author: LEVY, Justice

text:
    BASS et al. v. ALBRIGHT et al.
    No. 4294.
    Court of Civil Appeals of Texas. Texarkana.
    April 11, 1933.
    Rehearing Denied April 20, 1933.

      Gordon Huffmaster, of Longview, Jones & Jones, of Mineóla,, and W. H. Sanford, of Longview, for appellants.
    Turner, Rodgers & Winn, Thompson, Knight, Baker & Harris, and Lewis M. Dab-ney, Jr., all of Dallas, Wagstaff, Harwell, Wag-staff & Douthit, of Abilene, Woodward & Coffee, of Big Springs, and Hobart Key, of Marshall, for appellees.
   LEVY, Justice

(after stating the case as above).

There is presented for decision the points in view of: (1) The validity of the judicial sale of the land by the sheriff on July 4, 1876, and (2) the sufficiency of the description of the land in the official return of the sheriff on the writ of execution and in the sheriff’s deed to identify tlie land levied on and sold. The appellees sought to show divestiture of the title out of John N. Reynolds hy an execution sale under a judgment against John N. Reynolds. It was proven that on June 12, 1876, the execution was levied on the whole 320-acre tract as belonging to John N. Reynolds. On June 28, 1876, sixteen days after the levy, John N. Reynolds and his wife executed and delivered a warranty deed to B. R. Bass and Y. A. Davis, ancestors of appellants. On July 4, 1876, six days after the date of the deed mentioned, the sheriff sold the entire survey, less 200 acres reserved for a homestead, to W. G. Carroll. The execution under which the judicial sale was made was issued by the district clerk of Gregg county on February 5, 1876, and was by its terms made returnable “on or before the next term of said District Court to be holden on the second Monday in May, A. D. 1876.” The law then in force provided for the writ to be returnable to the first day of the next regular term of the court. Acts of 1873, p. 209, 7 Gammers Laws of Texas, p. 661. The next regular term of the district court of Gregg county after the date of the execution was fixed by law at that date in 1876 to begin on the second Monday in May. 8 Gammel’s Laws of Texas, p. 382. The new Constitution of 1876 was effective by official proclamation of the Governor on April 18, 1876. It is insisted by the appellants that the judicial sale was a nullity and wholly ineffectual to divest title out of John N. Reynolds, and as well out of Bass and Davis, his grantees, because the- levy was made and sale was held after the return date of the writ of execution and at a time when the writ was functus officio. The appellees insist to the contrary -that the writ of execution was not functus officio at the date of the levy and of the sale, because its return date had been extended and continued in force from the May term of the district court which was in existence when the writ of execution was issued, to the term of court which was afterwards altered by law to a later date in July, which convened July 17, 1876. It is urged by appellees that the entire ordinance of the constitutional convention, fixing the terms of the courts of the new districts throughout the state, is a part of the Constitution of 1876, and even though it be held not adopted as a part of the • Constitution, yet the ordinance has the full force and effect of law as the result of the legislative power vested in the convention.

It is well settled, and may not be regarded as a matter of legal doubt, that a sale of real estate made under an execution after the return day on the writ is void and the purchaser acquires no title. Towns v. Harris, 13 Tex. 507; Mitchell v. Ireland, 54 Tex. 301; Robinson v. Monning Dry Goods Co. (Tex. Civ. App.) 211 S. W. 535. Therefore, if the general principle stated has no application to the present case it would be so because the grounds, as urged by the ap-pellees, that the writ remained in full force at the date of the levy and sale by the express provision of law extending the return day as previously fixed by law. In the proceedings of the constitutional convention appears a duly adopted ordinance, reading, as far as need be set out:

“An Ordinance Fixing the Terms of the District Courts of the .-State of Texas.
“Be it ordained by the people of Texas in Convention assembled, that until otherwise provided by law, the terms of the District Courts of the several judicial districts shall be as hereinafter prescribed: * * *
“Section 7. That the District Courts of the Seventh Judicial District be holden at the times hereinafter specified, to-wit: * * * In -the County of Gregg, on the Eighteenth Mondays after the second Mondays in March and September, and may continue in session two weeks. * * *
“Section 27. All writs and process, civil and criminal, heretofore issued by or from the District Courts, in the several counties of this State, and made returnable to the former terms of said courts, as said terms are now fixed by law, shall be returnable to the next ensuing terms of said District Courts in each county, as they are prescribed in this ordinance; and'all such writs and process that may be issued by or from said courts at any time within five -days next before the holding of -the next ensuing terms of said courts, as prescribed herein, are hereby made returnable to said terms respectively; and all such writs and process hereinbefore mentioned are hereby legalized and validated, to all intents and purposes, as if the same had been made returnable to the term or terms of said court, as the terms thereof are herein prescribed. '
“Section 28. That in ease where the time has partly elapsed for holding any term of the District Court, as herein prescribed, at the time of the qualification of the District Judge of said District, then said Judge shall proceed to hold said court for the remainder of said term.” 8 Gammel’s Laws of Texas, pp. 763, 766, 774.

The above ordinance was adopted by the constitutional convention in the purpose of effecting a transition from the old Constitution to the new, when the new Constitution wa-s put into effect, by fixing the time of convening the courts in the rearrangement of the judicial districts throughout the state, with pro-vision regulating all pre-exist-ing and pending writs and process. Its terms are clear and unmistakable. The intention appears especially to have all pending writs and process continue in full force and in all things legal and valid, until such later day of return altered by the law. As will be observed, by express provision of section 27: (1) Tbe term of court to which pre-existing and pending “writs and process” were made returnable was altered to the later date, namely, “to the next ensuing terms of said District Courts, * * * as they are prescribed in' this ordinance,” and (2) all such pre-exist-ing and pending “writs and process” were declared “hereby legalized and validated, to all intents and purposes, as if the same had been made returnable to the term or terms of said courts, as the terms thereof are herein prescribed.” Such a general provision has, as was intended, the same effect as a saving clause in a repealing statute. A saving clause is intended to save something which would otherwise be lost. Legal objection may not be predicated against such, cumulative and remedial provision. A provision of the kind, being only cumulative in its nature, could not operate to the legal injury of a defendant in execution for the provision for a return day is beneficial mainly, if not solely, to the plaintiff, because it fixes a time when he may expect the enforcement of his judgment, by compelling the officer to have the writ satisfied. The defendant in execution, provided he has notice of the time of sale, has no interest in merely the time of return, whether it be returnable in thirty days or three months. It is believed that where the term of court to which the writ of execution is returnable is after-wards, as here done, altered by law to a later date, the writ remains in full force until such later day. And it is thought the provisions of the act ought to be interpreted in such manner as that it may have effect on subjects generally relating to legal writs and process, as well preliminary proceedings in court, as for instance citation and subpoenas, as subsequent writs, as execution and foreclosure sales. The general words “writs and process,” as used in section, 27, being given a full and general and not a limited significance, may be regarded as including a writ of execution. And the ordinance purporting to apply to all writs and process “made returnable to the former terms of said courts” would include within its purview the present writ of execution. The present writ was actually made returnable “on or before the next term of said district court,” and the statute provided, as before shown, that executions shall be made returnable “on or before the next term of tire court” after issuing.

Whether or not the ordinance became legally operative either upon passage, as within the power of the convention, or has been legally adopted as a part of the Constitution, presents a question of interest and of vital importance in the decision of the appeal. A constitutional convention is not a co-ordinate branch of the government, but is a body of representatives of the people convened only on special occasion, and for the purpose of revising or framing a Constitution. The powers it has are usually expressly conferred upon it, together with such implied powers as' may be necessary to carry into effect those expressly conferred. The authority of the constitutional convention to pass ordinances, which are temporary enactments, and give them validity, as a rule, depend upon the powers conferred upon them by the law which authorizes their assemblage. Where it is not provided that the convention shall have the power of independent legislation, the validity of such ordinances depends on their submission to the people and their ratification in due form. Quinlan v. H. & T. C. Rwy., 89 Tex. 356, 34 S. W. 738. The power, though, of the convention of 1875 to deal by ordinance with necessary incidental legislation without submission for adoption to a popular vote, appears, it is believed, clear and unmistakable. But the question of necessity of submission of an ordinance to a vote of the people would be a matter aside entirely in the present case, for by very act of the convention itself it was provided, namely: “No ordinance passed by this Convention and not submitted for the ratification of the people except that postponing the election and that submitting the Constitution to a vote of the qualified electors shall, in any sense, be deemed operative, as affecting the rights of the State, or the rights and obligations of any person, association or corporation within the State, or having rights therein, or obligations thereto, either to confirm, release, relieve or modify the same, unless the Constitution shall be ratified by the qualified electors of the State of Texas.” 4 Sayles’ Texas Stat. p. 599; 8 Gammel’s Texas Laws, p. 753.

And the very ordinance here in question on appeal was undertaken to be submitted as a part of the Constitution, namely: Article 5, section 14. “The judicial districts in this state and the. time of holding the courts therein are fixed by ordinance forming part of this constitution, until otherwise provided by law.” Section 14, it is thought, declares, as was plainly intended it should do, that the “Ordinance,” which fixed the terms of the district courts throughout the state, shall be a constituent part of the new Constitution • until the arrangements made by it may be changed by the Legislature. The words “forming a part” of the new Constitution are the opposite of. excepting out and not to be effective for that purpose. The “ordinance” was by way of reference to the provisions of the document, and would include the document as a whole with sections 27 and 28, as it was passed and adopted by the convention. An ordinance appended to the Constitution may be regarded as part of the fundamental law. Stewart v. Crosby, 15 Tex. 546. As a method of legislation, in order to avoid unnecessary verbiage, express reference may be made to laws for the purpose of adopting the provisions of the law referred to. 59 C. J. p. 610, §§ 167, 16S. Therefore as the Constitution was adopted by vote of the people and as the ordinance was an integral part of it, such ordinance must be considered as legally adopted by vote of the people upon its submission to them. As a consequence the execution in evidence would then be existing and valid at the date of the levy and the sale. The Constitution became effective on April 18, 1876, at which date the execution was not functus officio but valid. The altered and new term of court for return of the execution became the “eighteenth Monday after the second Monday in March” in 1876, which was the second Monday in July, 1876, being July 17, 1876. The district court of Gregg county was actually begun and held on July 17, 1S76, after the date of the sale of the land on July 4, 1876.

As an ordinance appended to a Constitution newly adopted, which contains provisions for the adjustment of matters affected by the change from the old to the new Constitution, forms apart'of the Constitution so far as its temporary purposes go, such ordinance may not prevail or supersede the provisions of the permanent part of the Constitution. In this view there arises the question of whether or not section 27 of the ordinance is inconsistent with section 53 of article 16 of the Constitution, which reads: “Sec. 53. That no inconvenience may arise from the adoption of this constitution, it is declared that all process and writs of all kinds which have 'been or may be issued and not returned or executed when this constitution is adopted, shall remain valid, and shall not be, in any way, affected by the adoption of this constitution.” There is not necessarily repugnancy or inconsistency between the provision in section 53 that all writs and process “shall not be, in any way, affected by the adoption of this constitution,” and the provision in section 27 changing the terms of court to which pending writs and process shall be returnable. Although the language used in section 53 is prohibitory it is to be understood as to be unequivocal negation against in any way disturbing adversely pending writs as they were at the time the Constitution becomes operative. Section 27 of the ordinance was dealing particularly with pending writs made returnable to the former terms of the courts as they existed under the laws prior to the Constitution becoming effective. It is not lightly to be presumed that any provision deemed essential to be incorporated in an instrument so solemn and en. during as a Constitution was designed to be inconsistent or repugnant rather than cumulative or auxiliary to an appended ordinance."

It is thought the second point may not be sustained that the sale" was void and ineffectual, because the description of the land in the levy and the sheriff’s deed was insufficient to identify the land levied on and sold. The description was not utterly devoid of any manner of identity, and therefore not void as matter of pure law. Busby v. Smith (Tex. Civ. App.) 53 S.W.(2d) 138; Harkey v. Cain, 69 Tex. 146, 6 S. W. 637; Blackwell v. Scott (Tex. Civ. App.) 223 S. W. 334. The levy and sale of 320 acres of land of which 200 acres was a rural homestead passed title to 120 acres subject to be partitioned. Wilson v. Smith, 50 Tex. 365; Beall v. Hollingsworth (Tex. Civ. App.) 46 S. W. 881; articles 3841-3858. It was sufficiently proven that W. G. Carroll, the purchaser, sued John N. Reynolds in trespass to try title and by agreed judgment W. G. Carroll was decreed the title to 120 acres in a body after John N. Reynolds should designate the 200-acre homestead so as to embrace the improvements on the same. Afterwards the purchasers under W. G. Carroll rendered 120 acres for taxes and conveyed the east 120 acres by field notes. The appellees acquired the 120 acres through deed in 1907, and the 120 acres has been segregated from the 200 acres by deed and occupancy for more than twenty years.

It is concluded that the judgment should be affirmed.


source: Caselaw Access Project

author: BOND, Justice.

license: Public Domain

text:
    WALSTROM OPTICAL CO. v. MILLER.
    No. 11205.
    Court of Civil Appeals of Texas. Dallas.
    April 8, 1933.
    Rehearing Denied May 6, 1933.

      Touchstone, Wight, Gormley & Price and Claude R. Miller, all of Dallas, for appellant.
    Whitehurst & Whitehurst, of Dallas, for appellee.
   BOND, Justice.

Appellee, Ruth F. Miller, instituted this suit against appellant, Walstrom Optical Company, seeking to recover damages for personal injuries alleged to have been sustained by her on account of some dye off of a pair of eyeglass frames, which she alleged she purchased from appellant.

The grounds of negligence asserted by ap-pellee are: (1) That appellant negligently placed, or caused to be placed, a poisonous substance, lacquer dye, on, the eyeglass frames in question, and sold the frames to her, knowing that said poisonous substance would be injurious to appellee when she wore said frames; (2) that appellant knew, or by the exercise of reasonable and ordinary care could and should have known, that the poisonous substance was on the frames at the time they were purchased by appellee; (3) that appellant knew, or by the exercise of reasonable and ordinary care could and should have known, the injurious effect said poisonous substance from said eyeglass frames would have on appellee’s face and nose by said lacquer dye rubbing off of said frames on to ap-pellee’s face and nose; (4) that appellant failed, not only to use or exercise reasonable care, but was guilty of gross negligence in fitting the frames upon appellee with said lacquer dye thereon when they knew that said dye would rub off from said frames on appel-lee’s face and nose, and produce injuries.

The case was tried to a jury, and, in response to the only issue submitted as to the liability of appellant on said alleged negligence, was as indicated by question No. 1: “Did the defendant, its servants or employees, apply an excess amount of dye to the rims of the glasses in question?” which issue was followed by issues as to whether the application of an excess amount of dye was negligence, and, if so, whether it was the proximate cause of appellee’s injuries.

The jury found, in response to said special issues, that appellant did apply an excess amount of dye to the rims of the glasses; that such application was negligence, and that such negligence was the' proximate cause of the injuries. It also found that appellee’s damages were the sum of $500, and, accordingly, judgment was rendered in favor of appellee and against appellant.

Appellant’s first assignment, followed by appropriate propositions anent thereto, is that there is no allegation in appellee’s petition that the appellant was negligent in applying an excess amount of dye to the rims of the glasses sold by it to appellee, from which- appellee received her injuries, and it was error for the trial court to submit the issue in the absence of such pleadings.

The pertinent allegations as to negligence of appellant, in applying poisonous dye to the eyeglass frames, is as stated above, and, in addition thereto, appellee specifically alleged “that on or about the 7th day of January, 1931, she returned to defendant’s place of business, in the City of Dallas, Texas, and exhibited her face and nose to said employees at said time, whereupon, one of the. employees of defendant, whose name is unknown to plaintiff, for which reason she cannot specifically allege his name, advised and stated to plaintiff that he, the employee of said defendant, would treat said frames with an acid or acid solution, which would remove or take away the surplus dye from said frames.” This is the only allegation that the defendant was guilty of negligence in applying an excess or surplus amount of dye to the eyeglass frames.

The majority of this court is of the opinion that the allegation, as to what the employee said to appellee, that “he would treat the frames with acid and remove the surplus dye from the frames,” taken in connection with the other allegations, that appellant negligently applied the dye to the frames, and that it rubbed off on appellee’s face and nose, and its- further allegations in the petition that “by reason of the acts of negligence as herein alleged, which is the' direct and proximate result of the negligence of 'defendant,” are sufficient in the absence of exceptions to admit of the issue as to whether appellant applied an excess amount of dye to said frames. The writer does not entertain that view. He interprets the allegations that appellant’s act of negligence, as disclosed by appellee’s petition, bears only as to the application of poisonous dye to the eyeglass frames, and not in the application of an excess amount of such dye, or the manner in-which the dye was applied. One might be guilty of negligence in applying an excess amount of dye to eyeglass frames and not be negligent in applying a reasonable or lesser ampunt. The allegation as to what an employee said to appellee subsequent to the sale, “that- he would treat the frames with acid and remove the surplus of dye,” is an allegation of a conclusion formed by the 'employee, evidentiary in character, and has no proba•tive force on the issue as submitted by the court. It was merely a deduction on the part of an unidentified clerk, and not in connection with or in explanation of any transaction in the line of his duty in which he was engaged at the time. However, be that as it may, the form of the issue as to whether appellant applied an excess of dye to the eyeglass frames, or whether it applied a less amount, or whether it applied dye without stating the amount, becomes immaterial to the final disposition of this case, as, we conclude from a résumé of appellant’s further contentions.

Appellant further assigns that the evidence is wholly insufficient to show actionable negligence in applying an excess amount of poisonous dye to the eyeglass frames, where the undisputed testimony shows that the dye used was harmless to ordinary persons, and that the injuries appellee received were caused by an idiosyncrasy of her skin, and that it was error for the court to overrule its motion for an instructed verdict.

All the testimony in the record discloses that the application of dye to eyeglass frames is a usual, customary, and almost everyday occurrence, the dye is universally used by manufacturing opticians, and its use on such frames had been employed by appellant for many years and on many thousand eyeglass frames, without injurious effect, and had proven to be harmless to persons of ordinary susceptibilities. Expert dermatologists, testifying both for appellant and appellee, stated that appellee’s injuries were due to a peculiar idiosyncrasy of her skin. Dr. B. J. Griffin, an expert dermatologist, testified as follows:

“Q. When you get that reaction, or the irritation that you spoke óf, it is due to some people having a weakness or susceptibility, which is determined from a medical standpoint, like those who eat certain foods, and things like that, and get ill effects from it? A. That is true.
“Q. And you might have that from certain persons, and they call it by a certain term, and some are likely to have it, what do you call that? A. Idiosyncrasy.
“Q. Irritation from foods and medicines, isn’t that true? A. Yes.
“Q. Now, then, if it (the dye) was properly put on there, and would not come off on her face, would it injure anything? A. Well, if she was susceptible to the lacquer that was put on there, she would get that, regardless of how it was put on.
“Q. But looking at the whole business, it is very unusual that there would be an eruption from a lacquer, isn’t it, doctor? A. Yes sir, it is unusual.
“Q. Very unusual? A. Yes sir, very unusual.”

Dr. G. A. Lindsay also testified:

“Q. In other words, most people are not susceptible to anything like that, are they, doctor, the ordinary dye used by an optical concern? A. It is very rare.
“Q. Do you know, in addition to that, that iodine and other drugs all have different results, peculiar to different people, that is true, isn’t it? A. Yes. sometimes I prescribe quinine, and some people can take it, and I cannot.
“Q. Now, could you, by just looking at a person at the time, tell whether or not they could take quinine? A. No sir.”
Dr. Bedford Shelmire, an expert dermatologist, testified:
“Q. In comparison with the number of persons that wear glasses, as you have observed, as well as from your treatment of people, would you or not say that it was an unusual thing for people to have dye affect them, or of the type of Mrs. Miller, to have that idiosyncrasy? A. It is most unusual for a person to be susceptible to poison from porous frames, so far as inflammation is concerned, dyes are usually not that way.
“Q. That would be due to a sensitive condition? A. Yes, that would be due to a sensitive condition of the person affected.
“Q. Some people are sensitive to certain foods, such as eggs, when taken into their body, are they not? A. Yes, sir.”

All the medical testimony agree that the cause of appellee’s injury was the idiosyncrasy of her skin that made it susceptible to an eyeglass frame that would not, in any way, injure an ordinary person; that it was most unusual, and that the only way appellant could discover the existence of such peculiarity would be by a test covering a period of two or three days.

' Under such testimony,, what duty'did appellant owe appellee at the time of the alleged purchase by her of the eyeglass frames in question? Was it compelled to make a test to ascertain whether she was of the ordinary type which dye would not affect, or foresee that her skin would be peculiarly susceptible to the dye on the frames? In the ease of Payne v. Robey, 257 S. W. 873, the Commission of Appeals, approved by the Supreme Court, used this language: “Negligence to be actionable must be the proximate cause of the injury complained of, and the test as to whether a negligent act is a proximate cause of the injury is whether in the light of all attendant circumstances, the injury was such as ought reasonably to have been anticipated as a consequence of the act.”

We conclude that appellee neither proved actionable negligence nor the proximate cause of her injuries, and, the evidence failing to connect the alleged injury with the negligence as alleged, the jury should have been instructed to return a verdict for the defendant.

We have carefully considered all further assignments urged by appellant, and they are expressly overruled.

We are not unadvised of the reluctance felt by appellate courts to set aside a judgment rendered by a learned, fair, and impartial trial court, nevertheless, when it is palpably against all the evidence, and manifestly contrary to the authorities of this state, a court will not hesitate in the performance of. its duty.

From what we have said, the judgment of the lower court is accordingly reversed and here rendered.

Reversed and rendered.


author: JONES, Chief Justice.

text:
    MORENO v. TERMINAL BUILDING CORPORATION OF DALLAS.
    No. 11202.
    Court of Civil Appeals of Texas. Dallas.
    April 8, 1933.
    Rehearing Denied May 6, 1933.
    Elihu E. Berwald, Max R. Rosenfield, and Frank Ivey, all of Dallas, for appellant.
    Wren, Pearson & Jeffrey, of Fort Worth, for appellee.
   JONES, Chief Justice.

On the 23d day of February, 1931, Johnny Moreno, a minor, received serious and painful injuries in a collision between the bicycle he was riding and a Ford truck, driven by Robert Brown, a colored person. The facts show that the injury was received under circumstances that raises an issue as to whether Robert Brown was guilty of actionable negligence in respect to the injury. Suit was instituted by Johnny Moreno, through Helen Moreno as next friend, to recover damages against Robert Brown as an alleged employee of the Terminal Building Corporation, and against the latter as Brown’s alleged employer. On the trial of the case to a jury in a district court of Dallas county, a peremptory instruction was given in favor of appellee, the Terminal Building Corporation, and appellant at once dismissed his suit as to Robert Brown. A final judgment was entered on this instructed verdict, and the dismissal of Brown from the suit, that appellant take nothing by his suit. A motion for a new trial'was overruled, and an appeal to this court has been duly perfected by appellant. The following are the necessary facts:

By appropriate allegations in appellant’s petition, a cause of actionable negligence against appellee was stated, and the evidence introduced by appellant made a prima facie case of such actionable negligence. The evidence of appellee on this issue tended to contradict appellant’s evidence in this respect, and therefore, as to the negligence of Brown, there was clearly raised a jury issue, which fact is not contested by appellee. The question on this appeal is whether or not the evidence raised a jury issue as to whether the relation of master and servant existed between appellee and Robert Brown at the time of the injury to appellant. The evidence in respect to this issue is undisputed as to any material fact. Such evidence shows that Brown was employed by appellee as a porter in the Santa Fé building, owned by ap-pellee ;. that Brown’s duties as porter were to assist other porters in cleaning up the building, to keep its halls free from trash, and to deposit the trash at the loading dock on the building’s first floor; that his employment required him to be on duty at this work from the hour of 6 o’clock a. m. to 12 o’clock noon, and from 2 o’clock p. m. to 6 o’clock p. m. During the two hours of intermission between his working hours, that is, from 12 noon until 2 p. m., he was off duty, and this time was his own to use as he pleased: that from 6 p. m. to 6 a. m. he was also off duty, and the intervening hours were likewise his own; that for this work as porter he was paid by check issued by appellee twice a month, each check being for $40 or a monthly employment hire of $80. One Robert Williams was employed as head porter at the Santa Eé building, and his hours for work were the same as those for Brown, and he was paid in the same manner.

The undisputed evidence further shows that the trash placed on the dock by the porters and other employees in the Santa Eé building was hauled to the city dumping grounds by some on$ employed by appellee for such purpose; that on December 1, 1929, an oral contract was entered into between appellee and Williams, under the terms of which Williams, either during the hours of intermission at noon, or between the hours from 6 p. m. to 6 a. m'., was to haul the trash from the dock to the city dump; that this work was to be done by Williams by means of any vehicle he should select, and by the use of any help that he should choose, the only stipulation being that the trash was to be carried away to the city dump during the times that Williams was off duty. The undisputed evidence further shows that Williams hired a truck from its owner, who was in no way connected with the Santa Eé building, and employed Robert Brown to drive said truck to the city’s dumping ground and return to the Santa Fé building between the hours of 12 noon and 2 p. m. of each day; that the Santa Eé building owned no trucks or other vehicle that could be used for such purpose; that Williams was to receive, from appellee, $1.25 for each load of trash dumped, and to be paid weekly by appellee on an itemized statement of the loads hauled during the week, and that approximately two loads of trash were required each week to clear the dock; that neither appellee nor its manager knew of Brown’s employment, or knew from whom Williams got the truck; that Brown was paid weekly by Williams for his services as driver of the truck. Appellee alleged, by appropriate pleadings, that the contract with Williams constituted him an independent contractor, and that, during the time Williams was operating under his contract for removing the trash, he was not its servant or employee, and that during the time Brown was engaged :n the work of driving Williams’ truck to and from the city dump he was not its servant or employee, but was an employee of Williams ; or, in other words, that there existed between appellee aud Williams and Brown, no relation of master and servant w’hile the truck was being operated under the contract for hauling the trash.

There being no dispute in the evidence as to the terms of the contract between appellee and Williams, it became the duty of the court to construe its legal effect. Did such contract, as a matter of law, determine the status of Williams as that of an independent contractor, and that of Brown as an employee of such contractor? We think so. “An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed.” 19 A. L. R. 235, note. We are of the opinion that the facts of this case bring it clearly within the definition above given. A similar definition is given in the Texas cases of Lone Star Gas Co. v. Kelly (Tex. Com. App.) 46 S.W.(2d) 656; Southern Surety Co. v. Shoemake (Tex. Com. App.) 24 S.W.(2d) 7, and also in 14 R. C. L. p. 67, par. 2.

The undisputed evidence in respect to this contract clearly shows that appellee neither retained to itself, nor exercised any power of control over, the details as to the manner or the means Williams was to employ in removing this trash. Under the authorities above cited, we are of the opinion that the court did not err in giving the peremptory instruction, and that this case ought to be affirmed.

Affirmed.


author: LOONEY, Justice.

text:
    DIAMOND STEEL HIGHWAY SIGN CO. et al. v. LATHAM.
    No. 11233.
    Court of Civil Appeals of Texas. Dallas.
    April 15, 1933.
    Rehearing Denied April 29, 1933.
    Wm. M. Cramer, of Dallas, for plaintiffs in error.
    E. G. Senter, of Dallas, for defendant in error.
   LOONEY, Justice.

Proceedings in this case heretofore had are reported in (Tex. Civ. App.) 57 S.W.(2d) 937, 938. Among others, it appears that the super-sedeas bonds filed in the cause by plaintiffs in error were shown to be insufficient, because of the insolvency of the sureties thereon; therefore, on February 18, 1933, as directed by statutes (articles 2272 and 2273, R. S. 1925), we entered an order to the effect that, unless, within twenty days after notice of the order, plaintiffs in error filed an additional supersedeas bond, in like manner as the original, to be approved by the clerk of this court, an order would issue to the trial court directing or permitting the issuance of execution on the judgment appealed from. Plaintiffs in error having failed to comply with the order, as authorized by statute (article 2273, R. S. 1925), we issued an order to the trial court directing or permitting the issuance of execution on the judgment.

In a motion filed by plaintiffs in error, it is made to appear that, after the above proceedings, defendant in error sought, and obtained from the trial court, the issuance of process for the enforcement of the judgment, and that on March 28, 1933 (more than twenty days after notice of the order requiring the giving of an additional supersedeas bond), plaintiffs in error filed, in said court, a bond designed to supersede the judgment appealed from, which was approved by the district clerk, a certified copy of which is attached to said motion and asked to be filed as a part of the record in this cause; wherefore, plaintiffs in error pray that defendant in error be restrained, by appropriate process, from proceeding further under said -judgment or under the process issued thereon.

Defendant in error challenges the sufficiency of the last bond filed by plaintiffs in error because of the insolvency of sureties thereon, and contends further that the clerk of 'the district court was without authority to approve or file the same, and that the bond is without legal force or effect, praying that the same be stricken from the record and adjudged to be without legal force or validity.

We sustain the latter contention. Under appropriate statutory proceedings, we held the original supersedeas bond insufficient because of the insolvency of the sureties, and, as provided by statute, granted plaintiffs in error twenty days from notice of said order to give an additional supersedeas bond, to be approved by the clerk of this court, which not being complied with, we issued an order to the trial court directing or permitting the execution of the judgment. This, in our opinion, exhausted our statutory authority to interfere further with the enforcement of the judgment; and as plaintiffs in error failed to avail themselves of the statutory right to supersede the judgment within the twenty days allowed, their right to further suspend execution of the judgment was lost. The bond filed March 28,1933, came too late, and the district clerk was without authority to approve or file the same as a supersedeas bond.

Therefore, the motion of plaintiffs in error to file said bond as a part of the record in the cause is denied, and its prayer for injunction, or other appropriate process staying the execution of the judgment, is’ also denied.


author: HALL, Chief Justice.

text:
    CORNELIUS v. MARRS.
    No. 4010.
    Court of Civil Appeals of Texas. Amarillo.
    April 19, 1933.

      Reeder & Reeder, of Amarillo, for appellant.
    Clayton & Bralley, of Amarillo, for appel-lee.
   HALL, Chief Justice.

This is a suit by -Cornelius against Marrs upon a promissory note in- the sum of $150. There is practically no controversy as to the facts. No question was made as to the sufficiency of the pleadings. The case originated in the justice court.

Briefly stated, the facts are that one L. A. Foster (who has since died) was, on October 30, 1930, indebted to Cornelius in the sum of approximately $30. He presented a note to Cornelius which he had signed as principal, and which Lon D. Marrs had signed as “security.” The name of the payee in the note was left blank. Foster requested that Cornelius accept the note, deduct the amount of his indebtedness, and advance the balance in cash. Cornelius agreed to do so, and Foster then and there inserted the name of Cornelius as the payee in the note, which was delivered, and the overplus of about $120 was advanced to Foster by Cornelius.

When Foster brought the -note to Cornelius, he also brought a letter which Marrs had written him from Kentucky and which accompanied the note in question. The letter is as follows:

“Dear Mr. Foster: Tours with note to sign received. Have executed note. Payee not named. You can insert the name. I am obligated not to sign notes to banks. Hope all will go better with you. Ex. haste.
“Sincerely yours,
“Lon D. Marrs. ■
“The figure 8 not good business.”

Cornelius says, before accepting the note and having his name written therein, he read the letter which Marrs had written Foster, and construed it as giving Foster authority to fill any one’s name in as payee except a bank. He further testified that, before the maturity of the note, and after the death of Foster, Marrs called him by telephone, asking if he had a note for $150 which he (Marrs) and Foster had signed, and during the conversation, after Cornelius had informed Marrs that he had the note, Marrs did not mention a want of authority on the part of Foster to place the name of Cornelius in the note as payee nor did he deny liability thereon ; that upon maturity of the note he notified Marrs and was requested by the latter to hold the note until he could attempt to get Mrs. Foster to pay it out of the proceeds of an insurance policy payable to her on the life of her husband; that Marrs did not deny his liability on the note at that time nor did he deny the authority of Foster to insert the name of Cornelius as the payee. Marrs testified concerning a conversation' he had with Foster prior to the execution of the note and in which he agreed to sign the note with Foster if the latter could induce Dr. Jordaan to take the note and make the loan. It is conceded that Cornelius had no notice of these conditions or private instructions, and the only notice of any authority on the part of Foster was expressed in the letter which Marrs wrote Foster, set out above.

A trial before the court without a jury resulted in a judgment that Cornelius take nothing; hence this appeal.

The trial judge based his judgment upon certain articles of the Negotiable Instruments Law, and held they would deny Cornelius the rights of a holder of negotiable paper acquired in due course. R. S. art. 5932, § 14; R. S. art. 5935, §§ 52, 55, and 59.

We strongly incline to the opinion that, because the evidence shows that Foster “filled up” the note “strictly in accordance with the authority given and within a reasonable time,” Cornelius had the right to recover under said section 14, supra, though he was not a holder in due course under article 5935.

But, aside from this, the rights of the parties are controlled by the laws of principal and agent and of estoppel arising from the acts of an agent when performed under the express authority of the principal.

The issue of implied authority on the part of an agent to fill blanks in a promissory note executed by his principal is not in the case. The letter to Foster calls attention to the fact that the payee is not named in the note, and expressly authorizes him to insert a payee’s name; the only limitation upon this authority is that the name of a bank should not be inserted as payee. No more definite or binding instructions could be issued by a principal to his agent. Foster has not exceeded the express authority given him, and was not acting under any apparent authority, nor did Cornelius rely on any implied authority of Foster. The private instructions with reference' to Dr. Jordaan which Marrs gave his agent, but of which Cornelius had no notice, are not testimony affecting the rights of either party. The rule is that, when a principal has given his agent written instructions limiting the latter’s authority, a third person dealing with the agent need not look beyond the written instrument, unless he is chargeable with notice of some subsequent limitation of the agent’s authority, as expressed in the writing. 2 C. J. 565; Brown v. Frantum, 6 La. 39; Edwards v. Thomas, 66 Mo. 468; Plummer v. Buck, 16 Neb. 322, 20 N. W. 342; Read v. Abbott, 45 N. J. Law, 303; Lyle v. Addicks, 62 N. J. Eq. 123, 49 A. 1121; Auwarter v. Kroll, 79 Wash. 179, 140 P. 326; Ross v. Kenwood, 73 Wash. 131, 131 P. 649; 21 R. C. L. 908-910.

In discussing the authority of an agent, when conferred by writing, Mechem (volume 1 [2d Ed.] § 76S) says: “In this, as in other cases, the intention is to be gathered from the whole instrument, whether it is made up of one piece of paper or of many, provided that the several papers are either so. physically attached, or so connected by reference or so obviously relating to the same subject that they must be read together. However much the agent might be bound by them, a third party dealing with the agent in good faith and in the exercise of reasonable prudence in reliance upon an apparently complete document could not be bound by limitation contained in other writings of which he had no notice.”

Id. § 775: “It is also a familiar rule that in the absence of fraud or mistake, parol evidence cannot be admitted for the purpose of varying or contradicting the written instrument. * * * So also secret reservations, qualifications or conditions cannot be set up to affect apparently unlimited powers conferred by the instrument.”

Before we could apply article 5935 of the Negotiable Instruments Law, we would have to declare the written authority Harrs gave Foster to be void. This cannot be done. The letter is clear and explicit in its terms, and mus't be construed to be valid. Cornelius had the right to rely upon the letter, and Harrs is now estopped from pleading non est factum or a violation of secret directions given his agent and of which Cornelius had no notice.

The judgment is reversed and is here rendered in favor of Cornelius against Harrs for the full amount in controversy, together with all costs!