author: JACKSON, J.

text:
    TRADERS’ & GENERAL INS. CO. v. RATCLIFF et al.
    No. 3885.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    Will R. Saunders, of Amarillo, "and Light-foot, Robertson & Scurlock, of Fort Worth, for appellant.
    Willis, Studer & Studer, of Pampa, and A. A. Cohn, of Brookhaven, Miss., for appellees.
   JACKSON, J.

This suit was instituted in the district court of Gray county, Tex., by the appellees,, the mother and brother and sisters of Frank E. Ratcliff, deceased, against the appellant, to recover compensation for the death of deceased, who was accidentally killed on April 2, 1931, whili- alleged to be an employee of the Dixon Creek Oil & Refining Company, which carried indemnity insurance with appellant.

The appellees presented their application for compensation for the death of the deceased to the Industrial Accident Board of the state, compensation was refused, and they gave notice ■ that they would not abide by the order of the board, and in due time filed this suit.

The record presents no jurisdictional question and no question with reference to the sufficiency of the pleading that we deem necessary to consider ⅛ view of the disposition to be made of the appeal.

The court, at the conclusion of the testimony, dismissed the cause of action asserted by the brother and sisters of the deceased.

In response to special issues submitted by the court, the jury found, in effect, that Prank E. Ratcliff sustained personal injuries on April 2, 1931, which resulted in his death, and that such injuries were received while in the course of his employment with the Dixon Greek Oil & Refining Company. They found that the average weekly wage of employees in the vicinity doing the same kind and character of work was $38.94. On these findings the mother, Mrs. M. A. Ratcliff, was given judgment for 360 payments of $10 each, payable weekly, with interest from each maturity date stated in the decree, and the judgment is before us for review.

The appellant assails as error the action of the court in refusing its requested peremptory instruction, and challenges the sufficiency of the testimony to support the finding of the jury that the deceased was killed in an accident arising in the course of and out of his employment and while engaged in and about the furtherance of the affairs of the business of his employer.

The testimony shows: That Frank E. Rat-cliff was a single man, 35 years of age, and for some time prior to April 3, 1931, was employed by the Dixon Creek Oil &' Refining Company as foreman or “gang pusher” in the yards of its refining plant, situated on about two acres of land six miles from the town of Pampa. That said company had a bunkhouse on said land in which the deceased slept, and that situated on said land was a boarding house at which he took his meals. That the plant, when running, was operated 24 hours per day, but on April 2d the refinery had been shut down for eight or ten days to build a fire still which was necessary to operate the refining plant. That the deceased and the day crew over which he was foreman worked rrom 7 a. m. to 5 p. m. every day unless a breakdown occurred, and then they worked from 7 á. m. to 7 p. m., the hours after 5 p. m. being overtime. That the deceased and his crew worked by the hour, and on April 2d they worked from 7 a. m. to 7 p. m., at which hour the crew was changed. That after work hours the company had no authority over the movements of the deceased, as he was his own boss and could do what he wished, but, if a breakdown or emergency occurred after work hours, he and his crew, if they could be found, would be called to assist in such emergency work; however, they were not required to hold themselves subject to the call of their employer from 7 p. m. to 7 a. m. That the employees living off the premises of the company wez-e required to furnish their transportation to and from their work and the company had no agreement with them to furnish such transportation. That the company had two trucks and furnished its superintendent with a Ford coupé for his use in its business, and occasionally, when any ⅛ these vehicles were going to Pampa on other business for the company, an employee was allowed to ride to or from Pampa. That about 5:30 or 6 o’clock, p. m., Mr. Leroy Davis, the timekeeper for the company, and Mr. Carl Hunter, the superintendent, went from the plant to Pampa in the coupé furnished by the company to the superintendent. That the superintendent remained in town and the timekeeper returned to the plant in the eoupé, with the understanding that he would go back to Pampa about 8 o’clock p. m. and get the superintendent and take him to -the plant.

Mr. Bob Reed, a witness for the plaintiffs, testified that he was working in the yard of the company on April 2, 1931, and knew Frank E. Ratcliff and that on that day they quit work at 7 p. m. That he lived in Pampa and generally went to and from the plant in his own car, but on April 2d he did not have his car with him at the refinery, as he had loaned it to a friend. That after he quit work he went to the office and asked Mr. Davis, the timekeeper, if he were going to town in a few minutes, and the timekeeper said “Yes,” in thirty or forty minutes. The witness then asked if he might ride in with the timekeeper, and was advised that he could. That just at the close of this conversation the deceased came into the office of Mr. Davis and asked what the conversation was, and the witness told him. Deceased then said: “ ‘Well, I will take you to town.’ And I said, ‘You don’t need to mind about it; I will just wait as I am in no hurry anyway.’ Then a few more words were'exchanged among the three of us, but I don’t remember what it was, and something more was said about coming to town, and he said; ‘Do you want to go on in Bob?’ That is what Ratcliff called me, ‘Bob,’ and T said ‘It doesn’t matter; let it go, and I will go in with Leroy’ and he said T would kinda like to go to town anyway, and if Leroy will let me have the car I will take you on in now, and you won’t have to wait,’ and I said ‘You don’t heed to bother; just let it go’ and he said T want to go, and if it is alright with Leroy I will take you to town’ and he asked' Leroy for the ear, and he said ‘What about taking Boh to town in the ear’ and Leroy didn’t answer him the first time, and the second time Leroy said, ‘Yes, if you will be back in thirty or forty minutes you can have it.’ ”

He further testified to leaving the refinery in the car driven by the deceased, about 7:10 p. m. That witness was going to his home in Pampa. That he was not on any business for the company, but purely on a personal mission, and that the car was furnished as a matter of courtesy. That the deceased, so far as witness knew, did not make the trip to Pampa for the company, but was on a personal mission. That deceased drove the Ford coupe into town to witness’ home. That there a brief conversation occurred and the deceased left in the car about 7:30, and it would take ten or fifteen minutes for him to reach the refinery.

The timekeeper, Mr. Davis, was called by the plaintiffs and testified substantially as did the witness Reed with reference to what occurred at the time deceased was permitted to take the Ford coupé and drive to town with Reed.

The record discloses that the deceased, in returning to the plant in the Ford coupé, while traveling the Amarillo-Pampa highway, collided with a truck parked on the highway and lost his life.

Article 8309, § 1, R. O. S., after defining what “the term ‘injury sustained in the course of employment,’ * ⅜ * shall not include,” provides, “but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.”

The fact that he was permitted by the timekeeper to drive the coupé furnished the superintendent to Pampa to accommodate a coemployee and because he himself wanted to go to town and was permitted the use of the coupé on condition that he return it in thirty or forty minutes, together with the other facts revealed by the record, are insufficient to show that the deceased, at the time he was accidentally killed by the collision of the coupé he was driving with the truck parked on the highway, was an employee of the company engaged in or about the furtherance of' the affairs of the business of the company. He lived on the company’s premises, took his meals on the premises, and was not on his way from his work to his home, or on his Way to his work, when he met his death. He had not gone to Pampa on any business for his employer, and was not required to be back on the premises to engage in any work for the company until 7 a. m. the next day. He was not called to assist in any labor made necessary by a breakdown or an emergency; in fact, the plant was shut down and had been for several days for the purpose of making repairs necessary to resume operations. The testimony was thoroughly developed, there is no substantial-controversy as to what the facts reveal and, in our opinion, is insufficient to meet the requirements of the law. Galveston, H. & S. A. R. Co. v. Currie; 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Ætna Life Ins. Co. v. Burnett (Tex. Com. App.) 283 S. W. 783; London Guaranty & Accident Co. v. Smith (Tex. Civ. App.) 290 S. W. 774; London Guarantee & Accident Co. v. Thetford (Tex. Com. App.) 292 S. W. 857; Royalty Indemnity Co. v. Madrigal (Tex. Civ. App.) 14 S.W.(2d) 106; Southern Casualty Co. v. Ehlers (Tex. Civ. App.) 14 S.W.(2d) 111; Wynn v. Southern Casualty Co. (Tex. Civ. App.) 26 S.W.(2d) 691; Lloyds Casualty Co. v. Rodriguez (Tex. Civ. App.) 36 S.W.(2d) 261; Texas Indemnity Ins. Co. v. Clark (Tex. Civ. App.) 50 S.W.(2d) 465; Reddick v. Prairie Oil & Gas Co. (Tex. Civ. App.) 51 S.W.(2d) 735.

This holding makes it unnecessary to pass upon the other assignments presented .by appellant or the cross-assignments presented by appellees.

The judgment is reversed and here rendered for appellant.


source: Caselaw Access Project

author: FLY, O. J.

license: Public Domain

text:
    WHITE v. CITIZENS’ BRIDGE CO.
    No. 9105.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1932.

      Brian Montague, of Del Rio, for appellant.
    Jones & Lyles, of Del Rio, for appellee.
   FLY, O. J.

In tliis case appellee lias filed a motion to dismiss, because the' question involved is moot, and. the motion is not resisted by appellant. The question involved has become moot by the action of appellee in removing the grounds upon whibh the dispute arose.

To be more explicit, appellee obtained a writ of injunction to restrain appellant from taking off his land certain parts of appellee’s bridge deposited there by flood waters of the Rio Grande. Appellant made no claim to the property, but did not wish to permit the servants of appellee to enter upon his land to reclaim the bridge. Under that state of facts appellee invoked and obtained the right to enter upon the premises and transport therefrom certain timber alleged to have been a part of the bridge.

This novel way of retaking property, found in the possession of another, had the desired effect, and, while appellant was industriously prosecuting this appeal, appellee was the more diligently and vigorously hauling the casus belli. Appellee admits it has the property, which is not claimed by appellant, and both admit that the cause of action has disappeared. The cause of action in this and the lower court is therefore dismissed at the cost of the appellee, Citizens’ Bridge Company.

Cause dismissed.


author: WALKER, C. J.

text:
    PACIFIC FIRE INS. CO. v. FAIN.
    No. 2257.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 27, 1932.
    Robert Lee Guthrie, of Dallas, for appellant.
    J. E. Wheat, of Woodville, for appellee.
   WALKER, C. J.

This was a suit by appellee, J. H. Fain, against appellant, Pacific Fire Insurance Company, to recover the amount of an insurance policy on his Franklin automobile, on allegations that the automobile had been destroyed by fire. Without quoting from the petition, it is sufficient to say that appellee alleged a good cause of action for the sum of $1,200, the maximum coverage under the policy. Appellant answered by general and special demurrers, general denial, etc. By verdict of the jury, the value of the automobile immediately before the fire was fixed at $1,-200 and immediately after the fire at nothing. Judgment was accordingly entered, from which appellant has duly prosecuted its appeal to.this court by writ of error.

The issue of-value before the fire was controverted. Appellee’s evidence fixed the value at between $1,200 and $2,000. Appellant’s evidence fixed tbe value at $800. In bis argument to tbe jury on tbe issue of value, quoting from appellant’s brief, appellee’s counsel said:

“Defendant’s Bill of Exception No. 2 shows that tbe attorney for tbe plaintiff made tbe following argument:

“ ‘There are probably thousands and thousands of men who pay for this kind of insurance, and they keep tbe money. They do not return any of tbe money and say, “We charged you too much, because your car is not worth that much.” They never do come around and say anything about that, but they keep the money in their jeans, and then when the car burns they say the car wasn’t worth that much; “that you have got that too high.” ’
“Tbe bill shows that at the time the above argument was made, counsel held out his hands with his palms upturned and spoke in a sarcastic tone. Counsel for the defendant objected to the above argument as being prejudicial. The court sustained the objection, stating that there was nothing in the record to show how insurance companies handle policies or settle their cases, or what they do with their money. In the teeth of the ruling of the court, counsel for the plaintiff aggravated the situation by stating:
“ ‘You gentlemen know about as much as I do; you can draw your own conclusions.’
“When this remark was made, counsel for the defendant, Pacific Fire Insurance Company, renewed his objection, and counsel for the plaintiff stated that if that remark was objectionable, he would withdraw it. Counsel for the defendant thereupon stated to the court that the above argument of counsel and the remarks that he had made subsequent to the ruling of the court were prejudicial to the defendant and were calculated to lead the jury to believe that the objections made by the defendant counsel were improper and were made for the purpose of taking some advantage. Thereupon, the counsel for the plaintiff stated:
“ T wonder if I can get the attorney to tell me what I can talk about without being objectionable.’
“To the abqve remarks and proceedings the defendant, Pacific Fire Insurance Company, then and there in open court duly excepted, for the reason that the same were prejudicial, and for the further reason that counsel has no right to comment on the propriety of an opposing counsel making objection for the sake of preserving and protecting the record. Counsel for the defendant asked the court to discharge the jury for the reason that the error committed by counsel for the plaintiff could not be cured by instructions to the jury, which request was denied by the court. To the action of the court in this connection and to the argument of counsel for plaintiff, defendant then and there in open court duly excepted.”

This argument was based upon facts not in the record, was highly prejudicial and inflammatory, and was calculated to induce the jury to bring in an improper verdict. Whether the insurance company charged too much or too little as a premium on this policy had nothing to do with the value of the automobile. That it never offered to return any of the premium, but kept this money “in their jeans” was irrelevant and immaterial on the issue of value. The policy sued upon fixed a maximum amount of recovery in case of fire, but, by the express terms of the policy, the recovery was limited to the actual value of the car at the time of loss. Therefore it was a proper defense, stipulated for by the terms of the policy itself, to say that the maximum coverage of the policy exceeded the value at the time of the loss. In Texas Cent. Railway Co. v. Parker, 33 Tex. Civ. App. 514, 77 S. W. 42, the following argument was condemned: “When the railroad company kills one of your animals that is worth $65, they will offer you $8 for it, and, if you don’t take it, they will force you to bring suit and to pay out $200 to get the $65; and I intend to tell the juries of this country about the railroad’s conduct in these matters.”

For arguments falling within the condemnation of the courts, see, also, Chicago, R. I. & T. Railway Co. v. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331; Hubb Diggs Co. v. Bell (Tex. Civ. App.) 297 S. W. 682; Gulf, C. & S. F. Railway Co. v. Jones, 73 Tex. 232, 11 S. W. 185; Gonzalez v. Davila (Tex. Civ. App.) 26 S.W. (2d) 718; Eastern Texas Electric Co. v. Bhymes (Tex. Civ. App.) 1 S.W. (2d) 688; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765. After the court had instructed the jury not to consider this argument, it was highly prejudicial for counsel to call it to the attention of the jury by saying: “You gentlemen know about as much as I do; you can draw your own conclusions.” The argument itself and the response of counsel being improper and prejudicial, it constitutes reversible error. On authority of Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091, the rule is, if argument is improper, it constitutes reversible error, if, under all the circumstances, there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted. We think this rule condemns the argument in this case.

It cannot be said that the argument was harmless because the testimony strongly preponderated in favor of the verdict fixing the value at $1,200. In Parker v. Miller, 258 S. W. 602, 605, the Court of Civil Appeals, though holding the argument was improper, yet held it did not constitute reversible error, saying: “We think they [the jury] could not, in all probability, have decided the issue other than they did decide it.” This holding was reversed by tbe Commission of Appeals in 268 S. W. 726, 727, where it was said: “We cannot agree with the Court of Civil Appeals that the trial court was authorized to deny a new trial on the ground that the preponderance of the evidence supported the verdict and judgment.”

After objection had been sustained to his argument and then renewed and again sustained, it was error for counsel to remark in the presence of the court and jury, “I wonder if I can get the attorney to tell me what I can talk about without being objectionable.” In Western Union Telegraph Co. v. Wingate, 6 Tex. Civ. App. 394, 25 S. W. 439, 440, discussing side remarks of this character, the court said: “It is the right of every litigant, while acting in good faith, to object to any argument made to a jury on behalf of his adversary which he regards as improper and prejudicial to his rights; and it is not proper for opposing counsel to ask the jury, either directly or by implication, to consider such an objection as evidence against the party making it, on the merits of his case.”

On this proposition see, also, Vesper v. Lavender (Tex. Civ. App.) 149 S. W. 377; Ivy v. Ivy, 51 Tex. Civ. App. 397, 112 S. W. 110; Houston Water Works Co. v. Harris, 3 Tex. Civ. App. 475, 23 S. W. 46.

We do not discuss appellant’s assignments against appellee’s evidence on the issue of market value. The point is made that the witnesses do not fix the “place” of value. This objection can be obviated upon another trial.

Appellant’s assignments of error were not called to the attention of the trial court in its motion for new trial, but, as the questions upon which we are reversing the judgment of the lower court occurred during the trial and rulings had thereon during the trial, it was not necessary that they be again presented for a second ruling by a motion for new trial. 3 Tex. Jur. 169.-

For the reasons stated, the judgment of the lower court is reversed, and the cause remanded for a new trial.


author: HALE, O. J.

text:
    EARNEST et al. v. STANDEFER et al.
    No. 3888.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 12, 1932.
    Bean & Duggan, of Lubbock, for appellants.
    Loyd R. Kennedy, of Morton, for appellees.
   HALE, O. J.

The appellant Earnest, joined by W. J. Odell and R. E. Sherrill, owning real property in - Cochran county, instituted this suit against Tom C. Standefer, the tax collector of Cochran county, and against the county judge and county commissioners to restrain them from attempting to collect from the plaintiffs excess taxes claimed to be due upon lands owned by and which had been rendered for taxation by plaintiffs, and to further restrain the defendants from collecting from plaintiffs taxes which had been levied to supplement the jury fund of the county in excess of 5 cents upon the $100 valuation and also taxes which had been levied in excess of 20 cents upon the $100 valuation for permanent improvements. They further prayed that the defendants be enjoined from using any of the proceeds of the sale of certain road bonds issued by the county for any purposes other than for the construction, maintenance, and operation of roads for the benefit of which said bonds had been voted and sold.

The court sustained a general demurrer to the plaintiffs’ petition, and upon the refusal of plaintiffs to amend there was a judgment against plaintiffs; hence this appeal.

Omitting the formal allegations of the plaintiffs’ first amended original petition, to which the general demurrer was sustained, the substance of the allegations we state as follows: That Earnest owned seven sections of land in Cochran county and personal property of the approximate value of $4,500; that Odell owned three sections of land in said county and personal property of the) value of $130; that Sherrill owned four sections of land in said county. That they, in accordance with the statutes of Texas, had each rendered their property for taxation for the year 1931 at its reasonable market value. That Earnest rendered his lands at a valuation of $11,840 and his personal property at a valuation of $4,260, making a total of $16,-100. That Odell had rendered his land at a valuation of $7,040 and his personal property at a valuation of $130, making a total of $7,170. That Sherrill had rendered his land for $7,360 and owned no personal property in Cochran county. That during May, 1931, the commissioners’ court of said county convened and sat as a board of equalization, and as such board had the county clerk notify Earnest that they desired to raise the valuation of his property to $33,280 and to appear ■before the board at a stated time, etc. That said board ordered the clerk to notify Odell that they desired to raise the assessed value of his property to $13,230 and to notify Sher-rill that they desired to raise the value of his property to $16,400. That in accordance with the notices the plaintiffs appeared on the date designated, to protest against the proposed increase in the assessed value of their properties, and introduced evidence before said board showing the character, quality, and quantity of real estate as well as the value thereof owned by them respectively, and further established by proof that the values placed upon their respective properties were fair and reasonable. That said commissioners’ court, acting as a board of equalization, called no witnesses and heard no testimony other than that of the plaintiffs’ witnesses upon the issue of the quantity' and quality of the property involved. That said boárd wholly disregarded the testimony of plaintiffs’ witnesses and arbitrarily and unlawfully fixed the value of Earnest’s real estate at $28,020 and of his personal property at $5,260. Said board fixed the value of Odell’s property at $13,100 and of his personal property at $130, and raised the value of Sherrill’s real estate to $16,400 over the protest of the plaintiffs.

It is further alleged that such increase in the estimated values was illegal and void because said board of equalization did not equalize the improved lands in three classes and did not equalize the unimproved lands in three classes as required by law, but on the contrary pursued an arbitrary method, placing all lands in the county in three classes without regard to the fact that the part of the land in the county, particularly that in the vicinity of Morton and Bledsoe, the two principal towns in such county, is more valuable than lands in other parts of the county. That the lands in the vicinity of Morton and Bledsoe are devoted largely to agriculture and contain valuable improvements; whereas, most of the land in the remaining part of the county is suitable only for grazing purposes and has a market value of only about one-fifth as much as agricultural lands in the vicinity of Morton and Bledsoe. That in pursuance of their arbitrary scheme and classification, all lands in the county were divided into three classes, and one class was valued at $5 per acre, another at $7 per acre, and the third class at $12 per acre. That both improved and unimproved lands were placed in each class, no account being taken of the difference in the value of the improvements. That both grazing and agricultural lands were placed in the same class without taking into account the fact that the agricultural lands were far more valuable. They further alleged that plaintiffs’ lands were largely suitable for grazing and on January 1, 1931, had a market value of not more than $3 to $5 per acre. That notwithstanding said fact, a great part of their real estate was value at $7 per acre and placed in the same class for taxation as other lands devoted to agriculture and which had a market value of $20 or more per acre. That lands belonging to plaintiffs having a market value of only $3 per acre were assessed at $5 per acre.

They further allege that prior to February 1, 1932, they tendered to Standefer as collector the taxes legally due upon their lands and personal property based upon the correct valuation of said property, which amount the tax collector refused to accept. They set out the tax rate for the county, state, and district, and show the amount justly due from each plaintiff upon a legal valuation of their respective properties, and in their pleadings they make a continuing tender of whatever amount each may owe upon the property based upon the values at which they rendered the same.

They further attack the action of the commissioners’ court in levying a tax of 25 cents on the $100 for county purposes; 15 cents on the $100 to supplement the jury fund; 15 cents on the $100 valuation for the road and bridge fund; 25 cents on the $100 for the erection of public buildings; and a total of 28 cents on the $100 to provide a sinking fund for and to pay the interest upon $200,000 of road bonds issued by the county. ■ They further allege that not more than 5 cents on the $100 was necessary to supplement the jury fund, but that 15 cents upon the $100 was levied so that two-thirds or more of the amount collected might be transferred by the commissioners’ court from the jury fund to the general fund and to be used-to pay accounts against the county which could only be paid out of the general fund. They further allege that no more than 20 cents of the 25 cents upon the $100 valuation is necessary to provide for interest and a sinking fund upon the bonded indebtedness of the county and that the levy for the permanent improvements was void.

They further allege that the commissioners’ court has appropriated a portion of the proceeds realized from the sale of the bonds to purchase road machinery, such as tractors and graders, for use upon the county roads' and in the payment of bills for work upon the county roads which is an expenditure in no way connected with the purposes for which said bonds were voted and issued, and it is charged that the defendants will continue to make such illegal appropriations and payments unless restrained.

The petition is properly verified.

The appellees have not favored us with a brief, and the judgment does not indicate upon what theory the court sustained the general demurrer. As against such demurrer the allegations in the petition must be accepted as true, and so considered we think the trial judge erred in holding the petition insufficient.

The tender of the amount due and the offer to do equity is sufficient. Ramey v. City of Tyler (Tex. Civ. App.) 45 S.W.(2d) 859; Patrick v. City of Taft (Tex. Civ. App.) 52 S.W.(2d) 297.

The fact that three property holders joined in the same action cannot be considered a misjoinder of parties plaintiff. Porter v. Langley (Tex. Civ. App.) 155 S. W. 1042; Brown v. First National Bank of Corsicana (Tex. Civ. App.) 175 S. W. 1122; Morris v. Cummings, 91 Tex. 618, 45 S. W. 883.

It is held in the case of Brundrett v. Lucas (Tex. Civ. App.) 194 S. W. 613, that where the commissioners’ court sitting as a board of equalization hears testimony from the witnesses of the property owner, but does not call witnesses of its own, it must fix values according to the evidence actually introduced, and that it cannot disregard the evidence of the property owner’s witnesses and fix values at a greater amount than was shown by the testimony of the owner’s witnesses. A writ of error was refused. This is the rule in other jurisdictions. People ex rel. Glen Tel. Co. v. Hall, 130 App. Div. 360, 114 N. Y. S. 511; State ex rel. Kimberly-Clark Co. v. Williams, 160 Wis. 648, 152 N. W. 450.

R. S. art. 7211, among other provisions, requires the tax assessor to place opposite the rendition of each piece of property the amount which he thinks is the reasonable cash market value, in the event he is not satisfied with the value fixed by the owner at the time of rendition, and requires the commissioners’ court to hear evidence and determine the true value of such property on January 1st. This requirement of the statute was not complied with, and the rule is that in the construction of tax laws, they are to be construed strictly in favor of the taxpayer.

This court held in Weatherly Independent School District v. Hughes (Tex. Civ. App.) 41 S.W.(2d) 445, that the levying of a discriminatory tax is tantamount to the taking of property without due process of law and amounts to legal fraud justifying the issuance of an injunction against the collection of such tax.

“Fraud is ground for relief by injunction in tax cases. A tax founded on a fraudulent assessment will be enjoined and this includes a valuation so excessive as to be constructively fraudulent whether made by local assessors or by a state board or by a reviewing board. * * * If the valuation is purposely made, too high through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judgment of all competent persons or through the adoption of a rule which is designed to operate unlawfully upon a class and to violate the constitutional rule of uniformity, the case is a plain one for equitable remedy by injunction. * * * injunction also lies where certain property is intentionally and wrongfully assessed at a higher percentage of valuation than other property in pursuance of a system.” 4 Oooley on Taxation (4th Ed.) §[ 1645.

The same rule applies when the board of equalization acts arbitrarily, resulting in overvaluation of one class of property, and the rule is further announced that fraud need not be shown where it is found that the assessing board did not follow the method prescribed by statute or otherwise adopted some fundamentally wrong principle. Id. § 1651.

In Druesdow et al. v. Baker et al., 229 S. W. 493, 495, tide Commission of Appeals said: “Tie decisions of the Tax Board in the matter of valuations are quasi judicial in their nature. This action is therefore a collateral attack upon the judgment of a quasi judicial tribunal. Such an attack cannot be justified in the absence of fraud, or something equivalent thereto; lack of jurisdiction; and obvious violation of the law, or the adoption of a fundamentally wrong principle or method, the application of which substantially injures complainant.”

R. S. art. 7206, subd. 3, provides that the board of equalization shall equalize improved lands in three classes, the first class to embrace the better quality of lands and improvements, the second to embrace the second quality' of lands and improvements, and the third class to include the lands of small or inferior improvements, and that the unimproved lands shall embrace first, second, and third classes. It is held .that the failure of the board to comply with this statute entitles the taxpayer to relief. Randals et al. v. State (Tex. Civ. App.) 15 S.W.(2d) 715.

The allegation is that 25 cents upon a valuation of $100 had been levied for county purposes and that 15 cents had been levied for the benefit of the jury fund. The rule is that where the constitutional limit of 25 cents has been levied for general county purposes, the court cannot in addition thereto levy more than is actually necessary for jury purposes, especially when the intention is to transfer the surplus from the jury fund to the general fund of the county. Veltmann v. Slator (Tex. Civ. App.) 219 S. W. 530.

From what has been said it follows that the court erred in sustaining the general demurrer to the petition, for which reason the judgment is reversed and the cause remanded.


author: HALL, O. J.

text:
    PEARSON LUMBER CO. v. COOPER et al.
    No. 3899.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 2, 1932.
    Rehearing Denied Nov. 23, 1932.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.
    W. B. Handley, of Dallas, and Cooper & Lumpkin, of Amarillo, for appellees.
   HALL, O. J.

The appellant, as plaintiff below, sued W. P. Cooper as contractor and the Employers’ Liability Assurance Corporation, Limited, as his surety, alleging, in substance, that about June 1, 1929, Cooper entered into a contract with Quay county, N. M., to construct a school building in a certain district in said county. The contract bound Cooper to furnish a good and valid bond in favor of said county and school district, as well as all persons who might furnish labor or material, such' bond to be conditioned that Cooper should truly and faithfully perform his! contract and pay all subcontractors, workmen, laborers, and those who furnished material; that Cooper delivered his bond with the above-named corporation as surety, which contained the required stipulations, which said bond was executed July 11, 1929.

It is alleged that in the construction of said building and improvements Cooper purchased from plaintiff lumber company certain building materials which were used in the construction of the improvements, and it also furnished labor which he employed in such construction. Plaintiff attached to its petition an itemized account, showing the materials furnished, the dates upon which the several items were furnished, and the purchase price thereof, including also a statement of labor money, which account showed a balance of $1,430.79 unpaid.

Plaintiff alleges that it relied upon the obligation evidenced by the bond to secure the payment of its debt, and that the assurance corporation knew that plaintiff was selling material which was being- used, that the com-poration was informed of the amount of such bills as the work progressed, and' upon completion of the job the corporation was duly notified of the amount of the debt due and owing to plaintiff. The prayer is for judgment against both defendants, jointly and severally.

Cooper answered by general demurrer and general denial.

The assurance corporation answered, pleading that plaintiff’s cause of action was not cognizable by the district court of Potter county, and should be dismissed.

The ease was tried to the court without a jury, and resulted in a judgment in favor of plaintiff against Cooper in the sum of $1,-430.79, and further decreed that plaintiff take nothing as against the Employers’ Liability Assurance Corporation, Limited.

The case is before us upon three propositions, the substance of the first being that, because the bond in question is a valid contractual obligation, made expressly for the benefit of plaintiff as well as all other creditors who might furnish labor or material for the construction of the building in New Mexico, the trial court erred in denying plaintiff a recovery, since the uncontroverted facts are that plaintiff furnished material and labor which had not been paid for.

By the second proposition it is asserted that the bond in question is valid, enforceable, and a complete contractual obligation within itself, and the court was not warranted in reading into the bond the statutes of the state of New Mexico upon the presumption that said statutes are the same as in Texas, thereby denying plaintiff a recovery upon the bond for the material and labor furnished.

The 'third proposition is that, since the courts will not indulge the presumption that the law of another state is the same as the law of this state, when such presumption will work a forfeiture, it was error for the trial court to indulge such presumption in this ease to the injury of plaintiff’s rights.

The appellee, assurance corporation, by counter propositions, insists: (1) There being neither pleading nor proof of the statutes of New Mexico relating to bonds or contracts for public improvements, the trial court correctly indulged in the presumption that such statutes are the same as those of Texas on said subject; and (2) the bond in suit, having been required by statute, is a statutory obligation, the statute being a part of such bond and the sole measure of the surety’s liability and the evidence showing plaintiff’s noncompliance with such statute, the trial court did not err in rendering judgment for the surety.

The bond upon which the action is based contains, amongst other stipulations, the following:

(1) “And, Whereas, it is desired that the faithful performance of said contract by said W. P. Cooper be secured to said Quay County District School Board and that payment be secured to all persons who may perform labor or furnish material incident to the performance of said contract in compliance with the provisions of the statutes of the State of New Mexico,” etc.; and
(2) “The condition of this obligation is such that if the said W. P. Cooper, principal, shall truly and faithfully perform said contract and shall well and truly pay all subcontractors; workmen, laborers, mechanics, ánd fur-nishers of material in full for all work done, labor performed and material furnished in the performance of said contract or in any manner incident to the .performance thereof, then this obligation shall be null and void, otherwise to remain in full force and effect. This bond is made for the use of all persons and corporations who may furnish labor or material on the hereinbefore mentioned, contract and may be sued on by them or either or any of them as if they and each of them were specifically named as the obligees herein.”

Stipulation which we have numbered (1) above shows that New Mexico has enacted statutes which govern the materialman who furnishes material for use in the construction of public school buildings, and further shows that payment for labor ¿nd materials are to be made in accordance with the statutory provisions.

The appellant failed to plead or prove these laws, and we must presume that they are the same as the laws of Texas which, relate to similar contracts. 17 Tex. Jur. 297, §.84.

In discussing R. -S. art. 5160 et seq., the Commission of Appeals in Indemnity Insurance Co. v. South Texas Lumber Co., 29 S.W. (2d) 1009, 1010, said: “Granting for present purposes that, independently of the above, statutes, and in spite of them, a cause of action accrued to the lumber company on the bond, as a common-law bond, it by no means follows that the company has any other remedy than as prescribed in these statutes. As a general rule, where the statutes give a remedy for the enforcement of an independent right, the remedy thus given is regarded as cumulative of other existing remedies. But this rule has no application in case the statutes, which create the given remedy, clearly imply a negation of other remedies. Thouvenin v. Rodrigues, 24 Tex. 468, 479; Montel v. Consolidation Coal Co., 39 Md. 164; 1 Tex. Jur. 688; 1 C. J. 988 et seq. The above statutes clearly imply that the remedy there accorded to the materialman, to enforce his cause of action arising under a bond such as the one here involved, whether the bond he regarded as a statutory bond or not, is exclusive, and that his action on the bond is to be subject to the provisions of these statutes. * * * There is such a degree of repugnance between various provisions of the act and some of the general rules relating to eases growing from contracts, as clearly to.imply a purpose on the part of the Legislature to render subject to the provisions of these statutes, without regard to the features of a common-law obligation which the bond might bear, any suit brought by a materialman on a bond taken by a city in a transaction of this sort.”

Where a contract is made in pursuance of a special statute, the statute is a part thereof whether incorporated therein or not. If appellant had pleaded and proved the laws of New Mexico governing such contracts, and had further shown by testimony compliance with the provisions of such law, it would have been entitled to a judgment against the surety company herein. In the absence of any such pleading and proof, the laws of Texas must govern the rights of the parties, and, since it was not shown that the appellant had complied with the provisions and conditions required by amended article 5160 (Vernon’s Ann. Civ. St. art. 5160) in filing with the county clerk an itemized and verified claim for the materials which had been furnished the contractor, it failed to make a prima facie case.

We think a proper judgment has been entered, and it is affirmed.


text:
    STATE LIFE INS. CO. v. WILSON.
    No. 3901.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.
   JACKSON, J.

The appellee instituted this suit in the county court of Lubbock county on an insurance policy issued to him by appellant, to recover certain monthly installments of $25 each, together with interest and attorney’s fees alleged to be due him under the provisions of the policy on account of his total and permanent disability.

The appellee pleaded his total and permanent disability caused by disease, that appellant had paid him the monthly installments from January 1st to October 1, 1931, its refusal to continue the payments, demand, proof of disability, and the provisions of the policy on which he relied for recovery.

The appellant answered by general demurrer and general denial.

In response to special issues submitted by the court, the jury found that appellee, since October 1, 1931, on account of the alleged disease, was wholly, permanently, and continuously disabled to such an extent that he could not perform any work for compensation or profit or follow any gainful occupation; that such disability would continue until January 1, 1933; and that a reasonable attorney’s fee was the sum of $100.

On these findings judgment was rendered that the appellee have and recover from the appellant .$296 with interest thereon from April 23, 1932, and all costs, from which judgment this appeal is prosecuted.

By several assignments of error the appellant challenges the sufficiency of the testimony to warrant the finding of the jury that appellee was wholly, permanently, and continuously disabled and could not follow any gainful occupation since October 1, 1931.

The provisions of the policy material to a disposition of the appeal provide:

“Total and permanent disability. If the insured, after paying at least one full annual premium and before default in the payment of any subsequent premium and before attaining the age of sixty years, shall become wholly and permanently disabled by bodily injury or by disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or from following any gainful occupation, the Company, upon receipt at its Home Office of due proof of such disability of the insured as may be required by the Company, will grant the following benefits:
“First — ’Will waive payment of premiums thereafter becoming due.
“Second — In addition will pay the insured a monthly income equal to one per cent of the original amount of insurance (exclusive of any accidental death benefit). The first monthly payment will be made upon satisfactory proof of disability as above provided, and the subsequent monthly payments will be made on the first day of each month thereafter during such disability. * * *
“Proofs similar to those originally required of such continuous disability must be furnished at any time, if requested by the Company, but not oftener than once a year, and if the insured should fail to furnish such proofs, or should so far recover as to be able to engage in any gainful occupation, the obligation on the part of the Company to waive payment of premiums and pay to the insured a monthly income shall cease, and the insured shall resume payment of premiums in accordance with this contract beginning with the first premium becoming due after failure to furnish such proofs or after the date of such recovery.”

The testimony discloses that for some years prior to 1929 the appellee was engaged in the abstract business in the city of Lubbock ; that he made abstracts, prepared deeds, contracts, and other instruments. In 1929 he became afflicted with bronchitis, sold his business, procured treatment and advice from various physicians, and sought relief in different states, climates, and altitudes; that the disease caused his bronchial tubes and the air passages of his lungs to fill with mucus whieh interfered with his breathing and caused severe coughing spells every night and he had to sit up in bed and take some medicine for temporary relief; that he had become nervous, was unable to sleep because of the nightly attacks of asthma, had lost twenty pounds in weight, his stomach, digestion, and heart had become involved and he had lost much of his strength; that appellant had paid appellee the installments of $25 per month from January 1st to October 1, 1931, and thereafter refused to make any further payments.

The -appellee testified that he had tried many different remedies, none of which afforded him anything but temporary relief; that after lying down at night from two to four hours he choked up and had to get up and stir around; that under the advice of physicians he took all the exercise he could in the air and sunshine, sometimes played golf, carried his own bag, but took his time and there was a bench at each tee on which he could rest; that he frequently, when the weather would permit, walked from his home to town, a distance of approximately 1¾ miles, but often had to sit down and rest on his way; that he supposed he went to town something like 80 per cent, of the time and when there stayed at different places, but spent most of his time when in town at the office where his old abstract business was carried on by his sister and brother-in-law; that he was interested ifi the business to the extent that it had not been paid for, occasionally solicited business for them, and sometimes, when at. the office, advised his sister what should be put in the abstract; that he collected or received the rent from the tenants in his building; that he could not go to the clerk’s office or around over town, operate a typewriting machine, or do any of the clerical or physical work required to run an abstract business; that he could do neither physical nor mental work.

Dr. Stewart, who qualified as a practicing physician and surgeon, and who is one of appellant’s medical examiners, testified that at the request of appellant he had examined ap-pellee in October, 1931, and had examined him twice since that date, the last time about two days before the trial; that appellee was suffering from a severe case of chronic bronchitis, and, from the conditions revealed by the examination, in the opinion of the witness, appellee was not able to operate a type* writing machine, examine records, deliver abstracts, or do any steady work of any kind or follow any gainful occupation; that such work would aggravate ■ his condition; and that in his judgment the appellee was totally disabled.

The appellant’s contention that the circumstances developed from a cross-examination of these witnesses disclosed that appellee was only partially disabled and not totally disabled, is not tenable, and the court was not authorized to direct a verdict in its favor.

Judge Greenwood, in construing the meaning of “wholly disable and prevent the insured from performing any and every kind of duty pertaining to Ms occupation,” says:

‘‘The court will not give such a literal interpretation to the language of this contract, wherein the larger weekly indemnity is promised, as to practically relieve the insurer of-all obligation thereunder. Such would be the effect of a decision discharging plaintiff in error from all liability if defendant in error, after his injury, could do anything required of him as a railroad conductor. Hefner v. Fidelity & Casualty Co., 110 Tex. 606-607 [160 S. W. 330], 222 S. W. 966. The language of the policy is fairly and justly susceptible of tho interpretation, which, we think, should be given to it, that the larger indemnity was promised if the injuries rendered the insured substantially unable, in the exorcise of ordinary care, to perform every material duty pertaining to his occupation.” Commonwealth Bonding & Casualty Ins. Co. v. Bryant (Tex. Sup.) 240 S. W. 893, and authorities there cited.
“A policy requiring payment for total disability * * * is not one of indemnity against loss of income -but against loss of capacity to work.” Great Southern Life Insurance Company v. Johnson (Tex. Com. App.) 25 S.W.(2d) 1093, 1097.

The appellant challenges as erroneous the definition given by the trial court of the word “wholly,” because on the weight of the evidence, it does not permit the jury to take into consideration appellee’s mental ability to transact business and does not take into consideration work for profit or the following of other gainful occupations.

The record discloses that, after the jury had retired, they returned and requested the court to define the word “wholly” and that the court gave them the following definition: “In response to your written request you are charged that the word ‘wholly’ as used in the policy of insurance is equivalent to total disability. It does not mean absolute physical inability to transact any business at all, but it means the inability to do the substantial acts necessary to be done in the transaction of one’s business.”

In issue No. 1 the court had submitted to the jury whether appellee, on account of the disease, was wholly, permanently, and continuously disabled to such an extent that he could not perform any work for compensation or profit or follow any gainful occupation.

The policy provides, in substance, that, if insured becomes wholly and permanently disabled by disease so that he is and will be permanently, continuously, and wholly prevented from performing any work for compensation or profit or following any gainful occupation, the company will pay him a monthly income equal to 1 per cent, of the original amount of insurance. The policy was issued for $2,500 and 1 per cent, thereof would be $25. In our opinion there is no difference between “wholly disabled” and “total disability.”

“ ‘Total disability’ is necessarily a relative matter, and -must depend chiefly on the peculiar circumstances of each case and on the nature of the occupation or employment and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith. Id. [6 Cooley’s Briefs on Insurance (2d Ed.)] 5539.
“The term ‘gainful occupation’ is likewise a relative one; the insured’s occupation and earning capacity at the time the policy issued was in contemplation of the parties — what would be a ‘gainful occupation’ for one may not be such for another.” Great Southern Life Ins. Co. v. Johnson, supra.

See, also, Winters Mutual Aid Association, Circle No. 2, v. Beddin (Tex. Com. App.) 49 S.W. (2d) 1095.

The definition of the word “wholly” complained of is in substantial compliance with the meaning given thereto in many of our court decisions. In addition to the authorities supra, see Fidelity & Casualty Co. v. Joiner (Tex. Civ. App.) 178 S. W. 806, writ denied; North American Accident Ins. Co. v. Miller (Tex. Civ. App.) 193 S. W. 750, writ denied; United States Fidelity & Guaranty Co. v. Hardeman (Tex. Civ. App.) 22 S.W.(2d) 1112, and authorities there cited.

The appellant contends b"y prop-er assignment that issue No. 1 submitted by the court is multifarious because asking in one issue if appellee is wholly, permanently, and continuously disabled.

In view of the language of the insurance contract providing that, in order for appellee to recover, he must show that he had -become wholly and permanently disabled by disease so as to be permanently, continuously, and wholly prevented from performing any work, etc., the court did not, in our opinion, commit reversible error in submitting the issue as he did. Wortham et al. v. Bull (Tex. Civ. App.) 19 S.W.(2d) 211, and authorities cited; City of Abilene v. Moore (Tex. Civ. App.) 12 S.W. (2d) 604.

Appellant’s • assignments attacking the sufficiency of appellee’s pleading and the sufficiency of the testimony on the question of attorney’s fees and penalty are overruled.

The judgment is affirmed.


author: MARTIN, J.

text:
    CHICAGO FIRE & MARINE INS. CO. v. HERRING.
    No. 3896.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    Bean & Duggan, of Lubbock, for appellant.
    Vickers & Campbell, of Lubbock, for ap-pellee.
   MARTIN, J.

Appellee held a fire insurance policy with appellant for $3,600 on a dwelling house located in Mexia, Tex. While the policy was in force, a fire occurred which partially destroyed this building. Appellee claimed damages of $946.48. An adjuster representing appellant, after investigating the loss, executed a written agreement with appellee, reading in part as follows: “And by way of a compromise it is hereby stipulated and agreed that the sound cash value of said insured property immediately preceding the loss and the total loss and damage thereto are as follows: $760.00. * * * Said Insurance Company shall not be held or deemed to have waived any of its rights in the premises nor waived formal proofs of loss.”

Appellant having refused to make payment, appellee filed suit, pleading the terms of his policy and that formal proofs of loss had been waived.

The issues submitted to the jury having been found against appellant, judgment was entered for appellee for $750.

Certain testimony offered in proof of the waiver pleaded was objected to, among-other reasons because it tended to contradict and vary the terms of the written contract mentioned above in that it was therein stipulated that formal proof of loss was not waived, it being claimed that all prior and contemporaneous statements of parties to same were inadmissible to vary its terms. A sufficient answer to this is found in the following answer of the witness to which the above objection was lodged: “Well, after this agreement was signed and the $760.00 was agreed on as the amount they were to pay me, I asked Mr. Goodwin and Mr. Cox if there was any further papers that they required me to sign, that I was leaving the next morning for Lubbock and it was about five hundred miles out there and I didn’t want to have to come back down there to sign any papers and if there was any other papers that they wanted, I wanted to sign them then, and they both told me that there was not nothing else necessary; they said, ‘that is all that is necessary and now you can go ahead and repair your house.’ ”

We are further of the opinion that there was evidence to support the pleaded defense of a waiver of formal proofs of loss, which it affirmatively appears was never made by appellee.

That such provision may be waived is too well settled to require the citation of authorities. The courts are reluctant to declare a forfeiture on .this ground alone. Continental Ins. Co. v. Nabors (Tex. Civ. App.) 6 S.W.(2d) 161, 156, and authorities there cited. Generally it may be stated that a formal proof of loss may be waived by the insurer lulling the insured into believing that such will not be required. 26 C. J. 396; Jenkins v. Franklin Fire Ins. Co., 282 Pa. 380, 127 A. 836.

We are not completely convinced that the evidence objected to necessarily contradicted the terms of the instrument above quoted; such purported only, if fairly construed, perhaps, to protect the insurer against a waiver of formal proof of loss arising from the fact that it had signed this instrument agreeing on the cash value of the property. It seems doubtful If it was sufficiently broad to cover a waiver based upon any and all other causes. It is, however,’ not fiecessary to specifically decide this.

The quoted statement appearing to have been made subsequent to the signing of the instrument in question was admissible. Believing the evidence sufficient, the judgment is affirmed.


author: VAUGHAN, J.

text:
    BROWN et al. v. COFFMAN et ux.
    No. 11057.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 5, 1932.
    George Hagans, of Denison, for appellants.
    J. H. Randell, of Denison, and Randell & Randell, of Sherman, for appellees.
   VAUGHAN, J.

This is an appeal from a judgment rendered in the habeas corpus proceedings brought ■by appellants Babe Auburg Brown joined by her husband, Robert A. Brown, against appel-lees, T. F. Coffman and wife, Minnie Coffman, on February 2, 1931, for the possession, care, and custody of Peggy Irene Auburg, the minor daughter of said Babe Auburg Brown. As to the pleadings of the parties, we find it only necessary to state that all of the issues determined by the trial court were amply and well presented, and are fully reflected in the findings of fact by the trial court, same being adopted as the findings of fact by this court. The writ of habeas corpus was issued by the court on February 4, 1931, and the case tried without a jury on February 10, 1931, judgment on said date being rendered in favor of appellees; the personal care, custody, and control of said minor child being awarded to them. On request, the court duly made and filed his findings of fact and conclusions of law, as follows:

"Findings of Fact.
“1. Peggy Irene Auburg, a girl, now about years of age, was bom out of wedlock at the Barachah Home, at Arlington, Texas, March 25th, 1926.
“2. That Babe Auburg Brown, proponent, is the lawful mother of the said Peggy Irene Auburg.
“3. That the said Babe Auburg Brown (appellant) voluntarily abandoned said child when it was of the age of six months, and left it to the care of others for a period of more than three years, and that she voluntarily left it to be cared for by charity for a period of more than three years.
“4; That said child was taken for the purpose of adoption by the direction and with the consent of the mother, in good faith, by .respondents (appellees) T. F. Coffman and wife, Minnie Coffman, from the said Barachah Home on the 28th day of Jany. 1928, and has remained in their care as their child at their home, to the present time.
“5. That on the 2nd day of February, 1931, respondents (appellees) legally adopted said child, as their legal heir in good faith and have provided it with a good home, and given it their love and proper care and training.
"6. That said child'loves its adoptive parents as its true parents, and knows no other parent. That the said lawful mother never saw said child after it was six months of age until a few days before the trial of this cause, but returned to the home of her parents at Brownfield, Texas, where she now lives and refused to give the child a home.
“7. That respondents are better able to care for and educate said child than proponents, and that it is to the best interests, welfare and happiness of said child to remain as it is with its adoptive parents.
“Conclusions of Law.
“1. Because of the voluntary abandonment of said minor child by its lawful parent and the leaving of it to be cared for by charity and others for a period of more than three years; and because of the adoption of said child after that time in good faith by respondents, as a matter of law, they are now legally entitled to the parental care, custody, control and possession of said child, and proponents are now estopped from claiming her, and have no legal right to her possession and care.”
We think the judgment of the trial court should be affirmed, because (a) the parent of the child voluntarily deserted the child for m'ore than three years'; (b) appellees legally adopted the child as their heir; and (c) as found by the court, it is to the best interest of the child that she remain with appellees. Articles 42, 43, and 44, R. C. S.; Davis v. Sears (Tex. Com. App.) 35 S.W.(2d) 99, 100; Tunnell v. Reeves (Tex. Com. App.) 35 S.W.(2d) 707; Duckworth v. Thompson (Tex. Com. App.) 37 S.W.(2d) 731; Legate v. Legate, 87 Tex. 248, 28 S. W. 281.

The father of the child is not appellant Robert A. Brown; the natural parent of the child being Babe Auburg Brown. We think it well to state that this cause arose and was determined before title 3, R. C. S. 1925, known as our adoption statute, was repealed by Acts of 1931, 42d Legislature, p. 300, c. 177, § 11, and an entirely different statute adopted, known as the “Adoption of Minor Children,” which became effective ninety days after May 23, 1931, the date of the adjournment of the Forty-Second Legislature (Vernon’s Ann. Civ. St. art. 46a).

The judgment of the trial court is in all things affirmed.

Affirmed.


author: ALEXANDER, J.

text:
    SAYEG v. FEDERAL MORTGAGE CO.
    No. 1237.
    Court of Civil Appeals of Texas. Waco.
    Oct. 13, 1932.
    Rehearing Denied Nov. 25, 1932.
    See, also, 16 S.W.(2d) 567.
    A. R. Stout, of Ennis, and L. M. Rice, of Dallas, for appellant.-
    Will Hancock, of Waxahachie, Reid & Erhard, of Dallas, and Thompson, Knight, Baker & Harris, of Dallas, for appellee.
   ALEXANDER, J.

This suit was brought by Federal Mortgage Company against John M. Sayeg to recover the sum of $1,500 evidenced by a check given by the defendant to the plaintiff. At the time of the filing of the suit, two writs of garnishment were sued out, and the defendant’s bank accounts in two of the banks in the city of Ennis were impounded. The defendant, in addition to denying liability on the check, reconvened for damages for the alleged wrongfully suing out of the writs of garnishment. The verdict of the jury on special issues was favorable to plaintiff on both the original suit and the cross-action, and judgment was entered accordingly. The defendant appealed.

In 1926 the appellant procured a loan from the appellee secured by a lien on certain real property in the city of Dallas. In 1927 the appellant, desiring to pay off the loan prematurely, agreed to pay the appellee a bonus of $1,500, and for this purpose executed and delivered to appellee his check for that amount. Immediately after securing a release of the lien on the property he stopped payment on the check. The appellee filed suit and caused the two writs of garnishment to issue. The jury, in addition to finding that the appellant was liable on the $1,500 check, found that the writs of garnishment were not wrongfully sued out.

The appellant presents thirty-two assignments of error, but it will not be necessary to discuss all of them. The appellant contends, among other things, that the court erred in refusing to allow appellant to give evidence as to the amount anti kind of property owned, by him at the time the writs were sued out. The appellee, in order to secure the writs of garnishment, was required to and did, through one of its agents, make affidavit “that the defendant has not, within his knowledge, property in his possession within this State, subject to execution, sufficient to satisfy such judgment.” Revised Statutes, art. 4076. If the facts stated in the affidavit were untrue, the writs of garnishment were wrongfully sued out. Barr v. Cardiff, 32 Tex. Civ. App. 495, 75 S. W. 341 (writ refused).

The affidavit for garnishment was made on December 16, 1927, and the writs were issued the following day. The evidence shows without dispute that, at the time of securing the original loan in November, 1926, the appellant delivered to the appellee a financial statement in which it was shown that appellant owned, free of incumbrance, the following property: Homestead in the city of Ennis, $12,000; real estate lease in Dallas, $125,000; business houses in Ennis, $175,000; personal property, stocks and bonds, $65,000; and an annual income of $20,000. On November 9, 1927, approximately one month before the writs were sued out, appellant delivered to appellee another financial statement showing that he had the same income and owned the same unin-cumbered property as that shown in the 1929 statement, except that the Ennis property was omitted therefrom. The appellee had these financial statements in its possession at the time the writs were sued out. Appellee’s principal officers also knew that a few days before the filing of said suit appellant had sold a house and lot in the city of Dallas for $60,000 cash, and, in addition, had received unincumbered real estate in the city of Dallas valued at $15,000; $45,000 of such. cash payment was paid to appellee in discharge of its debt. The appellee’s office was in the city of Dallas. With the record in this condition, the appellant offered to testify that, at the time the writs of garnishment were sued out he still owned all the property listed ⅛ his financial statements, including the five business houses in the city of Ennis of the reasonable value of $175,000, and that all of such property was free of incumbrance. The court excluded the testimony. We presume this testimony was excluded on the theory that there was no direct evidence showing that appellee knew that appellant still owned the property in question. The amount and kind of property actually owned by the appellant at the time the writs were sued out was very material on the question of whether or not appellee or its agents knew that appellant owned property in this state subject to execution sufficient to satisfy its debt. This is particularly true in view of the fact that ap-pellee had been advised approximately one year prior thereto that appellant owned such valuable real property in a county adjoining the county in which appellee’s home office was located. A slight examination of the deed records would have easily disclosed whether or not appellant still owned the property at the time the writs were applied for. All of these circumstances should have gone to the jury in order to enable the jury to properly draw the conclusion as to whether or not the writs of garnishment were wrongfully sued out.

While counsel for the appellee was making his closing argument to the jury, he made the following statement: “Whoever heard of stocks and bonds being subject to execution or garnishment? How could stocks and bonds be reached by any process of the law? Whoever heard of a lease being subject to execution and garnishment? He had his worldly goods so tied up that they were not ■subject to the process of the law, and could not be reached by legal process. I submit to .you gentlemen that we only did what we had to do, and that we were justified in getting our money in any way that we could.”

The appellant objected to this argument because the same was prejudicial and unwarranted by the facts. The court overruled the objection. There was no testimony that the appellant “had his worldly goods so tied up that they were not subject to the process of the law, and could not be reached by legal process.” Such argument was condemned by this court in Bruyere v. Liberty National Bank of Waco, 262 S. W. 844.

The other errors complained of will not likely arise in the same manner upon another trial. On account of the errors hereinabove pointed out, the judgment of the trial court is reversed, and the cause remanded for a new trial.


author: PER CURIAM.

text:
    MID-CONTINENT LIFE INS. CO. v. WHITE.
    No. 3981.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    Rittenhouse, Webster & Rittenhouse, of Oklahoma City, Okl., and J. M. Marshall, of Lubbock, for plaintiff in error.
    Levens, McWhorter & Howard, of Lubbock, for defendant in error.
   PER CURIAM.

This suit originated in the Ninety-Ninth district court of Lubbock county and the action is based upon a life insurance policy. The case was submitted to a jury upon special issues, and resulted in a judgment in favor of White for $2,099.78. .

The order overruling appellant’s motion for new trial was entered the 24th day of June, 1932. A supersedeas bond was filed July 13,1932, but the transcript was not filed in this court within sixty days from June 24th. The appellant filed its petition for writ of error and bond in the trial court on September 19, 1932, which constituted an abandonment of its appeal, even if the time had not expired in which the record should have been filed in this court. On September 26th, the appellee filed motion to affirm on certificate, and on October 1st filed a motion to dismiss the writ of error proceedings.

The appellant insists that, because its writ of error proceeding was filed in the trial court before the motion to affirm on certificate was filed in this court, we erred in affirming the judgment and in dismissing the writ of error.

There is some conflict between the decisions of the Courts of Civil Appeals with reference to a situation of this kind, but the rights of the parties are stated in 3 Texas Jurisprudence, §§ 18 and 533.

In section 18 it is stated: “The right of a party to abandon an appeal or proceeding in error and then sue out writ of error is subject to the limitation that he may not resort to both methods of appeal for delay only and to the right of the appellee to have the judgment affirmed on certificate if the transcript was not filed within the time prescribed by statute and the motion is timely. When appeal is perfected by filing a supersedeas appeal bond, the appellant cannot thereafter defeat the appellee’s right to an affirmance on certificate by abandoning his appeal and prosecuting a writ of error to the same term after time for filing the appeal had expired.”

In section 533 the rule is stated thus: “An appellee is not entitled to an affirmance when the appellant abandons his appeal and sues out a writ of error if the transcript in the writ of error proceedings is filed within ninety days” [60 days] “allowed by law for filing a transcript on appeal. But the right of an appellant to abandon his appeal and sue out a writ of error, or of a plaintiff in error to abandon his writ of error and sue out another one, is subject to the right of the appellee to have the judgment affirmed on certificate. If the transcript on an appeal is not filed in time the right to an affirmance is not affected by the fact that the appellant intends to take the case to the appellate court by writ of error, nor by the fact that he subsequently sues out a writ of error and files a transcript thereon.”

The texts just quoted are supported by Welch v. Weiss, 99 Tex. 356, 90 S. W. 160; Scottish Union & Nat. Ins. Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Davidson v. Ikard, 86 Tex. 67, 23 S. W. 379; Perez v. Garza, 52 Tex. 571; Wandelohr v. Grayson County National Bank (Tex. Civ. App.) 90 S. W. 180; Ward v. Scarborough (Tex. Com. App.) 236 S.W. 441; and numerous decisions by the Courts of Civil Appeals which have been approved.

Appellant has filed motions for rehearing on both our orders affirming the judgment of the lower court on certificate and dismissing the writ of error.

For the reasons stated above, both motions for rehearing are overruled.


author: HALL, C. J.

text:
    OVERTON v. RAGLAND et al.
    No. 3894.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 2, 1932.
    Rehearing Denied Nov. 23, 1932.

      Bean & Klett and Tom Garrard, all of Lubbock, for appellant in error.
    Vickers & Campbell, of Lubbock, for appel-lees.
   HALL, C. J.

This case is before us upon a second appeal. It was tried the second time without an amendment of pleadings and upon practically the same testimony as before. For the sake of brevity, we refer to our former opinion in 44 S.W.(2d) 768, for a statement of the issues and the rules of law which in our opinion control the rights of the parties. We also made a brief summary of the testimony bearing upon the issues, and we refer to the former opinion for a full understanding of the case, to which this opinion will be little more than a supplement.

Upon the second trial the case was submitted to a jury upon special issues, and the trial resulted in a judgment canceling the restriction under which .the Raglands would have been prohibited from erecting a business house upon the lots in question.

The first three propositions are predicated upon the action of the trial judge in refusing to direct a verdict for Overton. These propositions were urged upon the first appeal where, in effect, Overton contended that the court correctly directed a verdict in his favor. For the reasons stated in the first opinion, they are overruled.

When the ease was reversed at a former •term, it was for the purpose of submitting issues to the jury for their determination: (1) Whether, in view of the changed circumstances, conditions, and surroundings, the plaintiffs were in equity entitled to have the restrictions removed as to their two lots; (2) whether there had been a waiver of the restrictions ; and (3) whether there was ever a general plan or scheme on the part of the defendant to restrict the whole of Broadway to residential purposes.

The first special issue submitted is as follows: “Do you find by a preponderance of the evidence that the changes, if any, in the vicinity of the lots in question, shown by the evidence, have rendered the said lots réason-ably unfit for residential purposes?”

Overton had requested the court to submit this issue: “Do you find that the changes, if any, shown by the evidence, have rendered the lots reasonably unfit for residential purposes?”

It will be seen that the material change the court made in submitting this issue was in restricting the changes to the vicinity of the lots in question; so the issue submitted by the court was more favorable to Overton than the one prepared and presented by him.

The second special issue is as follows: “Do you find by a preponderance of the evidence that the defendant Overton has knowingly permitted and acquiesced in a change, if any you find, of Broadway Street from Avenue Q to College Avenue (not including the Jackson property) from a residential street to a business street?”

This second issue is identical with one of the issues requested by the defendant Over-ton, with the exception that the court prefaced it with “do you find by a preponderance of the evidence.”

These issues are attacked by appellant upon several grounds; the principal one being that there was no pleading by plaintiff to the effect that Broadway street has changed from a residence street to a business one.

The general rule is that a litigant on appeal or writ of error may not seek a reversal for error which he himself has committed or invited, even though the error is fundamental. 3 Tex. Jur. 1031, § 731.

The appellant filed no demurrer to the appellees’ petition upon the ground that a change of conditions had not been sufficiently alleged. The allegation is: “Broadway Street is a main thoroughfare and intersects Oollege Avenue where plaintiffs’ lots of land are located and such is the main entrance into the grounds of the Texas Technological College for all traffic in and to the college and to the respective business establishments along said College Avenue.”

And they further alleged that, at the time the original deed containing the restrictive clauses was executed, Lubbock was a town of 2,000 or 3,000 people, since which time Tech. Oollege had been constructed at a cost of approximately $3,000,000, which was attended by about 2,000 pupils, and that the town had since grown to become a city. If there is any question about the sufficiency of these allegations to show a change, the appellant has waived them by not urging his demurrer, and the insufficiency of the petition cannot be raised after verdict and judgment. Southern Casualty Co. v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533. ⅜

There is no objection to any testimony introduced' for the purpose of showing the change in conditions, circumstances, and surroundings since the execution of the original deed from Overton to Wheelock. Appellant not only permitted the evidence to be introduced without objection, but requested the above-quoted issues, thereby inviting the error of which he now complains. It is settled that under such circumstances the party who invited the error, as in this case, cannot complain in the appellate court -because there are no pleadings authorizing the submission of such an issue. Gladys City Oil G. & Mfg. Co. v. Right of Way Oil Co. (Tex. Civ. App.) 137 S. W. 171; Texas & N. O. R. Co. v. Geiger, 55 Tex. Civ. App. 1, 118 S. W. 179.

Upon the issue of changes in the conditions, circumstances, and surroundings, the appellant insists -that, because there is testimony which shows that his lots still have a value of $3,000 as residence property, it does not show that they were not reasonably fit for such purposes.

The court, in the case of Johnson v. Poteet (Tex. Civ. App.) 279 S. W. 902, 905, in discussing the effect of changed conditions, quoted from Pomeroy’s Equity (3d Ed.) 2596, as follows: “The equitable jurisdiction to enforce such covenants is subject to one most important limitation. It is not absolute, but is governed by the same general rules which control -the equitable relief of specific performance of contracts. If, therefore, the restrictive covenants in deeds of lots were made with evident reference to the continuance of the existing general condition of the property and its surroundings but in the lapse of time there has been a complete change in the character of the neighborhood, so as to defeat the purposes of the covenants and to render their enforcement an inequitable and unjust burden on the owner of the lots, then the equitable relief will not be granted, and the plaintiff will be left to his remedy at law. For example, if the covenants restricted the grantees of lots to use for purposes of residence, and since their execution the whole neighborhood had ceased to be used for such purposes and had been wholly given up to business, manufacturing, and the like” — citing Clifton George Co. v. Great Southern, etc., Co. (Tex. Civ. App.) 234 S. W. 705.

The record shows: That prior to 1908 appellant Overton purchased a section of land adjacent to and immediately west of the section upon which the town of Lubbock was situated. That he had plotted thereon what was known as Overton’s addition to the town. That Broadway, as shown upon the map, extended west from the town section through Overton’s section to the next section west, which latter section was used for farming purposes and continued to be a farm until about the year 1925, when Texas Technological College was established on the section lying immediately west of Overton’s section. Upon the establishment of the college, an avenue called College avenue’ was established along the east line of the college section, separating said section from the Overton addition and intersecting Broadway at right angles. Until the establishment- of- College avenue, the farm upon which the college now stands was the west end of Broadway. Since 1925 the state has spent several million dollars erecting buildings and other improvements upon the college section. The record shows: That more than 2,000 pupils attend the college annually, and that the number is increasing from year to year. That College avenue is practically a business street, and only business -houses have been erected thereon in the vicinity of the lots in question. That the trafile at the time of the trial along Broadway was fifty times more than when said street was merely a residence district and prior to the establishment of the college. That in the vicinity of the college numerous boarding houses, apartment houses, and places of amusement have become permanently established. That Broadway is a portion of three different federal aided state highways leading out of Lubbock to College avenue, at which point two of them turn south and one north. The same witnesses who estimated the value of the lots in question at $3,000 for residence purposes say they are worth $15,-000 for business purposes. Across the street south from the lots in question is what is known as the Tellow House Tea Room, where the owner serves from 75 to 100 meals per day, and has operated it for the past three years with little or no protest from Overton. Inspection of the map shows that the lots in question are near to, if not the center of, the business district, which has grown up in their vicinity since the establishment of the college. In addition to business houses and boarding houses, two peewee golf courses and a grocery store are near the lots in question, and the record shows that the golf courses were extremely popular places of recreation and amusement. Before the establishment of the college, it appears that Broadway was used only for such traffic as is incident to all streets in residence districts of small towns. Now, in addition to busses for carrying passengers, trucks for hauling freight, Broadway is used for commercial purposes and by numerous tourists and pleasure seekers. The map shows that the main entrance to the campus and grounds of the college is directly west of and across College avenue from the west end of Broadway, that- during baseball and football games vast multitudes pass in and out of the college grounds, and that Broadway is by far the busiest and most-traveled thoroughfare of the city.

We will not unnecessarily lengthen this opinion -by again quoting from the authorities set out in our opinion on the former appeal, and do not hesitate to say that the jury’s findings with reference to the changed conditions are amply supported by the testimony. Block 99, upon the southwest corner of which the two lots in -question are situated, has thirteen business establishments fronting north on Main street, which runs east and west and parallel with Broadway. Changed conditions in a neighborhood brought about by agencies outside of the parties themselves will terminate a building restriction limiting or restricting property in use for residential purposes only. Abernathy v. Adoue (Tex. Civ. App.) 49 S.W.(2d) 476.

We overrule all propositions attacking the sufficiency of the evidence to support the findings of the jury upon the issue of a change in surrounding conditions, and we concur in the conclusion that, because of this change, the lots were rendered reasonably unfit for residence purposes.

The court did not err in failing to define the word “vicinity” as used in the first special issue. In the first place, it is not a technical, legal term. Besides, its use by the court was to limit the consideration by the jury to facts showing changed conditions, which was favorable to the appellant.

Special issue No. 2 is not subject to any of the objections urged in the ¡briefs.

The next contention, under several propositions, is that appellant, Overton, has not waived the restriction and is not estopped from asserting its validity in this action. The language of the restriction as set out in 44 S.W.(2d) 768, 769, limits improvements by vendees of lots in the district to residences costing not less than $1,500, and contains this provision, “and it is expressly declared that in case this condition is broken by the grantee,, his heirs or legal representatives this ’deed shall become null and void and, the title to the premises herein conveyed shall revert to the grantor, his heirs or legal representatives.”

This action is filed only against Overton, the original grantor. No vendee of any other lot in the restricted district has intervened or been made a party to the action, and, since the restriction and reversionary clause in the event of a breach seems to indicate that it is personal to Overton, it is questionable whether other grantees could intervene. We do not, however, decide that point.

As said in Goodman v. Bingle (Tex. Civ. App.) 48 S.W. (2d) 432, 433: “As indicated, the language of this restriction appeared alike only once in the respective chains of title of these parties, that is, in the deeds from the land company conveying their several properties to their remote grantors, there being no restrictions in the immediate deeds to either of them; it imports a condition subsequent, enforceable by the land company alone, as the explicitly recited penalty for the breach thereof itself makes manifest — the forfeiture of the grantee’s rights, and ‘that the title to the land described herein in such event shall immediately be reinvested by force of this deed in the Omaha and South Texas Land Company, in fee simple without necessity for other further proceedings.’ There are in it, furthermore, neither specific provisions investing other lot owners with the enforcement of what was thus reserved as a distinctly individual right in the original grantor, nor declaring that the burdens imposed in the particular deeds are either part and parcel of a general plan to restrict the entire Heights boulevard, or are intended for the benefit of other vicinal owners therein; it must therefore be construed as was a similar restriction in Pierson v. Canfield (Tex. Civ. App.) 272 S. W. 231, 233, where the court said: ‘It will be observed that the restrictions contained in the deed, under which appellant * ⅜ ⅜ claims, are in form and meaning conditions subsequent. The conveyance by its terms provides that, should any condition be violated, the title to the lot of land shall revert to the grantors, their heirs, or assigns.’ ”

In response to a special issue requested by Overton, the jury found that there was a general agreement, scheme, or plan on the part of Overton and other property owners on Broadway street from Avenue Q to College avenue, “not including the Jackson property,” to restrict said street to residential purposes only.

It is not clear that the language of the restriction itself supports this finding, but rather it would seem the restriction was inserted for the purpose of causing a reversion of the title in the event of its breach.

In our former opinion we quoted from 12 Tex. Jur. pages 150, 168-173, announcing the rule that, where a grantor sues upon the theory that his lots were sold pursuant to a general plan or building scheme, he must show that such a plan or scheme existed, that the presumption was that conveyances import the greatest possible estate compatible with the language of the deed, and that the existence of such a general scheme depends, not upon the intent of the common grantor alone, but upon the joint intent of the grantor and the grantees. It is there further held that uniformity in the restrictions imposed on the lots is one of the strongest proofs of the existence of a building scheme, and that a grantor may waive his right by acquiescing in a violation of the restrictions.

The record shows without contradiction that Overton had conveyed 33 of the lots within the restricted district which did not contain the restrictive clause found in the appellees’ deed. This is some proof of the absence of a uniform scheme or plan of restriction, and such fact is sufficient to support the finding of the jury that the restriction had been waived.

After a careful review of the record, we are convinced that a proper judgment has been rendered, and it is affirmed.