author: HALL, C. J.

text:
    UNITED FIDELITY LIFE INS. CO. v. HANDLEY.
    No. 3887.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1932.
    Rehearing Denied Nov. 9, 1932.

      Leake, Henry & Young, of Dallas, and J. I. Kilpatrick, of Lubbock, for appellant.
    Bean & Klett, of Lubbock, and O. H. Cain, of Tahoka, for appellee.
   HALL, C. J.

The appellee, as the widow of M. L. Hand-ley, instituted this suit against appellant insurance company to. recover upon a policy of life insurance which she alleges had been issued to her husband.

She alleges that on September 29, 1931, the local agent of the company mailed his check, drawn for the amount of the premium, to the company; that on September 30, 1931, her husband was killed, and that some time during the same day the policy sued upon was filled in and signed by an officer of the company, but was never actually mailed to or delivered to M. L. Handley; that said check for the premium was retained by the company until October 6th, and returned to the agent because the company received notice of the death of Hand-ley, by reason of which facts a valid and binding, contract of life insurance and double indemnity accident insurance was entered into between the applicant and the defendant, for the sum of $2,500 life insurance and the further sum of $2,500 double indemnity insurance.

She alleged in the alternative that the application for insurance made by her husband contained this provision: “If the first premium is paid when my application is taken and a policy issued as originally applied for, the insurance shall be effective as soon as my application is approyed by the Company.”

She further alleges that the premium was paid when the application was taken, and that said provision was intended by the parties to become binding upon defendant upon acceptance of the application and the issuance of the policy, even though the policy was never delivered.

She further pleads in the alternative that, if the contract of insurance did not become binding because of the nondelivery of the policy, nevertheless the defendant became bound and obligated by a valid contract to issue and deliver the policy; that it was still bound and obligated to do so, and she prays for judgment for the amount of the policy and in the alternative for damages for failure to deliver it.

The appellant answered by general and special exceptions, general denial, and denied that it had ever issued or delivered the policy sued upon; that the application of. M. L. Handley contained a written statement that no money was paid to the defendant at the time of the execution of the application or at the time the same was sent to the company, and that by the terms of said application no insurance was in force upon his life because of his death prior to the issuance and delivery of the policy; that no policy was issued as originally applied for or at all; that there were various negotiations between the appellant and Handley, but no policy was ever issued or delivered to him during his lifetime and good health; that no agreement was made with him to deliver a policy, unless he should actually pay the premium therefor and should be alive and in good health at the time of said delivery; that, because he died prior to the issuance and delivery of the policy, appellant was not liable in any sum; that there was no meeting of the minds of the parties.

The ease was tried to the court without a jury, and resulted in a judgment for plaintiff for $5,000, being the face of the policy, 12 per cent, penalty, and $1,000 attorneys’ fees, with 6 per cent, interest, and all costs of suit.

The first three propositions are mere abstractions, but we have decided to consider them. The complaint under these propositions is that the appellant was denied a trial by a jury.

The bill of exceptions recites that, before the parties had announced ready for trial, and before appearance day of said cause, plaintiff paid a jury fee, which fact was noted on ihe judge's docket sheet; that the defendant filed its written demand for a jury before announcing ready, and tendered ,the Sium of $5 as a jury fee, to the clerk. The court overruled the appellant’s demand folr a jury, to which action the appellant excepted. The trial judge qualified the bill in part as follows: That plaintiff’s original petition was filed December 15, 1931, and amended on January 26, 1932. That the term of the court following commenced February 15, 1932, and February 16th was appearance day. That prior to the term of the court defendant agreed to waive service of citation and filed its answer February 17th. Amended answer was filed on February 19th. That, when the appearance docket was called on the morning of February 16th, defendant did not appear by attorney or otherwise. That prior to the term of court one of the attorneys for appellee paid the clerk the jury fee of $5. That upon the call of the case, at the time the appearance docket was being sounded, plaintiff’s attorney stated that the plaintiff did ■not desire a jury, and asked that the case be set for trial so that he could notify the defendant’s attorney of the date of setting. That no application was ever made to the court by either party to have the case put on the jury docket, and the case was set for Thursday morning, February 18th. .Defendant’s attorney was wired, and in the afternoon of Tuesday defendant’s attorney called plaintiff's attorney over long distance ’phone, and protested against being rushed into the trial, further stating that he might have to be in court at Dallas on Thursday, and insisted on additional time, saying he would try to be there either Friday or Saturday. After communicating with the court, the trial was set for Friday, and defendant’s attorney was wired to that effect. That on the morning of February 19th defendant appeared and asked for a postponement until 1 o’clock p. m., which was granted. At the appointed hour, plaintiff announced ready, and defendant’s attorney stated that defendant desired to postpone the case, and for the first time stated that defendant wanted a jury and wanted the case placed on the jury docket. The court’s qualification further shows that Lynn county has two terms of district court each year, of four weeks each; that the first week. was non-jury week, and the remaining three weeks were set for trial of jury cases. That the court had not disposed of much of the business on hand at the previous term. That the second and fourth weeks were set aside for trial of criminal cases, there being thirty or more of such cases to be tried during the two weeks. That some of them were murder cases. That there were also a num,ber of civil cases for trial during the third week, which would probably consume the entire week, and that in the opinion of the trial jpdge announced from the bench a postponement of the case for trial before a jury would result in its continuance for the term.

R. S. art. 2125, provides that any party desiring to have his case tried by jury shall make an application therefor in open court on the first day of the term at which the suit is to be tried, unless the same be appearance day, in which event the application shall be made on default day.

It is conceded that the appellant made no effort to comply with the requirements of article 2125. The fact that one of appellee’s counsel paid the jury fee prior to the opening of the term is of no consequence, since on the day when the statute requires a party to call for a jury her attorneys an- ■ nounced in open court that they did not desire a jury trial. It is true that, if appellant had known that appellee had applied for a jury, and for that .reason appellant did not ask for one, appellee would be estopped from waiving her right to a jury on appearance day; but there is no element of es-toppel in this case, and appellant seems not to have desired a jury until its cormsel reached the court and found the condition of the docket. It has been held that the statute cited above is not mandatory, but that the trial judge, in the exercise of a sound discretion, may permit either party to call for a jury at a later date in the term, provided, however, it will result in no injustice to the other party and work a continuance of the ease. The qualification appended to the bill of exception by the court shows that the granting of appellant’s motion to have the. case placed upon a jury docket would have resulted in a continuance. Having accepted the bill with this qualification, appellant is bound by it. Therefore no error is shown in this particular.

The material stipulations upon which the defense is based and around which this contest is waged are contained in the application, and are as follows:

“I agree * * ⅜ that if the first premium * * * be not paid to the agent at the time of making this application * * * the insurance shall not be effective until the policy is delivered to and accepted by me and the first premium thereon actually paid during my life time and good health.”
“(b) If first premium is paid when my application is taken and the policy issued as originally applied for, the insurance shall be effective as soon as my application is approved by the Company.”

From the letter of the appellant’s Assistant Treasurer Weatherford, it appears that the life premium was $71.66, the double indemnity premium was $4.38, and the initial term premium was $5.83.

The material facts upon which a determination of the contentions urged under the fourth, fifth, and sixth propositions depend are uncontroverted. These facts we briefly state as follows: August 12, 1931, Major Lee Handley signed a written application addressed to the appellant company for a policy of insurance upon his life in the sum of $2,500 and the further, sum of $2,500 double indemnity in ease of accidental death. This application was mailed to and received by the company on August 14th, and contains the stipulations set out above. The application was not accepted when received, and on August 26th the medical director of the company wrote Fenton, its local agent at Tahoka, where the,; application had been signed, that a complete examination of the applicant would be necessary before the company would proceed further with the case, and that the applicant would have to go Joefore a local physician at Tahoka for medical examination. Later, on the 26th day of September following, the assistant treasurer of the company wrote local agent Fenton that, as he [Fenton] had been previously advised, the risk committee of the company did not consider the applicant Handley a standard risk, but stated that the company had been able to secure coverage [reinsurance] with another company upon the basis of an extra premium of $10 per $1,000 for the first year on the $2,500 straight insurance; that, if a policy were issued, there would have to be a revision of the amount of the premium, as the premium was figured in the application made 'by the applicant, and further requested the agent to ascertain if the policy could be delivered on the basis of the premium outlined in the letter. Fenton had a conference with Handley, and on September 29th replied to the company’s letter of September 26th, as follows: “Mr. Handley has consented to take this policy provided the extra rate of $10.00 per $1,000.00 is for only one year. He also does not think that yon should charge him for the initial term premium as the time under the initial term has practically expired and he has'had no protection. He thinks that you should change the date of his application and let the premiums mature annually from this date. I told him I would take this matter up with you but could not promise him what action you would take. I am enclosing check for $49.69 to cover the, nets on $2,500.00. Do not issue extra policy as I cannot deliver it under the extra rate.”

Fenton, the local agent, testified that he took tlm company’s letter of September 26th to Handley, and submitted it to him, and “he said he would take it after I explained it to him.” He further testified that the letter of September 29th, which he wrote to the company, stated the agreement he had with Handley with regard to the acceptance of the terms in the company’s letter of September 26th.

A proper construction of stipulation (b) quoted above is that it relates to initial term insurance which was to become effective as soon as the application was approved by the company, and the appellee insists that under this stipulation delivery of the policy before the death of Handley was not required. The appellant contends that the stipulation in the application to the effect that the insurance should not be effective until the policy was delivered and the first premium actually paid during the lifetime of the applicant is an effectual bar to the appellee’s right to recover, because the first premium was not paid at the time the application was made. Appellant further insists that under said provision •the delivery of the policy was necesary before the insurance became effective, because the uncontroverted testimony is that the policy was never delivered and never mailed to the appellant or the agent for delivery. We cannot assent to these propositions, and they are not sustained by the record. The original application had been received by the company more than a month before September 26th, and it is conceded that it was not accepted and no policy was issued thereon, because, as stated in the letter of that date, Handley was not a standard risk. But in that letter the company states that it has secured reinsurance with another company, provided an extra premium of $10 per $1,000 is paid for the first year on the $2,500 insurance applied for, and in the letter it is further proposed to issue the company’s policy by allowing the agent 75 per cent, commission on the life premium, the usual commission on the double indemnity, 25 per cent, commission on the initial term premium, and no commission on the extra premium. The letter further requests the agent to ascertain if the policy can be delivered to Handley on the basis stated, and, if so, to remit “nets” to cover. Handley was consulted by the agent, and we construe the agent’s letter of September 29th in reply to the company’s letter of September 26th, as an acceptance of the proposition contained in the letter of September 26th, in so far as they applied to him. This construction is further sustained by the un-contradicted fact that the agent inclosed his check to the company for the “nets,” which, in other words, was that part of the first premium due the company. If is true that the agent stated in his letter of September 29th that Handley consented to take the policy, provided the extra rate of $10 per $1,000 was for only one year. He paid that amount at that time to the agent, who accepted it, and the company’s part of that $25 was included in the agent’s check for $49.69, which the company received on the morning of September 30th. The agent further states that Handley “does not think” that he should be charged for the initial term premium, and further that “he thinks that you should change the date of Ms application and let the premiums mature annually from this date.” These are not counter proposals, and Handley did not make them conditions precedent to the formation of the contract, else he would not have paid the full amount on that date, and it is clear that the company did not consider them as counter proposals, because, upon receipt of the agent’s letter of September 29th, containing the remittance of its share of the first premium, the company wrote up the policy, which was not delivered because only, as stated by the company’s agent, notice of the death of Handley on September 30th had been received. Turner v. Kiverside C. O. Co., 113 Tex. 143, 252 S. W. 1060, 1061; International Filter Co. v. Conroe Co. (Tex. Com. App.) 277 S. W. 631. The fact that the policy was written up ready to be delivered is a practical construction of the contract showing that its officers considered that' the terms of insurance had been finally agreed upon, and that there was no further condition precedent to be complied with. We think the facts show that the contract had been completed, the premium paid, and that liability had attached, notwithstanding the fact that the policy was not delivered because notice of the death of Handley was received by the company before the policy was mailed either to the assured or to the agent. Amarillo National Life Insurance Co. v. Brown (Tex. Civ. App.) 166 S. W. 658; Liberty Life Insurance Co. v. Moore (Tex. Civ. App.) 10 S.W. (2d) 178; Pacific Mutual Life Insurance Co. v. Barton (C. C. A.) 50 F.(2d) 362. The agent testified with reference to the conversation he had with Handley after the receipt of the company’s letter of September 26th: “We were talking about it and he [Handley] said it looked like they ought not to charge for initial term as it was getting late in the year and his premium would be due then. He said he would take it even if they did not strike it out.” This is a clear and definite assent by Handley to all of the proposals made in the company’s letter of September 26th.

This court held in Schubert v. McLain & McLain, 27 S.W. (2d) 846, 848, that the risk under a policy of insurance will be regarded as beginning with the commencement of the contract, citing 2 Cooley’s Briefs on Insurance (2d Ed.) 1397, and said: “It may be stipulated in the application that the risk sliall commence upon a day named therein and in such case the policy will cover a loss occurring before its issuance but after the day so named,” quoting from 2 Cooley’s Briefs on Insurance (2d Ed.) 1372.

It is true that the premium was not paid on August 12th when the application was first filled out and signed, and there was no contract until Handley had read the company’s letter of September 26th, accepted the counter proposition made therein, and settled with the agent for the full amount of the initial term premium and the life premium, together with the $10 per $1,000 extra demanded by the company which reinsured the risk. The agent accepted Handley’s settlement, and this record nowhere discloses any refusal on the part of the company to accept its agent’s check for its “nets.” The company did not base its refusal to deliver the policy after its issuance upon the ground that the premium had not been paid in accordance with the stipulation in the application but refused to deliver it for the sole reason that it had learned of the death of Handley before the policy had been mailed. This check the company received on September 30th and retained it until October 6th, before returning it to its agent. It was shown that the agent had money in the bank to pay the check which was mailed to the company, and that it would have been paid, if presented. The secretary of the home office admitted that the policy had been written up at the home office and was ready to be mailed to the agent when it received information of the death of the applicant. We think these facts show that the premium had been paid and accepted. They further show that Handley was ready to receive the policy when tendered to him, and, if necessary, to sign a second application drawn in accordance with the terms of the agreement evidenced by the company’s letter of September 26th and the agent’s' reply on September 29th.

A cardinal maxim of equity is that equity regards and treats as done that which in fairness and good conscience ought to be done or should have 'been done. Applying it to the facts of this case, which are, briefly stated, the minds of the parties- had met upon every term of the contract the consideration for the insurance had been paid to and received by the company, Handley was ready to accept the policy drawn in accordance with the agreed terms and to execute a new applica: tion, if necessary, equity therefore will require the company to deliver the policy, and will determine the rights of the parties as if this had been done. .

Stipulation numbered (b) above, construed in the light of the other provisions of the policy, clearly provides that, as soon as Handley’s application was approved by the company, the insurance would become effective, even though the policy should not be delivered. The annual term would begin when the policy was delivered, and subdivision (b) clearly provides that the insurance should become effective during the initial term, which, of course, expired when the annual term commenced, even though there was no delivery. The agent’s check included the Company’s part of the initial term, and, if it be admitted that Handley died before the annual term commenced, then the contract was complete and delivery was not necessary. American National Insurance Co. v. Blysard (Tex. Civ. App.) 207 S. W. 162; Tayloe v. Merchants’ Fire Ins. Co., 9 How. 390, 13 L. Ed. 187; Ætna Life Ins. Co. v. Dunken, 266 U. S. 389, 45 S. Ct. 129, 69 L. Ed. 350. The stipulation in the application limiting liability to the time when the application was made and the first premium paid was for the benefit of the -company, and could be waived by it, and clearly has been waived by accepting the premium at a later date and by the issuance of the policy. These facts' are set up by the plaintiff, and constitute a waiver of that term . of the contract.

We believe that a correet judgment has been entered, and it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MILLER, Mayor, et al. v. STATE ex rel. MEYERS, County Attorney.
    No. 3941.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 5, 1932.
    Rehearing Denied Nov. 2, 1932.
    , ¿Tos. H. Aynesworth and Hiram K. Aynes-worth, both of Borger, for plaintiffs in error.
    Yance Huff, W. M. Sutton,-a-nd Underwood, Johnson, Dooley & Simpson, all of Amarillo, for defendants in error.
   HALL, C. J.

This is a proceeding praying for a mandamus, instituted by order of the Attorney General in the name of the state of Texas, acting on relation of Henry D. Meyers, the county attorney of Hutchinson county, to require John R. Miller, mayor, and the four commissioners of the town of Borger in said county, to order an election íot the recall of said city officials. Davis, the city manager, and Miss Wiley, the city secretary, were made parties to the suit. .,,

No issue is made upon the sufficiency of the pleadings of, either party. - The petition of the state of Texas contains all the necessary allegations showing that Borger is a municipal corporation, organized under the home rule statutes of Texas, and operating under a written charter, duly adopted by the qualified voters of the city. It is alleged that the governing body of the city is composed of five commissioners; one of said commissioners being the mayor, Miller. There are set out certain sections of the charter which provide for a recall of the mayor and any or all of the commissioners, and these sections, with great particularity, prescribe the prerequisites and formalities to be complied with in calling and conducting said election. It is conceded that all of the formal prerequisites were strictly complied with, and that the recall petitions, containing approximately 400 names, or more than 30 per cent, of the voters of said city, were duly signed and presented to the proper city authorities on, to wit, the 2.2d day of February, A. D. 1932. It is further alleged that thereafter, on March 15, 1932, the said city-council, having received the petitions for recall from the city clerk, entered an order upon the minutes of the city commission, which recites, in substance, that the commission had heard the report of the city manager as to the number of the petitioners; that the acting city attorney had been requested to give his opinion to the council; that, after the opinion had been read and discussed, relative to the power of the commission to pass upon the petitions and order a recall election of themselves, and after they had been advised that they did not possess the power to act therein if they were interested, it was then decided by the commission that they and each of them were directly interested in the recall petitions and the ends which they sought, and it was therefore found by the city commission that they did not have the right or authority to pass upon the same, and it was so ordered by unanimous vote.

: It is then alleged that the city commission in meeting and passing said order acted capriciously, arbitrarily, unlawfully, and fraudulently, and that said action was for the-express purpose of denying and refusing to the citizens of Borger their charter right to have a recall election for the purpose of determining whether or not the present mayor and city commission should be recalled.

It appears that this suit was filed on the first day of the April term of the district court, and, upon presentation to the court, the judge ordered that copies of the petition be served upon each bf the several defendants and set the cause down for hearing at 10 o’clock on April 6th. However, the case was not heard until April 25th. On that day judgment was rendered by the court, after hearing the pleadings and evidence, awarding a peremptory writ of mandamus against the defendants, commanding them to meet on May 3, 1932, and to then and there consider the recall petitions, and, after consideration thereof, to issue an order for a recall election and to give" previous notice thereof in. the manner required by the city charter ahd the laws of the state of Texas; the purpose of said election being to permit the people of Borger to determine whether the mayor and commissioners shall each or all be recalled and that said election be held in said city not less than twenty days nor more than forty days from the 3d day of May, 1932. •

Findings of fact are incorporated in the judgment to the effect that all and every requirement set out in the city charter dealing with the subject of the recall of officers are fully and completely complied with, and this finding is not challenged. The court further finds that the only reason said recall election was not ordered and held was the wrongful acts of the defendants in refusing to consider the petitions upon the ground that to do so and to order the election would be a violation of the Constitution which prohibits any judge from sitting in any case wherein he may be interested.

The appellants’ assignments of error to be first considered challenge the right of the court to hear the controversy at the April term because the suit was not filed until the 1st day of said term, and no citation had been issued or served upon them ten days before the convening of court, for which reason the court had no jurisdiction. ,

We overrule this contention, and think it is clear from the reading of article 1914, Rev, St., under which the district judge acted in this case, that the Legislature did not intend that the general statute, article 2036, should apply and require that citation should be issued in mandamus proceedings and served ten days before the first day of the term of the court to which the suit was filed.

Article 1914 provides that judges of the district courts may, either in term time or in vacation, grant writs of mandamus, injunction, etc. Power to grant the writ in vacation is inconsistent with the idea that citation should be issued as in a suit regularly filed and be served ten days before the first day of the term.

As further governing the procedure in the issuance of a mandamus, R. S. art. 2328, provides that no mandamus shall be granted on ex parte hearing and any peremptory mandamus granted without notice shall be abated on motion.

The implication from the language of this article is that written notice, though not in the form of a citation nor containing all the requisites thereof, is sufficient. This holding is in accordance with the holdings of other courts in Texas passing upon the question. Jones, Mayor, v. Doherty (Tex. Civ. App.) 56 S. W. 596; Bradley v. McCrabb, Dallam Dig. 504; Fitzhugh v. Custer, 4 Tex. 391, 51 Am. Dec. 728; Thorne v. Moore, 101 Tex. 205, 105 S. W. 985; Extraordinary Legal Remedies (Ferris) § 229; 38 C. J. 880, § 595; 38 C. J. 929, § 707.

The court entered judgment decreeing the issuance of a mandamus on April 25th. The suit was filed on April 4th. Notices were forthwith issued citing all of the defendants to appear on the 6th day of April. According to the record, the defendants had more than ten days, before the hearing to prepare for the triaL

Plaintiffs in error further contend that under the Constitution, art. 5, § 11, and laws of Texas, they, as city commissioners, were prohibited from sitting in judgment and passing upon the petition asking for a recall “of themselves.”

This proposition is not sustained by the record. The petition did not ask for the recall of the mayor and commissioners, but its purpose was to have the city commission provide for a recall election. We do not and cannot know what the result of that election, if called, would have been.

It is further contended that, because the city commissioners had passed upon the question of their interest and decided that they were disqualified from acting, such decision was the judgment of a court of competent jurisdiction and was a result of the hearing upon the evidence had and was the exercise of a judicial discretion reposed in them, and that the trial court was without jurisdiction, power, or. authority to award a mandamus based upon the petition filed.

The further contention is that, because the commission had met and considered the questions of fact as to their being interested and found that they were interested in the subject-matter and object of the petition and applied the ■ law thereto, as being interested, they were disqualified from acting, and the trial court was without power to direct them in the exercise of their discretion, and, if they are mistaken in that contention, then a mandamus will not lie directing them in the manner of the exercise of their discretion, nor could the court tell them what judgment to enter; he could only order them to reconvene and proceed to consider the petition in an untrammeled way.

Article 5, § 11, of the Constitution, provides that “No judge shall sit in any case wherein he may be interested” ; and plaintiffs in error interpose this article in justification of the commission’s refusal to consider the petitions asking them to order a recall election.

It must be admitted that there is a want of harmony in the decisions upon the main questions involved in this appeal. The matter of calling an election after being petitioned to do so in compliance with all of the provisions of the city charter and the calling of such an election cannot be held to jeopardize or involve the interest of the city commissioners unless it be assumed that the election would result in their recall. We are not entitled to indulge any such assumption. The charter of the' city of Borger specially provides for elections to be held at stated intervals to determine whether its officials shall be recalled. When the commissioners were elected and accepted their respective offices, they had knowledge of this charter provision, and they must be presumed to have accepted their offices with knowledge of the conditions imposed by the recall provision. It has been held that such provisions in city charters are constitutional. Bonner v. Belsterling, 104 Tex. 432, 138 S. W. 571; Id. (Tex. Civ. App.) 137 S. W. 1154. Our conclusion is that, if all the conditions precedent to the calling of the election had been complied with, no interest, financial or otherwise, of any commissioner was involved by merely ordering the election. It is true that, in inspecting the petitions and reviewing the proceedings incident to such a call, the commissioners would to some extent bo required to exercise official discretion, but, in the case of Parrish v. Wright (Tex. Civ. App.) 293 S. W. 659, 663 (writ of error refused), this court said mandamus is a proper remedy to compel a reasonable exercise of official discretion; it not necessarily following merely because a duty is discretionary the right will not lie, and, further citing, Ferris Extraordinary Legal Remedies, said that: “A ministerial act is one which a person performs in a given state of facts and in a prescribed manner in obedience to the method of legal authority, without regard to his own judgment on the propriety of the act being done. The distinction between ministerial and judicial and other official acts is that, where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but, where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed ministerial. Although mandamus is the appropriate remedy to compel the performance of a duty which is plain, positive, and ministerial in character and clearly imposed by law, it does not necessarily follow merely because the duty is discretionary or that the element of discretion exists in part, that mandamus will not lie. The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reásonably and within his jurisdiction;, that is, upon facts sufficient to support his action.”

In the instant case the commissioners, as shown by the order entered upon their minutes, after a conference with the city attorney, refused to call the election upon the ground that they would, as judges, be sitting in a case wherein they were interested. The effect of this conclusion was to prevent them from exercising any discretion in passing upon the sufficiency of the petitions and the other proceedings upon which their action in calling an election must necessarily rest. The facts upon which they held themselves to be disqualified were simply these: They were commissioners, duly elected and qualified. " By petitions admitted to be legal in every respect, they had been asked to call an election in which the issue of their recall was to be tested by popular vote. If the conditions precedent had been complied with, then the act of entering an order calling the election was a plain ministerial duty. If the election had been called, they may, as officials, have been intereste'd in the result, but the act of calling the election and the results at the ballot box are separate and distinct matters.

The author above quoted further says: “It is well settled that mandamus may properly be invoked to compel a reasonable exercise of official discretion where there is a failure or refusal to. perform such duty resulting from an office, trust or station; that is, an officer may he compelled to act so far as is necessary to an actual exercise of his judgment or discretion in determining whether he ought to do or refrain from doing that which the petitioner desires. Even though an officer have discretion, he cannot simply fold his hands and refuse to do anything.”

Taking refuge behind the constitutional provision, the plaintiffs in error have folded their hands, and, so-far as this record shows, arbitrarily refused to consider the petitions.

It Is not contended that there was any defect or informality in any of the proceedings. Four of the commissioners each testified that merely calling the election would not affect his interest one way or the other unless a majority of the people voting at the election saw fit to recall them from office.

In the case of Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62, 64, 2 Am. St. Rep. 505, Judge Gaines construed a statute (Rev. St. 1879, art. 503a, as amended by Acts 1883, c. 96) which provided in part, as follows: “Whenever fifty qualified voters of any territory within the limits of any incorporated town shall sign and present a petition to the mayor of such city praying that such territory, setting the same out by metes and bounds be declared no longer a part of such town, it shall be the. duty of the mayor thereof to order an election within thirty days thereafter to be holden at the different voting precincts of said town: and if a majority of the legal voters of said town voting at such election, cast their votes in favor of discontinuing said territory as a part of said town the mayor of said city shall declare such territory no longer a part of said city.”

It appears from the facts in that case that the territorial limits of the town of Alvarado were more than a mile in diameter. ' That about eighty people, qualified voters, living outside of a circle inscribed by a radius of a half mile from the center of the town, petitioned the mayor to order an election to eliminate that part of the territory »from the city proper. Upon the mayor’s refusal to order the election, they instituted suit. In that case the defendants contended that the act which the mayor was called upon to perform involved the exercise of discretion and judgment on his part, and therefore mandamus would not lie. The case went off on demurrer in the trial court. The pleadings showed that there was a surplus of territory, and that at least fifty qualified voters had signed the petition. Judge Gaines said, if there had been any controversy as to the existence of these facts, the mayor could not be compelled to order the election, but, such facts being admitted, the discretion of the mayor ceased. The act to be done, that is, calling the election, was purely ministerial, and the mayor’s duty became absolute, and he could by mandamus be compelled to perform it. It is further said: “The fact that preliminary to his action he must know that there is 'an excess of territory beyond the statutory requirements, and that the requisite number of voters have signed the petition, does not invest him with the discretion to refuse to order the election, when, as a matter of fact, there is no controversy as to the excess, or as to the number and qualification of the signers.” Under such circumstances, the court held that the mayor’s action was arbitrary. In that same case the court held that a general denial by the defendants of the facts alleged by the plaintiff in a proceeding for mandamus' was no answer at all.

The answer in the instant case admitted that the charter requirements had been complied with, except as to the qualifications and number of citizens who had signed the petition. The appellees’ allegations that 406 qualified citizens had signed the petition, which constituted more than 30 per cent, of the qualified electors of Borger, was neither admitted nor denied by the pleading of plaintiffs in error. This was an admission of such facts. Giraud v. Winslow (Tex. Civ. App.) 127 S. W. 1180; May v. Finley, 91 Tex. 352, 43 S. W. 257; Town of Pearsall v. Woolls (Tex. Civ. App.) 50 S. W. 959.

AAre find in the books referred to in the briefs of counsel that much has been said upon what constitutes a ministerial duty, and when an official is exercising his discretion in a quasi judicial capacity. As held in the Parrish. Case, supra, the fact that an officer is called upon to exercise reasonable discretion and refuses .to do so does not exempt him in a suit for mandamus brought to compel him to act.

In the case of Benge v. Foster (Tex. Civ. App.) 47 S.W.(2d) 862, 864, Benge sued Foster, the district clerk, and the sureties on his official bond, to recover damages occasioned by the negligent conduct of the clerk in approving a replevy bond which proved to he worthless. The court sustained a general demurrer to the petition, presumably upon the ;ground that Foster was not liable because in the performance of his duty he acted in a quasi judicial capacity. The judgment of the trial court was reversed, this court saying: “In passing on the sufficiency and solvency of the sureties to a bond, he [the clerk] has the opportunity of ascertaining the solvency of the sureties, inquiring as to their financial condition and by an examination of the records of his county. If the sureties tendered do not reside in the county but in some other county in the state of Texas, the law provides for proof of their solvency by certificate from the clerk of the county in which they reside. If the clerk of the court in which the suit is filed fails to inform himself from the means at hand, he is culpably negligent and should be held liable. If such clerk, after availing himself of the means given him of ascertaining the solvency of the sureties, is in some manner deceived by proof, the falsity of which he could not know, then it is likely he would not be liable for his determination in the matter. But where he willfully or negligently fails or refuses to make any inquiry or to make an examination of the ¡records or to do anything to ascertain the ■solvency of sureties whom he does not even know, he is not performing a judicial act. He is not functioning as a court.” A writ of error was denied.

This case has been thoroughly briefed by counsel for both sides, and an investigation of the authorities cited shows that the courts are divided upon the questions presented. However, it is apparent that the trend of the modem decisions is toward a more liberal construction of the rules governing the right to a writ of mandamus requiring officials to perform duties prescribed by statute. No actual fraud on the part of the may- or and commissioners is charged or shown by the evidence. They acted upon advice of their ■duly appointed counsel, but their refusal to ■consider the petitions and take any action ■whatever under the provisions of the charter amounts to constructive fraud, which is a breach of a legal or equitable duty, and which the law declares fraudulent because of its ■tendency 'to injure the public interests. Such .action is unquestionably arbitrary. We deem it unnecessary to enter into ¿n extended discussion of the multitude of authorities cited by the parties, which would unnecessarily prolong this opinion.'' Suffice it to.say that there is a direct conflict between respectable courts which cannot be reconciled by a discussion of the several cases. The trial judge heard the testimony, which in all things sustains his findings and judgment.

Because we believe a correct disposition has been made of the case, the judgment is affirmed, and the trial court is instructed to further consider the application and enter an order requiring the commissioners to call the election, fix a time when the same shall be held, and to in all things comply with the requirements and provisions of the city charter ■governing recall elections.

Affirmed.


author: LOONEY, J.

text:
    STEWART et al. v. BUSH.
    No. 11345.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 17, 1932.
    Rehearing Denied Oct. 29, 1932.
    Cantey, Hanger & McMahon, of Ft. Worth, for relators.
    .Renfro, Ledbetter & McCombs, of Dallas, . for respondent.
   LOONEY, J.

• H. A. Glidewell sued A. F. Stewart in the county court at law No. 1 of Dallas county to recover damages for injuries sustained by his automobile in a collision with a truck belonging to defendant Stewart while parked on the north side of the paved highway near Chalk Hill between the'cities of Dallas and Fort Worth. The truck was operated by Stewart under permit from the Railroad Commission, and the Continental Casualty Company, having issued its policy in accordance ‘with statutory requirements, was also made a defendant. The case was tried to a jury, but, because the trial court concluded that certain of their findings were in irreconcilable conflict, the motion for judgment filed by defendants was overruled, and a mistrial declared, whereupon said defendants, relators herq, filed this original proceeding for mandamus, under article 1824, R. S., as amended by an act of the Legislature approved March 2, 1929 (Session Acts, p. 68, 41st Legislature, c. 33 [Vernon’s Ann. Civ. St. art. 1824]), to compel Hon. Paine L. Bush, judge of said court, to proceed to judgment in accordance with the findings of the jury, which, relators contend, are not in irreconcilable conflict. We do not deem it necessary to set out, in full, all findings of the jury; suffice it to say they found defendant Stewart guilty ,of actionable negligence in several respects, but also found in at least three respects that plaintiff was guilty of contributory negligence, the effect being to nullify all findings in favor of plaintiff so as to entitle defendants to judgment unless, as held by the trial court, the findings are so conflicting as not to be reconciled. The findings involved in the inquiry are these:

In answer to special issue No. 10, the jury found that plaintiff was not, at the time and under the circumstances, driving and operating his auto at an excessive rate of speed; to No. 11, they found that plaintiff was negligent in failing to keep and maintain a proper lookout for other vehicles on the highway at the time and place in question that proximately contributed to cause the injury complained of; to No. 15, they found that plaintiff was guilty of contributory negligence in attempting to pass on the left of defendant’s truck at a time when the left-hand side of such highway was not clear and unobstructed for a distance of fifty yards; to No. 16, they found that plaintiff, in overtaking and passing the truck of defendant, did not fail to give such assistance as the circumstances reasonably demanded in order to obtain clearance to avoid accident; to No. 17 they answered that plaintiff was negligent in attempting to pass at a rate of speed in excess of 15 miles per hour a vehicle approaching on his left side.

We are of opinion that there exists a reasonable doubt as to whether or not jury findings Nos. 10 and 17 are conflicting, also that the same exists as to findings Nos. 15 and 16, above set out, but we find no reason for holding that finding No. 11 is in irreconcilable conflict with any other finding of the jury.

Here the jury found plaintiff guilty of negligence proximately contributing to the injuries, in failing to keep and maintain a proper lookout for other vehicles on the highway at the time and place in question. The question of speed is not here involved, and the jury could properly have found, as they did, that, after the emergency caused by plaintiff’s own negligence in failing tp .keep a lookout arose, he did not fail to give such assistance as the circumstances reasonably demanded, -but it is,obvious that nothing in the nature of assistance, within the meaning of the issue in question, was required of plaintiff until he discovered the situation, that is, the presence of other vehicles upon the highway, but, the jury having found that this situation was brought about by his own negligence, and being uncontradicted, is in our opinion fatal to .plaintiff’s right to a recovery. Under the doctrine announced by the Commission of Appeals approved by the Supreme Court, in Gulf, C. & S. E. Ry. Co. v. Canty, 115 Tex. 537, 285 S. W. 296, we hold that the trial court was without judicial discretion in the premises, and should have entered judgment for defendants; hence the writ as prayed for will issue.

Mandamus granted.


author: PELPHREY, O. J. HIGGINS, J.

text:
    J. M. RADFORD GROCERY CO. v. LAWSON et al.
    No. 2731.
    Court of Civil Appeals of Texas. El Paso.
    On Motion to Strike June 9, 1932.
    Reversed and Rendered Oct. 20, 1932.
    Rehearing Denied Nov. 10, 1932.

      W. E. Eessing, of Abilene, for plaintiff in error.. .
    Whitaker & Peticolas, of El Paso, Joe Turner, of McCamey, and W. Van Sickle, of- Alpine, for defendants in error.
   Motion to Strike out Transcript and Statement of Pacts.

PELPHREY, O. J.

Defendants in error have filed this motion to strike out the transcript and statement of facts filed in this court on the 2d of April, 1932, and as grounds therefor assert that they were not filed within sixty days after the writ of error was perfected, as required by article 1839, Revised Statutes, as amended by Acts 42d Legis. c. 66, p. 100, § 1 (Vernon’s Ann. Civ. St. art. 1839).

They contend that the writ of error was perfected by the filing of the writ of error and supersedeas bond in the office of the district clerk of Upton county, on January 9, 1932, while plaintiffs in error contend that the writ of error was not perfected until legal service was had upon defendants in error which did.not occur until March 10, 1932.

Article 2267, R. S., provides: “When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the ease may be, shall be held to be perfected.”

The other provisions of the chapter (article 2256 et seq.), in case of a writ of error, pro-tide for the -filing of a petition with the clerk of the court in which- the judgment was rendered, the,-filing with the clerk of a bond or affidavit in -lieu thereof, the issuance of citation for the defendants in.error by the clerk, and-service and return of such citation.

Therefore the writ of error was not perfected until the citations were served upon defendants in error’. Felton v. Seeligson (Tex. Com. App.) 265 S. W. 140, and authorities cited.

. Defendants in error cite the case of Reed v. Great American, Indemnity Company (Tex. Civ. App.) 47. S.W.(2d) 860, as decisive of the question here involved.

The court in -that case held that under article 2267 the writ of error was perfected when the bond or affidavit was filed. With such holding,we cannot agree.

The Legislature evidently meant that something more than the filing of the bond was necessary to perfect the writ of error wben it said, “And the other requirements of this chapter have been complied with.”

The motion is -overruled.

HIGGINS, J.

Plaintiff in error, a corporation, acquired certain notes executed by Will Lawson and wife in favor of Cora Moore, secured by mortgage upon a Graham-Paige sedan and an International truck. Plaintiff in error brought this suit against the makers to recover the balance due upon the notes and to foreclose the mortgage. C. M. Carroll was joined as a party defendant; it being alleged he had bought a part of the mortgaged property and assumed the payment of the notes.

Plaintiff in error is a wholesale grocery* company, domiciled in Taylor county. It has a branch- house at McCamey in Upton county, of which G. T. Thaxton is manager.

The testimony of defendants is, substantially, to the effect that the truck and a trail-’ er were sold by Will Lawson to Carroll for $750, with the consent of Thaxton. The Sterling Trust Company of Los Angeles, Cal., was indebted to Carroll in the sum of about $9,-000. Carroll assigned to plaintiff in error $750 of this indebtedness, and drew a draft in its favor for that amount- upon the Sterling Trust Company. The draft and assignment were delivered to Thaxton, who wired the trust company and was advised by it the draft would be paid. The notes of the Law-sons amounted to $325, with some interest. It was contended by defendants that the assignment and draft was accepted -by Thaxton in payment of the notes, and Thaxton agreed to pay to Lawson the difference between the $750 and the amount due upon the notes. The draft has never been paid.

Thaxton denied this, and testified he accepted the assignment and draft for the purpose of collecting the $750 for defendants; agreeing, upon payment of the draft, to apply the proceeds first to the payment of the notes and then paying the balance to Lawson; that the assignment and draft was taken in the name of plaintiff in error because it was believed by the parties the trust company would be more prompt in making payment to it. In •brief, his testimony is to the effect -that the plaintiff in error’s connection with the transaction was that of a collecting agency for the mutual benefit of itself, Lawson, and Carroll.

The case was tried without a jury. Judgment was rendered denying plaintiff in error any relief, and upon their cross-actions Carroll recovered judgment for the title and possession of the truck, and the Lawsons had judgment for $425.

Plaintiff in error presents the proposition that the evidence fails to show its agent Thaxton had the authority to accept the assignment and draft in payment of-the notes and obligate plaintiff in error to pay -the difference between the notes and the amount- of such draft and assignment.

The evidence affirmatively and without contradiction shows Thaxton had no express authority so to do. Defendants in error make no point in that respect, but assert he had implied authority to do so. They predicate this assumption upon the fact that Thaxton, as the manager of the branch store at Mc-Camey, was a general agent of plaintiff in error, and the Lawson notes had been sent to him for collection.

It is true Thaxton, as the manager of plaintiff in error’s branch store at McCamey, was a general agent, but this fact did not confer upon him unlimited authority. As is said in 1 Mechem on Agency (2d Ed.) at sections 740, 741, a general agent “is far from being a universal agent or a mere autocrat, and while his apparent authority is not to be restricted by undisclosed limitations, it must, on the other hand, be confined to such transactions and concerns as are incident and appurtenant to the business of his principal and to that branch of the business which is entrusted to his care; unusual and unnatural acts are not to be tolerated; strained constructions are* to be avoided; inferences of fact are to be limited to those which are reasonable, natural and ordinary; and, as has been so often pointed out, inferences are to be drawn only from facts for which the principal is responsible and not from mere consideration of convenience or policy. The mere fact that one is found to be a general agent justifies neither court nor jury in guessing that given acts are within the scope of his authority.”

“§ 741. General agent binds principal only within the scope of his authority. — The general agent, therefore, binds his principal when, and only when, his act is justified by the authority conferred upon him.”

And at section 951, the same author says: “But while the agent may have no authority to receive a check or draft as payment — that is in satisfaction of the debt — he may, it is held, unless forbidden, receive it as conditional payment where he has good reason to believe that it will be paid upon presentation, and he takes it in the ordinary way as a convenient and usual method of getting the money. If it be paid, the payment is effectual; if it be not paid, the principal will ordinarily sustain no loss as he still retains his original demand.”

Tested by the rule announced by Mr. Meeh-em, we do not regard Thaxton as having implied authority to accept the draft and assignment in absolute payment of the Lawson notes and in addition to bind his principal to pay the difference to the Lawsons. 1 Mechem on Agency (2d Ed.) §§ 715, 740, 741-946, and 949 ; 2 G. J. title, Agency, §§ 218, 219, 221, and 222; Western Brass Mfg. Co. v. Maverick, 4 Tex. Civ. App. 535, 23 S. W. 728; Gunter v. Robinson (Tex. Civ. App.) 112 S. W. 134; Rotan Grocery Co. v. Jackson (Tex. Civ. App.) 153 S. W. 687.

We think the evidence wholly insufficient to warrant the inference that Thaxton, as such manager, was authorized to make such, an unusual agreement.

This conclusion, we think, finds some support in the settled rule that the giving of a bank check by a debtor for the amount of an indebtedness is not, in the absence of an express or implied agreement to that effect, a payment of the debt; the presumption being that the check is accepted conditional upon payment. 21 R. C. L. 60.

In the present case, the draft was not drawn upon a bank, and it was not the debt- or’s draft, but the case is somewhat analogous to the rule mentioned.

The case seems to have been fully developed and judgment will be here rendered in favor of plaintiff in error against Will Lawson for the balance of $325, due upon the notes with interest and attorney’s fees as sued for, and against all defendants foreclosing the mortgage lien upon the sedan and truck; and that defendants take nothing upon their cross-actions.

There is no evidence that Carroll assumed the payment of the notes as the plaintiff in error alleged. It is therefore not entitled to judgmént against Carroll for the amount due upon the notes.

Reversed and rendered.


author: MARTIN, J.

text:
    FIDELITY UNION CASUALTY CO. v. DAPPERMAN.
    No. 3729.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1932.
    Rehearing Denied Nov. 9, 1932.

      See, also, 47 S.W.(2d) 408.
    Dorenfield, Foster & Fullingim, of Amarillo, for: appellant.
    Works & Bassett, of Amarillo, for appellee.
   MARTIN, J.

. Appellee heretofore made a motion in this court to require the issuance of a mandate without payment of costs. This motion was overruled without written opinion, on the authority of Texas Employers’ Insurance Association v. Davidson (Tex. Civ. App.) 290 S. W. 871, and some older authorities of like character.

Since we have concluded that we were in error, we deem it necessary to here reproduce sufficient of the record to illustrate the basis of our viewpoint as to the law.

L.' B. Dapperman, acting by and through his mother, Priscilla Koester, and her husband, H. C. Koester, as his next friends, filed suit against appellant, naming himself as plaintiff therein. His petition contains the following paragraph: “That it became necessary for plaintiff to employ attorneys to represent his said claim before said Board and before the courts on appeal, he having employed, before he so became insane Works & Bassett, a law firm composed of F. P. Works and Jas. W. Bassett, and assigned to them an undivided one-third of all compensation received in this suit in full payment of their attorneys’ fees.” , ,

On the trial he introduced a written contract with his said attorneys which, for the purpose of this opinion, we will assume supported the ‘ allegations juát quoted.

The judgment rendered contains, in partj (he following recitals: ‘.‘It further appearing to the Court that said plaintiff L. B. Dap-perman, is a non compos mentis, and "that his interests in the" claim and -cauáe Of action-involved herein have been and are no'w being represented by F. P: Works and Jas. W. BaSsett-- -* - and that'-their services have .been aij~d are^uegessai;^ -herein ,⅜⅛⅝, that reasonable compensation therefor is one-third of the recovery herein awarded and that said one-third of the recovery herein should be adjudged to said F. P. Works and Jas. W. Bassett; it is further ordered and decreed by the Court that one-third of the amount recovered herein by the plaintiff L. B. Dapperman, to-wit: the sum of $1609.46, be and the same is hereby adjudged to said F. P. Works and Jas. W. Bassett, with full authority in said F. P. Works and Jas. W. Bassett to receipt for and discharge said recovery herein * * * and the said defendant Fidelity Union Casualty Company is hereby directed to make payment of said amount direct to said attorneys.”

An affidavit of inability to pay costs was filed in behalf of Dapperman alone. Appellant contends that, since Works & Bassett were parties to the suit and to the judgment, we are not authorized to issue mandate, in the absence of an affidavit of inability to pay costs, which includes the said attorneys.

A careful consideration of the terms of the Workmen’s Compensation Baw of Texas (Rev. St. 1925, art. 8306 et seq., as amended) has convinced us that we erred in our construction of the judgment herein, and that, if the case last cited justified our action, the eminent judge who wrote the opinion therein failed to take note of the matters to which we now call attention.

We quote here from the statute:

“All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation, and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be voidi * * *
“All fees of attorneys for representing claimants before the board under the provisions of this law shall be‘subject to the approval of the board. * * * - After the approval, as first above provided for, if the association be notified in writing of such claim or agreement for legal services, the same shall be a lien against any amount thereafter to be paid as compensation; provided, .that where the employee’s compensation is. payable by the association in periodical install-, ments the Board shall fix at the time of apT proval the proportion of each installment to be paid on account of said legal services. ,
■ - “For representing the interest of any claimant -in any manner carried from the -board into the courts,'it shall be lawful for the attorney representing such interest -to contract with any- beneficiary under this law for an attorney’s fee for -such -representation, iibt to exceed one third of the amount recovered, such fee fpr services so. rendered to Jé'fixed and allowed by the trial court in which such matter may be heard and determined.” Article 8306, §§ 3, 7c, 7d.

The portion of said act last quoted has clearly lodged in the district court the discretion to fix a fee, limiting the right, however, to an amount not exceeding 'one-third of the recovery. Such a provision has been held constitutional. Yeiser v. Dysart, 267 U. S. 540, 45 S. Ct. 399, 69 L. Ed. 775; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Gritta’s Case, 241 Mass. 525, 135 N. E. 874; Sarja v. Pittsburgh Steel Co., 154 Minn. 217, 191 N. W. 742.

The distinction is here noted under this statute between the right to contract for the services of an attorney and the right to fix a fee or assign to such an attorney an interest in the cause of action. The former may be legally done, but not the latter. Stated otherwise, an employee may select and contract for the services of an attorney, but any provision inserted for a particular fee does not have the binding force of an ordinary contract because such right is impliedly denied him by the provision which lodges in the district court the right to 'fix the fee which' is itself, however, limited as to the amount. The quoted allegations from the petition alleged an invalid contract both as to the amount of the fee and as to the assignment of an undivided one-third of all compensation received, but a valid one as to the employment of attorneys. Blair v. Village of Coleraine, 180 Minn. 388, 231 N. W. 193, 69 A. It. It. 1315, and article of the Texas statute quoted above.. Giving, effect to the valid portions of the contract pleaded and proven, and 'excluding those which are clearly* invalid under the statute, we have here, we think, a record -which shows only a request, finally incorporated ’in the judgment, to the- district court to fix the fee at one-third of the .re; covery. This does no violence to the statute in question, which it will be presumed the parties and the court intended to follow.

It has been ofttimes held that attorneys who had been granted a portion of the award, by the Industrial Accident Board were neither necessary nor proper parties in a suit to set aside such award. Texas Employers’ Insurance Association v. Mints (Tex. Civ. App.) 10 S.W.(2d) 220; Texas Employers’ Insurance Association v. Glass (Tex. Civ. App.) 2 N.W.(2d) 902; Texas Employers’ Insurance Association v. Fitzgerald (Tex. Civ. App.) 292 S. W. 925, 929. In the case of Soloranzo et al. v. Texas Employers’ Insurance Association (Tex. Civ. App.) 264 S. W. 121, it was held that an attorney who had been made a party to suit to set aside an award made by the Industrial Accident Board was not liable for costs.- For other cases which in their-result and reasoning support our conclusion here, see Moore et al. v. Lumbermen’s Reciprocal Ass’n (Tex. Civ. App.) 241 S. W. 1105; Id. (Tex. Com. App.) 262 S. W. 472; Texas Employers’ Insurance Association v. Shilling (Tex. Com. App.) 289 S. W. 996.

Construing the record in this case with the quoted provisions of the statute in mind,, we are of the opinion that it differentiates itself from cases arising under ordinary contracts of employment of attorneys where a present interest in a cause of action is assigned. One of the purposes of the Workmen’s Compensation Act undoubtedly was to protect the helpless and unwary from unconscionable contracts. Certain rights and benefits were there given to workmen not theretofore possessed under the la'w’, and a litigant asserting - rights thereunder' will, of course, have to accept its burdens as well as its benefits, one of which is the restriction upon the right to contract already mentioned. It seems to us that we would be forced to give effect to an invalid provision of the contract in order to here hold that the attorneys were asserting a present interest in the cause of action. . We will presume that the- trial court did not so construe it, and that he was attempting merely to fix a fee as compensation under the terms of said statute.

The case of Hughes-Buie Co. v. Mendoza (Tex. Civ. App.) 156 S. W. 328, relied on by appellant, was not brought under the Workmen’s Compensation Law, and distinguishes itself 'from this case upon the points already discussed.

Our order, heretofore entered refusing to issue mandate is set aside, the( motion for rehearing Is granted, and the clerk of this court is directed to issue mandate without' payment of costs.


text:
    DETERLY v. WELLS et al.
    No. 11351.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 1, 1932.
    Rehearing Denied Oct. 29, 1932.

      Allen & Allen and R. B. Humphrey, all of Dallas, for appellant.
    McBride, O’Donnell & Hamilton, of Dallas, and A. W. Parshley, of Longview, for appel-lees.
   LOONEY, J.

This appeal is from an order of the court below dismissing the petition of Madero Hil-burn to remove.his disabilities as a minor; the court holding that it was without jurisdiction in that the residence of said minor was in the county of Gregg and not in Dallas county,. -

The agreed facts.in short are these: The minor 'was above the age of 19 years prior to the 'filing of said petition. Gregg county was the residence and domicile of both his father and mother prior to his father’s death on January .29; ,1.917, continued. to be the domjcil,e .and residence of his mother until she and Clarence Wells were married on November .-3, 1917, and-has since continued to be tjieir domicile .and, residence. The minor married in Gregg county on June 21, 1931, with the .consent of. his mother, but after a short period.he.and his. wife" separated but are not divorced, .. .SSaid minor, had never undertaken to reside .elsewhere.,than in Gregg county until about ten days prior to, the filing of his said petition, when he came to Dallas county with the intention of establishing his residence and domicile in said county, and of engaging in business, and with that view contracted to purchase a filling station in the city of Dallas, and has since operated the same. That?neither his.-mother nor his stepfather was a party, to his contract to purchase the oil or filling station nor consented thereto,.".nor -did' either of them consent-.to his attempt to change his residence or domicile from Gregg county. 'The mother of said minor w:as: appointed legal guardian of his person and estate by the probate court of Gregg county during the month of November, 1930, and is still-serving'in-said capacity.

The only question presented is, Did the minor, I~ade~o Hhlburn, possess legal capacity to form the intention necessary to e~ectuate a change of his domicile from Gregg to Dallas County? If so, his p~tition ~ra~ prope1~ly filed ~1n tl~e district court of Dallas county ; othèr~vis~ said court w~ás without jurisdiction and its judgment refusing to take jurisdiction was correct and must be affirmed.

In view of the general rules that control in such situation (see Wheeler v. Hollis, 19 Tex. 529, 70 Am. Dec. 363; Trammell v. Trammell, 20 Tex. 407), and especially in view of the decision of our Supreme Court in G., C. & S. P. Ry. Co. v. Lemons, 109 Tex. 248, 249, 206 S. W. 75, 77, 5 A. L. R. 943, we find no difficulty in approving the action of the trial court. After quoting from authorities the general rule to the effect that minors are deemed incapable of changing their domicile, the court said: “It is obvious that the disability of a minor to effect a change of domicile by act of his will rests at least in large measure on his presumed lack of capacity to form the intention, which is the all-important element in effecting such a change, and the law makes no distinction with respect to this lack of capacity at the varying stages of minority; the presumption being the same at 18 years as at 18 months.” This doctrine is fully sustained by the authorities, and in our opinion is decisive of the question before us. Finding no error in the judgment of the court below, the same is affirmed.

Affirmed.


author: BAUGH, J.

text:
    BROWN v. COX.
    No. 7730'.
    Court of Civil Appeals of Texas. Austin.
    Oct. 12, 1932.
    Rehearing Denied Oct. 2®, 1932.

      Sneed & Martins, of Austin, for appellant.
    Shropshire & Sanders, of Brady, for ap-pellee.
   BAUGH, J.

Appeal is from a judgment overruling appellant’s plea of privilege to be sued in Travis county, the place of his residence. He was sued individually and as surviving partner of the partnership of Brown & Root; the other partner, Dan E. Root, having died prior to the filing of the suit. .

The first question presented raises the sufficiency of appellee’s controverting affidavit to appellant’s plea of privilege. Omitting formal parts, this controverting plea was as follows: “That on or about the 20th day of No-, vember, A. D. 1928, this plaintiff W. W. Cox entered into a written contract with Herman Brown and Brown & Root, a partnership in which it was agreed by and between said parties that Brown & Root and Herman Brown would grade and hard surface certain streets in the city of Brady, McCulloch County, Texas, more particularly certain streets in and about the residence of this plaintiff which is located in said city of Brady, McCulloch County, Texas; that said hard surfacing and grading was to be done by defendants in a manner conforming with the plans and specifications set out in said contract in writing to be performed in the said city of Brady, McCulloch County, Texas. That by reason of the defendants having breached said written contract by failing to perform the same in accordance. with the same therein specified this suit may be maintained in this court by virtue of article 1995, Vernon’s Statutes, subd. 5.”

Nowhere does such controverting plea refer to nor adopt in any manner the original petition, nor set out any facts therein alleged.

Appellant’s ' plea of privilege, which was in' statutory form, established prima fa-cie his right to hayfe the suit transferred to Travis county. To defeat that right, it #as incumbent upon appellee, under article 2007, R. S., to both plead and prove specifically the fact or facts relied upon to do so. It is just as essential that his pleading be sufficient in that regard as that his proof be. In the instant case we think appellee’s pleading on that issue was insufficient. Nowhere does it allege any facts which would identify the property involved, the streets complained of, the terms of the contract, place of payment, nor intimate when, wherein, ñor how, such alleged contract was breached. As a pleading, it was clearly subject to the demurrers lodged against it, and sets forth only legal conclusions. While the court may look to the original petition to ascertain the nature or character of the suit in question — that is, whether, for example, it involved lands, breach of contract, action in trespass, or tort, or related to some subject-matter over which the statute fixes venue specifically in some county — it cannot look to the petition for specific facts on the issue of- venue, where no reference is made to same in the controverting plea. We are confined, therefore, under the controverting plea above set out, entirely to the averments of that plea on the sufficiency of the facts alleged. Penix v. Davis (Tex. Oiv. App.) 265 S. W. 718; Jacobson v. Ber-wick (Tex. Oiv. App.) 289 S. W. 1035; Bender v. Kowalski (Tex. Civ. App.) 13 S.W.(2d) 201; Lawless v. Tidwell (Tex. Oiv. App.) 24 S. W.(2d) 515; Chicago Bridge & Iron Co. v. Bailey (Tex. Oiv. App.) 44 S.W.(2d) 452; Commercial Standard Ins. Co. v. Lowrie (Tex. Civ. App.) 49 S.W.(2d) 933, 937. We think the controverting plea failed to allege sufficient facts to show a binding contract between the parties performable in McCulloch county. While it was not necessary to prove, on a trial of the venue question, such breach of contract as would entitle appellee to recover damages, it was necessary to sufficiently allege a binding contract performable in that county in order to overcome appellant’s plea of privilege. Davis v. Texas Life Ins. Co. (Tex. Civ. App.) 22 S.W.(2d) 960.

But this error does not require that upon reversal tüe case be transferred to Travis county. Where the ends of justice will be best subserved by a remand, that is the proper course, even though amendment of the pleadings upon another trial máy be necessary. And this course has been followed in appeals from judgments on pleas of privilege. Sparks v. West (Tex. Civ. App.) 41 S.W.(2d) 301; Smith v. Rogers (Tex. Civ. App.) 34 S.W.(2d) 312; 3 Tex. Jur., p. 1232.

The next question raised relates to the admission of evidence upon the issue of venue. We do not deem it necessary to discuss the best evidence rule as relates to written contracts, the production of the original contract as evidence, or showing reasons for failure to do so, before introducing secondary evidence as to such contract. However, it is clear that, under the controverting plea as filed herein, it was improper to' admit in evidence, on the issue of venue, a contract between appellee and the city of Brady, in no wise pleaded nor referred to in the controverting affidavit. If that contract were ancillary to the contract alleged, or were essential to a determination of the rights of the parties thereto, in order to render it admissible, such matters should have been alleged in the controverting plea. It is likewise true that, if the contract between appellee and appellant were executed by an agent of appellant, as against such plea of privilege, it was incumbent upon appellee to prove, not only the execution of the contract in question, but that the agent had authority to execute it. The plea of privilege challenged both of these questions. Such proof could, of course, be made by extraneous evidence. Diacomis v. Wright (Tex. Com. App.) 34 S.W.(2d) 806; Berry v. Pierce Pet. Corp. (Tex. Com. App.) 39 S.W.(2d) 824.

The other issues raised need not recur upon another trial in case appellee amends his controverting plea so as tó fully present the question of venue. If not, then the trial court should, upon another hearing, order the case transferred to Travis county. Eor thé reasons stated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.


author: SHARP, -J. CURETON, C. J.

text:
    GULF, C. & S. F. RY. CO. v. PEARLSTONE MILL & ELEVATOR CO.
    No. 1585—5954.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1932.
    Terry, Cavin & Mills, of Galveston, and W. P. Donalson, of Dallas, for plaintiff in error.
    McCormick, Bromberg, Leftwich & Carring-i ton, W. C. GOwan, ■ and H. L. Bromberg, all of Dallas, for defendant in error.
   SHARP, -J.

This is an - application for an injunction filed by plaintiff in error in the district court of Dallas county, seeking to restrain the defendant in error from prosecuting to judgment certain suits pending in the .justice court of precinct No. 7 of Dallas county and! from filing and prosecuting suits oh a' large! number of other claims, each of such ■ suit.4 triable in a justice court and unappealable,' on account of their respective amounts, from 52 cents, the minimum, to $9.93, the maxi! mum, with a statutory $10 attorney’s feer claimed on each, and to compel the defendant in error to prosecute all claims in one suit. These several claims were for damages against plaintiff in error growing out of shipments of wheat. Immediate relief was sought by the issuance of a temporary writ of injunction to restrain defendant in error-, both from the prosecution of the suits ■ and from filing separate suits on the other claims. The district judge, granted a temporary restraining order and set a day for a hearing to determine whether a temporary writ of injunction should issue. When the case was heard, the court refused to grant the writ of injunction. The case was appealed to the honorable Court of Civil Appeals at Dallas, and, pending the appeal, the temporary restraining order was continued in force. By a divided court, Associate Justice Looney dissenting, the judgment of the trial court was affirmed. 37 S.W.(2d) 299.

Plaintiff in error, in substance, contends: Where plaintiff’s demands consist of 97 claims for damages, on 3 of which separate suits are pending in the justice court, and on the remainder of which the filing of separate suits in the justice court is threatened, and all of which can be settled in a single action, that a court of equity, in order to prevent a multiplicity of suits and consequent injury, annoyance, harassment, useless consumption of time, and expenditure of money, will enjoin the filing and prosecution, separately, in the justice court, of a large number of suits for damages growing out of similar prosecutions involving identically the same questions of law and similar questions of fact, where no appeal would lie from the judgment of. the justice court in any one of such cases, and in all of which the parties, plaintiff and defendant, are the same, and in each of which the defendant has a good, valid, and similar defense.

Briefly stated, the facts are that from November 17, 1928, to March 11,1930, defendant ih error, owner of large grain elevators in the city of Dallas, shipped to consignees over plaintiff- in error’s railway 98 cars of grain, each car under a separate contract of shipment, with a separate waybill and bill of lading ; 76 of these shipments were to consignees in the city of Dallas; 11 to consignees in the city of Fort Worth; 5 to consignees in the city of McKinney; 3 to consignees in the city of Sherman and 3 to consignees in the city of Waco. On each shipment defendant in error claimed a shortage of grain occurring through the negligence of plaintiff in error, of a value varying from 52 cents, the minimum, to $9.93, the maximum. Defendant in error contends that these various shortages were caused in different ways, principally by leaks in cars in transit, by plaintiff in error permitting some wheat to remain in the cars when unloaded, and by wheat working out through open cracks into the space between the walls of the freight cars where it remained when the cars were unloaded.

Plaintiff in error contends that no such Shortage actually existed and that the apparent shortage was the result of the inaccuracy of defendant in error’s weights. In each Shipment defendant in error first weighed on scales owned by it the empty car, loaded it with grain, and then weighed the loaded car, and, by subtracting the weight of the empty car from the weight of the loaded car, arrived at what is claimed to be the weight of the grain loaded into the car. These weights were presented to plaintiff in error, accepted by it as the weight of the wheat, and placed this net weight on the bill of lading as representing the amount of grain in the car. When the car was received by the consignee, the loaded car was weighed on the consignee’s scales, then unloaded, the empty car again weighed, and, by subtracting the weight of the empty car from the weight of the loaded car, the consignee arrived at the weight of the wheat received from defendant in error. In each of the 98 shipments the net weight of the consignee was less than defendant in error’s net weight. Defendant in error accepted the consignee’s weight as the amount of grain received on each shipment as correct, and, by subtracting consignee's net weight from its own weight, arrived at the alleged shortage. In all but three or four of the cars the tare or empty car weight as determined by the scales of consignee was greater than such weight as determined by the scales of defendant in error. Plaintiff in error contends that this difference in the weights of the empty cars is conclusive proof of its al-' leged inaccuracy in defendant in error’s weights; while defendant in error contends that the difference is caused either by the fact that plaintiff in error permitted some wheat to remain in the ear after it was unloaded, or by the fact that wheat had sifted through openings in the inner wall of plaintiff in error’s cars and remained unloaded between the walls of such car, thereby causing the increased weight of the empty car when weighed on the consignee’s scales. Plaintiff in error in its petition for injunction alleged that it had a valid defense to each suit. - For a more detailed statement of the case, we refer to the opinions rendered by the Court of Civil Appeals.

Thus it is seen that defendant in error held 98 separate claims against plaintiff in error and that suits were filed in the justice court on 4 of these claims. In each suit recovery was asked for damages and $10 attorney’s fee. One suit was tried, resulting in judgment for defendant in error against plaintiff in error for $1.21 damages, $10 attorney’s fee, and $4.40 court costs. Judgment was paid; hence that claim is not involved here, but defendant in error is demanding trial of the 3 remaining suits and is threatening to file separate suits in the justice court on the other 94 claims, in each of which judgment will be sought not only for the damages claimed, but for $10 attorney’s fee and costs of suit. From these judgments no appeal will lie.

The distinctions between law and equity have never obtained in Texas. The extent to which courts of equity will go in enjoining actions at law for the purpose of preventing a multiplicity of suits can be determined by no arbitrary rule. No ground of equity jurisdiction is more firmly established than the prevention of a multiplicity of suits, but there is much conflict among the decisions in its proper application to particular cases. The authorities announce the following general rules which are applied in this state in order to prevent a multiplicity of suits:

(1) “That the courts may take cognizance of a controversy, to determine the rights of all the parties, and grant the relief requisite to meet the ends of justice in order to prevent a multiplicity of suits.” Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 1, § 243; [Galveston, H. & S. A.] Ry. Co. v. Dowe, 70 Tex. 5, 7 S. W. 368; Steger & Sons Piano Mfg. Co. v. MacMaster, 51 Tex. Civ. App. 527, 113 S. W. 337 (writ denied); 17 Texas Jur. § 14, p. 15, etc., and cases cited; 21 C. J. § 48, p. 71; 10 R. C. L. § 24, p. 281.

(2) “Where, from the nature of the wrong and from the settled rules of the legal procedure, the same injured party, in order to obtain all the relief to which he is justly entitled, is obliged to bring a number of actions against the same wrongdoer, all growing out of the one wrongful act and involving similar questions of fact and of law.” Pomeroy’s Equity Jurisprudence (4th Ed.) vól. 1, § 245; 21 C. J. § 48, p. 71.

(3) “Where the dispute is between two individuals, A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against A, all depending upon the same legal questions and similar issues of fact, and A by a single equitable suit seeks to bring them all within the scope and effect of one judicial determination.” Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 1, § 245 ; 21 C. J. § 48, p. 71.

(4) “It is a fundamental principle that equity takes jurisdiction where it is made necessary to administer a preventive remedy, or when the courts of ordinary jurisdiction are made instruments of injustice, or when the right of action is’given by law, but the remedy allowable by the court within its jurisdiction is inadequate to meet the demands of justice.” Brown on Jurisdiction (2d Ed.) •§ 196, and eases cited; Houston Heights Water & Light Ass’n v. Gerlach (Tex. Civ. App.) 216 S. W. 634.

Eor a general discussion of this subject, we refer to the following authorities: Pomeroy’s Equity Jur. (4th Ed.) §§ 243-275; 10 R. C. L. §§ 24-31; 21 C. J. §§ 48, 49, 50, 51, pp. 75, etc.; Illinois Central R. Co. v. Baker, 155 Ky. 512, 159 S. W. 1169, 49 L. R. A. (N. S.) 496; Jordan v. Tel. Co., 69 Kan. 140, 76 P. 396; Southern Pac. Ry. Co. v. Robinson, 132 Cal. 408, 64 P. 572, 12 L. R. A. (N. S.) 497.

In the light of the foregoing general rules, the facts alleged by plaintiff in error call for the exercise of the equitable power of the district court to prevent defendant in error from bringing a separate suit upon 97 distinct claims in the justice courts, from which no appeal will lie and in whic.h the court costs and attorney’s fees will be out of proportion to the amounts involved and from which actions plaintiff in error will have no means of protecting itself against the attempted wrong, except by resort to the writ of injunction. The entire transactions upon which the claims are based are between the same plaintiff and the same defendant. The claims arose under uniform bills of lading issued under articles 890 and 891, R. S. 1925. The main controversy turns upon the accuracy of defendant in error’s weights. The weighing was all done by two employees of defendant in error, and the 97 shipments were made in 43 separate days. Therefore it seems that the facts surrounding the scales and the accuracy of the weighing of the grain could be ascertained without any unnecessary trouble or confusion. We conclude that the remedy sought by plaintiff in error is a just and' proper relief to it, and will work no unnecessary hardship upon defendant in error, who' can set up its demands and have its rights-determined in one suit and at no unnecessary1 increase in expenses or annoyance to it. As' showing the tendency of the courts of this state to exercise their equitable jurisdiction to prevent a multiplicity of suits, Chief Justice Gaines, in rendering the opinion of- the Supreme Court in the case of Galveston, H. & S. A. Railway Co. v. Dowe, 70 Tex. 6, 7 S. W. 368, 371, held: “Our system of procedure is essentially equitable in Us nature, and was designed to prevent more than one smt growing out of the same subject-matter of litigation; and our decisions from the first have steadily fostered this policy. Chevalier v. Rusk, Dallam Dig. 611; Binge v. Smith, Dallam Dig. 616; Clegg v. Varnell, 18 Tex. 294.” (Italics ours.)

In the case of Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 252, 47 L. Ed. 380, it is said: “Each Case, if not brought directly within the principle of some preceding case, must, as we think, be decided upon its own merits and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to. be contested, and the result which would follow if jurisdiction should be assumed or denied; these various matters being factors to be taken into consideration upon the question of equitable jurisdiction on this ground, and whether within reasonable and fair grounds the suit is calculated to be in truth one which will practically prevent a multiplicity of litigation, and will be an actual convenience to all par— ties, and will not unreasonably overlook or obstruct the material interests of -any.”

There is a marked distinction between invoking the. equity jurisdiction of a court to prevent a multiplicity of suits by different plaintiffs each having a separate, distinct, meritorious cause of action, and invoking this jurisdiction to prevent a multiplicity of suits, based upon many claims held by the plaintiff against the defendant, where the amounts are small, are similar in nature, grow out of the same general source, involve similar facts, and may be settled in one suit, and about to be filed in a court of limited jurisdiction from which no appeal will lie. The record shows that the aggregate sum representing all the. remaining 97 claims of defendant in error, payment of which is demanded by it, is approximately $342.20, in addition to which the company is adding and threatening to sup for the further sum of $10 attorney’s fee on each such claim, or $960. If defendant in error should be permitted to file a separate suit on each claim in the justice court, and no matter what defense plaintiff in error might have to each claim, that it would be put to the expense, inconvenience, and costs of defending this multiplicity of suits, and, after being put to this hardship, the defendant in error could recover a judgment on each claim for the amount thereof, a $10 attorney’s fee, and court costs amounting to more than each claim, from which no appeal would lie, and compel the payment of these judgments, from which there would be no relief, in our judgment would produce an intolerable condition of affairs, and would be violative of the sound rules announced to prevent a multiplicity of suits.

As holding contrary to the rule announced in this opinion, the following eases are cited: St. Louis, Southwestern Ry. Co. v. Woldert Grocery Co. (Tex. Civ. App.) 162 S. W. 1174; Chicago, R. I. & G. Ry. Co. v. Elevator Co. (Tex. Civ. App.) 182 S. W. 355. Any holding in those cases or similar eases contrary to the rule announced herein is expressly overruled.

Defendant in error bases its claim for attorney’s fees in each suit upon article 2226, R. S. 1925, which, among other things, provides that any person having a valid claim against a person or corporation for lost or damaged freight may present the same to such person or corporation; and if, at the expiration of thirty days thereafter, the claim has not been paid or satisfied and he should finally obtain judgment for the full amount thereof as presented for payment, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees not to exceed $20, if represented by an attorney.

The evident purpose of the foregoing article is to effect a prompt settlement of small but well-founded claims, and to prevent groundless defenses which ofttim.es defeat the ends of justice. The allowance is confined to a reasonable attorney’s fees, not exceeding $20, where an attorney is actually employed; the amount to be determined by the court or jury trying the case. Unquestionably, the purpose is merely to require the defendant to reimburse the plaintiff for a part of his expenses, not otherwise recoverable “in addition to his claim and costs.” The payment of an attorney’s fees is a necessary consequence of the' litigation, and some one must pay it. It is-reasonable to impose it upon the party whose refusal to pay the just claim renders the litigation necessary. An allowance of ordinary costs to the successful party rests upon the same principle.

Under this article, a person to be entitled to attorney’s fees, in the event separate suits are filed upon each claim, must obtain judgment for the full amount of the claim as presented. When the cases and claims are consolidated and tried in one suit, it would rest with the court or jury trying the case to determine upon all the facts, taking into consideration the aggregate amount of the claims and the time employed in procuring the testimony and trying the case, what is a reasonable attorney’s fee for the services rendered with respect to the items wholly recovered as presented.

We therefore recommend (1) that the judgment of the Court of Civil Appeals and of the. trial court be reversed, and (2) that the three suits now pending in the justice court of precinct No. 7 of Dallas county, Tex., and any and all other causes of action constituting the 94 claims above referred to, where suit is filed thereon, be consolidated in one suit for trial in a court of competent jurisdiction.

CURETON, C. J.

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

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