author: CADLAGHER, C. J.

text:
    BAKER CO. v. TURPIN et al.
    No. 1231.
    Court of Civil Appeals of Texas. Waco.
    Sept. 15, 1932.
    Rehearing Denied Oct. 13, 1932.

      Callaway & Reed, of Dallas, for appéllant.
    Hughes & Monroe and P. P. Ballowe, all of Dallas, for appellees.
   CADLAGHER, C. J.

This appeal is prosecuted by the Baker Company, appellant herein, from a judgment of the district court in favor of Mrs. Sarah Turpin, appellee herein, for actual and exemplary damages for false imprisonment and forcible ejectment from its hotel building in the city of Dallas.

Appellee, at the time the events occurred out of which this suit arose, was Mrs. Sarah Mitchell, a widow. Before the trial she married her coappellee, E. G. Turpin, who thereupon joined her in this suit. The. Baker Company is a corporation and at the time the events occurred as aforesaid, operated the Baker Hotel in said city. Mr. Fenton H. Baker was then and there vice president of the company and general manager of said hotel. Henry Dove was an assistant manager and O. B. McCormick was manager or foreman of a barber shop maintained by appellant in said building. Appellee was on August 21, 1929, and had been for more than a year prior thereto, an employee of appellant. She had served for several months when first employed as cashier in the barber shop and for the remainder of the time as cashier in the caveteria, maintained by appellant in said building, with certain additional duties not necessary to describe. On the date aforesaid she was advised that Mr. Baker, the manager, had ordered her discharged. According to her testimony, she continued at the request of the auditor, to discharge her duties as cashier at the caveteria until after lunch time. She further testified that next morning she was checked out by the auditor and received her salary up to and including the day before; that she then attempted to see Mr. Baker and secure reinstatement but that he was busy; that she then went to the caveteria for lunch; that while eating her lunch ■ she discovered that McCormick, the manager of the barber shop, was sitting at a nearby table; that she went to the table where he was sitting and had a conversation with him; that she charged him with having been the cause of her discharge and asked him to meet her outside and talk the situation over with her, and that he agreed to do so. There is some conflict in the testimony with reference to her manner and what was said at the time. She further testified that she then left the caveteria and went upstairs to see a party about securing another position; that the party was out and that she then went to the barber shop to see and talk with Mr. McCormick; that he was not in; that the young lady manicurist in the shop had done her work for a long time and she decided to have a manicure; and that she wás so engaged until she was forcibly ejected from the building, as hereinafter recited. McCormick was called as a witness by appellant. He testified that he told appellee in the conversation at the cave-teria that, if she wanted to see him, she would have to see him in the barber shop; that he would be there in a few minutes and that he would,not go elsewhere to talk to her. He further testified that about twenty minutes after the conversation in the caveteria he went to the door of the barber shop and saw appellee; that he then went to Mr. Baker and told him that he did not want appellee in the barber shop, that she had raised a row in the caveteria; that Mr. Baker told him to report the matter to Dove and have him report to the officers, and that he conveyed this message to Dove. Dove testified that he then went to the barber shop and found appellee at the manicure table; that he told her that he did not want her business and would like for her to leave the shop and stay out of it; that she declined to go ; that he then reported to Mr. Baker, who instructed him to call an officer. Dove further testified that he then sent for a policeman and told him, when he arrived, that appellee had been cutting up in the caveteria and that he wanted him to make her behave or take her out. The policeman testified that Love told him to go down to the barber shop and remove appellee, that she was “raising Gain.” He further testified that when he reached the barber shop appellee was having a manicure. Appellee testified in this connection that said policeman, and another who came with him, took her by the arm, Jed her out of the barber shop, up the stairs, out of the building, onto the street, and to the corner of the block, and there turned her loose.

The case was submitted on special issues, in response to which the jury returned answers in substance as follows: (1) Appellee did not leave the barber shop voluntarily after talking with the policemen therein. (2) Appellee was compelled by the officer to leave the barber shop. (3) Such compulsion by such officer was without probable cause and was (4) at the instance of Henry Love. (6) Said Love, assistant manager of the hotel, without probable cause, instructed the officer to remove appellee from the barber shop. (6) He did not have reasonable ground at the time of such removal to believe that she would create a disturbance in said barber shop if not removed therefrom. (7) Said Love, at the time he procured the presence of the policemen, was acting withjn the scope of his authority as assistant manager of the hotel.

The jury, in response to further issues submitted, assessed appellee’s actual damage for physical and mental pain, suffering, humiliation, and mortification, at the sum of $500, and awarded her exemplary damages in the further sum of $500.

Opinion.

Appellant presents several assignments of error in which it asserts that the court overruled various special exceptions addressed by it to appellee’s petition, and erred in doing so. The transcript fails to show that such special exceptions were ever called to the attention of the court or that any rulings thereon were made. Appellant presents another assignment in which it complains of the action of the court in sustaining a general demurrer to a trial amendment filed by it. The transcript contains the trial amendment referred to in said assignment and a general demurrer thereto by appellee. No order sustaining said demurrer was entered upon the minutes of the court. The court, however, indorsed on said trial amendment that he had permitted the same to be filed but that he had sustained appellee’s general demurrer thereto. Said indorsement could not in any event have a higher standing than a formal bill of exceptions showing such action, duly allowed by the court and filed as a part of the record in the cause. Rulings of the trial court on demurrers are part of the record and must be entered on the minutes and copied in the transcript. They cannot be perpetuated and presented for review on appeal by a bill of exceptions. Hall v. Williams & Ellis (Tex. Civ. App.) 267 S. W. 520, 521, par. 1, and authorities there cited; Ineeda Laundry v. Newton (Tex. Civ. App.) 33 S. W.(2d) 208, 210, par. 1; Epting v. Nees (Tex. Civ. App.) 25 S.W.(2d) 717, 719, par. 9 (writ refused); Lerer v. Raines (Tex. Civ. App.) 27 S.W.(2d) 621, 622, par. 2, and authorities there cited; International-Great Northern Ry. Co. v. Straub (Tex. Civ. App.) 7 S.W.(2d) 112, 113, par. 1; Willis v..Graf (Tex. Civ. App.) 257 S. W. 664. All the aforesaid assignments are therefore overruled.

Appellant presents an assignment of error in which it complains of the action of the court in admitting in evidence, over its objection, the testimony of appellee that she was the mother, of two small boys; that they lived with her at the time the events under consideration occurred; and that they still lived with her. Appellant supports this assignment by reference to the statement of facts, which merely shows that it entered a general objection to such testimony. Since the evidence in this case raised the issue of exemplary as well as actual damages, the testimony complained of was admissible. St. L. S. W. Ry. Co. of Texas v. Thompson, 102 Tex. 89, 99, 100, 113 S. W. 144, 19 Ann. Cas. 1250, and authorities there cited; 8 R. C. L. 632, § 173.

Appellant presents an assignment of error in which it complains of the action of the court in admitting, over its objection, testimony of appellee that its manager, Henry Love, several months prior to the events under consideration, made improper advances to her. Said Love was one of the principal actors in having appellee ejected from,appellant’s barber shop and hotel. He was a married man and appellee, at the time, a widow. She testified - that in her work she was subject to ■ his orders; that he made advances to her, called her “Peaches,” wrote notes to her, and insisted on her going out with him; that she declined on the ground that he was a married man; that the matter culminated in some sharp words to each other; that after that time he was habitually rude to her, to all of which she was forced to submit because he had authority to have her discharged. This testimony tended to show motive and malice and was properly admitted.

Appellant presents assignments of error in which it complains of the action of the court in overruling various objections to the charge. Appellant objected to the charge of the court in connection with the issue of exemplary damages, on the ground that it did not correctly state the circumstances, under which such damages were recoverable against a corporation. It objected to tbe definition of tbe term “probable cause” as used in tbe charge, on tbe ground that tbe same was not a true legal definition of tbe term, and to tbe definition of tbe term “scope of authority” used in tbe charge because tbe same was not a true legal definition of such term. The purpose of tbe statute which requires the court to prepare bis charge and submit tbe same to counsel for both parties for inspection and criticism, is that court and counsel should thus join in a frank and sincere effort to secure a proper submission of tbe case. To ef-' feet such purpose, counsel’s objections to tbe charge should be specific, constructive, and helpful. They should' be in such form as to enable the court to readily understand their scope and meaning, and to enable him, if necessary, to modify his charge in the light thereof. The objections urged by appellant to the charge of the court in this case were too general to require consideration and the court did not' err in overruling the same. Chase Bag Co. v. Longoria (Tex. Civ. App.) 45 S.W, (2d) 242, 244, pars. 4 to 6, inclusive, and authorities there cited.

Appellant presents an assignment of error in which it complains of the action of the court in submitting to the jury, over its objection, the issue of exemplary damages. Appellant’s specific .contention in this connection is, that being a corporation, the testimony was wholly insufficient to charge it with liability for such damages. Mr. Eenton, H. Baker was vice president of the corporation and general manager of the hotel. Henry Love was assistant manager. McCormick, manager of the barber shop, testified that after the conversation between him and ap-pellee in the eaveteria, in which he told her that he would see her and talk to her in thé barber shop in a few minutes, he reported the incident to Mr. Baker and told him that she had gone to the barber shop and that he did not want her in there; that Baker told him to report the matter to Love and to have him report it to the officers; that he immediately did so. Love testified that he also went to see Mr. Baker about the matter and that he told him to call an officer. He further testified that he sent a boy across the street for Mr. Gambrell, a policeman; that he told Gam-brell when he arrived that he wanted him to go in there and make appellee behave herself or take her out. Mr. Gambrell, the policeman, testified that Love told him that appellee was “raising Cain” and asked him to go down there and remove her; that when he went into the barber shop she was sitting quietly at the table getting a manicure. The testimony showed that appellee was immediately ejected from the shop and from the building, as elsewhere recited herein. The above brief recital shows that Mr. Baker, an executive officer of the corporation, in charge of the management and control of the hotel, authorized appellee’s removal, and that Love, his assistant, took the necessary steps to effect such removal.. Both of them represented appellant in its corporate capacity. The testimony raised an issue as to appellant’s liability for exemplary damages and the court did not err in submitting the same. Chronister Lumber Co. v. Williams, 116 Tex. 207, 212, 288 S. W. 402 et seq.; Western Union Telegraph Co. v. Brown, 58 Tex. 170, 174, 175, 44 Am. Rep. 610; Western Cottage Piano & Organ Co. v. Anderson, 97 Tex. 432, 436, 79 S. W. 516; Hays v. H. G. N. R. R. Co., 46 Tex. 272, 284. The manner in which such issue was submitted was not challenged by appellant by any specific objection and it should therefore be held to have acquiesced therein. Chase Bag Co. v. Longoria, supra, page 244 of 45 S.W. (2d) par. 7.

Appellant presents an assignment of error in which it contends that certain argument by appellee’s attorney in his closing speech to the jury was improper and constitutes reversible error. We do not deem it necessary to set out the excerpt complained of. Appellee’s attorney was repeating some of the evidence with reference to appellee’s purpose in going into the barber shop, her protestation that she had done no wrong, and the action of Love in having her ejected. In the course of such recital he referred to one of appellant’s witnesses, apparently McCormick, as “a little skunk,” and in conclusion stated, in substance, that such was the humiliation and disgrace that this big corporation has heaped upon this little woman. According to McCormick’s testimony, he in effect invited appellee to come to the barber shop and promised her that he would be there in a few minutes and would see and talk with her. Instead, when he saw that she had acted upon his suggestion or invitation, he appealed to Mr. Baker to have her removed. The testimony affirmatively shows that all the time she was in the barber shop she conducted herself in a quiet and orderly manner. There is no contention that she actually did anything while there which caused or justified her removal therefrom. McCormick did hot return to the barber shop until after her removal was effected. Appellee’s attorney, under such state of facts, was justified in criticizing his conduct. While the opprobrious epithet was improper and should not have been used, we do not think, under the circumstances, it could be held to in any way justify a reversal of the judgment. Sterling v. St. L., I. M. & S. Ry. Co., 38 Tex. Civ. App. 451, 86 S. W. 655, 658 (writ refused). Appellee pleaded affirmatively that it was a corporation and that it owned and operated the Baker Hotel in Dallas. There is als.o sufficient testimony to show affirmatively that said hotel was a large one. When appellee’s attorney referred to appellant as a “big corporation,” he was strictly within the record. Considering the state of the record, his remarle amounted to no more than if he had said: “This is the humiliation and disgrace that defendant, The Baker Company, has inflicted upon this little woman.” Such a statement clearly would have been permissible argument. Appellee’s counsel did not attempt to amplify nor emphasize the statement so complained of. We do not think it can be reasonably said that this casual reference to appellant’s corporate capacity and the size of its business was calculated to affect or did affect the verdict returned by the jury in this case. Federal Surety Co. v. Smith (Tex. Civ. App.) 25 S.W.(2d) 994, 1000, par. 7 [reversed on other grounds (Tex. Com. App.) 41 S.W.(2d) 210]; Magnolia Pipe Line Co. v. Leach (Tex. Civ. App.) 17 S.W.(2d) 471, 472, par. 2; Jackson v. Jackson (Tex. Civ. App.) 35 S.W.(2d) 830, 834, pars. 2 to 5; Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108, 1113, par. 11; G., C. & S. F. Ry. Co. v. Norfleet, 78 Tex. 321, 325, 14 S. W. 703.

We have examined all the assignments which appellant has presented as ground for reversal and have reached the conclusion that none of them justify such action. The judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: BARCUS, J.

license: Public Domain

text:
    DALLAS RY. & TERMINAL CO. et al. v. BOLAND et ux.
    No. 1229.
    Court of Civil Appeals of Texas. Waco.
    Sept. 15, 1932.
    Rehearing Denied Oct. 13, 1932.
    Worsham, Rollins, Burford, Ryburn & Hincks and Leachman & Gardere, all of Dallas, for appellants.
    W. J. Rutledge, Jr., of Dallas, for appellees.
   BARCUS, J.

Appellees instituted this suit against appellants, Dallas Railway & Terminal Company and R. E. McVey, to recover $25,000 damages which they claimed they had suffered by reason of appellants having negligently killed their nine year old son.

The Dallas Railway & Terminal Company, hereinafter called the bus company, was operating a passenger bus in Dallas, and at the time in question, about 7:30 a. m., a bus loaded with passengers was coming from the residential section into town down Ewing avenue. The bus was about 8 feet wide and 14 feet long and carried 21 passengers. Ewing avenue was a paved street about 30 or 36 feet in width. Appellant McVey was driving his ear down Ewing avenue behind the bus, and, in attempting to pass it, struck a bicycle on which the two boys of appellees were riding, and as a result thereof one of the boys was killed. The bus company had no connection or control over the ear driven by McVey; neither did he have any connection or control over the bus.

The jury, in answer to special issues, found that the bus driver was not guilty of negli-genee in failing to keep a proper lookout. It found that the operator of the bus was guilty of negligence, which was a proximate cause of the injury, in failing to operate the bus in such manner as that he gave due regard for the safety of other persons, and that the bus driver was guilty of negligence, which was a proximate cause of the injury, because he failed to keep the bus as close as possible to the right-hand side of the street, as required by subdivision J, article 801 of the Penal Code. The jury found that McVey was operating his ear at a negligent rate of speed, which was a proximate cause of the injury; that he negligently failed to sound his horn before attempting to pass the bus, which was a proximate cause of the injury; that he was negligent in failing to keep a proper lookout, which was a proximate cause of the injury; that he was negligent in operating his automobile without allowing sufficient room for other persons to use the west side of Éwing avenue, which was a proximate cause of the injury. It found that the’collision between the automobile of McVey and the bicycle was not the result of an unavoidable accident. 'The jury further found that the children on the bicycle were not guilty of any acts of negligence. They assessed appellees’ damages at $5,000.

Appellees in their brief state that the judgment of the trial court cannot be upheld by virtue of the finding of the jury that the bus driver was guilty of negligence in failing to keep the bus as close as possible to the right-hand side of the street, as required by subdivision J of article 801 of the Penal Code, since this section has been held invalid by the Supreme Court, speaking through the Commission of Appeals, in Abbott v. Andrews, 45 S.W. (2d) 568. Further discussion of said finding is therefore omitted.

The only other act of negligence found by the jury against the bus company is contained in special issues 3, 4, and 5, in answer to which the jury found, in effect, that the operator of the bus was guilty of negligence, which caused the injury, “in failing to operate the bus in such a manner as that he gave due regard for the safety of other persons using Ewing Avenue at said time.” Appellant bus company excepted to the allegation in appel-lees’ pleading raising said issue, on the ground that same was a mere conclusion of the pleader, was too vague and indefinite, and amounted to a general allegation of negligence, which exception was overruled by the trial court. Appellant bus company objected to said issue being submitted because it was vague and indefinite, and because no guide was given to the jury as to what was meant by the term “due regard,” and because it was in effect a general charge, and further, that since appellees had pleaded specific acts of negligence with reference to the method and way the bus was being operated, they were limited thereto. We think it was error for the trial court to overrule the exception to said pleading and to submit said issues to the jury. The law seems to be well settled that, where a party pleads specific acts of negligence, same control and supersede any general allegations relative thereto. San Antonio & A. P. Ry. Co. v. DeHam, 93 Tex. 74, 53 S. W. 375; San Antonio Gas & Electric Co. v. Speegle (Tex. Civ. App.) 60 S. W. 884; Gordon v. Postal Telegraph-Cable Co. (Mo. App.) 24 S.W.(2d) 644. Said issue as submitted in effect turned the jury loose to find any act of negligence which they may have thought constituted a failure on the part of the bus driver to give due regard to the safety of other people using the street. The specific acts of negligence alleged against the bus driver were separately submitted by the trial court, and issue 3 was in effect a resubmission of each of those acts as well as any other act that the jury may have concluded constituted such negligence, whether same had been pleaded or not.

Appellants McVey and the bus company each assign error to the action of the court in defining what is meant by an unavoidable accident. The trial court submitted the issue 'as to whether the collisioh between the car driven by McVey and the bicycle on which the children were riding was an unavoidable accident, and in connection therewith charged the jury as follows: “In connection with this issue, you are instructed that an unavoidable accident is an unforeseen and unexpected happening which occurs without negligence on the part of any of the parties involved therein proximately contributing thereto.”

Each of appellants objected to the issue as submitted, and requested the court, in lieu thereof, to submit separate issues for the jury to determine whether it was an unavoidable accident in so far as the bus company and the boys were concerned and whether it was an unavoidable accident in so far as McVey and the boys were concerned; appellants’ contention being that, under the peculiar facts in the case at bar, the jury might have found that as to one of them, or as to each of them if the issue had been submitted separately, that the injury was the result of an unavoidable accident. Under the undisputed facts, there was no relationship or connection between the bus company and McVey. The operator of the bus was bringing a load of passengers to the business section of the city, being driven at an ordinary rate of speed, and McVey, driving his car, attempted to go around the bus, and, as he did so, the children on the bicycle came from the sidewalk onto the street, and McVey, in attempting to dodge them, wrecked his car, turning same over, and caught one of the children under the fender, which caused the child’s death. Whether Mc-Vey’s automobile struck the bus was a disputed question. The bus did not stop, and neither the driver thereof nor any one in the bus, so far as the record shows knew that the accident had occurred or that McVey’s car struck the bus. A witness standing some half a block behind the bus at the time the accident occurred stated that MeVey’s car did strike the bus. The other witnesses all testified to the contrary. The jury found that the operator of the bus was negligent in operating the bus in such manner as not to give due regard to the safety of other people using the street. As to appellant McVey, the jury found a number of acts of negligence, each of which was found to be a proximate cause of the injury. Clearly, under the facts in this case, as between McVey and the children riding on the bicycle, the jury could have found that the injury was the result of an unavoidable accident, regardless of whether the operator of the bus was guilty of negligence in using said street or not. While the definition as given by the court is the ordinary and accepted definition of an unavoidable accident, where, as in this case, there was no connection between the bus company and McVey, and appellees had alleged entirely separate and distinct acts of negligence on the part of each, the trial court should have submitted-to the jury separately as to each defendant the question as to whether the injury was an unavoidable accident. If, as a matter of fact, the injury was caused by reason of the driver of the bus operating the car without due regard for the safety of other people, the jury might well have decided as to said bus company the injury was not an unavoidable accident, since the driver of the bus could , have operated the car so as to give due regard to other people.

Each of the appellants objected to the issue submitted by the court for the jury to determine the amount of damages, if any, suffered by appellees, because the court in submitting said issue failed and refused to instruct the jury in connection therewith not to consider any grief or sorrow of the parents or either of them, and not to consider any loss of companionship, and not to consider the affections of the parents for the child of the affections of the child for the parent's, and not to consider any mental pain or physical suffering by the child which occurred prior to his death. We sustain this contention. Our courts have definitely held that an objection to an issue as submitted by the court that it fails to exclude or include certain things that should be is sufficient without the party tendering a special issue in connection therewith. H. & T. C. Ry. Co. v. Gant (Tex. Civ. App.) 175 S. W. 745; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1033; G., C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183; Wichita Valley Ry. Co. v. Williams, 116 Tex. 253, 288 S. W. 425; Western Union Telegraph Co. v. Rutledge (Tex. Com. App.) 15 S.W.(2d) 210.

In Hines v. Kelley, supra, the court, speaking through the Commission of Appeals, specifically held that it was error for the trial court not to exclude from the consideration of the jury those elements of damage which the jury should not consider in a case similar to the one at bar, such as grief, loss of society of plaintiff’s son, mental .pain and anguish, and such other elements as the jury might improperly consider in a case of this character.

. Appellant McVey complains of that portion of the court’s charge which authorized the jury to award damages for the value to appel-lees of the aid they might receive from the child after he attained his majority; their contention being that the evidence was not sufficient to support this issue. Since the case is to be reversed on other grounds, ap-pellees will have an opportunity to, and perhaps will, strengthen their testimony on this issue. We deem it unnecessary to, and we do not, pass on this proposition.

For the errors indicated? the judgment of the trial court is reversed and the cause remanded. .


author: GRAVES, J.

text:
    PARSONS et al. v. CITY OF GALVESTON et al.
    No. 9878.
    Court of Civil Appeals of Texas. Galveston.
    July 21, 1932.
    Rehearing Denied Sept. 29, 1932.

      John L. Darrouzet, Harold M. Oster, and J. L. McKenna, all of Galveston, for appellants.
    Bryan P. Williams, City Atty., of Galveston, for appellees.
   GRAVES, J.

Appellants, alleging themselves to be the owners of the “Dime Taxi Service,” and as such engaged in the transportation of passengers for hire in the city of Galveston, and that “in order to satisfy the people of Galveston as a whole and to bring automobile transportation within the capabilities of the public as far as money expenditure is concerned and at the same time make a reasonable profit on their investment, the said plaintiffs have set a price of 10 cents for the carriage per person to any part of the said City of Galveston within the section of the City bounded by 6th and 40th streets and a minimum of 20 cents per carriage between points one or both of which are without the above mentioned district in said City of Galveston,” sought a temporary injunction against the appellees to prevent the enforcement — as against appellants — of the following ordinance now effective in the city of Galveston:

“An ordinance prescribing the minimum fares or charges for the carriage of passengers for hire in the City of Galveston in any automobile, taxi-cab, motor bus or similar motor vehicle devoted to or used in the business of carriage of passengers for hire on the streets of and within the limits of the City of Galveston.
“Be it ordained by the Board of Commissioners of the City of Galveston:
“Section 1. That it shall hereafter be un-⅜ lawful for any person in charge or control of or engaged in the operation of any automobile, taxi-cab, motor bus or similar vehicle devoted to or used in the carriage of persons for hire over the streets of and within the limits of the City of Galveston to charge or receive for the carriage of any passenger in such vehicle any fare or charge or compensation less than the following:
“For the carriage of any number of passengers not exceeding five between points in that portion of the City of Galveston lying between Sixth Street and Fortieth Street, Twenty-five (254) cents for each trip.
“For the carriage of any number of passengers not exceeding five between points one or both of which being without the above mentioned district, fifty cents (50⅜) for each trip.
“Provided, however, that nothing herein contained shall be taken as permitting any charge or fare in excess or greater than the maximum charge or fare prescribed by existing ordinances of the City of Galveston.
“Section 2. That any person who shall violate any provision of this ordinance shall be deemed guilty of misdemeanor, and upon conviction shall be fined in any sum not exceeding. Twenty-five Dollars ($25.00).
“Section 3. That this ordinance shall take effect upon its due publication as prescribed by the charter of the City of Galveston.”

The relief prayed for having been refused below in an order reciting:

“1. That the temporary restraining order herein issued on May 27, 1932, be and the same is hereby dissolved and declared to be of no further force and effect;
“2. That the temporary writ of injunction prayed for by the plaintiffs herein be and the same is hereby denied;
“3. That the defendants’ general demurrer to plaintiffs’ petition be and the same is hereby sustained,”

—they come here under assignments, asserting:

(1) “The ordinance in question being invalid, the court should have overruled the general demurrer and held that plaintiffs’ petition stated a good cause of action.”
(2) “The ordinance being in contravention of sections 3,16, 19, and 26 of article 1 of the Constitution of the .State of Texas, and also violative of the 14th Amendment of the Constitution of the United States, the court should have held same to be void and should have granted a temporary injunction against the enforcement thereof.”

The trial-court’s judgment should, we conclude, be affirmed. As its terms plainly reflect, the ordinance has to do with rates to be charged by those using vehicles, of the kind specified in carrying on a business of common carriers of passengers for hire within the limits and over the streets of the city; that is, it simply prescribes minimum fares to be charged for such service, prohibiting and making unlawful the charging of any either lower than those therein fixed, or higher than the maximum fares fixed by different and preexisting ordinances.

Appellants appear, in limine, to labor under two misconceptions as to their legal status in an action such as they brought: (1) That they had an inherent or vested right to carry on the business of a common carrier of passengers for hire over the public streets of the city of Galveston, as they had been doing; (2) that, in testing the sufficiency of their bill or petition for the coveted writ, as against the general demurrer interposed by the appellees, they were — under the rule in ordinary cases — entitled to the benefit of every reasonable intendment from their allegations, and, if any of them upon their face stated a cause of action for injunctive relief, the temporary order should have issued, pending the coming out of the full facts at a trial on the merits.

Neither position is tenable; in the first place, an inspection of their application discloses no sort of averment showing, or tending to show, that they had ever acquired any contractual, recognized, or vested right to use the city’s streets for the conduct of such a business as they sought to continue, through the granting to them of any franchise, privilege, or permit, whatever; on the contrary, they in effect negative any such claim, when all they assert, to quote their recitation in that respect, is: “That the plaintiffs are the owners of the Dime Taxi Service and are engaged in the transportation of passengers for hire in the City of Galveston, Texas; that for a length of time they have been operating'the said taxicabs in the City of Galveston and have been giving courteous and satisfactory cab-service to the people.”

That, in the absence of a showing of the vouchsafing of such a right to others, the prerogative of controlling the use of the streets for private business purposes is one for the state itself — or a city to which it has delegated that power — to exercise, as it sees fit, without contravening any of the constitutional provisions here invoked by appellants, seems to have been well settled, not alone by the appellate courts of Texas, but by the Supreme Court of the United States as well. Charter, City of Galveston, § L-C; R. S. Texas, art. 1175; Davis v. City of Houston (Tex. Civ. App.) 261 S. W. 625, 626; Gill v. City of Dallas (Tex. Civ. App.) 209 S. W. 209, writ of error denied; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Clem v. La Grange, 169 Ga. 51, 149 S. E. 638, 65 A. D. R. 1361; Community Natural Gas Co. v. Natural Gas, etc., Co. (Tex. Civ. App.) 34 S.W.(2d) 900, 901; Great Northern Utilities Co. v. Public Service Comm. (D. C.) 52 F.(2d) 802; City of Arlington v. Lillard, 116 Tex. 446, 294 S. W. 829; City of San Antonio v. Fetzer (Tex. Civ. App.) 241 S. W. 1034; Craddock v. City of San Antonio (Tex. Civ. App.) 198 S. W. 634; Economic Gas Co. v. City of Los Angeles, 168 Cal. 448, 143 P. 717, Ann. Cas. 1916A, 931; Ex parte Luna, 98 Tex. Cr. R. 458, 266 S. W. 415; Mapleton v. Iowa Public Service Co., 209 Iowa, 400, 223 N. W. 476, 68 A. L. R. 993; Tipton v. Tipton Light & Heating Co., 176 Iowa, 224, 157 N. W. 844.

As those cited authorities make very clear, the extent to which the citizen seeks to usé the city streets has much to do with the reaches of the public power over them in relation to him; he may use them in the ordinary way for purposes of travel or transportation of property in the usual course of life or business, as an inherent privilege, common alike to all who are similarly situated, that may be reasonably regulated, though not entirely taken from him; but he has no vested right to conduct his private business for profit exclusively within their limits and over the facilities they afford — that being an exceptional or peculiar burden that is always subject to the will of the state, or of the political subdivision to which that attribute of sovereignty has been delegated; wherefore, since these appellants declared upon the latter alone, without having the wedding-garment of a permit, grant, or franchise from the governing body, the court had no power to trench upon its exclusive province.

In the second place, this having been an application for a temporary injunction, appellants were not entitled to the aid of any reasonable intendments that might otherwise have been given their averments, under the rule as thus stated by this court in Houston Electric Company v. City of Houston, 212 S. W. 198, at page 199: “The averments of the bill by which so drastic a remedy is asked, contrary to the rule in ordinary actions, will be taken most strongly against the applicant, and must negative any reasonable inference from the facts stated that he may not be entitled to the recovery sought. Miller v. City [of Ballinger (Tex. Civ. App.)], 204 S. W. 1173, 1174 (2); Ross v. Veltmann [Tex. Civ. App.] 161 S. W. 1073, and cited authorities.”

Further discussion is deemed unnecessary, as these conclusions determine the merits of the appeal; the order of affirmance will accordingly issue.

Affirmed.


author: JACKSON, J.

text:
    FORT WORTH & D. N. RY. CO. v. JOHNSON.
    No. 3830.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 14, 1932.
    Rehearing Denied Oct. 5, 1932.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for appellant.
    Willis, Studer & Studer, of Pampa, for ap-pellee.
   JACKSON, J.

The Fort Worth & Denver Northern Railway Company filed a proper statement in writing with the county judge of Gray county to have-condemned for right of way purposes certain land which is fully described in the statement by metes and bounds.

The railway company alleged that it was duly and legally incorporated and authorized to construct, maintain, and operate tracks, yards, switches, etc., necessary and incidental to the operation of a railroad and to acquire the real estate necessary therefor; that the land desired for right of way purposes was owned and claimed by R. E. Johnson and wife, Virgie A. Johnson; and that Albert McAnally, Southern Life Insurance Company, Ryan Consolidated Petroleum Corporation, Syndicate Oil Corporation, and Southland Royalty Company each claimed some character of lien or interest in said land.

The county judge appointed commissioners to assess the value of the land and the damages, if any; they qualified, gave notice to all the alleged claimants and owners, had a hearing and awarded R. E. Johnson $608 and A. L. McAnally $35 as the value of the land appropriated and the damage occasioned to the remainder of said tract, and such award was duly filed in the county court.

R' E. Johnson was dissatisfied with the award of the commissioners and in proper time filed his objection thereto in writing, setting up the grouiids thereof, but did not deny either generally or specially the right of the railway company to acquire the land for railroad purposes, but by inference conceded the authority of said company, by proper proceedings, .to obtain the right of way.

He alleged that the land to be actually appropriated, 6.08 acres, was of the market value of $75 per acre, or the aggregate value of $456; that the remainder of the tract, 313.92 acres, would be diminished in value in the sum of $1,569.50, and prayed that upon a final hearing he recover said sums as his damages, with interest, and costs.

In county c.ourt, replying to the objections, exceptions, and pleadings of the said R. E. Johnson, the railway company filed numerous demurrers and a general denial.

In response to special issues submitted by the court, the jury found that the market value of the 6.08 acres of land condemned by the railway company was $456 and found, in effect, that the market value of the remaining 313.92 acres was diminished in the sum of $1,394.60. Upon these findings judgment was rendered for- R. E. Johnson in the sum of $1,850.60 with 6 per cent, interest thereon from the date of the judgment and for costs, from which judgment the railway company appeals.

Albert McAnally, the Southern Life Insurance Company, Ryan -Consolidated Petroleum Corporation, Syndicate Oil Corporation, and Southland Royalty Company were notified to present claims to the commissioners, but failed to do so. No citation was issued to either of them giving notice of the objections and exceptions filed by R. E. Johnson or of the hearing to be had in county court. The railway company urged the failure to have citations served on said parties as fundamental error, and in our former opinion this contention was sustained on the authority of Acree v. State et al. (Tex. Civ. App.) 47 S.W. (2d) 907.

After our original opinion was written, the appellee in due time filed a’ motion for rehearing, and Albert McAnally, Southern Life Insurance Company, Ryan Consolidated Petroleum Corporation, Syndicate Oil Corporation, and Southland Royalty Company each filed separate written instruments in this court by which, in effect, said parties disclaimed any interest in the compensation awarded R. E. Johnson by the judgment of .the county court and asked that the appeal be considered on its merits. This action upon the part of said defendants makes the disposition of this appeal and the judgment of this court binding upon them, creating an estoppel against each of them which would protect the railway company from any claim any of them might hereafter assert for compensation on account of any interest in the land. Smith v. Chipley, 118 Tex. 415, 16 S. W.(2d) 269; Perkins v. Terrell (Tex. Civ. App.) 214 S. W. 551; M., K. & T. Ry. Co. v. Hicks (Tex. Civ. App.) 194 S. W. 1145; Hughes-Buie Co. v. Mendoza (Tex. Civ. App.) 156 S. W. 328, 329. We therefore consider the record on the merits.

The appellant, railway company, presents as error the action of the trial court in permitting appellee, R. E. Johnson, to open and close the argument to the jury in the trial of the case because the 'burden of proof was upon the appellant to establish its. corporate existence for railway purposes, its permit from the Interstate Commerce Commission authorizing it to construct the railroad, its failure to agree with appellee on the price and the value of the land sought to be taken.

The record discloses that the appellant introduced its articles of incorporation, and that thereupon it was agreed in open court between the appellant and appellee that it had secured a permit from the Interstate Commerce Commission to construct its line of railway and had authority to acquire the right of way involved in this proceeding. The appellant then introduced its application to the county judge for the appointment of commissioners, the order of the judge appointing them, their qualification, their order for the hearing, and their judgment awarding damages,'the amount of land sought for right of way purposes, that its market-value was from $55 to $75 per acre, that it had failed to agree with appellee as to the value of the land and had made him an offer therefor which he refused.

The appellee then offered testimony as to the value of the land taken for the right of way and as to the diminished value of the acreage in the remainder of the tract.

After -the testimony was closed, the appel-lee filed his written admission that the appellant had the right to condemn the land; that the only issues in the case were the amount of damages and compensation; and that the burden was upon him .to establish such damages and compensation by a preponderance of the evidence.

The appellant contends that this admission was insufficient under rule 31, but if it were not, that it was filed too late to authorize the court to permit the appellee to open and close the argument before the jury.

It will be observed that the appellee neither by pleading nor proof denied- the authority of appellant to construct and maintain a railway and to acquire right of way across his land for that purpose. The only issues made by his pleadings and proof were the value of the land taken and the damage done to the remainder of the tract across which the right of way was condemned. No other issues were submitted to the jury and none requested.

The only questions to be determined were the market value of the land taken and the diminished value of the remainder of the tract. Upon these issues the burden was upon appellee, independent of the admission filed by him under rule 31 and the time of filing thereof. The court did not commit reversible error in permitting him to open and close the argument to the jury.

Article 2183, R. O. S., among other things, provides: “The party having the burden of proof on the-whole case shall -be entitled to open and conclude the argument.”

The following authorities we think control; 16 Tex. Jur. 809, § 174; Texas Power & Light Co. v. Jones (Tex. Civ. App.) 293 S. W. 885 (writ refused); Texas Power & Light Co. v. Snell et al. (Tex. Civ. App.) 15 S.W.(2d) 180; Dallas & G. Ry. Co. v. Chenault et al. (Tex. App.) 16 S. W. 173; Texas Power & Light Co. v. Moerbe (Tex. Civ. App.) 199 S. W. 503; City of Rosebud v. Vitek (Tex. Civ. App.) 210 S. W. 728; G., C. & S. F. Ry. Co. v. Brugger, 24 Tex. Civ. App. 367, 59 S. W. 556.

The appellant nowhere contends that the testimony was insufficient to warrant the amount of compensation allowed the appel-lee' by the jury or that such compensation was excessive. In our opinion it is evident from the record that no injury resulted to appellant by the ruling of the court in permitting the appellee to open and close the argument to thé jury.

“It seems that the party upon whom the burthen of proof rests, should have the opening and conclusion of the argument to the jury. * * * But we are of opinion that a mere error of practice on a question of this kind, and from which, it is evident from the record, no injury has resulted to the appellant, affords no sufficient grounds for a reversal of the judgment.” Belt v. Raguet, 27 Tex. 471, 481; Robb v. Robb (Tex. Civ. App.) 62 S. W. 125 (writ refused).

Our original opinion is withdrawn and the judgment is affirmed.


author: WALKER, C. J.

text:
    YOUNGER et al. v. McCOY et al.
    No. 2228.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 3, 1932.
    Rehearing Denied Oct. 5, 1932.
    Llewellyn & Dougherty, of Liberty, for appellants.
    Ward & Ward, of Houston, for appellees.
   WALKER, C. J.

Under orders of the county court of Liberty county, Adlawyer Baldwin, as guardian of her minor children, Thresa Jane, Leanna, Sarah Lee, and Frederick Antoine, on the 1st day of February, 1922, sold to J. I. Younger of Harris county the undivided one-half interest of her minor children in a certain tract of 71 ½ acres of land in Liberty county. After the execution of this deed, Thresa Jane married Arthur McCoy, on the 22d day of September, 1927, and Leanna married Emory Smith on the 3d day of May, 1928. On the 17th day of September, 1929, Thresa Jane and Leanna, joined by their husbands, under the provisions of article 932, R. S. 1925, filed their petition herein in the district court of Liberty county, praying for certiorari to the county court of Liberty county for the purpose of revising and halving set aside their guardian’s deed, as above described. This petition was presented to the Honorable Thos. B. Coe, district judge of Liberty county, on the 17th day of September, 1929, who promptly indorsed his fiat thereon, ordering that the writ of certiorari be issued as prayed for, upon the execution of a bond in the sum of $200. The bond was duly executed, the writ issued, and service and return had thereon on the 19th of September, 1929. The defendants named in the petition were J. I. Younger and his grantees of the 71 ½ acres of land. Defendant J. I. Younger, having sold all his interest in the land, filed a disclaimer. The other defendants answered on the 4th day of February, 1930, and the 22d day of October, 1930. At the July term, 1931, Judge Coe certified his disqualification because of his relationship to one of the parties to the suit. On July 16, 1931, at the same term of court, Judge Ewing Boyd, sitting as district judge of Liberty county under exchange of benches with Judge Coe, assumed jurisdiction of this case and entered his order ratifying and confirming all orders made therein by Judge Coe and all other proceedings had in the case, including approval of the bond upon which the writ was issued. From the facts just stated, it appears that the order made by Judge Coe was within the two-year period provided by article 932, and it also appears that Judge Boyd’s order of confirmation was made and entered much more than two years after the disabilities of the minors Thresa Jane and Leanna had been removed by their marriage. On the 16th day of July the defendants filed their written motion to dismiss this proceeding on the ground that it was not filed and prosecuted within the two-year period provided by article 932, making the specific point that Judge Boyd did not have the power to ratify and confirm •Judge Coo’s orders after the expiration of the period of two years provided by article 932. This motion was in all things overruled. Thereupon the. case proceeded to trial to a jury. After all the evidence was in and after the court had refused the motion of defendants for an instructed verdict and had granted plaintiffs’ motion for an instructed verdict, with consent of all parties, the court discharged the jury and entered judgment in plaintiffs’ favor for cancellation of the guardian’s deed. This judgment was entered as if the case had been tried to the court without a jury, and on motion of defendants the trial court- filed his conclusions of fact and law in support of his judgment. Prom that order the defendants have duly prosecuted their appeal to this court.

Opinion.

The court did not err in overruling defendants’ motion to dismisss this proceeding on the ground that the order of Judge Ewing Boyd, ratifying and confirming the previous orders made by Judge Coe, was void. As Judge Coe was disqualified herein, of course, all, orders made by him were absolutely void. But Judge Boyd had the power, as a matter of original jurisdiction, to make all the orders in issue and therefore, under Comstock v. Lomax (Tex. Civ. App.) 135 S. W. 185, to ratify and confirm Judge Coe’s orders.

Appellants do not deny the power of the district judge to enter an order of confirmation where the previous orders were made by a disqualified judge, as was Judge Coe iu this case, but their insistence is that the order of confirmation and ratification must he made within the two-year period provided by article 932, or within a reasonable time after the expiration of that two years. We think the facts of this case support the conclusion that petitioners acted with all due diligence in the prosecution of their ease after the disqualification of Judge Coe was entered. We say -this because the record shows affirmatively that the disqualification was entered at the July term, 1931, and a short while thereafter, and at the same term of court, the petitioners prosecuted their suit to judgment.

Appellees base their prayer for certio-rari upon allegations of the following facts, which we take from appellants’ brief:.

“(a) That no necessity existed for the sale for that the application for sale shows that the minors then had on hand personal property which could have been sold and also had on hand money.
“(b) That the allegations in the application for order of sale that said property sought to be sold was not calculated to have any rea- ' sonable increase in value and was non-revenue -bearing were false, and that said property was in fact revenue bearing and was calculated to have a reasonable increase in value.
“(c) That the application for order of sale stated that the minors’ interest in said lands was undivided but that the order of sale directing the sale of the minors’ interest did not specify what the interest of said minors in said land was and that such interest of the minors in said land was not set out in the report of sale or in the confirmation of sale.
“(d) That the probate court approved the report of sale without inquiry to whether the sale was fairly made or not.
“(e) That there was no competition between bidders and no opportunity given persons other than the purchaser named in said proceedings to purchase at- said sale and no offer was made to others of such property in order to obtain a more advantageous price than was offered by the said alleged purchaser.
“(f) That the purchaser named in the, report of sale and confirmation thereof in fact paid no consideration for the property.
“(g) That the purchaser was guilty of fraud in that he and those associated with him prepared the instruments in connection with said sale; that the guardian was told to sign them and did sign them where it was indicated she should sign; that the guardian did not understand and was never told that she was making a deed as guardian of the minors; and that she was told by the purchaser that the guardian’s deed was merely a ratification of a former .deed executed by her individually.
“(h) That the consideration recited in the report of sale, confirmation of sale and in the guardian’s deed was grossly inadequate; that property purported to be sold was at the time of the reasonable worth and value of four times the sale price recited in the deed.”

It thus appears that all the allegations for relief against the guardian’s deed are of matters not appearing on the face of the record in probate, but are aliunde of the record, except paragraph (c). Against these allegations appellants, as subvendees under J. I. Younger, the vendee in the guardian’s deed, plead the defense of innocent purchaser. We think the trial court committed reversible error in sustaining appellees’ exceptions to this plea except as to paragraph (c). Pure Oil Company v. Clark (Tex. Civ. App.) 35 S.W.(2d) 838, 840, was a certiorari proceeding brought, as was this case, under article 932 to set aside and annul an oil lease made by the guardian to one R. E. Blackwell. Appellants held the lease by assignment under Blackwell and answered the petition for certiorari by a plea of innocent purchaser.- The trial court sustained exceptions to this plea. In holding that this ruling was error, the Court of Civil Appeals held: “In reference to the sustaining of appellee’s special exception addressed to appellant’s plea of innocent purchaser for value without notice of the oil lease in question, we are of opinion that, in so far as the grounds urged by appellee for writ of cer-tiorari depended upon evidence aliunde the record sought to be reviewed and corrected, the court erred in sustaining said exception. However, as to all matters appearing upon the face of the record that would render void the proceedings sought to be reviewed and corrected, said exception was properly sustained, as the defense of innocent purchaser for value could not prevail against such exposition of the record.”

As just said, the issue raised by paragraph (c) of the petition for certiorari, being apparent upon the face of the record, was not subject to the defense of innocent purchaser. But we think the description of the minors’ interest, as given in the application for sale, the order of sale, the report of sale, and the order of confirmation, was sufficient, and therefore the attack on the deed as made by paragraph (c) was without merit. The minors’ interest in the land was described as follows:

“All the right, title and interest of .said four minors in and to an undivided one-half interest in and to that certain tract of 75 acres of land in the David Minehey League in Liberty County, Texas, particularly described as follows:
“Beginning at the southwest corner of the ,T. W. Clayton Survey on the east bank of the Trinity River;
“Thence S. 89 East 1332 vrs. edge of hill, 2303 corner in west edge of marsh stake from which a gum 15 in. dia. brs. N. 40 W. 4 4/10 vrs. a gum 10 in. dia. N. 89½ W. 6-8/10 vrs.
“Thence N. 17 E. with the margin of the marsh 230 vrs. to the N. E. corner of this survey, a stake from which a gum 4 in. dia. brs. N. 88 W. 2 vrs.
“Thence N. 89 W. 1028 vrs. to a stake from which a post oak 20 in. dia. brs. N. 50 E. 3 vrs.
“Thence S. 17 W. 48 vrs. a stake in edge of bottom;
“Thence N. 89⅛ W. 1010 vrs. to a stake on the bank of the river;
“Thence down the river with' its meanders 567 W. 370 vrs. to the beginning, saving and excepting therefrom that certain tract of 3⅛ acres conveyed by Adlawyer Baldwin to J. F. Richardson by deed dated February 25, 1921, recorded in Yol. 102, page 526, Deed Records of Liberty County, Texas.”

In the application the request was made “that said sale should be made at private sale for cash.” The order of sale was in accordance with the prayer. The report of the sale showed that it was made at private sale and for cash, and this report was duly confirmed. The particular point made against the sufficiency of this description was that the separate interest of each minor in this land was not given; it being insisted that the extent of the undivided interest of each minor in this land should have been pleaded. In view of the fact that the land was sold at private sale under orders of the court duly entered, we think the description was sufficient. At the private sale the failure of the application to set out the exact interest of each minor in the land would not prevent the property from bringing its fair reasonable cash value. Judge Pleasants’ holding in Jirou v. Jirou (Tex. Civ. App.) 136 S. W. 493, 496, is conclusive on this point. He there said:

“There is no merit in the second assignment, which complains of the judgment of the court below on the ground that the description of the land contained in the order of sale and order of confirmation is so meager and indefinite as to render such orders void; and that, if such orders are not void, the uncertainty of the description therein is such that it was calculated to deter bidders at such sale and thereby prevent the property from selling at its true value.
“While the description of the land in the order of sale is not as full as it should be, it is sufficient to identify the property, and that is all that was required. The sale in this case as ordered by the court was a private sale and the meagerness of the description could therefore have had no effect upon the price paid for the land by the appellees.”

That no necessity existed for the sale of the minors’ undivided interest in the land in controversy and that they owned personal property which could have been sold and also possessed a certain amount in money, as pleaded in paragraphs (a) and (b) of their petition copied above did not vitiate the sale. It is provided by article 4195 that “when the property of the ward consists in whole or in part ..of an undivided interest in real estate and the guardian believes it to be the best interest of the estate of the warcl to sell such real estate, he may, by written application to the court in which such guardianship is pending, ask for an order for such real estate to be sold.” The' application and the other proceedings in probate were in strict compliance with the provisions of this statute. Schaeffer v. Williams (Tex. Civ. App.) 208 S. W. 220.

Because of the error in sustaining the exception to appellants’ pleas of innocent purchaser, we do not discuss their assignments •that the trial court’s conclusions of fact, in support of the other allegations of the petition, are without sufficient support in the evidence.

Reversed and remanded.


author: LEDDX, O. CURETON, C. J.

text:
    Ex parte STERLING et al.
    No. 6322.
    Supreme Court of Texas.
    Oct. 1, 1932.
    James V. Allred, Atty. Gen., and T. S. Christopher, Neal Powers, and Elbert Hooper, Asst.. Attys. Gen., for relators.
    Swartzberg & Rawlings, of Port Worth, W. H. Lipscomb and C. H. Tupper, Jr., both of San Angelo, and J. S. Callicutt, of Corsicana, for respondents.
   LEDDX, O.

This is an original habeas corpus proceeding. We adopt the following from the brief filed by th« Attorney General in behalf of re-lators as a correct statement of the facts involved :

“On August 31, 1932, J. H. McCulloch and J. L. McCulloch, and others, all residents of Navarro County, Texas, presented a bill in equity to the Honorable H. F. Kirby, Judge of the 77th Judicial District, who was sitting temporarily in the 13th Judicial District of Navarro County. Petitioners were complaining of Rufus Pevehouse as Sheriff of Navarro County, L. G. Phares as Chief of the Highway Patrol, Cleo G. Miller as county attorney of Navarro County, W. W. Sterling as Adjutant General of Texas, and of all sheriffs, deputy sheriffs and constables in the State of Texas without naming them, and of all county attorneys, all highway patrolmen, all State rangers, all county highway officers, and of all weight and license inspectors in the State without naming any of them.
“In brief, the bill alleged that petitioners were then engaged, and expected to continue to engage, in the business of hauling cotton over the public highways from points in Navarro County to the ports of Houston, in Harris County, and Galveston, in Galveston County; that they had invested considerable sums of money in their trucks which they expected to use in the business of transporting over the highways; that if they were limited to a net load of 7,000 pounds they could not earn enough profit to justify operations and their trucks would be of little value, but that if they were permitted to haul a maximum net load of 11,000 pounds, or twenty bales of cotton, they could each of them earn a reasonable profit or wage.
“As further grounds for the relief sought the bill alleges that other persons have secured injunctions allowing them to haul loads exceeding 7,000 pounds; that the act is discriminatory because the load limit does not apply to motor busses; that it is discriminatory because of the 14,000 pound exception in favor of short hauls between points of origin and common carrier stations, and that the act in limiting the load to 7,000 pounds is unreasonable and deprives them of their property without due process of law.
“The petitioners prayed for temporary injunction restraining the officers named, and all other members of their class, from interfering with their truck operations over the highways when their load did not exceed 11,-000 pounds and, further, to restrain said officers from filing complaints against, arresting or prosecuting them in any manner for any violation of the 7,000 pound load limit.
“Without notice or hearing the judge of said court granted the injunction as prayed for.
“Thereafter, on the 11th day of September, 1932, certain of the petitioners in said cause, by their attorney, filed a motion to rule the relators in contempt of court for violating said restraining order in arresting and filing complaints against the drivers of their trueles for transporting a load in excess of 7,000 pounds over the highways of Harris County. Thereupon the Honorable H. E. Kirby ordered that the relators be taken in custody by the sheriffs of the several counties of their residence, and that they be delivered at the court house in Corsicana, Texas, at 10 A. M. on September 16, 1932, to show cause why they should not be punished and imprisoned.
“All of the relators, except Ross Dickey, were detained and arrested on September 14, 1932 in obedience to said order. Relator Ross Dickey was arrested by the Sheriff of Navarro County on September 12th, and was released upon bond conditioned for his appearance before said codrt on Friday, September 16, 1932.
■ “The relators, on September 14, 1932, applied to the Chief Justice of the Supreme Court for writs of habeas corpus, and they were granted in behalf of all except Ross Dickey.”

It is the general rule that courts of equity deal only with vested property rights; hence they will not by injunction stay prosecution of criminal proceedings. High on Injunctions (3d Ed.) vol. 1, § 68; Chisholm v. Adams, 71 Tex. 678, 10 S. W. 336; City of Galveston v. Mistrot, 47 Tex. Civ. App. 63, 104 S. W. 417.

There is a well-recognized exception to this rule, to the effect that where the statute under which the complainant is being prosecuted is unconstitutional, or for any other reason void, and the prosecution involves a direct invasion of property rights which will result in an irreparable injury thereto, an injunction may be granted to restrain the commencement or continuance of criminal proceedings based on such statute. C. J. vol. 32, § 447.

“Equitable'jurisdiction exists,” says the Supreme Court of the United States in Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 258, 68 L. Ed. 596, “to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the saféguarding of rights of property.”

The reason for the limitation upon the power of courts of equity to restrain officers from enforcing criminal statutes is well stated by the Circuit Court of Appeals in Arbuckle v. Blackburn, 113 P. 616, 625, 51 C. C. A. 122, 65 L. R. A. 864, in the following excerpt from the opinion: To hold otherwise “would be to subvert the administration of the criminal law, and deny the right of trial by jury, by substituting a court of equity to inquire into the commission of offenses where it would have no jurisdiction .to punish the parties if found guilty.”

Courts of equity are not concerned with the enforcement of criminal laws. Courts of law are created for this purpose. Courts of equity are concerned only with the protection of civil property rights. Therefore, when a court of equity issues an injunction which operates to stay the hand of law enforcing officers, its primary purpose is not to enjoin the criminal proceeding. That is merely incidental to the main ground upon which equity jurisdiction protects vested property rights from threatened and irreparable injury. Such jurisdiction is exercised solely with reference to the effect of the enforcement of a void law upon vested property rights. Winn v. Dyess (Tex. Civ. App.) 167 S. W. 294; Ex parte Castro, 115 Tex. 77, 273 S. W. 795; State v. Clark, 79 Tex. Cr. R. 559, 187 S. W. 760; Jones v. Whitehead (Tex. Civ. App.) 278 S. W. 305; City of Breckenridge v. Mc-Mullen (Tex. Civ. App.) 258 S. W. 1099.

Under the well-established rules of equity jurisprudence, it is clear that the district judge was without authority to issue the writ of injunction to prevent the enforcement of the law regulating the operation of motor-trucks upon the highways of this state unless the petition for such injunction clearly showed the existence of two facts, viz.: First, that such law is unconstitutional and void; second, that its enforcement constitutes a direct invasion of a vested property right of the complainants. Davis & Farnum Mfg. Co. v. City of Los Angeles, 189 U. S. 207, 23 S. Ct. 498, 499, 47 L. Ed. 778; In re Sawyer, 124 U. S. 200, 8 S. Ct. 482, 31 L. Ed. 402; Box v. Newsom (Tex. Civ. App.) 43 S.W.(2d) 981.

We are of the opinion that the allegations of the petition in the case in which the injunction was issued do not show the existence of either of said facts. It is true that complainant’s petition challenges the validity of the motortruck law for various reasons. All of these grounds, however, were urged in the case of Sproles v. Binford [see (D. C.) 56 F.(2d) 189, and (D. C.) 52 F.(2d) 730], which originated in the United States District Court for the Southern District of Texas. It finally reached the Supreme Court of the United States. The validity of the act against the assaults there made was fully upheld in an exhaustive opinion delivered by Chief Justice Hughes, on May 23, 1932, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167. It was determined that the act (Yernon’s Ann. P. C. art 827a, § 1 et seq.) was not subject to any of the objections made against its constitutionality and that its enactment was a valid exercise of the legislative power of this state to regulate the operation of motor vehicles using the highways for profit. That opinion so fully and completely answers every ground upon which the constitutionality of the law is here assailed that we need do no more than to say that the conclusions reached by that tribunal, which are so ably and forcibly expressed by its eminent Chief Justice, meet with our hearty approval.

We are further of the opinion that the petition upon which the injunction was issued shows upon its face that no vested property right of the complainants would be affected by the enforcement of this act. The complainants in the proceeding in which, the injunctions were issued are not making, in common with the general public, the ordinary use of the highways, but an extraordinary one for the purpose of carrying on a business for profit. That they have no vested right to so use such highways is beyond question. Public highways and streets are constructed and maintained at the public expense. No person, therefore, can insist that he has, or may acquire, a vested right to use such streets and highways in carrying on a commercial business. Pond on Public Utilities (3d Ed.) chap. 28, §§ 753 and 755; Ex parte Parr, 82 Tex. Cr. R. 525, 200 S. W. 404; Gill v. City of Dallas (Tex. Civ. App.) 209 S. W. 209; Ex parte Sepulveda, 108 Tex. Cr. R. 533, 2 S.W.(2d) 445; Kissinger et al. v. Hay et al., 52 Tex. Civ. App. 295, 113 S. W. 1005; City of Graham v. Seal et al. (Tex. Civ. App.) 235 S. W. 668.

The lawmaking body of this state may, if it considers it in the public interest, withhold altogether the use of public highways from the operation of trucks carrying freight for hire. The power to prohibit the use of the highways for such purposes necessarily includes the lesser power to place such restrictions and regulations upon the use thereof as may be deemed proper, even though the burdens imposed may be of such a nature as to prevent any profitable operation upon the part of those desiring to pursue such business. Of course, where the Legislature grants the right to the use of the highways for the carrying of freight it cannot unreasonably and unfairly discriminate in favor of or against any particular person or class of persons. Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264; Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167. In our opinion, the act in question is, as was held by the Supreme , Court .of the United States in the Sproles Case, free from any such discriminatory provisions.

In the case of Le Blanc v. City of New Orleans, 138 La. 243, 70 So. 212, 224, it was held that an injunction issued to restrain the officers of the city of New Orleans from enforcing a jitney ordinance, was void. It was there decided that no vested right existed in the complainant to use the city streets in the operation of automobiles carrying passengers for hire; that such right could only be claim- ' ed under a grant by the city and therefore could only be exercised in accordance with the terms of the grant. An individual seeking and not possessing a right of that kind might accept the grant with the conditions imposed by the offer, in which case he is bound by the conditions; or he might refuse to accept the conditions, in which ease there is no grant, and without the grant so offered, or some other from the authorities competent to make it, he can never acquire the right to make use of a street as his place of business.

The court, in denying that those using public highways for profit had or could have any vested right to so use the same, said: “* * * And, as the existence and exercise of the right here asserted by plaintiffs would be irreconcilable with the existence and exercise of the power so delegated, we are of opinion that the right does not exist, and that plaintiffs allege no such invasion of a property right and disclose no such interest in the operation of the ordinance here in question as to give them a standing in court for the purposes of this suit. Hence it is immaterial for those purposes whether the law, as administered in the courts vested with jurisdiction (original and appellate) with respect to prosecutions under the ordinance in question, provides an adequate remedy for the protection of such interest, or whether the ordinance be valid or invalid; and hence, also, the civil district court was without' jurisdiction to grant the injunction.”

A similar ruling was made in Wade v. Nun-nelly, 19 Tex. Civ. App. 256, 46 S. W. 668, which involved an attempt to restrain the enforcement of an ordinance prohibiting the sale of country produce upon the streets of the city of San Antonio. The right to injunctive relief was denied upon the ground that the appellees had no vested right to make marts of the streets and that to deny them the privilege of so doing was not to destroy or invade any of their property rights.

To the same effect is the case of Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6, 7, which was a proceeding to restrain the enforcement of a jitney ordinance. The court denied the right to an injunction, and Judge Fly, who rendered the opinion for the court, in his usual terse and vigorous style, made this observation: .

“No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated as the state or municipality may deem best for the public good. * * *
“In the case of the Fifth Avenue Coach Co. v. City of New York, 194 N. Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) 744, 16 Ann. Cas. 695. it was held that the right to run coaches on Fifth avenue was a franchise, and, further, that the city had the authority to grant or withhold the right to run coaches on the streets.”

In the course of the opinion he further stated: “So in this case appellant has never had any vested right to use the streets of San Antonio to engage in the business of a common carrier of passengers for hire, and no right of his is infringed or invaded by the ordinance requiring certain things to be done in order to enter into business on the streets, which have, at the expenditure of large sums, been placed by the city in prime condition for automobile travel. The streets belong to the public, the city being its trustee, and no private individual or corporation has a right to use such streets for the prosecution of a business without the consent of the trustee and a compliance with the conditions upon which the permission to so use them is given.”

It may safely be said that it is settled by the great weight of authority in this, as well as in other jurisdictions, that the use of public highways by common carriers of property for hire is an extraordinary use enjoyed as a mere privilege or license, revocable at the will of the Legislature. Robbins v. Limestone County, 114 Tex. 345, 268 S. W. 915; City of Port Arthur v. Young (Tex. Civ. App.) 264 S. W. 924; City of Waco v. O’Neal (Tex. Civ. App.) 33 S.W.(2d) 205; Box v. Newsom (Tex. Civ. App.) 43 S.W.(2d) 981; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 626, 38 A. L. R. 286; Packard v. Ban-ton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Southern Motorways v. Perry (D. C.) 39 F.(2d) 145; Ex parte Parr, 82 Tex. Cr. R. 525, 200 S. W. 404; Gill et al. v. City of Dallas et al. (Tex. Civ. App.) 209 S. W. 209; Newson v. City of Galveston, 76 Tex. 559, 13 S. W. 368, 7 L. R. A. 797; Ex parte Sepul-veda, 108 Tex. Cr. R. 533, 2 S.W.(2d) 445; Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6.

The petition upon which the injunction was issued failed to show that the law in question is invalid and that its enforcement would constitute an invasion of any property right possessed by the complainants. Therefore, they were not entitled to protection at the hands of a court of equity. Since this is true, it follows that the injunction restraining re-lators from enforcing the act in question is void and all proceedings had thereunder must fall. Relators are entitled to be discharged. It is so ordered.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and relators ordered discharged.


author: LEDDY, C. CÜRETON, C. J.

text:
    Ex parte PHARES et al.
    No. 6323.
    Supreme Court of Texas.
    Oct. 1, 1932.
    James V. Allred, Atty. Gen., and T. S. Christopher, Neal Powers, and Elbert Hoop-, er, Asst. Attys. Gen., for relators.
    Swartzberg & Rawlings, of Fort Worth, W. H. Lipscomb- and C. H. Tupper, Jr., both of San Angelo, and J. S. Callieutt, of Corsicana,' for respondents.
   LEDDY, C.

We take the following from relators’ brief as a correct statement of the material facts: upon, which this proceeding is based:

“On July 1, 1932, R. L. Dunn and D. F. Dunn, residents of Odessa, Crane County, Texas, presented a bill in' equity to the Honorable Joe G. Montague, Judge of the 112th Judicial District of Upton County, Texas. Petitioners complained of W. C. Fowler' as Sheriff of Upton County, Will Rooney as, Sheriff of Pecos County,. L. G. Phares as Chief of the Highway Patrol, Hubert For-man, County Attorney of Upton County, and of all weight and license inspectors, each and every highway patrolman, all sheriffs and constables and their deputies, all county highway officers, and all county attorneys in the State of Texas without naming any of them.
“In substance, the bill alleged that petitioners were engaged in the business of hauling oil field equipment for hire over the public highways of Texas ; that they were operating under a special commodity permit issued to them by. the Railroad Commission of Texas; that they, had spent many thousands of dollars equipping themselves with trucks to carry on such business; that prior to the passage of chapter 282, Acts of the Forty-second Legislature (Vernon’s Ann. P. C. art. •'827a, § 1 et seq.) they were earning a reasonable profit .upon their investment, and that if they are required to limit their net loads to 7,000 pounds they cannot operate at a profit and their property will be of little value.
“The bill further calls attention to section 6 of the act (Vernon’s Ann. P. C. art. 827a,'§ 5) limiting the net load to 7,000 pounds, and then to section 7 (Vernon’s Ann. P. C. art. 827a, § 5 (b) permitting a maximum net load of 14,000 pounds from points of origin to common carrier stations, and vice versa, by the nearest practicable route. Petitioners assert they are entitled to operate under the classification provided by section 7 and, therefore, are entitled to carry 14,000 pounds because there are no common carrier receiving or unloading points equipped to transport the ‘ commodities they handle.
“Petitioners plead, in the alternative, however, that should the court hold they are not entitled to carry 14,000 pounds in their operation then, in that event, they assert that section 5, limiting the load to 7,000 pounds, is invalid because it is discriminatory and contravenes section 1 of article 3 of the Texas Constitution.
“On August 5, 1932 the Red Arrow Freight Lines, Inc., a Texas corporation, with the court’s permission, filed a bill of intervention in said cause and interplead, as additional •defendants, the sheriffs and county attorneys ■of the counties of Bexar, Kenedy, Kleberg, Harris, Willacy, Fort Bend, Wharton, Colorado, Fayette, Jackson, Victoria, Goliad, Bee, San Patricio, Wilson, Karnes, Jim Wells, Brooks, Hidalgo, Gonzales, Caldwell,. and •Guadalupe, none of which said counties are •embraced within the 112th Judicial District ■of Texas.
“It is shown and alleged in said bill of intervention that intervenor’s operations are •confined exclusively within the limits of said «counties.
“Jntervenor adopted the allegations set out in petitioners’ original bill and alleged that it operated as a common carrier for hire under a certificate of convenience and necessity issued by the Railroad Commission of Texas; that it operated on regular schedules and over fixed routes.
'; “Upon intervenor’s prayer it was granted .a temporary injunction against the original ¿nd interplead defendants restraining them from arresting, detaining or prosecuting its agents, servants or employees for transporting a net load in excess of 7,000 pounds and not exceeding 14,000 pounds regardless of the origin or destination of any load, and regardless of the limitations imposed by law.
“This order was-issued without notice or hearing and was not made returnable until February 6, 1933, six months and one day after its issuance. The injunction in the original bill was issued only one day before the end of the term of court then in session.
“On September 7, 1930, on motion of inter-venor, Red Arrow Freight Lines, Inc., the relators were ordered by the court to appear before him at Rankin, Texas, on September 14, 1932, and show cause why they should not be punished and imprisoned for an alleged contempt in arresting and detaining one of intervenor’s drivers for transporting a net load in excess of 7,000 pounds over the public highways of Harris County. * * *
“Upon hearing had on September 14, 1932, the District Judge adjudged the relators in contempt and ordered that they be committed to the jail of Upton County without bail.
“On the 16th day of September, 1932, the relators were detained and arrested by the Sheriff of Travis County upon the judgment of contempt. The Chief Justice of the Supreme Court, on the same day, granted their applications for writ of habeas corpus and ordered their release upon bond conditioned for their appearance before this Court on the 19th day of September, 1932.”

The facts of this ease differ in but one material respect from those in Ex parte W. W. Sterling et al. (Tex. Sup.) 53 S.W.(2d) 294, this day decided. In the petitions upon which the injunctions were issued complainants asserted that they are entitled to operate under the classification provided by section 7 (section 6 (b) of the Motor Vehicle Act, being chapter 282, 42d Legislature; and therefore are entitled to carry 14,000-pound loads on the routes over which they operate because there are no common carrier receiving and unloading points*'equipped to transport the commodities they handle. The effect of complainants’ averment in this respect is that they are threatened by relators with criminal prosecutions for acts Which do not in fact constitute a violation of said law.

Assuming these allegations to be true, still there is no basis for the interposition of a court of equity. The power and authority to interpret this act rest exclusively with the courts of this state exercising criminal jurisdiction. A court of equity will not, through the medium of an injunction, determine whether given acts violate the provisions of a criminal statute. Such construction can be had only in the due and orderly enforcement of the statute through the forum prescribed for the trial of criminal cases. Le-court v. Gaster, 49 La. Ann. 487, 21 So. 646; Davis v. American Soc. for Prevention of Cruelty to Animals, 75 N. Y. 362; Los An-geles Title Ins. Co. v. Los Angeles, 52 Cal. App. 152, 198 P. 1001; Poyer v. Des Plaines, 123 Ill. 111, 13 N. E. 819, 5 Am. St. Rep. 494.

All other questions involved in this case have been disposed of in favor of relators by the opinion of this court in Ex parte W. W. Sterling et al., supra. For the reasons there given the injunctions and all proceedings had thereunder are void. It is ordered that rela-tors be discharged.

CÜRETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and relators ordered discharged.


author: CRITZ, J.

text:
    LOGAN v. TEXAS MUT. LIFE INS. CO.
    Motion No. 10251; No. 1561—5899.
    Commission of Appeals of Texas, Section A.
    Oct. 13, 1932.
    For former opinion, see 51 S.W.(2d) 288. •
    James P. Alexander and W. R. Poage, both of Waco, for appellant.
    Richey & Sheehy, of Waco, for appellee.
   CRITZ, J.

Appellant calls our attention to the fact that we erroneously stated in our original opinion that appellee was incorporated in 1895, when the record shows that it was incorporated in 1905. We acknowledge the error. It is immaterial.

Appellant contends that under the provisions of article 5049, R. C. S. 1925, the application for the policy here sued on was not admissible in evidence, because not attached to the policy. This contention is overruled. It is settled that article 5049 has no application to life insurance policies issued after December 31, 1909. American National Ins. Co. v. Welsh (Tex. Com. App.) 22 S.W.(2d) 1063; First Texas Prudential Ins. Co. v. Pedigo (Tex. Com. App.) 50 S.W.(2d) 1091.

Appellant contends that appellee should be governed by articles 4732 and 4736, R. C. S. 1925, because it is so conducted as to make a profit for Q. B. Parot, its president and general manager. As shown by our original' opinion, appellee is incorporated as a mutual relief association, “and not for profit, and it shall have no capital stock.” If it violates its charter by making a profit for its president and. general manager, the state would ordinarily be the only party concerned. Certainly the appellant would have no interest in the matter.

Also in regard to the issue of profit the record shows that a certain amount is annually paid into appellee’s expense fund. O. B. Parot conducts its affairs under an agreement with the board of directors by the terms of which all expenses of operation, other than his services, are first paid out of the above expense fund, and he receives the balance remaining in payment for his services. The record does not show what appellee’s annual-expenses are, nor the amount paid to Parot. Furthermore, it is not shown what would be a reasonable compensation for Parot’s services. Such a record is not legally sufiicient to raise the issue as to whether this association is being conducted for Parot’s profit.

.Finally, should we treat appellee as a life insurance company governed by all the provisions of articles 4732 and 4736, R. C. S. 1925, still the questions certified by the Court of Civil Appeals in this case should stand answered as recommended in our original opinion, because, as shown by the undisputed record in this case, there never was a contract of insurance between Mrs. Logan, deceased, the named insured, and appellee, the named insurer, for any statute to apply to. This matter has been fully discussed in our original opinion and we still adhere \o that holding.

We have given this ease unusual consideration both on original submission and on rehearing, and in our opinion it has been correctly decided. We therefore recommend that appellant’s motion for rehearing be in all things overruled.


author: '• CHRISTIAN, J. HAWKINS, J.

text:
    PETTY v. STATE.

      No. 15224.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Denied Oct. 19, 1932.
    . Ratliff & Stewart, of Lubbock, and J. Lee Cearley, of Cisco, for appellant.
    T. L. Price, Dist. Atty., of Post, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   '• CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.

.It was charged in the indictment that appellant sold spirituous and malt liquor capable of producing intoxication to W. P. White, .Jr, The alleged purchaser testified that he and Elmer Gant went to appellant’s home on March 14, 1931, and talked to him about buying some" whisky; that appellant told them, in effect, that he would let them have .the whisky if he could find it; that they left, but in a short while returned and met appellant about a half mile from his house; that appellant delivered two pints of whisky •to them, for which they paid him $3, he handing the money to appellant. Appellant denied that he sold the parties whisky, and testified that he was not at the place at the time the whisky was delivered. He admitted that the boys came to his house and asked him to sell them some liquor. He said, however, that he told them that he did not have any liquor and they left He declared that he did not go down to the place described by the witnesses to deliver whisky to them. A witness for appellant testified that he was present and saw Troy Carroll sell the whis-ky to White and his companion.

As heretofore stated, it was alleged in the Indictment that the sale of the whisky in question was made to W. P. White, Jr. Appellant contends that the proof showed a sale to White and Gant. It is his position that this constitutes a fatal variance. In the case of McGee v. State, 112 Tex. Cr. R. 450, 17 S.W.(2d) 50, 53, a contention similar to that here made was overruled. See, also, Mirales v. State, 112 Tex. Cr. R. 67, 13 S.W.(2d) 868. In a concurring opinion in McGee’s Case, Presiding Judge Morrow used language as follows: “I think that the averment in the indictment charging the sale of liquor to Elbert Bodine is supported by the proof that it was sold to Elbert Bodine, together with Roy Bo-dine and Perry Jeanes, under the circumstances set out in the opinion. In other words, on the facts stated, I think there was no variance. * * * If the indictment charged a sale to Elbert Bodine, Roy Bodine, and Perry Jeanes, and the proof had shown a sale to only one of them, there would have ■been a variance.”

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 Motion for Rehearing,

HAWKINS, J.

The contention of appellant in his motion for rehearing is that we erred in following the case of McGee v. State, 112 Tex. Cr. R. 450, 17 S.W.(2d) 50, in which case the exact point here raised was by a majority opinion decided adversely to appellant. That case has been followed in Stapler v. State (Tex. Cr. App.) 47 S.W.(2d) 837. The views of the present writer as set out in a dissenting opinion in McGee’s Case remain unchanged; likewise the views of the majority of the court remain the same as expressed in that case and in Stapler’s Case. ■

Under those circumstances the motion for rehearing will be overruled.


author: CHRISTIAN, J.

text:
    TURMAN v. STATE.
    No. 15188.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1932.
    Davenport & 'Crain, of Wichita Falls, for appellant.
    Sam B. Spence, Dist. Atty., and Geo. W. Anderson, Asst. Dist. Atty., both of Wichita Falls, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

" The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for .four years.

It is contended by appellant that the evidence is insufficient to identify the stolen automobile. It appears from the state’s testimony that R. Y. Roden lost a Ford automobile from his garage in Wichita Falls on March 18, 1931. This car was described by the witness as a “Sport Model Ford Coupé, 1929 Model,” the motor number being A2,-221,220. On the 21st of March, 1931, according to the testimony of B. G. Williamson, a state’s witness, appellant sold him a “1929 Model A, Ford Sport Model Coupé,” the motor number being 1,000,421. On the 20th of April, 1931, the witness sold this automobile to Charles Johnson. State’s witness Gorm-ley, who was employed by the National Auto Theft Bureau, examined the car Mr. Johnson purchased, and, according to his testimony, discovered that the original motor number was 2,221,220. He testified that there was on the frame of the car a secret number corresponding with the original number found oh- the motor block. Further, he said that the No. 1,000,421 had been stamped on the motor block over the original number, and that the secret number on the frame of the car had been mutilated. Whether the original number was preceded by the letter “A” was not shown in the testimony of this witness, or of any other witness. The witness testified, further, that the secret number on the frame of Ford automobiles was placed thereon at the assembling plants, and that such number corresponded with the number on the motor block. Mr. Roden testified that he did not know whether the car found in Charles Johnson’s possession belonged to him (Roden) or not. He said: “I never saw the car that was found in the possession of Charles Johnson out in Lubbock County, Texas. I do not know what ear he had in his possession, of my own knowledge: nothing but what I have been told by the insurance company. I do not know whether the car that Charlie Johnson got was my car.” The state introduced in evidence several instruments relating to the ownership of the ear, showing its transfer to one J. S. Hand from P. Frank Hicks, from Hand to appellant, and from appellant to Lubbock Fender & Body Works, and from Lubbock Fender & Body Works to Charles Johnson, the party in possession of the car at the time the original motor number was discovered.

Appellant did not testify in his own behalf. J. S. Hand testified for appellant that he sold appellant a “1929 Model Ford Sport Coupé” bearing motor No. 1,000,421. He said that this car had been badly burned when he sold it to appellant. In rebuttal, the state introduced a bill of sale executed by appellant showing that the car testified to by Mr. Hand had been sold to one Bob Daugherty and eventually to a Mr. Lawrence. 'Further, the testimony on the part of the state showed that this car had been stolen from Cecil Pike in the town of Temple on the night of May 6, 1931.

It was incumbent upon the state to prove beyond a reasonable doubt that the automobile sold by appellant to B. G. Williamson and later transferred by B. G. Williamson to Charles Johnson had been taken from the possession of R. V. Roden, as alleged in the indictment. Scoggins v. State, 92 Tex. Cr. R. 424, 244 S. W. 535. In other words, the burden was on the state to prove the identity , of the alleged stolen property with that traced to the possession of appellant. ■In attempting to discharge this burden, the state relied upon circumstantial evidence, showing that the car Mr. Roden lost was of the same style and model as that traced to the possession of appellant, and attempting to show that the original motor numbers were the same. That the No. 2,221,220 was on the motor block of the car traced to appellant’s possession as well as on the motor block of the- car lost- by Mr. Roden was shown. That che' letter “A” preceded the motor number on Mr. Roden’s car was established. .However, the testimony' of the state is silent as to whether the letter “A” preceded the motor number of the car traced to appellant’s possession. There was no proof that the motors of Ford cars were numbered consecutively and that there was one number given exclusively to each motor. In short, the record is silent as to the significance of the motor number. In any event, in view of the fact that it was not shown that the letter “A” preceded the motor number found on the ear traced to appellant’s possession, it cannot be said that such number corresponded with that on the motor block of Mr. Roden’s car. Not having seen the car traced to appellant’s possession, Mr. Roden was unable to say that it belonged to him. The state having relied upon circumstantial evidence to prove the identity of the stolen automobile, the circumstances must measure up to that standard which the law requires. Scoggins v. State, ■supra. We are unable to reach the conclusion that the" proof was sufficient to show that the automobile traced to appellant’s possession had been taken from the possession of Mr.' Roden.

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.