to secure the payment of any other indebtedness now due and owing, or which may hereafter become due and owing by first party to second party, whether evidenced by note or otherwise, and which said indebtedness now accrued or which may hereafter accrue, it is agreed shall be payable to said second party at its office in the City of Fort Worth, Texas; and all such indebtedness herein mentioned shall stand payable under and secured by this mortgage.”

That mortgage was dated May 7,1929, duly acknowledged on the same day, filed for record in the office of the county clerk of Wise county on the 9th day of May, 1929, and also filed for record with the county clerk of Kinney county on May 10, 1929, and was duly recorded in the chattel mortgage records of those respective counties.

The First National Bank of Decatur, as as-signee of the note and mortgage executed to the City National Bank of Decatur, instituted this suit to recover, and did recover, a personal judgment against all members of the partnership firm of S. A. Lillard & Sons, except two, one of whom was dismissed and the other discharged from liability by reason of a prior adjudication of bankruptcy as to him. Plaintiff also sought and was awarded a decree of foreclosure of its chattel mortgage lien on a portion of the cattle covered by the mortgage which had not theretofore been sold by the mortgagor on the market in Chicago through brokers handling the same. The proceeds of sale of the cattle so sold were paid to the Cattle Raisers’ Loan Company as credits on the mortgage indebtedness held by that company, and plaintiff prayed for and was awarded a recovery against the Cattle Raisers’ Loan Company and its codefendant, the ' Peyton Packing Company for the proceeds of certain of the cattle covered by both mortgages that were sold to the Peyton Packing Company after the loan company had actual notice of plaintiff’s mortgage, on allegations of a joint conversion by the defendants of those cattle. From that judgment, both the Cattle Raisers’ Loan Company and the Pey-ton Packing Company gave notice of appeal, and filed bonds necessary to perfect their respective appeals. But the only appeal prosecuted here was by the Cattle Raisers’ Loan Company.

The record shows that after the mortgagors had executed the mortgage to the Cattle Raisers’ Loan Company, that company made advancements from time to time to the mortgagors in addition to the $22,500 note recited in the mortgage; and that the mortgagors are still indebted to the Cattle Raisers’ Loan Company in the sum of $1,050 principal, together with interest and attorneys’ fees thereon as provided for in the note, after deducting all claims arising by reason of the payment to it of the proceeds of the sale of the cattle. The advancements so made by the loan company were used principally to defray the expenses in caring for the cattle, including payment for lease on the land which-furnished grass for the cattle, for groceries-used by J. Warren Lillard, one of the mortgagors, and his employees on the ranch while caring for the cattle, and the advancements were used for that purpose. The following authorities cited by appellant announce the rule that a chattel mortgage given to secure future advancements creates a lien which is superior to a subsequent mortgage taken with notice of the prior mortgage, even though-those advancements were made after the registration of the subsequent mortgage. Freiberg, Kline & Co. v. Magale, 70 Tex. 116, 7 S. W. 684; Groos & Co. v. Chittim (Tex. Civ. App.) 100 S. W. 1006, writ of error refused; Jolly v. Fidelity Union Trust Co. (Tex. Civ. App.) 15 S.W.(2d) 68; First Nat. Bank of Corsicana v. Zarafonetis (Tex. Civ. App.) 15 S.W.(2d) 155, writ of error refused; H. W. Williams & Co. v. Bell (Tex. Civ. App.) 8 S.W.(2d) 745; Jones on Mortgages, § 373 ; 41 Corpus Juris, 466-468 ; 9 R. C. L. 419.

We quote the following from appellee’s -brief with respect to those authorities:

“Appellee admits that appellant held a first mortgage. It admits that the mortgage contained a provision included for the purpose of giving to first mortgagee protection, •not only as to the amount of the original indebtedness, hut advances made and indebtedness incurred subsequent thereto. It admits that the general rule in Texas is as stated by the case of Freiberg, Kline Co. v. Magale, 70 Tex. 116, 7 S. W. 684, cited by appellant; that is to say, that as between the parties to the mortgage,' the mortgage is valid as to any future advances, and such future advances are protected thereby. It admits further that the mere execution and recording of a subsequent mortgage does not affect the rights of the original mortgagee to be protected in advances made by him thereafter. In other words, that the first mortgagee is not charged with notice of the existence of the rights of second mortgagee, merely because the subsequent mortgage is duly recorded.
“But this case goes to the question of whether á first mortgagee, unless required to do so by the very terms of his mortgage, can continue to make advances to the mortgagors protected by his mortgage, after he has received actual notice of the existence of a second mortgage, and the rights of the holder .thereof.
“We contend that he cannot, and that such advances made are not secured by his first mortgage, and are therefore subordinated to the rights of the second mortgagee. That presents the question in the case, and our position with reference to it.
“A close analysis of the cases cited by appellant to sustain their contention to the contrary, will disclose that in none of them was this question raised, and in only one of them did the court even by way of dicta purport to pass upon it.” ,

Following that announcement it is insisted that in each of the decisions cited it appeared that the future advancements for which a lien was claimed against the subsequent mortgagee were made before the registration of the second mortgage, or before actual notice of its execution. Appellee then cites the ease of Bank of Omaha v. Pope, 103 S. W. 692, 693, by the Court of Civil Appeals, as the only Texas decision found in which the words “actual notice” are used, and making the distinction between “actual” and “constructive” notice. In that case the court said: “In such case whether constructive notice jby the record of the later incumbrance should have the same effect as actual notice, and whether the option of the mortgagee to make the advances should operate to give the mortgage effect as to subsequent incumbrances actually made, are questions upon which the cases are not agreed. It is conceived, however, that the rule, established by the weight of authority, is that a prior mortgagee is affected only by actual notice of a subsequent mortgage, and not by constructive notice of it.”

And these further decisions are cited by the appellee to support the contention that the ruling in the case last cited is inferentially recognized as a correct rule, although in none of those was the question specifically presented or determined. Bullard v. Stewart, 46 Tex. Civ. App. 49, 102 S. W. 174, writ of error refused; Cisco Banking Co. v. Keystone Pipe & Supply Co. (Tex. Com. App.) 277 S. W. 1060, 1061; Vacuum Oil Co. v. Liberty Ref. Co. (Tex. Civ. App.) 265 S. W. 749.

We are unable to perceive any logical basis for the asserted distinction between actual and constructive notice in determining the question now under discussion. It is unquestionably the rule that a valid mortgage may be given for future advancements. It is also the rule that the registration of a chattel mortgage is constructive notice to subsequent purchasers and creditors, and that constructive notice is as binding as actual notice. The right thus acquired by the holder of such a mortgage is a vested property right, and we are unable to understand how appellant’s mortgage could be impaired by the subsequent mortgage given without its consent or authority merely by reason of actual notice of the second mortgage before any subsequent advancements were made and for which a lien was given under the specific terms of the first mortgage. To sustain the contention that actual notice to appellant of the second mortgage would ipso facto operate to subordinate appellant’s mortgage to the second mortgage for all advancements made after such actual notice, would be to set at naught the mortgagor’s binding contract of a first lien for all advancements made in the future, regardless of when made; and also to set at naught the specific agreement in plaintiff’s mortgage that the same was taken subordinate to appellant’s mortgage. And for that reason it is our conclusion that the court erred in decreeing a superiority of plaintiff’s lien to that of appellee to the extent claimed, irrespective of the merits of the further contention made in another assignment of error that the transfer of the note and mortgage from the City National Bank of Decatur, the payee named, to the plaintiff bank was void 'for lack of its registration under the provisions of article 5490, Rev. Statutes, the determination of which becomes unnecessary.

The record shows that the advancements made by appellant to the mortgagors were furnished to J. Warren Lillard, who had charge of the cattle, for the purpose of feeding and caring for them, and were necessary for their proper care, although, according to the testimony of Lillard, the money so advanced was used in part for caring for other cattle than those covered by the loan company’s mortgage;' but there was no attempt to segregate and apportion those expenses as bbtween the respective herds. The failure of proof on that point is urged by appellee as fatal to the claim by appellant of an equitable lien for such advancements; and we sustain that contention.

For the reasons stated, the judgment of the trial court, giving priority to plaintiff’s mortgage on the cattle sold by the mortgagor and the proceeds of which were paid over to the appellant for advancements made 'by appellant to care for the cattle after it had actual notice of plaintiff’s mortgage, and awarding the plaintiff personal judgment against appellant by reason thereof for the sum of. $636.30, with interest from the date of the judgment at the rate of 6 per cent, per an-num, and for costs of suit, is reversed, and judgment is here rendered denying the plaintiff, appellee here, such relief, and establishing the mortgage lien held by the loan company for any unpaid balance now owing by the mortgagors to the loan company, or that may hereafter accrue in its favor, under the terms of its mortgage, as a superior lien to that claimed by plaintiff bank. And it is to be observed in this connection that the defendant Oattle Raisers’ Loan Company did not sue for a foreclosure of its mortgage.

The judgment in favor of plaintiff against the Peyton Packing Company, who has not prosecuted its appeal to this court, is left undisturbed; as is also the judgment in plaintiff’s favor against defendants S. A. Lillard & Sons.

The costs of appeal are taxed against ap-pellee First National Bank of Decatur.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    INTERNATIONAL ORDER OF TWELVE KNIGHTS AND DAUGHTERS OF TABOR v. WILLIAMS et al.
    No. 2285.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1932.
    W. R. Blain, of Beaumont, for appellant.
    Cousins & Bell, of Beaumont, for appellees.
   WALKER, C. J.

Amanda Waters died on December 3, 1930.' At the time of her death she claimed to hold a life insurance policy issued to her by appellant, International Order of Twelve Knights and Daughters of Tabor, in 1915 for $300, under which John Williams and Mary Clay, her son and daughter, were, beneficiaries. After her death, demand for payment of the policy was made by appellees upon appellant, which was refused. Thereupon, they instituted this suit upon the usual allegations of liability and prayed for the principal amount of the policy in the sum of $300, with $75 additional as a burial fee and for 12 per cent, damages and reasonable attorney’s fees in the sum of $150. Appellant answered by general and special demurrers and general denial; and by pleading specially that it was “a mutual benefit society, or fraternal benefit society” ; and that, under its by-lawS, the local lodge in which Amanda Waters was a member was defunct at the time of her death; and that, at the time of her death, she was delinquent in the payment of the assessments against her policy; and that, under its bylaws, the facts thus pleaded made void the policy sued upon. To this answer appellees filed no pleas of estoppel or ratification or made any answer whatever. The trial was to the court without a jury, with judgment in favor of appellees for the principal amount of the policy, 12 per cent, damages, and $100 as attorney’s fees. The appeal was duly perfected to this court.

Opinion.

The record contains a plea of estoppel or ratification by appellees, but this plea was filed long after the adjournment of the term of court at which this cause was tried. Of course, the issues of the appeal must be determined by the issues made by the pleadings upon which the case was tried. The judgment cannot be affirmed in favor of appellees upon issues not raised by their pleadings. On this statement, the judgment of the lower court must be reversed. Appellant .established, as a matter of law, both the special defenses pleaded by it, that is, at the time of the death of Amanda Waters, she was delinquent in the payment of her policy assessments, and the lodge to which she belonged was defunct. Under the by-laws, these facts made the-policy void. But because it reasonably appears that appellees may be able to establish against appellant the issue of estop-pel or ratification, we remand the ease for a new trial instead of rendering judgment here for appellant.

If, upon another trial, appellant establishes the defense that it is “a mutual benefit society, or fraternal benefit society,” it would not be liable for damages and attorney’s fees, since tbe law, as it was at tbe time of Amanda Waters’ death, specially exempted it from liability for these charges.

Reversed and remanded.


author: FLY, C. J.

text:
    HIDALGO COUNTY DRAINAGE DIST. NO. 1 et al. v. INTERNATIONAL CREOSOTING & CONSTRUCTION CO.
    No. 8910.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 16, 1932.
    Rehearing Denied Dec. 14, 1932.
    Griffin, Kimbrough & Cox, of McAllen, and Bryce Ferguson, of Edinburg, for appellants.
    C. K. Richards, of Brownsville, for appel-lee.
   FLY, C. J.

This suit was instituted by appellee against appellants, the drainage district and Hidalgo county, to recover on certain warrants issued by such district to J. D. George Construction Company, alleged to have been purchased by appellee, before maturity, for value, in good faith. It was alleged that the commissioners’ court of Hidalgo county levied a tax sufficient to pay such warrants on property owners of the district, and the duty devolved on the drainage district to collect such taxes and apply the same to the payment of the warrants. That duty the district had failed and refused to perform. An injunction was sought to restrain appellants from using or disposing of any taxes collected by the district, or that might be collected during the pendency of the suit. A temporary injunction was granted. The cause was tried on its merits, without a jury, and judgment rendered in favor of ap-pellees for the full sum of the warrants and the assessment and collection of taxes necessary to pay the judgment was ordered.

The J: D. George Construction Company performed certain labor and furnished material to appellant district for certain improvements and repairs on the system, under the terms of certain contracts duly executed between the drainage district and said construction company. Warrants were issued to evidence the indebtedness due to the construction company. Appellees were purchasers in good faith of the warrants. The court found:

“On February 14, 1929, when said original contract between the Drainage District and J. D. George Construction Company was made, all parties contemplated that the wort to be done and material furnished under the terms of said contract should be paid for from current funds of said Drainage District for the year 1929 accruing to the Maintenance and Construction Fund of said District from the levy of a tax as authorized by the terms and provisions of articles 8137 and 8138 of the Revised Civil Statutes of Texas, 1925, but that such funds would not actually be available for that purpose prior to February 1, 1930, that portions of the work to be done might not be completed prior to January 1, 1930, and payment therefor might need to be made from taxes levied for the year 1930; and on May 13, 1929, and before any work had been done or material furnished under the terms of said contract, the Commissioners’ Court of Hidalgo County, Texas, by an order duly entered in its Minutes of that date, based upon the annual report of the Drainage Commissioners of Defendant District, made in compliance with the provisions of article 8137 of the Revised Civil Statutes of Texas, 1925, estimated the probable cost of maintenance and needed repairs on the improvements then within said District during the next ensuing year in the sum of One Hundred Thirty-four Thousand Dollars ($134,000.00), and likewise estimated the amount of all lawful demands, debts, and obligations then existing as against said District, and duly and lawfully levied and assessed a tax of forty cents on each hundred dollar valuation of the property situated within said District to maintain, keep in repair, and preserve the improvements in said District and to pay all legal, just and lawful debts, demands, and obligations against said District, and provided that one-half of said tax should be used solely for the purpose of maintaining, • keeping in repair, and preserving the existing improvements in said District and that one-half of said tax should be applied to the payment of all legal, just, and lawful debts, demands, and obligations then existing against said District.

“When said supplemental agreement of October 16, 1929, between Defendant Drainage District and J. D. George Construction Company was made, it was contemplated by both parties thereto that all work done and material furnished under the terms of said agreement of February 14,1929, as modified, should be paid from the current Maintenance and Construction Fund of said District to be derived from the collection of the tax abové mentioned, when collected, on or about February 1, 1930, but that it might not be practicable for said contract to be completed during the calendar year 1929, and that collections actually made from the tax levy for the year 1929 might not be sufficient to complete payment for all the work done and labor and material furnished by said Construction Company under the terms of said contract, in either of which events payment therefor should be made by Defendant Drainage District from the proceeds of a further tax to be levied for the year 1930 in accordance with the provisions of articles 8137 and 8138 of the Revised Civil Statutes of Texas, 1925.

“On October 5, 1931, there were funds on hand in the Maintenance and Construction Fund of Hidalgo County Drainage District No. 1 against which the warrants here in suit were drawn in the sum of approximately ninety thousand dollars ($90,000.00), which funds were the proceeds of taxes duly levied, assessed, and collected by said Hidalgo County Drainage District No. 1 for the years 1929 and 1930 respectively for the purpose of paying for the maintenance, preservation, and repair of existing improvements in said District, and the payment of legal, just, and lawful debts, demands, and obligations assessed against said District; and the amount due by Defendant District on the warrants here in suit should be paid from such fund.”

The judgment is supported by the pleadings and the evidence as found by the trial court, and the first and second propositions are overruled. The warrants themselves answer the attack on the petition and the latter was not open to general demurrer. There is no fundamental defect in the petition. The petition contained allegations necessary to a recovery, the warrants recited the consideration, and they were in effect approved by the commissioners’ court of Hidalgo county. The contract was made for a lawful purpose, the work was performed, the materials furnished, and the district should pay for them.

The work was furnished for repairs and improvements on an existing district, and the materials were furnished and .used for those objects named in the contract. A vote of the taxpayers of the district was not essential to the validity of the contracts made by and between the parties. It was never contemplated by law that every time répairs and improvements become necessary in a drainage district a vote must be held. The authorities of the district were fully authorized to do all they did in the premises. The commissioners’ court has full authority by article 8138, Revised Statutes, to provide for the payment of the debts evidenced by the warrants. The third and fourth propositions are based on bare and unreasonable technicalities, and should not meet, with favor at the hands of a court of justice. The fifth proposition is also overruled.

The supplemental contract was made in the interest of the district, and it received the benefits from it. The sixth proposition is overruled.

This court sees no necessity for entering into a discussion of the law permitting the organization of the district, and no statute or decision has been cited that tends to destroy the right of the district to issue warrants for debts incurred for repairs made on the property of the district. The case of Foster v. City of Waco, 113 Tex. 352, 255 S. W. 1104 has no applicability to the facts of this case. The article cited from the Constitution is not in point. Article 16, § 59, subd. (c). *

The propositions are all overruled. They show no reason for a reversal, and the judgment is affirmed.


author: MARTIN, J.

text:
    TEXAS INDEMNITY INS. CO. v. McLAURY et al.
    No. 3846.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.

      Don Emery, of Amarillo, T. L. Dyer, of Breekenridge, and Walter L. Barnes, of Des Moines, Iowa, for appellant.
    Clem Calhoun and R. A. Wilson, both of Amarillo, for appellees.
   MARTIN, J.

Charles A. McLaury was employed by the Phillips Petroleum Company about January 1,1931, as a special officer, whose precise duties will be the subject of a further statement herein. At all times mentioned herein, the Phillips Petroleum Company had large property Interests in Hutchinson county and employed a large number of men, particularly in connection with the operation of their refinery, situated at the town of Phillips, near Borger, in Hutchinson county, Tex. The town of Phillips was a small village supported largely, but not entirely, by the employees of the Phillips Petroleum Company. Several business establishments were there located, including Shelby’s Grocery Store and Miller’s Café, situated on opposite sides of the street from each other, On March 11, 1931, one D. C. Evans, who was employed at the time as a dishwasher in Miller’s Café, came through Shelby’s Grocery Store and was observed by an employee of said grocery store to be carrying a pistol. Charles A. Me-Laury was phoned by said employee and immediately came to said grocery store and went across to a drug store situated next to Miller’s Café. There he found Evans who ran into Miller’s Café, where he worked, and in this last-mentioned place shot and killed McLaury, who was at the time attempting to disarm him.

Appellees are the wife and two minor sons, respectively, of Charles A. McLaury, deceased.

Thereafter the Industrial Accident Board of the state of Texas awarded to appellees compensation under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.), and, in due time, appellant instituted this suit in the district, court of Hutchinson county, Tex., to cancel and annul said award.

On the trial of this case appropriate issues were submitted to and answered by the jury, after which judgment was entered for appellees, from which judgment an appeal was taken to this court; the only issue assigned being one that relates to the refusal of the court to peremptorily instruct the jury for appellant. This, in brief, is based upon the alleged lack of sufficient evidence to show that the injury from which the death of deceased resulted was sustained in “the course of his employment.” This is the sole question presented to us for determination.

As in all fact questions, precedents are of little value, as different cases based upon the same identical state of facts are extremely rare. It seems unnecessary, therefore, for us to do more than advert to the general principles believed to be helpful in the solution of the question presented.

We take the following exceptionally lucid statement of the rule governing cases of this character from the case of In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306:

“It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It arises ‘out of’ the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. * * * But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the .business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

We quote as follows from the Supreme Court of Texas:

“An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business. As tersely put by the Supreme Court of Iowa:
“ ‘What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.’ — Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 916, 918.” Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 73, 28 A. L. R. 1402.

These quotations will sufficiently illustrate the rule which must guide us in solving the question of whether or not the injury of deceased was received in the “course of his employment.” The only facts which we deem necessary to state upon this question are, briefly, as follows: One L. A. Gas-ton, described as chief special agent of the Phillips Petroleum Company, made the contract of employment with deceased. We quote literally from his testimony:

“Q. What instructions did you give Charles A. McLaury about his employment and the scope of his employment at or near the time he entered the services of the Company in Hutchinson County? A. Well, I instructed him that his duties were to protect Phillips property from any depredation, thieving, and keep down lawlessness on the Phillips property.
“Q. Was there any specific instance developed with reference to his employment and the scope of it that — with reference to his duties on Phillips property or off Phillips property that you talked to him about? A. Oh yes. * * * He notified me that there was a fellow running a bootlegging joint on one of our leases in Hutchinson County and I told him to get rid of him, get him off of there. Then he told me of one that was off our lease, not on Phillips property, but it was pretty close there, and I told him to speak to the Sheriff about that one, let the Sheriff take care of that. * * *
“Q. Mr. Gaston, you are in charge of all the special officers or special agents for the Company? A. Xes sir.
“Q. Their duties are principally those of police peace officers, are they not, in connection with the Company and its property and employees? A. Xes sir. * * *
“Q. Mr. Gaston, now did I understand you to say that you limited Mr. McLaury’s work as far as his services for the Phillips was concerned, to the protection of the premises of the Phillips Petroleum Company? A. Xes sir.
“Q. And the property on the premises against lawlessness and depredation, I understood you to say that? A. Xes sir.
“Q. And I understand you also to say that was the limit and extent of his employment with the Phillips Petroleum Company? A. Xes sir.
“Q. And did you understand that when he was called on by the Sheriff or any case of emergency that he was supposed to act as a deputy sheriff, if he were a deputy sheriff? A. Xes sir.
“Q. But that was outside his employment with the Phillips? A. Xes sir.
“Q. The Phillips was not paying him for that service, did not employ him for that service or hire him for that service? A. No.
“Q. That was told him definitely and expressly at or near the time of his employment? A. Xes sir.”

This witness further testified, in substance, that the company’s special officers usually had commissions as peace officers,' but this was not a condition of their employment. In this case it was further shown that the deceased, McLaury, had a commission as “special deputy sheriff Phillips Petroleum Company” issued by the sheriff of Hutchinson county, Tex. It further appears affirmatively that the little village of Phillips was not owned or controlled by the Phillips Petroleum Company, that the employee of the grocery store who called the deceased was in no way connected with the Phillips Petroleum Company, nor was Evans, nor were the premises in which the killing occurred owned or controlled by said company. The injury was received off the premises of the Phillips Petroleum Company, and, so far as this record shows, none of its employees figured in any way in the melée which led to the killing, nor were any of them on duty at or near the scene, nor were they or any of them or the property of the said company in any imminent danger of an attack or threatened attack from the said Evans. ‘ It was further proven that McLaury had specific instructions from his superior not to make any arrest for the company off its own premises, but to refer any matter of that kind to the sheriff of Hutchinson county.

It is insisted by appellees that McLaury’s act was in the performance of his duties as a police peace officer in connection with Phillips Petroleum Company, its property and employees, and that therefore his act was within the scope of his employment.

1-Ie might, of course, act both as a deputy sheriff and as an employee in the performance of his duties to his principal, and the fact that he acted in a dual capacity would not alone relieve appellant herein from liability. If his acts, however, were purely official and not done in the performance of his said duties, express or implied, there would clearly be no liability. It is plausibly argued that, since the arrest of Evans had the effect of protecting the employees of the Phillips Petroleum Company from danger, the act of deceased came within the scope of his employment, which made it a part of his duty to protect such employees. Under the particular factsi of this case we do noc regard the interest of or benefits, if any, received by the Phillips Petroleum Company from such arrest as any greater than that received by the public generally. In other words, the company was interested in the arrest of Evans as a member of society and in the same degree that the other citizens of Hutchinson county were. His arrest under the recited facts was not to protect the Phillips Petroleum Company or its property or employees from any danger of an attack or threatened attack from Evans. It occurred off its premises, in a public place with which said company had no connection whatever. The authority to make such character of arrest had been expressly denied by the company at the time of its employment of Mc-Laury. We regard the testimony as going no further than to show that Evans -was arrested by a purported peace officer, acting as such, concerning which the employer of the deceased had an interest only as a member of society and not directly as the employer of McLaury. We interpret the duties of Mc-Uaury, that of “ordinary police peace officer” mentioned above by Gaston, to mean his duties in connection with his employment to protect the Phillips Petroleum Company, its property and employees. To extend the meaning of this phrase to embrace the arrest in question would be to hold, it seems, that he was employed to perform the duties of ordinary peace officers in protecting the public generally.

We do not discuss the invalidity of the deputation of deceased nor the illegality of the arrest of Evans, since these questions very remotely, if at all, affect the real question, which is the authority, express or implied, given to the deceased to make such arrest under his employment.

We are not convinced that the facts have been fully developed, and think that the ends of justice can be better served by reversing and remanding, rather than reversing and rendering this case.

Reversed and remanded.


author: SMITH, J.

text:
    CITY OF CORPUS CHRISTI v. JOHNSON.
    No. 8913.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 16, 1932.
    Rehearing Denied Dec. 14, 1932.

      James M. Taylor,' John S. McCampbell, and Kleberg & Eckhardt, all of Corpus Christi, for appellant.
    Morris, Sewell, Taylor & Garwood, of Houston, and Sidney P. Chandler, of Corpus Christi, for appellee.
   SMITH, J.

Date in the year 1928 the governing board' of the city of Corpus Christi projected a program ’ for the widening and paving of Chaparral street in that city. The ordinance through which the program was initiated is. not in the record, could .not be produced 'upon the trial,4 but its passage, on December 7, 1928, and its general purpose, were disclosed in references thereto and the repeal thereof in a subsequent ordinance upon the same subject.

The program of improvements was developed through various actions by the city council, such as the transfer and appropriation. of funds to the specific project, the adoption of plans, estimates, and specifications proposed by the city engineer, and of formal resolution ordering the specific improvement in detail,

Mrs. Annie U. Johnson, appellee herein, owned .a lot and a business house thereon on Chaparral street, within the zone of the contemplated improvements, and in pursuance of the municipal program the city engineer- wrote her as follows, on March 4, 1929:

“The City Council of the City of Corpus Christi has adopted a plan for .widening Chaparral Street, cost of the work to be pro-rated between the City and the property owners on a basis whereby the property owners from Starr Street to Mann Street, will pay $20.00 a front foot as an assessment for paying for the work. They will receive in return stipulated amounts to be. agreed upon between the City and each owner in consideration that the owner deed to the City, land for the right-of-way, and for alteration of buildings where such . may occur.

“You own lot twelve, block sis, Beach Portion of the City of Corpus Christi, and your building projects beyond the new property line, fifteen feet to the South line and 13.86 feet at the North line. You will be asked to give the City a deed for this strip for which you will be paid $4,827.00, and for cutting off your building you will be paid $3,000.00 at the time the work is completed and accepted by the City' Council.
I am sending you two copies of this letter. If you will signify your acceptance on the bottom of one of these copies, I will have the City Attorney draw up the necessary contract and deed, so that all parties will be protected.”

As directed, appellee indorsed and signed her acceptance on one of the copies of the letter and returned it to the city engineer, in the following language: “I accept the terms of the above, and you may proceed with the preparation of the papers for my signature.”

The matter directly involved in this appeal is the proposition that the city pay appellee $4,827 for the land to be actually taken and $3,000 as compensation to her for the destruction or removal of her improvements then on the premises; the two items aggregating $7,827. The jury found upon sufficient evidence that the city proceeded to take the strip mentioned in the engineer’s proposal, required appellee to remove her building therefrom, and set her property line back accordingly. In short, the engineer made an offer, purportedly in behalf of the city, appellee accepted the offer and fully performed thereunder, and the city governing board, with full knowledge, accepted and appropriated to the public, use all the contemplated benefits derivable from the project.

It should be added that, upon the assurance of the mayor and commissioners and other city officials that the city would promptly perform the obligations sought to be imposed upon it in the engineer’s offer to her, appellee at large expense removed her building from the land sought by the City, purchased adjacent property at a cost of $15,000, and rebuilt her business house upon reformed property lines made necessary by the city’s demand.

It is not contended by appellee that the offer made to her was specifically authorized by prior resolution or ordinance of the city council, or that the agreement embraced in the letter and acceptance was by such means specifically authorized or approved by that body.

But appellee contends that the offer was made, accepted, and at great expense fully performed on her part with the full knowledge, consent, and approval of the mayor and council, who thereafter formally ratified the contract and appropriated to the public use all the benefits thereof, and that therefore the city is estopped to deny the validity of the contract. We conclude that appellee’s contention is supported by the record and must be sustained.

Appellant vigorously contends that thie city engineer’s proposal and • appellee’s acceptance thereof are ineffectual to constitute a contract by or in behalf of the city. It is urged that it was not a definite agreement, but merely a preliminary negotiation; that the minds of the parties did not meet therein; that it was so incomplete and informal that it could not he given the quality of a contract by subsequent ratification and confirmation by the city and never was in fact so ratified or confirmed; that it was invalid because it was never authorized, by ordinance or resolution or motion of the city council, to be made or executed, or signed by the mayor.

It is true as a matter of course that the city engineer had no power, at least in the absence of express authority by ordinance, which is not claimed here, to bind the city by his words or writing. And it is equally true as a matter of course that the city could have ignored or repudiated any agreement made by the engineer, and none could have complained thereat.

But certainly the city had the power to widen and pave its streets and appropriate municipal funds therefor. Certainly it had the power to make this very contract, and, had it done so in the formal manner required by its charter, then such contract could have been specifically enforced against it.

So, having the power to make such contract, it could ratify and confirm it when made by any of its officials for it.

And, when it recognizes such agreement, adopts it as its own, exacts performance thereof from the eontraetee, and accepts all ■the benefits accruing to it therefrom, then it must in turn perform the obligations imposed upon it therein. That is all there is to this case. 10 R. C. L. p. 1075, § 360; City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763; Sluder v. City of San Antonio (Tex. Com. App.) 2 S.W.(2d) 841; Boydston v. Rockwall County, 86 Tex. 234, 24 S. W. 272; City of Tyler v. L. L. Jester & Co., 97 Tex. 344, 78 S. W. 1058; Shelby County v. Caldwell (Tex. Civ. App.) 48 S.W.(2d) 761; Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291; McKenzie Construction Co. v. City of San Antonio (Tex. Civ. App.) 50 S.W.(2d) 349; City of Texarkana v. Keeney (Tex. Civ. App.) 50 S.W.(2d) 339; Dozier; v. City of Gatesville (Tex. Civ. App.) 51 S.W.(2d) 1091; Horne Zoological Arena Co. v. City of Dallas (Tex. Civ. App.) 45 S.W.(2d) 714.

It is probable that appellee’s right of recovery may be as upon an implied, as distinguished from an express, contract, in' which case her damages would be restricted to the market value of the property taken or destroyed, as of the time of such taking or destruction. In this case, however, the jury’s finding of such market value coincided with the amount fixed in the contract, and judgment was rendered accordingly. ■ That judgment will be affirmed.

The contract in question embraced an agreement that appellee would contribute $20 per front foot towards the paving, by the city, of the street in front of her property. But it appears that the city has never paved the strip contemplated in the engineer’s proposal, and the matter is therefore not one to be adjudicated in this suit.

The judgment is affirmed.


author: JACKSON, J.

text:
    ERWIN v. WHITE.
    No. 3906.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 16, 1932.
    Rehearing Denied Dec. 14, 1932.
    Cooper & Lumpkin, of Amarillo, for appellant.
    S.E. Fish, of Amarillo, and J. S. Stallings, of Claude, for appellee.
   JACKSON, J.

The appellant instituted this suit in the district court of Armstrong county against the appellee, H. E. White, to recover an unpaid balance on the purchase price of 7,666% bushels of wheat alleged to have been purchased by appellee from appellant.

The appellant pleads, in substance, that in 1931 between July 3d and 18th, he sold and delivered to appellee at his elevator in Wash-burn the wheat, and that appellee promised to pay the market price therefor under the Chicago December option on any day before December 1, 1931, upon which appellant demanded a settlement. That appellee was to advance the appellant 15 cents per bushel and charge 1 cent per bushel for handling. That appellee issued receipts or scale tickets on which was stamped the following provision: “This wheat is sold to us at-‡ under the Chicago Dec. option and seller may call for settlement any day after the close of that day’s market on or before Dec. 1, 1931.” That in the blank in the tickets covering 1,-764½' bushels was written “$0.33”; that in the 'blanks in the tickets covering 2.906.66 bushels was written “$0.32”; and that in the tickets covering the remainder, the price was “$0.31.” That on or before July 18th the appellee advanced the appellant 15 cents per bushel, or $1,150, for which appellant executed and delivered his promissory note to ap-pellee, bearing interest at the rate of S per cent, per annum and payable on demand. That on November 12,1931, wheat was worth, under the Chicago December option, 63½ cents per bushel, and on said date appellant demanded of appellee a settlement and the balance due him for his wheat, and that ap-pellee failed and still refuses to pay said balance or any part thereof. The appellant credited appellee with interest on the note and the 1 cent per bushel for handling charges, claiming a balance due of $1,514.95, with interest at the rate of 6 per cent, per annum.

The appellee answered by general demurrer and general denial, admitted that he contracted with appellant to purchase his wheat substantially as alleged in his petition, but pleaded that the wheat was sold and purchased on a basis of 60 pounds to the bushel, with the usual and customary dockage for inferior grades, and that appellee did not agree to advance appellant any money until settlement was demanded under the terms of the contract, and that the amount of wheat purchased was only 6,388.75 bushels. He states the number of bushels that tested inferior and the amount of dockage for which he was entitled to credit.

He pleads as a defense that on the 18th day of July after the. delivery of all the wheat, appellant desired an advance of cash on the wheat not contemplated in the original contract, and thereupon the parties entered into a new contract canceling and annulling the original contract, and by the terms of the second contract appellee agreed to advance appellant 15 cents per bushel on the 6,388.75 bushels, with the understanding that appellee, as appellant’s agent, would buy this number of bushels upon what is known as the Board of Trade and hold for appellant’s benefit. That it was expressly agreed between the parties that there was a 10-cent per bushel margin on the wheat on the 18th of July, and that in the event the price on the Chicago December option should decline and consume this 10 cents per bushel margin, that if appellant desired to protect the purchase on the Board of Trade he was to advance such additional sums as were necessary to protect the margin, and that in compliance with the terms of the last-mentioned agreement the appellee did buy on the Board of Trade said amount of wheat for appellant as his agent. That ap-pellee advanced appellant on and before July 18th $1,150, for which the note, payable on demand, was executed; but that by reason of a mistake the number of bushels was estimated at 7,666.66 bushels, when in truth and in fact there was but 6,388.75 bushels. That on ■the 5th day of October, 1931, the price of wheat, Chicago December option, declined to below 45 cents per bushel, and the 10 cents per bushel margin in the wheat was thereby consumed. That appellee notified appellant thereof and advised him that if he desired to advance additional margin that appellee would go ahead and purchase the wheat for appellant; that at the same time he delivered to appellant the $1,150 note, which he accepted, and the transaction was thereby closed.

By supplemental petition the appellant excepted generally and specially, because the contract alleged by appellee represents a wagering transaction and is void; that a void contract cannot supersede a valid contract; that it did not appear that it was contemplated that any wheat bought on the Board of Trade should be delivered.

Numerous special issues were submitted to the jury by the court, but their findings on those necessary to a disposition of this appeal are, in substance, that in July the appellant sold to appellee 6,38S.75 bushels of wheat at a price to be determined under the 'Chicago December option on any day before December 1, 1931, upon which appellant demanded a settlement; that 1 cent per bushel was to be charged for handling, and while ap-pellee did not agree in the original purchase to do so, he did advance to appellant $1,150; they found the number of bushels at the price of 33 cents, the number at the price of 32 cents, and the number at the price of 31 cents under the December options. That on November 12th the appellant demanded a settlement, on which date the Chicago December option on wheat was 61½ cents; that appel-lee refused to settle; that the wheat was sold on a basis of 60 pounds to the bushel, subject to a dockage of 1 cent per pound per bushel for inferior grades. That on July 18, 1931, the parties entered into a new contract by the terms of which the original contract was canceled and annulled in consideration that ap-pellee was to carry on the Chicago Board of Trade 6,388.75 bushels of wheat for appellant and to use the difference in the amount paid appellant and the value of the wheat, or 10 cents per bushel, as margin if the price declined ; that the price did decline more than 10 cents per bushel before December 1st, and appellee advised appellant thereof and that additional money was necessary to protect the margin, but appellant failed to make any additional advance. That in the purchase of the wheat on the Board of Trade appellee was acting as agent for appellant.

On these findings judgment was entered that appellant take nothing by his suit and pay all costs incurred, and that appellee take nothing by his cross-action.

The original contract between appellant and appellee for the sale and purchase of the wheat was not a wagering transaction, as asserted by appellee. Smith v. Duncan (Tex. Com. App.) 209 S. W. 140, 141; H. Seay & Co. v. Moore (Tex. Com. App.) 261 S. W. 1013; Furrh v. Western Union Telegraph Co., 115 Tex. 125, 276 S. W. 645.

The appellant by several assignments urges that the alleged second contract relied upon by the appellee as a defense was a wagering contract under the law and was therefore void and did not annul and cancel the original contract.

The record discloses that the appellee purchased on the Board of Trade at Chicago, through the Henderson Grain Company of Amarillo and Fort Worth, at his risk, on different dates from July 1 to August 25, 1931, 50,000 bushels of wheat, Chicago December option; but it is not disclosed from whom the purchases were made. The appellee testified that when he purchased wheat on the Board of Trade he put up a certain margin and never expected the Board of Trade to deliver to him the wheat thus bought; that if the price went up he got the benefit of the rise in market, and if it went down he would have the loss of the decline in market.

Article 658, Penal Code 1925, provides: “Any contract of sale for future delivery of cotton, grain, stocks; or any other commodities where it is not the bona-fide intention of parties that the things mentioned therein are to be delivered but which is to be settled according to or upon the basis of the public market quotations or prices made on any board of trade, exchange, or other similar institution, 'without any actual bona fide execution and the carrying out of such contract upon the floor of such exchange, board of trade or similar institution, in accordance with the rules thereof, shall be null and void and unenforceable in any court of this State, and no action shall be maintainable thereon at the suit of any party.”

Article 661, P. C., is to the effect that any person as agent or principal who enters into or assists in making any contract denounced in the above article for the future delivery of commodities shall be guilty of a felony.

Prior to the enactment of the foregoing articles, the Supreme Court, speaking through Judge Stayton, approved the holding that where goods were not delivered and the real intent of the parties to the agreement was to speculate in the rise or fall of prices, one party to pay the other the difference between the contract price and the market price at the date fixed for the execution of the contract, the whole transaction is a wager and null and void. Seeligson v. Lewis & Williams, 65 Tex. 215, 57 Am. Rep. 593.

Since the above statutes were enacted by the Legislature, our courts consistently hold that contracts such as the one alleged by ap-pellee, and found by the jury to have been, made, are void and unenforceable. Logan v. Norris et al., 100 Tex. 228, 97 S. W. 820; Burney et al. v. Blanks (Tex. Civ. App.) 136 S. W. 806, writ denied; Allen v. Denman (Tex. Civ. App.) 278 S. W. 899; Hibbler v. Howe (Tex. Civ. App.) 295 S. W. 299; McDaniel v. Tullis, Craig & Co. (Tex. Civ. App.) 11 S.W.(2d) 203; Ware v. Burleson et al. (Tex. Civ. App.) 41 S.W.(2d) 338.

Appellee contends that the wheat he was carrying on the Board of Trade under Chicago December options was a hedging transaction and not in conflict with public policy or the Texas statutes. To sustain this position, he relies on two Texas authorities. Mackay Telegraph-Cable Co. v. Bain et al. (Tex. Civ. App.) 163 S. W. 98, and Lowrie v. J. N. Wisner & Co. (Tex. Civ. App.) 47 S. W.(2d) 636. An analysis of these cases will, in our opinion, disclose that the holdings therein are based on provisions of article 543 of the Penal Code of 1911, which provided, in substance, that it could be shown in defense that the transaction was a hedging contract. This article of the statute was repealed by article 663 of the Revised Penal Code, adopted in 1925.

The fact that appellee was acting as the agent of appellant in making the contract for the purchase on the Chicago Board of Trade would not relieve the contract of its illegality.

Article 661, supra, condemns suoh contracts whether made as agent or principal. “The law will not lend its aid to the enforcement of an illegal contract. If, therefore, the undertaking of the agent was to perform some act which was forbidden by law or which was opposed to the -public policy, he can recover no compensation for the act, though it be fully performed according to the agreement.” Me-rhem on Agency (2d Ed.) vol. 1, p. 11S2. See, also, Allen v. Denman, supra.

The fact that appellee advanced to appellant $1,150 as a part of the consideration for the alleged new contract would not give validity thereto. If any part of the consideration of a contract is iilegal, the contract is void whether the illegality arises from the common law or is prohibited by statute. Seeligson v. Lewis & Williams, supra; Edwards County v. Jennings et al., 89 Tex. 618, 35 S. W. 1053; Wicks et al. v. Comves et al., 110 Tex. 532, 221 S. W. 938.

If we are correct in holding that the new agreement alleged by appellee as a defense is void because illegal, the original contract was not cancelled or novated by such void contract.

“In every novation there are four essential requisites: (1) A previous valid obligation. (2) The agreement of all the parties to the new contract. (3) The extinguishment of the old contract. (4) The validity of the new one. This enumeration is frequently stated in the cases. If these essentials, or any one of them, is waAting, there can be no novation.” 46 C. J. 578, § 11.

“A novation between the same parties requires the creation of a new obligation, but, in order to effect a novation, it is essential that this obligation be a valid and enforceable one. This is necessary, primarily, because the creation of the new obligation constitutes the consideration for the discharge of the original obligation, hence, if the new agreement is void, or otherwise unenforceable, it will invalidate the intended novation.” Id., 594, § 36.

To the same effect is the holding in Davis et al. v. Wynne (Tex. Civ. App.) 190 S. W. 510, writ of error denied.

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


author: FUNDERBURK, J.

text:
    BULL v. COLLINS.
    No. 1005.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 28, 1932.
    Rehearing Denied Nov. 25, 1932.
    Thomas & McDonald, of Big Spring, for appellant.
    Woodward & Coffee, of Big Spring, for appellee.
   FUNDERBURK, J.

This is a suit to recover damages for slander. The allegations undertaking to set forth the defamatory words, in so far as same constituted the basis of the judgment below, were that “ * ⅜ * • the defendant (i. e., A. R. Collins) accused the plaintiff herein (i. e., R. L. Bull) of embezzlement and theft, making the statement that $15.00 had been missed from one of the drug stores and that either the plaintiff herein or another one of the employees, Harmon Morrison, Jr., had taken the said money.” It was alleged that by such statement was meant that “they had stolen it.” There were other alleged defamatory statements which, since no evidence was introduced to support same, can be disregarded except to sustain, if necessary, the sufficiency of the pleading to state a cause of action, a question as to which, however, no assignment of error is presented. The only allegations of a publication were to the effect that said statement was made in the presence of said Harmon Morrison, Jr., and repeated, substantially, in the presence of G. A. Woodward, the defendant’s attorney. Upon a trial, after issues duly joined, the court gave a peremptory instruction for the defendant. From the judgment rendered in accordance therewith, the plaintiff has appealed.

The first question presented is whether the court erred in instructing a verdict for the appellee. It seems to be conceded that the alleged defamatory words were uttered under circumstances constituting the same qualifiedly privileged. The burden upon appellant to support by proof the issues necessary for a recovery included at least the following: (1) That the alleged slanderous words were uttered substantially as averred; (2) that they were defamatory (i. e., that they in fact had the effect to charge plaintiff with the theft of the money); (3) that they were uttered in the hearing of one or more third persons capable of understanding their defamatory import; (4) that they were actuated by malice; and (5) the facts to show the amount of damages. If there was no evidence upon any one or more of these issues, except perhaps the last, as to which as against a peremptory instruction nominal damages might be presumed, the peremptory instruction was correct, notwithstanding the existence of evidence to support one or more of the other issues.

In considering the existence of evidence to support the alleged slanderous utterances or statements, it is proper to disregard as having no important bearing the allegation that “* * * the defendant accused the plaintiff herein of embezzlement and theft.” Standing alone, that allegation would be insufficient to charge slander. If it were the only allegation of defamatory words, the petition would be subject to general demurrer. The allegation is not the averment of any fact or facts, but simply of the legal effect of language, not even the substance of which is alleged. As said, in substance in Rio Grande Valley Gas Co. v. Caskey (Tex. Civ. App.) 33 S.W.(2d) 848, plaintiff’s petition must allege the language claimed to have been libelous or slanderous and not' the legal effect of same, or else the pleading will be subject to general demurrer. Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833; Henderson v. Credit Clearing House (Tex. Civ. App.) 204 S. W. 370; Evans v. McKay (Tex. Civ. App.) 212 S. W. 680.

The allegation by which the existence of evidence to support same must be tested is that immediately following the above, namely, “making the statement that $15.00 had been missed from one of the drug stores and that either the plaintiff herein or another one of the employees, Harmon Morrison, Jr., had taken the said money.”

The only testimony to support this alleged defamatory matter last quoted was as follows: Plaintiff testified that he could not repeat the exact language of the defendant, claimed to be slanderous, but that he could fairly well repeat the substance thereof, which was: “I don’t understand about this money; you two (i. e., plaintiff and Harmon Morrison, Jr.) are the only ones, the only ones that handled it, (referring to the money), and it must be one of you two that did it. ⅜ * * He said, ‘Harmon gave it to you and you receipted for it; either Harmon took it before you left or it got up here some other way.’ * ⅜ ⅜ He left saying it was either Harmon Morrison or me, one of us, that was responsible for handling the money. * ⅜ * He said, ‘the way I see it, one of you two must have handled this money,’ and he said T want an explanation.’ ” Harmon Morrison, Jr., after being asked to state, in substance, if he could not in the exact words, what Collins said, testified: “He said that there was some money missing and that Mr. Bull or myself were responsible for this, and he wanted an explanation. * ⅜ ⅞ He told us ‘one of us had taken the money.’ ” The time and place of the last statement was several hours later, in the law office of G. A. Woodward. The above is a fair statement, we think, of all the testimony, if any, tending to show that Collins uttered the alleged defamatory words. The only evidence to show a publication was to the same general effect as the allegations of that fact stated above, From the above statement of the pleading and the evidence it appears, we think, that there was no evidence to show that the defendant accused the plaintiff of the theft of the money. Words importing an accusation that either A or B stole money, without indicating whether the one or the other, are not sufficient to charge that A stole the money. The clear implication of the language is that both did not steal it. There would be no more warrant for saying in such a case that A stole it than that B stole it If the pleading can be held to allege slander, then it must be by construing the defamatory words to mean that A stole the money. The proof must be to the same effect. If the proof, while plainly implying that both A and B did not steal the money, indicates no more that it was A than that it was B, it simply fails to support the allegation. The controlling principle is correctly stated, we think, in Corpus Juris, as follows: “Words spoken of one of two plaintiffs will not support an averment spoken of both plaintiffs.” 37 O. J. p. 68. The defamatory words in question can admit of no other construction than that, if they were spoken concerning Bull, they were just as certainly also spoken concerning Morrison. The proof offered simply failed to show that they were spoken of the plaintiff or any other particular person.

If it should be granted that the evidence raised as an issue of fact for the jury, that the alleged defamatory words were spoken of the plaintiff, still we think there was no evidence of their publication. As already said, if the alleged slanderous words constituted an accusation against plaintiff, they at the same time also constituted an accusation against Morrison. They were spoken only in the presence and hearing of plaintiff and Morrison. In determining whether there was any publication, both plaintiff and Morrison must be treated as principals. It is not a publication to speak the slanderous words only in the presence and hearing of the persons slandered. Harbison v. Chicago, R. I. & P. Ry. Co., 327 Mo. 440, 37 S.W.(2d) 609, 79 A. L. R. 1. Evidence to the effect that the alleged slanderous words were repeated in the presence of G. A. Woodward admits of no other conclusion, we think, than that such repetition of the words in the presence and hearing of Woodward was during a conference of all the parties with Woodward, the attorney for defendant, in which the attorney’s opinion was sought, among other things, as to whether the words in question were of a slanderous nature. The conference appears to have been voluntary on the part of all, and its very purpose implied the necessity of repeating to the attorney the alleged defamatory words. We think that the mere repetition of the words under such circumstances, and a fair construction of the testimony shows no more, would not constitute a publication within the meaning of that term in the law of slander. There was no evidence that the original utterance of the words was in the presence or hearing of Woodward.

It is unnecessary for us to determine whether there was any evidence of malice. If it be granted that there was, the fact would not, for the reasons already stated, affect the question of the correctness of the peremptory instruction.

The plaintiff’s petition sufficiently pleaded malice. The portion of the pleading to which exception was sustained was but an allegation of particular evidence going to show malice. There was therefore, we think, no error in sustaining the exception. We do not determine whether the evidence would have been admissible. Good pleading forbids allegations of the evidence by which an issue of fact is to be established. The effect of sustaining the exception was hut to correct the pleading to conform to this rule.

Being of the opinion that there was no error in the action of the court, and that the judgment should be affirmed, it is accordingly so ordered.


author: WAEKER, C. J.

text:
    SPEARS DAIRY, Inc., v. BOHRER et ux.
    No. 2262.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 27, 1932.
    Rehearing Denied Nov. 30, 1932.

      John F. Battaile, of Houston, and Howth, Adams & Hart, of Beaumont, for plaintiff in error.
    Morris & Bennett, of Beaumont, for defendants in error.
   WAEKER, C. J.

This lawsuit grew out of the following facts. On the morning of January 17, 1931, about 4:30 o’clock, George Bohrer, eleven years of age, and his brother Byle, about sixteen years of age, sons of appellees, Mr. and Mrs. R. O. Bohrer, were engaged in delivering the morning papers in the city of Beaumont. At about the hour named; George was standing somewhere near the intersection of Craig street and Johns avenue in the city of Beaumont in charge of a little wagon filled with morning papers. The plan of work was that George would pull the wagon from place to place, and Byle would take papers from the wagon and deliver them to their customers. While George was standing near the intersection of Johns avenue and Craig street, Mr. ■Tolle, in charge of a delivery milk truck belonging to appellant, Spears Dairy, Inc., drove by George to the second house on the right side of Johns avenue, north of the Craig street intersection, where he stopped, and his assistant, Giles Owens, about fourteen years of age, delivered milk to a customer who lived in that house. It took possibly one minute to make this delivery. During that time the milk truck was parked near and parallel with the curb, and about in front of the drive that led from the curb east towards the back of this house. When the delivery was completed, it was Mr. Tolle’s statement upon the trial of the case that he looked to the rear of his truck and thought the rear was clear; that Giles, from the opposite side of the truck, told him the rear was clear; whereupon, without blowing his horn, he backed his truck down Johns avenue towards the Craig street intersection. In backing bis truck, he struck and ran over George Bohrer and his little wagon. It was also the statement of Mr. Tolle and his assistant, Giles, that they struck George after backing their truck about two feet. There was other testimony to the effect that the truck was backed as much as eighteen feet, or possibly more, before George was struck. He and his little wagon were found under the center of the truck. Mr. Tolle took charge of George and carried him to .appellant’s dairy, where Mr. Goodell, one of appellant’s principal employees, took charge of George and carried him to Beaumont General Hospital. An examination there showed that his arm was broken. His attending physicians administered to him an anaesthetic, under which he died within a few minutes as a result of concussion of the brain. Post mortem examination disclosed the fact that George’s skull was fractured at the base. After being taken from under the truck, George complained of the 'injury to his arm and of a severe heádaehe, as well as of the other injuries received by him. I-Ie lived a little more than two hours after being injured.

This suit was brought by Mr. and Mrs. R. O. Bohrer, George’s father and mother, for damages in the sum of $15,466.24, suffered by them as a result of George’s death, and for $5,000 damages as heirs of George’s estate for the physical pain and mental anguish suffered by George as a result of his injuries. The grounds of negligence pleaded were that the driver of the truck was guilty of negligence in backing the truck in a reckless manner without giving the statutory signals. Ap'pellant answered by general and special demurrers, general denial, pleas of misjoinder of causes of action, that Tolle was an independent contractor, that George was guilty 'of contributory negligence, etc. The pleas of misjoinder of causes of action and of independent contractor were overruled by the court. On the theory that the evidence showed that Tolle was guilty of violating the Penal Code in backing his truck, and therefore guilty of negligence as a matter of law, the court did not submit this issue of negligence to the jury, but only the two following issues of proximate cause, which were answered in the affirmative.

“Issue No. 1'

“Was the failure of W. L. Tolle to see first that there was sufficient space for such movement to be made in safety before backing the truck on the occasion in question a proximate cause of the injuries to Geo. Bohrer ?

“Answer ‘Yesf or ‘ncf as you find the facts to be.

“In connection with this issue and Issue No. 2 herein, you are charged that article 801, subdivision K of the Penal Code of Texas of 1925 provides as follows:

“ ‘The person in charge of any vehicle upon any public highway before turning, stopping, or changing the course of .such vehicle shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping, or changing of course, shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions so to turn, stop or change said course.’

“Issue No. 2

“Was the failure of W, L. Tolle to give an audible signal of hisi intentions to bade said truck on the occasion in question a proximate cause of the injuries to Geo. Bohrer?”

The court also inquired of the jury whether Mr. Tolle backed his truck “at a fast rate of speed,” whether his act in so doing was negligence, and whether such negligence constituted a proximate cause of the injuries sued for. These issues were all answered in the affirmative. The jury also found in favor of appellees on the issue of contributory negligence, and that GeOrge’si injuries were not the result of an unavoidable accident. Under appropriate charges the jury found in appel-lees’ favor as heirs of George’s estate, and assessed their damages at $5,000. The jury also found for appellees, $5 hospital expenses, $80 doctor bill, $390.46 funeral expense, and $1,000 as the amount they had a reasonable expectation of receiving from George “had he not died.” Judgment was' accordingly entered in their favor, from which appellant has duly prosecuted its appeal to this court.

There is no merit in the contention that the joinder of the cause of action, accruing to appellees for loss of the services of their son George, the expenses of his funeral, hospital fees, and other expenses, with their cause of action as George’s heirs, for the pain and suffering, etc., endured by him because of his injuries, constituted a misjoinder of causes of action. St. Louis S. W. Ry. Co. v. Hengst, 36 Tex. Civ. App. 217, 81 S. W. 832; G., G. & S. F. Ry. Co. v. Moore, 28 Tex. Oiv. App. 603, 68 S. W. 559.

The court ruled correctly in refusing to submit to the jury the issue of independent contractor. Mr. Tolle was not an independent contractor but, as a matter of law, appellant’s servant. On this issue the facts are that appellant used six milk trucks in the city of Beaumont in distributing its milk. One of these trucks was operated by Mr. Tolle, the driver who ran over George. Upon Mr. Tolle’s truck was printed in large letters an advertisement of appellant’s dairy. Appellant assigned Mr. Tolle a designated territory which he was required to make every day. The truck was kept at the dairy. Mr. Tolle went to the dairy daily, where his truck was delivered to him, loaded with milk furnished by appellant. Appellant also furnished the bottles and all the other neces- ' sary equipment. It was the duty of Mr. Tolle to find his own customers, to whom he sold 'the milk at his personal risk. The milk was delivered to Mr. Tolle and charged to him at the same price he was required to sell it. If he sold milk for which he did not collect, the loss was his. He was also charged with the value of all lost and broken bottles. All milk delivered to him and which he did not sell was returned by him to the dairy. He was in no way held responsible for' the undelivered milk. He received a fixed commission upon all milk sold and delivered by him, which was the method of his compensation. 1-Iis assistant, Giles Owens, was employed'by him with the express consent of appellant. Giles’ expenses were paid by Mr. Tolle from his commissions. Mr. Tolle was not permitted to sell any other milk, that is to say, he was required to give all his time to selling appellant’s milk. As stated above, Mr. Tolle carried George to the dairy, where one of appellant’s servants took charge of him and carried him to the Beaumont General Hospital. In explanation of this fact, the testimony was to the effect that appellant did all of its business with Beaumont General Hospital. After carrying George to the dairy, Mr. Tolle gave him no further attention. These facts made Tolle the servant of appellant, and not an independent contractor. In defining “an independent contractor,” our Supreme Court, in Cunningham v. International Railroad Co., 51 Tex. 503, 505, 32 Am. Rep. 632, said: “The true test ⅜ * * by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.”

On the facts stated, Mr. Tolle represented the will of appellant, not only as to the result of his work, that is, the selling of the milk, but also as to the manner by which the milk was sold. The following additional authorities support our conclusion that Mr. Tolle was merely a servant for whose act appellant was responsible: Maryland Casualty Co. v. Kent (Tex. Civ. App.) 271 S. W. 929; Id. (Tex. Com. App.) 3 S.W.(2d) 414; Patton-Worsham Drug Co. v. Drennon (Tex. Civ. App.) 123 S. W. 705; Prairie Oil & Gas Co. v. Wright (Tex. Civ. App.) 238 S. W. 974; Woodward-Wanger Co. v. Nelson (Tex. Civ. App.) 11 S.W.(2d) 371; Brinker v. First National Bank (Tex. Com. App.) 37 S.W.(2d) 136, 137; 2 Tex. Jur. 651, 228.

The facts of the record established, as a matter of law, that Mr. Tolle backed his truck down Johns avenue towards the Craig street intersection, without complying with the provisions of the article of the Penal Code given in charge to the jury. This violation of the Penal Code convicted him' of negligence as a matter of law, and therefore the court did not err in refusing to submit to the jury the issue of negligence predicated upon his failure to give the statutory signals before backing his truck. On this conclusion the proper issues to go to the jury were the issues of proximate cause, as submitted by questions 1 and 2.

There is no merit in the proposition that, as a pedestrian, George was not within the protection of the article of the Penal Code submitted by the court’s charge. In the language of the Code, he was “in charge” of his little wagon at the time he was struck, which was a “vehicle” within the meaning of the Code.

It is further contended that Mr. Tolle was not operating his truck within the terms of the Code, on the theory that he was no't “turning, stopping or changing the course of his vehicle.” This contention is overruled. The truck was being operated north on Johns avenue, until it was parked for the purpose of delivering the milk. Then, within about a minute, the course was changed by backing it down Johns avenue towards the Craig street' intersection. This fact brought the operation of the truck directly within the terms of the Cbde.

We also overrule the contention that the, Code imposes upon the drivers of vehicles only the duty of exercising ordinary care to observe the statutory signals. Appellant insists that, though the statutory signals were not given, it was entitled to the submission of an issue as to whether or not this omission on the part of the driver of the truck constituted negligence. Appellant’s proposition is not sound. Certain things are required by the Code of the drivers of vehicles. The failure to comply with these statutory requirements' constitutes legal negligence. When the evidence establishes the fact, as a matter of law, that the Code is violated, negligence, as a matter of law, is established, and only the issues of proximate cause, as they relate to this issue, should go to the jury. Waterman Lbr. Co. v. Beatty, 110 Tex. 225, 218 S. W. 363.

But we sustain the contention of appellant that the giving in charge to the jury of article 801, subdivision K, of the Penal 'Code was error. This article of the Code had no relation whatever to the issues of proximate cause submitted by questions 1 and 2, and could not aid the jury in any way in answering these questions. Therefore this charge was a direct violation of article 2189, R. S. 1925, which, as construed by the Commission of Appeals in Radford Grocery Co. v. Andrews, 15 S.W.(2d) 218, 219, provides;. “That when a case is submitted, * * *' the court shall submit only ‘such explanations and definitions of legal terms as shall be nec-' essary to enable the jury to'properly pass upon and render a verdict on such issues.’ ” Appellees assert that this assignment cannot' constitute reversible error because, they say, the point was not saved in the exceptions to' the charge. We do not determine this con-' struction of appellant’s exceptions. This point of error is made ⅛ the brief, and, being well taken, we have discussed it only be-’ cause the judgment of the lower court will have to be reversed for the failure to submit properly the issues of contributory negligence.

Contributory negligence was pleaded by appellant as follows: “The injuries and * * * death of the child of plaintiffs was proximately caused and due to the contributory negligence of said child in being in and upon the streets of the city of Beaumont, Texas, at the time and place in question and un-dqr the attending circumstances.”

The court sent this issue <lo the jury by the following question: “Wafe George Bohrer guilty of negligence in being on the street ■where he was on the occasion in question?”

In connection with this question it was not error for the court, as appellant insists, to refuse “to instruct the jury that in passing on said issue they must view it in the light of the facts adduced in evidence.” This instruction was a part of the main charge.

But it was reversible error for the court, over the exceptions of appellant, to refuse to submit to the jury the issues as to whether or not George Bohrer pulled his little wagon Up immediately behind the truck, and whether such act was negligence and the proximate cause of the accident. The testimony of Sir. Tolle and his helper, with the other circumstances in the case, raised these issues. Thus, they testified that they ran over George after backing their truck about two feet. It is no answer to this proposition to say that the great weight and preponderance of the evidence is to the effect that the truck must •have backed at least eighteen feet before striking George. The testimony of these witnesses raised these issues, and it was for the jury to pass upon their credibility. The gen-, eral rule is thus stated: “Where the evidence is conflicting or different inferences of fact may toe reasonably drawn therefrom, it is a question for the jury whether a pedestrian struck by defendant was guilty of contributory negligence, and whether such contributory negligence was the proximate cause of the injury.” 42 C. J. 1267.

Under our decisions, it is reversible error to refuse the defendant an affirmative submission of the issue of contributory negligence,raised toy any specific group of facts, even though he has interposed only a general plea of contributory negligence. H. E. & W. T. Ry. Co. v. Lynch (Tex. Civ. App.) 208 S. W. 714, 723; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Hulen v. Ives (Tex. Civ. App.) 281 S. W. 350; St. Louis, S. F. & T. Ry. Co. v. Wilson (Tex. Com. App.) 279 S. W. 808; Munger Automobile Co. v. American Lloyds (Tex. Civ. App.) 267 S. W. 304. In Gulf, C. & S. F. Railway Co. v. Mangham, 95 Tex. 413, 67 S. W. 765, 766, our. Supreme Court said: “If the facts grouped in the appellant’s charge were admissible under the plea of contributory negligence, and "the charge was correct, it should have been given.”

After overruling a proposition Identical with the proposition now under discussion^ this court', on authority of that case, granted a rehearing, and reversed its -holding in' H. E. & W. T. Ry. Co. v.. Lynch, supra. In holding that the defendant was entitled to have submitted the grouped facts raising the issue of contributory negligence, Mr. Chief Justice Hightower, speaking for our court, said : “After careful consideration of the decision in that case, which was in answer to a certified question from the Galveston Court- of Civil Appeals, we have concluded that our holding in the former opinion, to the effect that appellant was not entitled to the requested instruction, for the reason that its plea of contributory negligence was only a general one, was error, and that the decision of the Supreme Court in that case is conclusive in favor of the contention of appellant on this point.”

In addition to raising this issue by exceptions to the charge, appellant also complains in its motion for new trial that the court refused to submit certain specific issues, which the motion asserts were duly presented to the court and refused. There is nothing in the record to show that these specific issues were ever called to the trial court’s attention. But the omission in the charge was called directly to the court’s attention by exceptions properly reserved, and these exceptions are sufficient, as we have just held, to support appellant’s proposition of error. Indemnity Insurance Co. v. Boland (Tex. Civ. App.) 31 S.W.(2d) 518.

We overrule appellant’s assignment that the verdict was excessive. We think the amount of the judgment has reasonable support in St. Louis, I. M. & S. Railway Co. v. Craft, 237 U. S. 648, 35 S. Ct. 704, 59 L. Ed. 1160; Marcus v. Huguley (Tex. Civ. App.) 37 S.W.(2d) 1100; Payne v. Shepler (Tex. Civ. App.) 243 S. W. 538.

Dr. Jackson and R. O. Bohrer were permitted, over appellant’s objections, to testify as to certain statements made -by George explaining the circumstances of the accident and the rate of speed at which the truck was backing when it struck Mm. On the record before us, this testimony was admissible as a part of the res gestae.

For the reason discussed above, the judgment of the lower court is reversed, and the cause remanded for a new trial.