text:
    HANEY v. STATE.
    No. 15532.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.

      J.- T. Ranspot, of Mineral Wells, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Theft of chickens is the offense; penalty assessed at confinement in the penitentiary for a period of one year.

The witness Colvard missed some chickens from his farm. Guided by automobile tracks, he went to the home of the appellant and charged him with the theft of the chickens. According to Colvard, the appellant admitted the theft and expressed regret because of it.

Appellant testified denying that he admitted the theft, and also denied that he had stolen the chickens. According to his testimony, he was informed by Mrs. Main that the chickens belonged to her; that Colvard had given them to her and authorized her to take them away; that at the request of Mrs. Main the appellant got in his automobile and went with her to the farm of Colvard and got the chickens and other articles which Mrs. Main claimed to own.

The appellant’s wife testified that she heard the conversation between the appellant and Mrs. Main and heard her ask the appellant to go with her to get some chickens which she claims to own; that the chickens had been given to her by Colvard.

Mrs. Main testified that at her request the appellant went with her to get the chickens; that she told him that she had been told by Colvard to get anything that was on his farm; that she might find some chickens or anything there that she wanted, she could have it. She went with the appellant to get the chickens. Prom her testimony we quote: “I certainly did tell Mr. Haney that Mr. Colvard told me I could get them. Who was present at the time I made this statement was Mr. Haney, his wife and my daughter.”

iShe also said that she, her daughter, and Mr. Haney caught the chickens. They went ■there in the evening about sundown, or a little after, and got the chickens.

The witness Littlefield was called upon behalf of the appellant and testified to his acquaintance with Mrs. Main. He testified that he knew her general reputation in the community in which she lived for truth, and veracity, also her general reputation in the community in which she lived as a law-abiding citizen. The court permitted the witness to testify as to his knowledge of the general reputation of Mrs. Main for truth and veracity, which he said was good. The court, however, refused to permit the witness to testify that he knew the general reputation of Mrs. Main in the community in which she lived with reference to her being a law-abiding citizen and that such reputation was good. The refusal of the court to permit the introduction of the testimony last mentioned is preserved by a bill of exception.

In the court’s charge the jury was instructed upon the law of principals, and that, if they believed that the appellant, Haney, either alone or acting with Mrs. Main as a principal offender, fraudulently took five chickens from Oolvard, a conviction would be authorized. As to the rules of evidence in this state on the subject, the following is taken from the syllabus in the case of House v. State, 42 Tex. Cr. R. 125, 57 S. W. 825: “In criminal cases, whenever a criminal intent is the essence of the offense, evidence of the general good character of the accused when offered by him is relevant and admissible in his behalf.”

The body of the case definitely affirms the rule that, under the circumstances stated, the character of the accused as a peaceable law-abiding citizen becomes relevant. The principle is reaffirmed in many cases cited by Mr. Branch in his Ann. Tex., P. C. p. 116. See, also, Wharton’s Cr. Ev. (10th Ed.) vol. 1, p. 478, § 254.

The status of Mrs. Main in the present instance was not only that of a witness, but in a sense she was a defendant. In the charge of the court, the jury was directed to consider whether she was a principal offender ; that is, whether she was criminally connected with the alleged theft. She gave important testimony in favor of the accused tending to exculpate him. Her reputation, therefore, not only for truth and veracity, became a matter of substance, but her reputation as a law-abiding citizen was likewise involved. Such testimony had bearing not only upon the matter of her complicity in the alleged offense, but upon the good faith of the appellant in his claim that his action was induced by his belief in her expressed right to take the property in question. The matter much resembles the case of Graves v. State (Tex. Cr. App.) 42 S. W. 300, a cattle theft case in which Graves, possessing a stolen animal, claimed that he had bought it from Blay-lock. The state was permitted to prove the good reputation of Blaylock for honesty. The admission of the testimony was approved by the court as tending to show that Blaylock was not the thief.

In refusing to receive evidence of the good reputation of Mrs. Main, we express the opinion that the learned trial judge committed error of a nature demanding a reversal of the judgment.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: CHRISTIAN, J. HAWKINS, J.

license: Public Domain

text:
    McELREATH v. STATE.
    No. 15417.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    Application for Writ of Certiorari Denied Feb. 1, 1933.
    Noah Roark, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for .the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose Of sale; the punishment, confinement in the penitentiary for five years.

Officers went to appellant’s home for the purpose of instituting a search for intoxicating-liquor. They had no search warrant. Appellant was at his back door. One of the officers met him there and engaged him in conversation. According to his testimony, he asked appellant: “Joe, have you got any liquor today?” Appellant replied: “No, you know, Mr. Burton, I told you I have quit.” The officer said: “I know you told me that. If it is all right with you I want to look around.” Appellant’s reply was: “That is all right; I will help you search.” This officer testified, further, that upon a search being made he and the other officer discovered sixteen gallons of whisky in a “false gable” of , the house. Upon the whisky being discovered, appellant laughed and said: “I was telling you the truth the other day; and if you had searched me yesterday you' would not have found a thing. I just got that yesterday, the first I had in three weeks.” Further, appellant said: “I will be a good sport; you have got me. Hand it to me.”

Appellant did not testify in his own behalf but offered a witness who, in effect, stated that appellant did not consent to the search.

The term of court at which appellant was convicted convened February 4,1932, and adjourned March 5, 1932. In the absence of an order extending the time for filing, appellant would have- been entitled to thirty days after the adjournment of court in which to file his bills of exception. The motion for new trial was overruled on the 18th day of February, 1932, and notice of appeal given on the same date. At the time notice of appeal was given, the court granted appellant fifty days from February 18, 1932, in which to file his bills of exception. On the 5th day of April, 1932, the court granted appellant an additional time of thirty days from April 9, 1932, for the preparation and filing of bills of exception. No other extension order appears in the record. The bills of exception found in the record were filed May 17, 1932. Manifestly they were filed too late, and are not entitled to consideration. Cupp v. State, 118 Tex. Cr. R. 238, 38 S.W.(2d) 1102, and authorities cited.

The exceptions to the charge of the court are not signed by the trial judge, and hence cannot be considered. See Houghton et al. v. State, 116 Tex. Cr. R. 70, 32 S.W.(2d) 837.

The court failed to give application to the Indeterminate Sentence Law (Vernon’s Ann. C. C. P. art. 775). The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than one nor more than five years.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Application for Writ of Certiorari.

HAWKINS, J.

On the 11th day of January, 1933, the judgment was affirmed; it being stated in the opinion that no further extension order for filing bills of exception was made after that of date April 5, 1932. On January 23, 1933, appellant filed an application for writ of cer-tiorari to perfect the record, in which application it is stated that a further extension order was made by the trial judge about the 9th day of May, 1932. No motion for rehearing was filed in connection with the application for writ of certiorari. The latter is not sworn to; neither is it accompanied by a certified copy of the claimed extension order. Under previous holdings of this court the application is manifestly insufficient. See Texas Jurisprudence, yol. 4, § 340, p. 487, and authorities thereunder cited; Nunn v. State, 40 Tex. Cr. R. 435, 50 S. W. 713; Savage v. State, 100 Tex. Cr. R. 361, 272 S. W. 193; Luman v. State (Tex. Cr. App.) 20 S.W.(2d) 1064; Metcalf v. State, 115 Tex. Cr. R. 382, 27 S. W.(2d) 807.

The application for the writ is denied.


author: CHRISTIAN, J.

text:
    WILSON v. STATE.
    No. 15499.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    W. A. Anderson, of San Angelo, for appellant.
    O. C. Fisher,fCo. Atty., of San Angelo, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Conviction is for violating the Pure Food Law; punishment, a fine of $50.

Appellant was manager of Piggly Wiggly No. 2 in San Angelo. A state inspector, in company with an inspector for the city of San Angelo, went to appellant’s store for the purpose of inspecting the condition of the canned goods and other foods. There were from 1,500 to 2,000 cans of food on the shelves. While the state inspector was investigating the meat department in the rear of the store, the inspector for the city of San Angelo discovered in the canned goods department, on the shelves from which customers were served, six cans of plums, each can being marked with a cross on the top and bottom. It appears that these marks had been made with a knife or dull instrument. The inspectors testified that the marking of cans that had puffed out on the ends in the manner indicated would have a tendency to make them more nearly level. Further, the inspectors testified that, when cans had puffed up, as had the cans taken from the shelves, it was an indication that gas had formed and that the contents of the cans were adulterated. One of these marked cans was sent to Austin and the contents analyzed. T,he proof was to the effect that the fruit it contained was adulterated. It was upon the fact that this can was exposed for sale that the prosecution was predicated. According to the testimony of the state, at the time the inspection was made appellant stated that the cans were evidently marked while being shipped. The inspector paid appellant for the can he sent to Austin. 1-Ie testified that he told appellant at the time he made the purchase that the fruit appeared to be adulterated.

Appellant testified that there were three cans in the front of the store, which had been marked with a pocket knife. He said these cans had been removed from the shelves for the purpose of placing them in the back of the store. He said, further, that at the time the inspection was made he toid the inspectors that if they found any adulterated food' to set it aside. Further, he testified that the store was reimbursed by the wholesale house for all adulterated goods. He declared .that he did not knowingly put adulterated goods on the shelves for the purpose of selling such goods. In short, he testified that he did not know that any adulterated goods were on his shelves, saying that he would not knowingly have exposed such goods for sale, and, further, that he went over his stock and tried to pick out merchandise he thought was adulterated.

Over proper and timely objection, the court instructed the jury as follows: “It shall not be necessary for the indictment to allege or for the state to prove that the act or omission was knowingly done or omitted.”

The foregoing charge is in the language of the last part of article 717, Penal Code. There is nothing in the statute directing that the language in question be embraced in the charge. This provision of the statute does not militate against the right of the accused to rely upon a mistake of fact as a defense to a prosecution for exposing adulterated food for sale. Such is the holding of this court in Vaughn v. State, 86 Tex. Cr. R. 256, 219 S. W. 206. Article 41, Penal Code, reads as follows: “If a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal he is guilty of no offense, but the mistake of fact which will excuse must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct, and it must also be such mistake as does not arise from a want of proper care on the part of the person so acting.”

The charge was calculated to impress the jury with the view that appellant should be convicted notwithstanding they believed his version of the transaction. The failure of the court to embrace in the charge appellant’s affirmative defense accentuates the error.

Appellants sought to have the court present his affirmative defense, but, in preparing his requested instruction, failed to take note of that provision of article 41, supra, which requires that a mistake of fact must not arise from a want of proper care. If another trial be had, a charge under the provisions of article 41, supra, should be submitted to the jury.

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: CALHOUN, J.

text:
    BOARD v. STATE.
    No. 15430.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Tom McMurray and Arthur Lee Moore, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, two years in the penitentiary.

The killing took place on a certain Sunday night at or near a negro church. A short time before the killing actually occurred, a difficulty had arisen between the appellant and a negro girl by the name of Cora Towles, who-was a niece of the deceased, and because of said difficulty the said Cora Towles struck the defendant with a knife, inflicting some injuries to his hand and wrist. There was some evidence to show that in this difficulty between the appellant and Cora Towles the deceased and another negro man by the name of Dewberry participated. The appellant, shortly after the trouble between himself and the said Cora Towles, left the premises where the difficulty had taken place, went to his home, procured a shotgun, and returned to near the negro church and there shot and killed the deceased.

The appellant offered testimony to show that the deceased had threatened the appellant on the occasion in question. Appellant also introduced one witness- who testified to a threat that had been made by deceased against appellant some two or three weeks prior to the killing. The appellant testified that he returned with the gun for the purpose of conversing with the people with whom he had the difficulty in order to settle their differences, and he brought the shotgun back with him for the purpose of protecting himself if necessary. He further testified that at the time he fired the shot which took the life of the deceased, deceased had a rock in his hand with his hand drawn back in a threatening position and he shot the deceased becanse he thought deceased was about to strike him or throw said rock at him.

One of the appellant’s main contentions is based on the refusal of the learned trial judge to compel the state’s attorney to deliver to his attorney certain written statements. This matter is presented by a bill of exception. The bill shows that in justification of said killing the defendant relied upon the fact that, he acted in self-defense; that the deceased had threatened his life and said threats had been communicated to appellant' and he believed said threats; that some ten or fifteen minutes before the killing, one Cora Towles had cut and slashed him with a knife about his hands and wrist; that the deceased, who was the uncle of Cora Towles, accompanied by one T. X. Dewberry, had attacked the defendant and had tried to kill or inflict serious bodily harm to the defendant; that at the time of the actual killing deceased had a large rock in his hand and was th"eatening to strike defendant with same. The bill further shows that the defendant introduced as a witness one Herman Rusk, who testified on direct examination that he was at the scene of the homicide a short time before the actual killing and he saw Cora Towles, who was a niece of the deceased, cut the defendant twice with a knife and saw the said Cora Towles and deceased and one Dewberry run the defendant in between two au omobiles and saw the deceased and the other man with rocks in their hands while they were running the defendant and while they were going up to where defendant was and that the deceased indicated that he was taking something out of his pocket; that it was necessary for the defendant to jump over the hood of an automobile in order to get out from the ear and the deceased and the other man. The bill further shows that after the witness had so testified, the state’s attorney exhibited to said witness, while he was on the stand and in the presence and hearing of the jury, a paper containing about two pages of typewritten matter and asked the witness if the same was not a statement that he (the witness) had given to Mr. Dawson Davis, another assistant district attorney, just a few days after the homicide, to which the witness answered in the affirmative and identified his signature; thereupon, the state’s counsel proceeded to read portions of the statement and asked the witness if he had not made such statements, all of which was in the presence and hearing of the jury. The bill further shows that on cross-examination of the witness, state’s attorney asked the witness if, as a matter of fact, he had not heard any one holler to the defendant “Run, boy, run, or they will kill you,” to which the witness answered that he had heard such statement made. Then the witness was asked if it was not a fact that he never had heard any words spoken such as, “They will kill you,” and the witness answered that he had heard such statement made. Then the witness was asked if as a matter of fact he had not made up that portion of his testimony since he signed the statement, which he denied. The bill further shows that the state’s attorney, after the above proceedings, had failed and refused to introduce any portion of said statement to the jury, except the portion state’s counsel read in the presence and hearing of the jury and questioned .the defendant with reference thereto. The bill further shows that when the state turned said witness over to the defense counsel for redirect examination, counsel for defendant requested the court to require the state’s attorney to deliver the statement signed by the said witness, which said statement at the time was in the hands of the assistant district attorney participating in the trial of the case, while he was sitting in the courtroom, in the presence and hearing of the jury, to defense counsel in order that defense counsel might have the benefit of all of said statement, which motion was denied and refused by the court, whereupon defense counsel stated that he desired to introduce said statement to the jury in toto; and stated, “I do here now offer said statement in full in evidence”; but the court refused to require state’s counsel to deliver said statement to defense counsel, and defense counsel was therefore unable to introduce said statement before the jury, although he had offered the same. The bill further shows that at the time the defense counsel stated that he offered the same for the reason that in allowing state’s counsel to read therefrom with reference to portions of said statement the jury would be led to believe that said witness had made a different statement a few days after the homicide than the statement that he was making in open court while testifying and would lead the jury to believe that the statement inquired about was different from his present testimony; that the action was extremely prejudicial to the rights of the defendant, in that as a matter of fact the statement in question contained in substance the same testimony as was testified to by the witness on the stand in the trial of this case; and that in not allowing defense counsel to read all of same to the jury, said witness was thrown in an improper light and 'his testimony greatly weakened, and to all of which appellant’s counsel duly excepted. The bill is allowed with the explanation that the portion of the statement set out in the bill was read by counsel for the state to the witness in portions and the witness was interrogated with reference to whether or not he made such statements and whether or not they were true.

That portion of the written statement about which the witness was interrogated differed materially from some of the statements shown to have been testified to by said witness. In 'his direct evidence, said witness testified positively that he saw the said Cora Towles and the deceased and another man by the name of Dewberry run the defendant in between two automobiles and saw the deceased and Dewberry with rocks in their hands while they were running the appellant ; but it is shown from the testimony read to the witness about which he was interrogated that he did not know who the negro woman was who cut the appellant and that he did not know either one of the men he had seen following the woman. Therefore, said testimony could only be offered for the purpose of impeaching said witness and this was the only purpose for which said testimony could have been admissible. As to the contents of said written statement signed by the witness, it is not before this court, and there is nothing in the record which showed that appellant’s counsel has ever been allowed to see said written statement. What the contents of said statement are, whether it relates to the same subject-matter testified to by the state’s witness, and whether that portion of it not read explains or tends to explain the testimony and the statements about which the witness was examined on cross-examination, we cannot say. The writing called for by appellant was not a public document and not open to inspection of appellant’s counsel as a matter of right. Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Taylor v. State, 87 Tex. Cr. R. 338, 221 S. W. 611. But such paper becomes sub'ject to appellant’s demand for its production only when used before the jury by the state in some way by which its contents become an issue. Green v. State, 53 Tex. Cr. R. 490, 110 8. W. 920, 22 L. R. A. (N. S.) 706; Rutledge v. State, 91 Tex. Cr. R. 231, 250 S. W. 698.

Applying the rules laid down in the authorities cited, the bill of exception in question shows that the state had asked questions relevant to the written statement and had exhibited same by reading therefrom in the presence of the jury. This was equivalent to an introduction of that part of said statement which the state’s counsel had read before the jury, and under the circumstances we believe that the appellant had a right to examine said written statement and introduce all of said statement that tended to explain or clarify the portions read to the witness in «the presence of the jury in evidence by the state. Certainly a question of fairness would require it to be made available to counsel for appellant.

The issue in this case was sharply contested and the contents of said statement so far .as we know might have been very material to appellant’s theory of self-defense, and we feel constrained to hold that the failure of the trial court to permit appellant’s counsel to examine- said statement was such error as calls for reversal of this case.

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: PELPHREY, C. J.

text:
    BROWN SHOE CO. v. SHOR.
    No. 2764.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 5, 1933.

      Ered J. Dudley, of Dallas, for plaintiff in error.
    Wm. Andress, Jr'., of Dallas, for defendant in error.
   PELPHREY, C. J.

Plaintiff in error sued out a writ of garnishment against defendant in error in the county court at law, No. 1, of Dallas county, Tex. Defendant in error answered not indebted, which answer - was controverted by plaintiff in error. Upon a trial before the court judgment was rendered in favor of defendant in error and an appeal has’ been prosecuted to this court.

At the request of plaintiff in error, the trial court filed the following findings of fact and conclusions of law:

“Findings of Fact.
“1. Plaintiff is the owner and holder of a valid and subsisting judgment rendered on December 5, 1961, against Head-Hargrove Company, a co-partnership, M. G. Hargrove, C. E. Hargrove and J. W. Head, co-partners therein, which judgment is in the amount of $461.55, with interest at six per cent from the 1st day of January, 1931, all of which amount is ‘still unsatisfied.’
“2. On January 8th, 1931, Head-Hargrove Company, M. G. Hargrove, C. E. Hargrove and J. W. Head, acting by their duly authorized agent M. G. Hargrove, executed a Deed of Assignment of all of its and their property not exempt from execution, to J. I. Shor, for the benefit of its and their creditors, share and share alike, under the terms of Title 12 of the 1925, E. C. S. of Texas, pertaining to assignments for the benefit of creditors.
“Acting under the authority of such deed J. I. Shor, as such assignee, took possession of all such assets and property of Head-Har-grove Company, M. G. Hargrove, C. E. Har-grove and J. W. Head, jointly and individually, not exempt from execution, and proceeded to convert same into cash at public sale after advertising such sale in the newspapers. At such sale all of such assets were sold for the sum of $5,105.00 cash. Fixtures at Brownfield and at Quitaque, valued at $1742.00 were turned over to the landlords in settlement of rent claims.
“The amount of unsecured indebtedness of such partnership and such individuals at the date of such assignment was $17,468.00. 'Subsequently a dividend in the sum of fifteen per cent of the claims was paid to such accepting creditors and at the time of the institution of this cause of action garnishee had in his hands the sum of $918.26, being the balance remaining in his hands derived from the sale of the assets conveyed by said partnership and said individuals.
“3. Each of said individual assignors had a homestead, household furniture and fixtures and wearing apparel and an automobile which were exempt from execution and were not conveyed by the deed of assignment.
“4. J. I. Shor, as such assignee, did not file any bond in Dallas County where he resided, or in the Counties where the property of the individuals or partnership was located, nor did he cause any advertisement of his qualification as assignee under the assignment to appear in any newspaper in the County of his residence or in the County of the residence of either of the partners or partnership or where the property was located. Said Shor, however, sent a letter to each creditor listed by the assignors setting forth the making of such assignment, a statement of the assets and liabilities of the assigned estate and a notice of the public sale at which said property was sold, a copy of which letter was received by plaintiff herein.
“5. Plaintiff although listed by assignors as an unsecured creditor and being of the same class as the accepting creditors, refused to accept under said assignment and filed suit against the partnership and individual members, in which suit the aforesaid judgment was rendered in its favor on December 5, 1931.”
“Conclusions of Law.
“1. The deed of assignment of J. I. Shor, executed by Head-Hargrove Company, a co-partnership, and its individual members, M. G. Hargrove, C. E. Hargrove and J. W. Head, as above set forth, was sufficient to pass title to all of its and their assets not exempt from execution to J. I. Shor, for the benefit of its and their creditors.
“2. The failure of the assignee to give bond and to advertise his qualifications as such assignee, does not invalidate the assignment, such provisions of the statute being directory only.
“3. Title 12, of the 1925 E. C. S. of Texas [articles 261-274] being valid, the assignment was sufficient to pass title to all of the assets of Head-Hargrove Company and the individual partners thereof to J. I. Shor and he held such assets and the proceeds derived therefrom as assignee for the benefit of creditors in trust for such creditors.
“4. The fund of $918.26 so held by defendant, J. I. Shor, as assignee for the benefit of creditors, of Head-Hargrove Company and the. individual partners thereof was not subject to garnishment by plaintiff as judgment creditor to said partnership and said individuals.”

Plaintiff in error assigns error: (1) That the court erred in finding that Head-Har-grove Company, M. O. Hargrove, O. E. Har-grove, and J. W. Head executed a deed of assignment for the benefit of their creditors under the terms of title 12 of the 1925 Revised Civil Statutes; (2) that the court erred in finding that defendant in error was acting under the authority of such deed of assignment; (S) that the court erred in concluding as a matter of law that the deed of assignment was sufficient to pass title to defendant in error; (4) that the court erred in concluding as a matter of law that the provision of the statute as to the qualifying of an assignee was directory only; (5) that the court erred in concluding as a matter of law that defendant in error held the assets of the Head-Har-grove Company as assignee for the benefit of creditors under the provision of said title 12; (6) that the court erred in concluding as a matter of law that the sum of $918.26 was held by the defendant in error as assignee for the benefit of creditors; and (7) that the court erred in rendering judgment against plaintiff in error because title 12 of the Revised Civil Statutes was invalid, being in conflict with article 1, § 8, clause 4, of the Constitution of the United States.

The title in question is not an insolvency law, Keating v. Vaughn, 61 Tex. 518, 524, and is not in conflict with or suspended by the National Bankruptcy Law (11 USOA). Star v. Johnson (Tex. Civ. App.) 44 S.W.(2d) 429, writ of error refused (Tex. Sup.) 47 S.W. (2d) 608; Patty-Joiner & Eubank Company v. R. B. Cummins, 96 Tex. 598, 57 S. W. 566; Dodgion v. J. M. Radford Grocery Co. (Tex. Civ. App.) 50 S.W.(2d) 837.

Unless for some other reason the assignment was invalid, the funds in the hands of the assignee were not subject to garnishment. Star v. Johnson, supra, and authorities cited.

The remaining contention of plaintiff in error is that the assignee’s failure to file a bond in Dallas county, where he resided, or in the counties where the property of the individuals or partnership was located, and his failure to advertise his qualification as assignee under the assignment in a newspaper in the county of his residence or of the residence of either of the partners or of the partnership or in the county where the property was located, entirely invalidated the assignment and left the title in the assignors, and, therefore, subject to garnishment.

In its assignments of error it questions the findings of fact made by the trial court, but there having been no statement of facts filed with the record, we must accept the findings as made and limit our consideration of validity of the assignment to the facts above enumerated.' As said by the Supreme Court in Foreman v. Burnette, 83 Tex. 396, 18 S. W. 756, 759, in upholding the validity of an assignment where the assignee was not a resident of the county in which the assignor resided: “It has been held that the omission of property from the inventory, the failure to annex an inventory, the failure to include all of the creditors in the schedule, and the failure of the assignee to file a bond, will not avoid the assignment.”

In view of the provision of the statute itself (article 266, R. S. 1925), the holding of the Supreme Court in Windham v. Patty & Matthews, 62 Tex. 490, and the above expression of the Supreme Court in Foreman v. Burnette, the assignment was not avoided by failure of the assignee to file his bond. See, also, In re Freeman (C. C. A.) 35 F.(2d) 952.

If an assignment would not be avoided by the assignee’s failure to file his bond and by a failure to comply with other requirements of the statute, such as those above enumerated, then we fail to see how a failure to give notice of his appointment in the newspapers could be so held, especially where, as here shown by the findings of fact, plaintiff in error received a letter from the assignee notifying it of the assignment.

The judgment of the trial court is affirmed.


author: WALTHALL, J.

text:
    ENDICOTT-JOHNSON CORPORATION v. J. I. SHOR, Garnishee.
    No. 2765.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 19, 1933.
    Fred J. Dudley & Associates, of Dallas, for plaintiff in error.
    Wm. Andress, Jr., of Dallas, for defendant in error.
   WALTHALL, J.

This is a companion ease to that of Brown Shoe Company v. J. I. Shor, Garnishee, 56 S.W.(2d) 466, recently considered by this court. The facts and records in the two eases are similar, and in considering this case we have reached the same conclusion as in that case. For the same reasons there stated, the case is affirmed.


author: MARTIN, J.

text:
    RAY et al. v. MOXON et al.
    No. 3937.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 4, 1933.
    Rehearing Denied Jan. 25, 1933.
    Touchstone, Wight, Gormley & Price, of Dallas, for plaintiffs in error.
    Thomas & McDonald, of Big Spring, for defendants in error.
   MARTIN, J.

For convenience the parties to this appeal ■will carry the same designation as in the trial court.

Plaintiff Le Roy Moxon, by next friend, brought suit against E. E. Ray and the Commercial Standard Insurance Company, defendants, for damages. The substance of his cause of action against Ray was that said Ray had negligently struck the motorcycle on which he was riding on the Bankhead Highway near the town of Big Spring, with his automobile, inflicting physical injuries not necessary here to set out.

For cause of action against the other defendant herein, plaintiff alleged: “That defendant, Commercial Standard Insurance Company, hereinafter referred to as the Insurance Company, had at the time of said injury, an insurance policy issued to E. E. Ray, the other defendant herein, such policy being then and there in force, the main purpose of which was in substance the providing of public liability insurance binding the said Insurance Company to pay any and all damages sustained by any third party because of and through the negligence of the defendant E. E. Ray, and because of the policy and by reason of the terms thereof, the said defendant Insurance Company has, under the facts and circumstances hereinbefore set out, become liable jointly with the defendant E. E. Ray unto the plaintiff herein for the payment of any and all of the damages hereinbeforé set out, such policy of insurance being written not only for the benefit of the said defendant E. E. Ray, but for the benefit of such third parties as might become injured through the negligence of the defendant E. E. Ray, and the plaintiff having been injured by and through the negligence of the defendant, comes within the terms, stipulations and benefits of the said public liability insurance policy then and there existing, issued and delivered by the said Commercial Standard Insurance Company and such judgment as may be herein rendered against said E. E. Ray, should also, under the terms of said policy, be entered and adjudged over and against the said Insurance Company, jointly and severally.”

Judgment was rendered for plaintiff against defendants in response to special issues.

Both defendants filed pleas in abatement, alleging a misjoinder of parties and causes of action. This was overruled, after which, and subject to the ábove pleas, the defendants filed answer on the merits, the nature of which will sufficiently hereinafter appear in the discussion of the law questions.

Under appropriate assignments of error both defendants here contend, and we think correctly so, that the court erred in overruling their respective pleas in abatement.

The general rule is that causes of action ex delicto and ex contractu may not be joined in the same suit unless they have arisen out of the same transaction or relate to the same subject-matter and are dependent mainly upon the same evidence. 1 Tex. Jur. § 42, and authorities there collated.

The real question presented is whether or •not tlie contract evidenced by tbe policy issued to the insured may be construed to give a direct right of action against the insurer by the injured party, or, stated otherwise, whether or not such a policy creates primary liability against the defendant insurance company. Manifestly a negative answer to this places this case within the general rule above stated.

Confusion exists among the authorities regarding this matter, and its importance has caused us to make a careful examination of existing precedents in an effort to arrive at the correct .rule.'

The policy in question provides, in part, that the aforesaid insurance company:

“Does hereby insure the assured named and described herein for the term herein specified, against * * *
“Bodily Injuries or death accidentally suffered or alleged to have been suffered by any person or persons * * ⅜ as the result of an accident occurring while this policy is in force * * *. The liability of the Company under this Item 1 is limited to the amounts stated in Item 1 of the ‘Schedule of Coverage’ on the preceding page, but the Company will, in addition to such limits, pay for the expense incurred by the Assured for such immediate medical aid as shall be imperative at the time of an accident on account of which claim could be made under this Item 1. ⅜ ⅜ *
“Defense of Suits: Interest and Costs. In the event that loss or expense from the Peril set forth in Item 1 and/or Item 2 is insured against hereunder, then as respects the Peril or Perils so insured against, the Company will defend, in the name and on behalf of the- Assured, any suits for damages arising from such accidents as are covered by Item 1 and/or Item 2 of this policy, and will pay all costs taxed against the Assured in any legal proceedings defended by the Company, all interest accruing after entry of judgment * * *
“Accidents Must be Reported-. Assured Must Cooperate. Upon the occurrence of any loss or accident covered under Section One of the Schedule of Perils and irrespective of whether any injury or damage is apparent, at the time, the Assured shall give immediate written notice to -the Company at its offices-in Dallas, Texas, with the fullest information obtainable at the time. If a claim is made-on account of any such accident the Assured shall give like notice thereof immediately after such claim is made, with full particulars. If thereafter any suit is brought against the Assured to enforce such claim, the Assured shall immediately forward to the Company every summons or other process as soon as the same shall have been served. Whenever requested by the Company, the Assured shall aid in effecting settlements, securing information and evidence, the attendance of witnesses - and in prosecuting appeals, and at all times render all possible cooperation and assistance. The Assured shall not voluntarily assume any liability or interfere in any negotiations for settlement or in any legal proceedings or incur any expense or settle any claim, except at Assured’s own cost, without the written consent of the Company previously given. The Company reserves the right to settle or defend, as the Company may elect, any such claim or suit brought against the Assured, and in defending any suit the Company shall, have the sole right to determine whether appeals shall be taken from any order or judgment. The liability of the Company as expressed and limited in this policy shall not be enlarged by reason of any mistake, failure, refusal or negligence in connection with the settlement or defense of- any claim, loss or suit. * * *
“Losses Must be Reported. In the event 1 of loss or damage under Section Two of the Schedule of Perils, the Assured shall give immediate written notice thereof to the Company at its offices in Dallas, Texas, with the fullest information obtainable, and shall, within sixty days (In Texas ninety-one days)from the date of such loss or damage, file written proof of interest and extent of loss, signed and sworn to by the Assured, stating the knowledge and belief of the Assured' as to the place, time and cause of the loss or damage, the interest of the Assured and of all others in the property, the amount of damage and the amount claimed; and the Assured as often as required shall exhibit to any person designated by the Company all that remains of any property herein described, and. shall submit to examinations under oath by any person named by the Company, and subscribe the same, and as often as required shall produce for examination all books of accounts, bills, invoices and other vouchers (or certified copies thereof if originals be lost) at such reasonable place as may be designated by the Company or its representatives, and shall permit extracts and copies thereof to be made. Failure to comply with any- and/or all provisions of this paragraph shall invalidate the claim. * * *
“Right of Recovery, Time Limit. No Action, shall lie against the Company to recover any loss or expense under Section One of the Schedule of Perils unless the Assured shall have fully complied with all the requirements hereof and unless such action shall be brought by the Assured or his heirs or legal representatives for loss and/or expense actually sustained and paid in money by the Assured after the amount thereof shall have been fixed and rendered certain, either by final judgment against -the Assured after actual trial of the issue or by agreement between the parties with the written consent of the company * *

The last clause above qu’oted has come to be known in judicial parlance as a “no action danse,” and will be frequently referred to in tbis opinion.

As supporting his contention that this policy gives a direct right of action against the insurer and creates primary liability, plaintiff cites, among others, the following authorities: -Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423, 425; American Automobile Insurance Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534; American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662.

In the Longoria Case, supra, the terms of the policy are not set out, their substance and legal effect only being stated. Among these we note the following: “So it appears that the assured does not have to pay the judgment first and then sue the insurance company for reimbursement; but the insurance company agrees ‘to pay and satisfy judgments rendered against the assured’ in the first instance. * * * The policy clearly contemplates and provides that the payment will be made by the insurance company directly to the injured party.”

If the policy under discussion in this case contained a “no action clause,” it was not so stated. This difference constitutes one of the chief distinctions between the above case and the instant one. We have examined with care all authorities cited in support of the above case, and their facts are so radically different from those under consideration that an obvious distinction is made apparent by their mere recital. For example, the case of American Automobile Insurance Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534, is there cited and appears to have been given controlling effect. The facts of the Struwe Case are set out and discussed at length in the later case of American Automobile Insurance Co. v. Cone (Tex. Civ. App.) 257 S. W. 961, 963. From it we quote:

“There has been furnished to us, and which was used in the oral argument herein, a certified copy of the ordinance and the bond or policy in the Struwe Case, supra, as taken from the record therein. From these it appears that the ordinance provided for the licensing of certain public service automobiles and requiring that they give bond, payable to the mayor of San Antonio and his successors in office, ‘for the benefit of every person injured * * * or will well and truly pay directly to any such person * * * any amount * * * that may be awarded by final judgment * * * against such licensee on account of any such injury,’ not exceeding a certain amount. The bond or policy refers to the above-mentioned ordinance and in terms obligated the insurance company ‘to pay directly to any person so injured * * * any amount or amounts which may be awarded by any final judgment ⅜ * * on account of such injuries against the assured herein,’ not exceeding a certain amount, and also provided that—
“ ‘This policy shall operate for the benefit of any persons injured in person or property, as specified in the ordinances of the city of San Antonio, Texas, above recited; and all such persons shall be considered and are beneficiaries under this contract; and may institute and maintain suit, prosecute and enforce judgment under this policy in their own names and for their own benefit, as if they were actual parties hereto.’ ”

We would have here an entirely different question if in this ease the insurance company had contracted directly, as in the Struwe and Longoria Cases, supra, to pay directly to the injured party so as to make it primarily liable. Such, however, is not our case, as will be readily apparent from reading the terms of the policy above set out. To hold, in the face of the “no action clause” above quoted, that such policy gives a direct right of action by the injured party before judgment against the assured, would be to abrogate the terms of a contract in favor of a stranger to it and who was clearly not a beneficiary under it. We know of no reason why two parties cannot make a contract of the character above quoted. It violates no statute, it is not against public policy, and if the two parties who made it are satisfied with its terms, what right has a court to intrude itself into their affairs and make a new contract for them, as would be the caso if we followed the construction claimed by plaintiff? The contract in question is not under attack here by either of the parties who made it. Under its plain terms no action can be maintained upon it except upon the conditions named therein, none of which are present here. Whether the assured would have to actually pay any judgment rendered against him before having a right to sue on the policy is not before us, but such a question has furnished the subject-matter of an interesting opinion by our Supreme Court in the case of American Indemnity Co, v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633. See, also, Kipkey v. Casualty Association of America, 255 Mich. 408, 238 N. W. 239.

None of the cases cited by plaintiff supports his view. The Monzingo v. Jones Case, supra, construes a policy required by law to be taken out by motorbus operators and by statute is required to be so written as to give the injured party an affirmative right of action thereon. That such a holding would furnish no precedent for the action of the trial court in this case is too plain for argument.

We turn now to a consideration of the reasons and of the cases which in our opinion tend to support our view that the policy in question did not make the insurer herein primarily liable to the plaintiff and that its joinder in this suit was improper.

Let us examine for a moment the nature of tie policy in question, which has been made the depository of all contractual obligations entered into between the assured and the insurer with respect to the subject-matter under discussion. Neither in purpose or by express terms was such contract made for the benefit of plaintiff. Plainly it was made to protect Ray against happenings which might prove disastrous to his business or property. The consideration for the contract was paid by him; its promises run to him alone and were for his benefit only. The policy was his property. The plaintiff was not a party thereto and should not now be allowed to assert rights under it unless by its terms, express or implied, the original parties so intended. No such right is expressly given, and it seems to us by necessary implication is denied him by the stipulation that no cause of action can be brought thereon except upon the contingencies and subject to the conditions quoted in the “no action clause” above set out. The insurer did not assume towards the plaintiff in its contract the place of a primary debtor. It had the undoubted legal right to annex to its promises any conditions that did not run counter to some rule of law which made them void. The general provisions of this policy might be interpreted as indemnifying against liability rather than loss, but its specific provisions show apparently as plainly as human language can make them that it was written for the benefit of the assured and him only to indemnify him against loss.

The case of American Automobile Insurance Co. v. Cone (Tex. Civ. App.) 257 S. W. 061, 963, in its facts, closely parallels the instant case and fully supports our conclusion. A comparison of this ease with the Struwe Case, supra, will sufficiently illustrate to the investigator the difference between a policy of indemnity against actual loss and one of indemnity against mere liability for loss, and between one made only for the benefit of the assured and one upon which a third party may sue directly. In the Cone Case, supra, a “no action clause,” as in this case was one of the stipulations of the policy. We quote from this case: “The policy is a contract of indemnity against loss and expense, as distinguished from a policy indemnifying against liability for loss or expense, and in such policies as this it has been generally held that liability of the insurance company does not attach until the assured has actually sustained and paid the loss aftér judgment rendered therefor; whereas, in policies indemnifying against liability for loss, liability attaches as soon as the assured becomes potentially liable for a loss by reason of the happening of some event covered by the policy which has created possible liability against the assured, and that compliance with its terms under the character of policy here involved, as to payment of the loss after judgment, is made a condition precedent to any right of action on the policy, and that ho right of action upon the policy exists in favor of an injured person, and that this is so held regardless of whether the assured is or has become insolvent since the accident or before or after judgment has been obtained against the as,-sured by the injured person. Texas Short Line Ry. v. Waymire (Tex. Civ. App.) 89 S. W. 452; Owens v. Jackson (Tex. Civ. App.) 217 S. W. 762; Young v. State Bank of Marshall, 54 Tex. Civ. App. 206, 117 S. W. 476; Fidelity & Casualty Co. v. Martin, 163 Ky. 12, 173 S. W. 307, L. R. A. 1917F, 924, and note; Clark v. Bonsai, 157 N. C. 270, 72 S. E. 954, 48 L. R. A. (N. S.) 191; Embler v. Hartford, etc., Co., 158 N. Y. 431, 53 N. E. 212, 44 L. R. A. 512; Carter v. Ætna Life Ins. Co., 76 Kan. 275, 91 P. 178, 11 L. R. A. (N. S.) 1155; Travelers’ Ins. Co. v. Moses, 63 N. J. Eq. 260, 49 A. 720, 92 Am. St. Rep. 663; Puget Sound, etc., Co. v. Frankfort, etc., Co., 52 Wash. 124, 100 P. 190; Ford v. Ætna Life Ins. Co., 70 Wash. 29, 126 P. 69; Bain v. Atkins, 181 Mass. 240, 63 N. E. 414, 57 L. R. A. 791, 92 Am. St. Rep. 411; Frye v. Bath, etc., Co., 97 Me. 241, 54 A. 395, 59 L. R: A. 444, 94 Am,. St. Rep. 500; Allen v. iEtna Life Ins. Co., 145 F. 881, 76 C. C. A. 265, 7 L. R. A. (N. S.) 958, and note.”

We again call attention to the fact that plaintiff Moxon was not a party to this policy. Neither by express stipulations therein, nor by the use of language necessarily implying such, is he a beneficiary. Could Ray, the assured, have originally maintained suit against the insurer' under this policy and collected a judgment upon allegations of the facts pleaded by plaintiff and before any judgment was ever rendered against him determinative of liability and the extent of the damages? We think not. This, for one reason, because the policy itself requires the existence of a final judgment against the assured or an agreement, to which the insurer was a party, so as to have determined the intrinsic character of the happening and the amount of damages as a condition precedent to his right to sue. Would a stranger to the contract then be given a right inhibited by it expressly to the very party who made it? The recovery of a judgment is the manner provided in the contract by which the insured proves to the insurer that the occurrences relied upon by the injured party were covered by the policy and the extent of the damages. It is the mode provided for establishing liability and loss. It is the judicial ascertainment of the facts which give rise to liability. Thence forward after the rendition of such a judgment, the mouth of the insured is closed by his contract as to the existence of the happenings therein ridjudi-cated and the resultant damages. To have these questions definitely determined in a suit between the original parties is undoubtedly a matter of some concern to* the insurer, in consideration of which it could afford to issue a policy for a less consideration. If such an arrangement suits both parties to the contract and same is valid, certainly an appellate court is without authority to judicially nullify what they have plainly agreed upon..

The case of Kuntz et al. v. Spence (Tex. Civ. App.) 48 S.W.(2d) 413, not cited by plaintiff, is one of the Texas cases which we have found that tends to support his view. This case was cited and apparently followed in Thurman v. Chandler (Tex. Civ. App.) 52 S. W.(2d) 315, 320. The overwhelming weight of authority is, in our opinion, against the holding in the Kuntz Case. Its reasoning has been repeatedly rejected with almost practical unanimity throughout the United States, as will be later shown. As the result of such holdings, many states have enacted statutes giving the injured party a direct right of action against an indemnity insurance company in cases of the character under discussion.

As typical of the holdings of the courts of other jurisdictions in construing a policy with clauses similar to those quoted above, we cite the following eases: Degnan v. Rhode Island Mut. Diability Ins. Co., 51 R. I. 368, 154 A. 912; Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135; Jacobs v. Casualty Co., 198 App. Div. 470, 191 N. Y. S. 692; Goodman v. Ins. Co., 189 Ala. 130, 66 So. 649; Connolly v. Bolster, 187 Mass. 266, 72 N. E. 981; O’Connell v. Railway Co., 187 Mass. 272, 72 N. E. 979; Frye v. Gas & Elec. Co., 97 Me. 241, 54 A. 395, 59 L. R. A. 444, 94 Am. St. Rep. 500; Eberlein v. Fidelity & Deposit Co., 164 Wis. 242, 159 N. W. 553; Stenbom v. Brown-Corliss Engine Co., 137 Wis. 564, 119 N. W. 308, 20 D. R. A. (N. S.) 956; Herbo-Phosa Co. v. Phil. Cas. Co., 34 R. I. 577, 84 A. 1093; Cushman v. Fuel Co., 122 Iowa, 657, 98 N. W. 509; Ford v. Ætna Life Ins. Co., 70 Wash. 29, 126 P. 69; Luger v. Windell, 116 Wash. 375, 199 P. 760, 761, 37 A. L. R. 641; Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 So. 649; Allen v. Ætna Life Ins. Co., 145 F. 881, 76 C. C. A. 265, 7 L. R. A. (N. S.) 958.

The Texas authorities are cited in the above quotation from the Cone Case.

The trial court submitted the issue of whether or not defendant failed to maintain a proper lookout for other vehicles upon the highway, but refused, upon proper objections and exceptions, to define the term “proper lookout.” This is assigned as error, and the case- of Wichita Falls & S. R. Co. v. Hamilton (Tex. Civ. App.) 37 S.W.(2d) 755, is cited in support of the assignment. The case is in point. The later case of France v. Graves (Tex. Civ. App.) 48 S.W.(2d) 438, announces the same holding with apparent reluctance. The term is not a legal or technical one in our opinion and requires no definition. An attempt to explain what is already clear tends only to confuse the jury. If “proper lookout” be defined, why not “proper” and “look” and “out,” and so on ad infinitum until finally a bewildered jury would find itself blinded by a cloud bank of verbosity? To require a definition of words whose meaning ought to be known to every fourth grade pupil is to set a precedent that will tend to discredit and destroy the system of trial of eases upon special issues. Until and unless the Supreme Court specifically so holds, we decline to assent to the proposition that such term must be defined.

The assignment is overruled.

For the error pointed out the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

In our original opinion we erroneously stated that the case of Kuntz v. Spence had not been cited by defendant in error. The case was, in fact, plainly cited, but overlooked.

The recent case of American Indemnity Co. v. Martin et al. (Tex. Civ. App.) 54 S.W.(2d) 542, appearing in print subsequent to the date of our opinion is called to our attention by defendants in error in the motion for rehearing. It is apparently in conflict with our holding herein. We do not agree with the reasoning of the eminent judge who wrote that opinion. As we view it, the sole question presented is one of the construction of a contract between two parties. The avoidance of a multiplicity of. suits can not, it seems to us, be made to affect this question. Our holding was bottomed upon the proposition that the defendant in error, who was-not a party to the contract in question and at most only a contingent beneficiary under it, had no right to maintain a cause of action thereon, he being an entire stranger to it We are unable to see the view-point that the avoidance of a multiplicity of suits has anything to do with the determination of this question.

Motions for rehearing and to certify are both overruled.


author: SMITH, J.

text:
    FAIRBANKS et al. v. DENNETT MOTOR SALES CO.
    No. 8969.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1933.
    G. D. Fairbanks, of Brownsville, for appellants.
    West & Hightower, of Brownsville, for ap-pellee.
   SMITH, J.

This action was brought against Margaret McAllen Fairbanks and her husband, G. D. Fairbanks (joined pro forma) to recover upon a garage bill for goods and services alleged to have been furnished Mrs. Fairbanks for the benefit of her separate estate, or, in the alternative, as necessaries. The jury found in response to the one issue submitted to them that “the items sued for by plaintiff herein" were necessaries for defendants’ family.” There was no finding that the debt so contracted was “reasonable and proper,” as provided in article 4624, R. S. 1925.

In response to the jury finding the court rendered judgment against both defendants, and directed issuance of execution against the separate estate of Mrs. Fairbanks or the community estate of the latter and her husband, at the option of the plaintiff. The Fairbanks have appealed.

Article 4624, R. S. 1925, is as follows: “Upon the trial of any suit as provided for in the preceding article, if it shall appear to the satisfaction of the court and jury that the debts so contracted or expenses so incurred were for the purposés enumerated in said article, and also that the (Letts so contracted or expenses so incurred were reasonable and proper, the court shall decree that execution may be levied upon either the common property or the separate property of the wife at the discretion of the plaintiff.” (Italics ours.)

We are of the opinion that, in view of the provisions of the statute, appellee could not properly have execution against the community estate of the Fairbanks without a finding that the debt sued on was “reasonable and proper.” Article 4624; Speer’s Law of Mar. Rts. § 153; Harris v. Williams, 44 Tex. 124. The burden of eliciting such finding rested upon appellee, who, failing to meet that burden, was not entitled to recover.

The judgment is reversed, and the cause remanded.


author: MURRAY, J.

text:
    NUECES HARDWARE & IMPLEMENT CO. v. JECKER.
    No. 8971.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1933.
    John A. Mobley, of Corpus Christi, for plaintiff in error.

      J. Turner Vance, of Refugio, for defendant in. error.
   MURRAY, J.

Frank decker, defendant in error, brought this suit in the county court of Refugio county, Tex., against the Nueces Hardware & Implement Company, plaintiff in error, to recover a certain sum of money. The petition, the citation, and the sheriff’s return described the plaintiff in error as Nueces Hardware Company. On call day a default judgment was entered against the Nueces Hardware Company. The plaintiff in error, on the same day and .shortly after default judgment was taken, filed a motion to set aside judgment by default; the motion was afterwards amended. Defendant in error replied to said motion, and a hearing was had. The trial court sustained exception to motion to set aside default judgment on the ground that the motion was not properly verified. Plaintiff in error thereupon asked leave to amend, which was refused, an exception was taken, and said motion was then overruled.

Defendant in error then presented to the court his motion to reform the default judgment by rendering judgment against Nueces Hardware & Implement Company, and the court, after hearing evidence, found, among other things, that the Nueces Hardware & Implement Company is a private corporation, organized and existing under and by virtue of the laws of the state of Texas, and is now engaged in business and transacting the same under the name of Nueces Hardware Company, and that, by filing motion to set aside said default judgment, the Nueces Hardware & Implement Company had entered its appearance for all purposes, and the court then reformed the judgment to read against the Nueces Hardware & Implement Company.

The most serious question presented to us in this case is, Will a judgment by default be permitted to stand against the Nueces Hardware & Implement Company, where said corporation is described in the petition, in the citation and in the sheriff’s return, as the Nueces Hardware Company, and where said matter is called to the attention of the trial court by motion filed on the same day said default judgment was taken?

This question is almost the exact question passed upon in the case of Mecca Fire Ins. Co. v. Campbell (Tex. Civ. App.) 145 S. W. 630, 631. Justice Reese, in speaking for the court, used the following language: “The majority of the court is of the opinion that the citation and service thereof are insufficient to authorize judgment by default against the ‘Mecca Fire Insurance Company (Mutual) of Waco, Tex.’ Briefly stated the majority holds that prima facie the two names are names not of the same but of different corporations. Southern Pac. Co. v. Block, 84 Tex. 21, 19 S. W. 300; John Bickford v. Refugio Land & Irrigation Co., 143 S. W. 1188, decided by this court at present term. It is recognized that, where a corporation in the transaction of its business uses indifferently its proper corporate name and another name slightly different, it may be sued and service be had upon it by either name, as in case of a private individual; but that, if this is attempted to be done, the petition should allege the fact, and that in the absence of a substantial allegation of such fact, evidence cannot properly be heard, and if heard cannot properly be considered, that the corporation is known by both names, or makes use of both names indifferently in the transaction of its business, upon familiar principle that facts not alleged, though proven, cannot be made the basis of a judgment. It is held by the majority that there is no such allégation in the petition, and if the policy attached as an exhibit inferentially shows this fact, it cannot be looked to in order to aid the petition and supply the want of such allegation therein. Shuttuck v. Griffin, 44 Tex. 566, 567; Wynne v. State National Bank, 82 Tex. 378, 382, 17 S. W. 918. The plaintiff’s case fails, not for want of the necessary proof, but for want of the necessary allegations in the petition. It follows that the court erred in rendering judgment by default, for which error the judgment should be reversed and the cause remanded.”

We feel that this is a correct statement of the law on this subject, and, when applied to the present case, requires the reversal of this judgment.

At the time the default judgment was rendered in the present ease, there was no pleading upon which the court could base a finding that the Nueces Hardware Company and the Nueces Hardware & Implement Company were one and the same corporation, and that both names were used indifferently by said corporation.

What allegations were made and what proof was heard on the motion to set aside this judgment could not be used to supply the lack of allegation in the petition at the time default judgment was granted. At the time default judgment was taken, there was nothing in the petition or the citation to put the Nueces Hardware & Implement Company on notice that defendant in error would contend that it was known by the name of Nueces Hardware Company.

Revised Statutes 1925, art. 2922, states, as one of the requisites of a citation, that it shall give the names of all the parties to the suit. The statutory requirements with reference to a citation are uniformly held to be mandatory, and, unless complied with, it is insufficient to support a judgment by default. Where the name of the defendant is misstated in the face of the citation, a judgment by default based thereon must be reversed. See Beck v. Nelson (Tex. Civ. App.) 17 S.W.(2d) 144. In this case the name of the Nueces Hardware & Implement Company does not appear in the citation; yet judgment by default is rendered against 'it. This was error.

Defendant in error cites the case of Abilene Ind. Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S. W. 847, 848, in which case it was stated that a corporation sued by wrong name would he held to have waived the mistake unless it appealed or sued out a writ of error. The above case was a suit to enjoin execution under a judgment but was not an appeal or writ of error from the original judgment as is the case under consideration. In the Abilene Case we find the following language used: “Numberless errors entitle a party to a reversal of a judgment on appeal or writ of error, which are of no avail when relied on to support a collateral attack on the judgment or to furnish a basis for equitable relief against the enforcement of the judgment.”

The fact that the present case is a writ of error from the original judgment and not a collateral attack on same is sufficient to distinguish this case from the Abilene Case.

Contention is made by plaintiff in error that a legal service of citation was not shown in this case. As this question will not arise hereafter, plaintiff in error having entered its appearance herein by prosecuting this appeal, and in view of the fact that we are reversing and remanding the judgment herein, we have not deemed it necessary to discuss this proposition.

For the error pointed out, the judgment of the lower court is reversed, and the cause remanded.


author: HIGGINS, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. CROOKS.
    No. 2790.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 5, 1933.
    Rehearing Denied Jan. 19, 1933.
    Shelby S. Cox, James P. Swift, and Dawther, Cox & Cramer, all of Dallas, for plaintiff in error.
    White & Yarborough, of Dallas, for defendant in error.
   HIGGINS, J.

The Industrial Accident Board made an award in favor of Defendant in Error Crooks awarding compensation upon a weekly basis.

In due time Crooks, by next friend, filed this suit in the district court of Dallas coun: ty to set aside the award and asked for a lump sum settlement.

Upon the trial of the case it was developed upon cross-examination of Crooks that he was at that time 21 years old. There is no evidence that he was not a minor at the time the suit was filed in the district court.

Upon the jury’s findings, judgment was rendered in favor of Crooks.

Error is assigned to the refusal of a requested peremptory instruction to find for plaintiff in error.

The assignment is predicated upon the fact the evidence discloses Crooks was not a minor at the date of trial, and there is no evidence that he was a minor upon the date the suit was filed in the district court.

As we understand the propositions submitted in this connection, it is in effect first contended the suit filed by next friend was ineffectual unless Crooks was then a minor and it was necessary for the evidence to so show; without such proof it would not be shown a suit had* been filed in the district court to set aside the award within the 20-day period (section 5, art. 8307, R. S.) allowed for an appeal from the ruling of the Industrial Accident Board; wherefore the jurisdiction of the district court was not shown.

The opening paragraph of the petition reads: “Now comes W. P. Crooks, a minor, by and through next friend B. Bayless,” etc. The petition thus discloses Crooks was suing and seeking to recover in the capacity of a minor, and, in the absence of a verified answer or plea in abatement questioning his right so to do, the matter of his minority was not in issue. Subdivision S, art. 2010, R. S. It was therefore unnecessary for him to prove his status as a minor at the time he filed the suit. Crouch v. Posey (Tex. Civ. App.) 69 S. W. 1001, and cases there cited.

Nor do we regard the failure of Crooks to amend his petition upon reaching his majority and showing he was then sui juris, as fatal to his right of recovery. It was a matter which should have been raised by plaintiff in error by plea in abatement. Subdivision 3, art. 2010, R. S.; 31 C. J. title, “Infants,” §§ 267 and 274; El Paso & S. W. Co. v. LaLonde (Tex. Civ. App.) 173 S. W. 890.

In support of the assignment in question, plaintiff in error cites Spell v. Wm. Cameron & Co., 62 Tex. Civ. App. 471, 131 S. W. 637. That ease rather supports our ruling, for the right of the next friend to prosecute the writ of error was raised by motion to dismiss presented by the defendant in error, Cameron & Co.

Judgment was in favor of Crooks, the judgment reciting the court found from the undisputed facts Crooks was then 21 years of age. It is complained the pleadings did not support judgment directly in favor of Crooks when he sued by next friend.

Crooks was the real party at interest. The petition so shows. The pleadings support the judgment in his favor, and it was properly so rendered. Galveston Oil Co. v. Thompson, 76 Tex. 235, 13 S. W. 60.

Affirmed.


author: BAUGH, J.

text:
    LLOYDS AMERICA et al. v. LLOYDS SOUTHWEST INSURERS.
    No. 7795.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    Rehearing Denied Feb. 1, 1933.
    Lewright & Lewright, of San Antonio, for appellants.
    J. B. Robertson, of San Antonio, and Dan Moody, of Austin, for appellee.
   BAUGH, J.

Appeal is from the order of the district court of Travis county sustaining appellee’s general demurrer to the pleas of privilege of appellants to be sued in Bexar county. The parties will 'be designated as in the lower court.

Plaintiff’s petition is lengthy, but briefly and in substance alleges the following facts and circumstances: That Lloyds Southwest Insurers, Lone Star Lloyds, and Lloyds America were all unincorporated insurance underwriters, each acting through named individuals as respective attorneys in fact. That Lone Star Lloyds, with offices at Waco, Tex., and acting through J. O. Hartzog, C. E. Beeson, and S. S. Dorbandt, as its attorneys in fact, because of notice from the insurance commission of Texas that unless it increased its reserve, 'the commission would liquidate its business, entered into a written contract with George Gutherie, attorney in fact for the plaintiff, Lloyds Southwest Insurers, on April 21, 1931, whereby, in effect, said Lloyds Southwest Insurers, on conditions named, contracted, among other things, to take overall the assets, policies, so far as possible, and other business of the latter. That with full knowledge of this contract and of the rights of plaintiff accruing therefrom, Lloyds America, acting through Elliot Jones as its attorney in fact, fraudulently procured and induced the Lone Star Lloyds to breach said contract with plaintiff, and to transfer, with the approval of the insurance commission, all of its business, assets, policies, etc., to Lloyds America. Plaintiff made defendants Lloyds America and Elliot Jones, individually, and as its attorney in fact of Bexar county; C. E. Beeson of Travis county, and S. S. Dor-bandt of Williamson county, individually, and as attorneys in fact for Lone Star Lloyds; and Lone Star Lloyds as an association. The fraud was alleged to have been committed in Travis county. The suit as to Lone Star Lloyds and Beeson and Dorbandt was for fraudulent conspiracy and .breach of said contract; and as to Jones and Lloyds America, for tort in procuring and conspiring with the other defendants to effectuate such breach.

The pleas of privilege of Jones and Lloyds America were in statutory form, and were filed September 30, 1931. Plaintiff filed controverting pleas on October 10, 1931. Thereafter on October 31,1931, plaintiff filed a general demurrer to said pleas of privilege. Hearing on said pleas and controverting .pleas was begun on that date hut not completed, and on December 18,1931, the trial court sustained plaintiff’s general demurrer to said pleas of privilege, from which action this appeal is prosecuted.

In this the trial court erred. Appellants’- pleas of privilege followed the express language of the statute, article 2007, R. S. 1925. Under numerous decisions of the courts this has been held sufficient, and is so declared by the express language of the statute itself. Article 2007; Oakland Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861; First Natl. Bank v. Cage (Tex. Civ. App.) 32 S.W.(2d) 500; Johnson v. Bank (Tex. Civ. App.) 42 S.W.(2d) 870, 871; American Fruit Growers v. Sutherland (Tex. Civ. App.) 50 S.W.(2d) 898; Eckert-Burton Const. Co. v. School Board (Tex. Civ. App.) 51 S.W.(2d) 642; Brown v. Cox (Tex. Civ. App.) 53 S.W.(2d) 848. And when, such plea is filed, under the general rules applicable to such cases, unless plaintiff shows by pleading and proof that he is entitled to retain venue of the suit where filed under some exception to the statute, the case should be transferred.

There are some exceptions to this rule, wherein a general or special exception to the sufficiency of such plea will lie. One of these was presented to this court in Tates v. State, 3 S.W.(2d) 114, wherein we held that the court, in testing the sufficiency of the plea of privilege against a demurrer thereto, may look to plaintiff’s pleadings to ascertain the nature and character of the suit, and if it be that character of suit wherein the statute expressly fixes the venue thereof in a designat-' ed forum, as in the Xates Case, then the plea of privilege may be disposed of on the demurrer. See, also, Brown v. Cox, and American Fruit Growers v. Sutherland, supra. The court is not, however, authorized to resort to plaintiff’s pleadings for any facts alleged as constituting his cause of action. No such ease is here presented as was before us in the Yates Case. Appellee also cites, as sustaining the trial fcourt’s action, Humble Pipe Line Co. v. Kincaid (Tex. Civ. App.) 19 S.W. (2d) 144, and Bamum v. Lancaster Hdwe. Co. (Tex. Civ. App.) 40 S.W.(2d) 1103. The issue here presented was not passed upon in the Kincaid Case. In that case the issue of venue was tried upon a controverting plea and determined adversely to the defendant after a hearing thereon. The venue issue there presented and determined related only to the sufficiency of the notice given to the plaintiff of defendant’s controverting plea, precedent to a hearing on the plea of privilege. While Associate Justice Cobbs did use language in his opinion apparently sustaining appellee’s contention here, the majority opinion of that court on rehearing superseded the opinion of Associate Justice Cobbs, and in a subsequent case decided by the same court (American Fruit Growers v.' Sutherland, supra) on the question here presented, itself designated the language used by Associate Justice Cobbs in the Kincaid Case as “pure obiter.” Clearly that case is not in .point here.

The Bamum Case was a county court case in which Lancaster Hardware Company as plaintiff sued Mrs. Bamum in Dallas county in her capacity only as administratrix of the estate of G. H. Williams, alleging that such administration proceedings were .pending in Dallas county. Mrs. Bamum resided in Van Zandt county, and filed her plea of privilege to be sued in that county. Exception No. 6 to article 1995, R. S. 1925, was obviously the one under which that suit was brought. It is clear that if plaintiff was entitled to sue Mrs. Barnum at all, it was only in her capacity as administratrix of an estate being administered in Dallas county, where suit was brought. Whether this was such a character of suit as, under the statute, brings it within the exception to the general rule laid down in Xates v. State, we find it unnecessary to decide. Thé Dallas Court of Civil Appeals decided that it was. Patently that character of suit is distinguishable from a suit on a tort, the case at bar. While the language there used is general, it should be construed in the light of the issue there presented. As a general pronouncement of the law applicable to pleas of privilege generally, which it was obviously not intended to be, it is contrary to the otherwise uniform line of decisions, and has been so expressly .pointed out by the Courts of Civil Appeals at Waco, Amarillo, and San Antonio. Weatherly v. White House Lumber Co. (Tex. Civ. App.) 49 S.W.(2d) 522; American Fruit Growers v. Sutherland, supra ; Eckert-Burton Const. Co. v. School Board, supra. See, also, Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.(2d) 845. Certainly it cannot control the case at bar, under the uniform line of decisions.

Under the circumstances, therefore, the trial court should have completed his hearing of the venue’ issue made by the plea of privilege and the controverting affidavit, and rendered such judgment thereon as the facts and pleadings warranted. The order appealed from is accordingly reversed, and the cause remanded;

Reversed and remanded.


text:
    RELIANCE INS. CO. OF PHILADELPHIA v. NICHOLS et al.
    No. 2782.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 12, 1933.
    Sol Goodell, Pinkney Grissom, and Thompson, Knight, Baker & Harris, all of Dallas, for plaintiff in error.
    Y. A. Collins and Collins and Houston, all of Dallas, for defendants in error.
   HIGGINS, J.

This suit was filed June 26, 1931, by Nichols, against the plaintiff in error, based upon two fire insurance policies issued by the plaintiff in error.. It was alleged the house covered by the policies was burned in June, 1931, resulting in a total loss. The evidence shows the fire occurred ‘on May 26, 1931. Defendant pleaded in abatement and answered by general demurrer and general denial.

The policies in question contained loss payable clause in favor of Guardian Savings & Loan Association and C. L. Sowell. On October 24, 1931, these parties filed pleas in intervention setting up their rights.

Judgment was rendered for the full amount of the policies in the sum of $2,900, with 6 per cent, interest from June 17, 1931. Of the sum so awarded, it was adjudged that the Guardian Savings & Loan Company recover $2,427.38 and Sowell recover $477.37 and Nichols recover the residue, if any.

The policies contained the usual provisions requiring proof of loss, appraisal, and arbitration in case of disagreement as to amount of loss, that loss shall not be payable until 60 days after ascertainment, estimate, and satisfactory proof of loss and nonwaiver stipulation.

Complaint is first made of the refusal to sustain the plea in abatement. This matter presents no error.

First. The plea in abatement was filed in the 116th district court on July 27, 1931, and action thereon was not invoked until the ease was called for trial on its merits at the succeeding term beginning .in October. The 116th district court has terms beginning on the first Mondays in July and October. Chapter 71, Acts 41st Legislature (1930), 5th C. S. (Vernon’s Ann. Civ. St. art. 199, subd. 116).

The record discloses no reason why the plea was not determined at the July term as required by article 2013, R. S. Having failed to invoke the ruling of the court upon the plea during the July term, plaintiff in error is deemed to have waived such plea. Revised Civil Statutes 1925, art. 2013; District Court 24, 142 S. W. XIX; Texas Packing Co. v. St. Louis Southwestern R. R. Co. (Tex. Com. App.) 227 S. W. 1095; Stevens v. Lee, 70 Tex. 279, 8 S. W. 40; Blum v. Strong, 71 Tex. 321, 6 S. W. 167; Halbert v. San Saba Springs Land & Livestock Ass’n (Tex. Civ. App.) 34 S. W. 636; Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224; Bonart v. Lee (Tex. Civ. App.) 46 S. W. 906; Weekes v. Sunset Brick & Tile Co., 22 Tex. Civ. App. 556, 56 S. W. 243.

Second. The undisputed evidence shows that when the fire occurred the defendants’ agents were notified. Nichols and Dunn, an adjuster of defendant, inspected the loss. Nichols insisted the loss was total, which Dunn refused to concede, and demanded an appraisal of the loss. On June 17, 1931, defendant wrote Nichols, stating:

“Failing to agree with you as to the amount of loss and damage by fire of May 26th, 1931, to your dwelling house located at No. 5603 Culver street * * *, demand is now made upon you to submit the matter of value of the property and loss by fire to s%me to appraisal, as provided for in lines ninety-three to ninety-eight inclusive of the printed conditions of the policies.
“Kindly advise name of the appraiser you will select, and proper papers will be drawn to the end that the appraisal may proceed.
“Yours very truly,
“[Signed] The Reliance Insurance Co. of Philadelphia, Pa.
“By H. C. Dunn, Adjuster.”

It is thus apparent the defendant knew of the loss and conceded liability; the only issue between the parties being over the extent of the loss. If the loss was total, the plaintiff’s_ claim was a liquidated demand for the full amount of the policies. Article 4929, R. S. In such a case the amount of the loss and damage is not the subject of appraisal and arbitration.

The insured has the right to resort to the courts for the enforcement of his rightful demand. He cannot be maneuvered out of his right to treat his claim as a liquidated demand for the full amount of the policy by a wrongful demand that he submit to appraisal and arbitration. The unconditional demand on June 17th by defendant for appraisal and arbitration was an admission of liability upon the policies in some amount. St. Paul F. & M. Ins. Co. v. Kirkpatrick, 129 Tenn. 55, 164 S. W. 1186; Harowitz v. Concordia F. Ins. Co., 129 Tenn. 691, 168 S. W. 163.

In the present ease there was actual knowledge of the loss, recognition of liability in some amount, denial of liability as for a total loss, and refusal to pay the amount rightfully due. Such circumstances constituted a waiver of proof of loss. East T. F. I. Co. v. Coffee, 61 Tex. 287; East T. F. I. Co. v. Brown, 82 Tex. 631, 18 S. W. 713.

In further support of its contention that the plea in abatement should have been sustained, defendant further asserts the suit was prematurely brought. In East T. F. I. Co. v. Coffee, supra, it was held that no cause of action arises upon a policy until the lapse of 60 days after waiver of proof of loss. This holding was overruled as applied to cases where there is an absolute denial of liability. Delaware Underwriters, etc., Co. v. Brock, 109 Tex. 425, 211 S. W. 779; Central F. F. I. Co. v. Lewis (Tex. Com. App.) 44 S.W.(2d) 936. In the present case liability was not absolutely denied, but recognized in part. For this reason it may be doubted whether the doctrine announced in the last-cited cases applies here.

But it is immaterial as to interveners whether the ruling in the Coffee Case or the Brocks & Lewis Cases be controlling here for this reason: The waiver became effective on June 17th, when the demand was made for appraisal and arbitration. The interveners did not intervene until October 24th, so their intervention suit was not premature, and as to them the point is clearly not well taken.

The suit of the plaintiff Nichols was prematurely commenced because 60 days from date of waiver had not elapsed when he filed his suit. See Brocks Case, supra. The ease will be remanded as later shown and as to Nichols the matter may be cured by filing an amended petition. 1 Tex. Jur. title, “Actions,” § 67. Such amendment is suggested, for the premature commencement of the suit may, as to Nichols, present more than mere ground of abatement. It may perhaps be regarded as good in bar and of which advantage may be taken under the general denial. 1 O. J. title, “Actions,” § 398.

The only issue submitted reads: “Do you find from a preponderance of the evidence that the fire, on May 26, 1931, at 5603 Culver street, Dallas, Texas, so burned said house as to render said house a total loss?”

Immediately following the issue was this instruction: “In answering the above question, you are told that if a reasonably prudent owner, uninsured, desiring such structure as the one in question was before the injury, could, in proceeding to restore said building to its original condition, utilize the remnants as such basis, it was not a total loss.”

When there is a substantial remnant of a building left after a fire, the question of whether the loss is total within the purview of article 4929, R. S., is a mixed question of law and fact. The fact issue is whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before injury, would, in proceeding to restore the building to its original condition, utilize such remnant as a basis for such restoration. Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797; Eire Ass’n of Philadelphia v. Strayhorn (Tex. Com. App.) 211 S. W. 447. If such issue be answered in the affirmative, it follows as a matter of law that the loss is not total. If the issue be answered in the negative, it follows as a matter of law that the loss is total.

The issue as submitted called for a finding upon a mixed question of law and fact, and was objectionable for that reason. Issues of that kind arise which present much difficulty in correctly segregating the issue of fact from the issue of law and submitting only the fact issue. Speer, Law of Special Issues, § 25.

The present case presents no such difficulty. The issue of fact indicated above' when found by the jury will furnish the basis for the legal conclusion which will necessarily follow upon the ultimate isshe of whether or not the loss was total. Eire Ass’n, etc., v. Strayhorn, supra. '

The instruction which was given in connection with the issue submitted is á charge, general in its nature, instructing the jury as to the law arising on the facts. Connellee v. Nees (Tex. Com. App.) 266 S. W. 502; Freeman v. Galveston, H. & S. A. Ry. Co. (Tex. Com. App.) 287 S. W. 902; Humble O. & R. Co. v. McLean (Tex. Com. App.) 280 S. W. 557. Such charges are improper in special issue submission. In such cases it is permissible only to “submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” Article 2189, R. S., and cases supra. The objectionable nature of the instruction given was the natural consequence of the improper submission of the mixed question of law and fact in the issue as submitted.

It is also insisted by plaintiff the word “basis” should be defined. In a proper submission of the fact issue in ‘ this case the jury could not fail to understand the meaning of the word, and no definition is necessary.

The matter referred to in the tenth, eleventh, and twelfth propositions will not recur upon retrial, and for such reason need not be considered.

The thirteenth and fourteenth propositions question the allowance of interest from June 17th, the date of waiver of the proof of loss. This was erroneous, and upon retrial, if recovery be obtained by plaintiff, interest should begin to run 60 days after the date of waiver. East T. F. I. Co. v. Brown, supra; Delaware Underwriters v. Brock, supra.

Testimony of defendants’ witnesses Germany and Wyman was offered to show the parts of the house remaining that could be used as a basis in rebuilding and the amount it would cost to repair or rebuild the house. Their testimony as to the cost to repair or rebuild was excluded. This was error. Royal Insurance Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797; Fire Ass’n of Philadelphia v. Strayhorn (Tex. Com. App.) 211 S. W. 447; National Liberty Insurance Co. v. Dansby (Tex. Com. App.) 260 S. W. 1040; Northern Assurance Co. v. Herd (Tex. Civ. App.) 273 S. W. 884; Northwestern Mutual Life Ins. Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N. W. 265, 56 L. R. A. 108.

The exclusion of evidence offered to show the extent of'depreciation in the house before the fire was proper.

The nineteenth proposition complains of the admission of testimony to the effect that a reasonably prudent man desiring to rebuild plaintiff’s house would not use the foundation as a basis for rebuilding; also that the foundation was not a substantial part of the building. This was the opinion of the witnesses upon the vital issues in the case, and it should have been excluded.

The last proposition questions the sufficiency of the evidence to show a total loss. This is overruled. In view of retrial, the evidence upon the issue will not be discussed.

Reversed and remanded.


text:
    ST. LOUIS, B. & M. RY. CO. v. GRIFFIN et ux.
    No. 8975.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1933.
    R. B. King and Jno. C. North, both of Corpus Christi, for appellant.
    J. D. Todd and J. D. Todd, Jr., both of Corpus Christi, for appellees.
   SMITH, J.

Ben Griffin and wife, Viola, operate a restaurant and have their residence on a lot owned by them near the right of way of the St. Louis, Brownsville & Mexico Railroad at Sinton. There is located near by on said right of way a shed used for the purpose of assembling, cleaning, packing, and shipping fruits and vegetables. It is alleged by the Griffins that the railway company erected and operates said shed so as to constitute the same a nuisance; that, as stated in appel-lees’ brief, “the nuisance consisted of the way and manner in which said shed was constructed, and where located, and the foul stenches, foul odors, offensive and dangerous nuisances resulting from decayed, rotten and filthy masses of such vegetable matter allowed to wash through and underneath the floor of the shed when such vegetables, and products were prepared therein for shipment, and so impounded thereunder and overflowing thereabout and down upon appellees’ premises, as to remain until becoming rotten and decayed in a mass of slush and mud, and from which such vile and dangerous and unhealthful and unsanitary odors and gases arose during the shipping seasons, and were .carried by the prevailing winds directly in, upon and over appellees’ home and business property, as to cause the injuries and damages alleged, and claimed by appellees.” It was further alleged that the nuisance had impaired the value of the Griffins’ property, injured their restaurant business, and wrecked their health. The Griffins therefore brought this action to recover damages and to abate the nuisance, and recovered accordingly. The railway company has appealed.

Appellees alleged: “that because of said nuisance Viola Griffin * * ⅜ suffered * * * an almost total if not quite the total loss of her health, which was good prior to the creation and maintenance of such nuisances and foul and filthy, unsanitary and unhealthful conditions; that she became sick, and grew worse from time to time, so that at this time her health is wrecked, her nervous system impaired, and her enjoyment of her home destroyed. ⅝ ⅜ ⅞ ” Appellant excepted to that allegation upon the grounds, •in effect, that it was too general; was not sufficiently definite or certain to apprise appellant of the nature of the proof appellees expected to offer thereunder. The court overruled the exception, and appellant has assigned error on that ruling. The special ex■ception should have been sustained, for appellant, as any other litigant, was entitled to know in advance the nature of the ailments appellees intended to attribute to the conditions of which they complained, and which they charged to the negligence of appellant.

Appellee Viola Griffin testified that “the shed with all that filth underneath it there * * * caused the loss of” her “health.” Appellant objected to this testimony at the time it was uttered, and moved to strike it out on the ground that it was a “mere con-elusion of tlie witness.” Tlie objection should have been sustained. The question of what caused appellee’s ailments was one of fact, to be determined by the jury, of course, and not by a lay witness, who had no expert knowledge upon the subject. This is elemental.

Appellee Ben Griffin was likewise erroneously permitted to usurp the function of the jury and determine the amount of his damages by testifying point blank, under repeated urgings of his counsel, “how much money he had lost” by reason of the alleged negligence of appellant. The witness sought vainly to avoid expressing the pure conclusion called for, on the frank ground that he “did not know exactly” how much he had “lost.” Appellant finally objected upon the ground that appellees’ counsel was “trying to lead the witness,” rather than upon the more obvious and material reason that the questions called for a mere conclusion of the witness upon a question which the jury alone could lawfully answer. However, the objection made was obviously pertinent and material, and the adverse ruling thereon was clearly reversible error.

Appellant has propounded about 75 propositions of law in its 118-page brief, whereas the appeal could have been presented in less than a dozen propositions in far less space. It would be a bootless task to discuss all or even a substantial portion of those propositions.

Upon the errors discussed, the judgment will be reversed, and the cause remanded.