author: LATT1MORE, Judge. MORROW, Presiding Judge.

text:
    Ex parte NEISLER.
    No. 16541.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1934.
    Rehearing Denied March 28, 1934.
    Jno. M. Mathis, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATT1MORE, Judge.

From an order remanding appellant, he has appealed. He filed an application for ha-beas corpus in the district court of Walker county, setting up that he was convicted of a felony on October 19, 1931, in Galveston, Tex., and given four years in the penitentiary, and that he was received at the penitentiary on April 17, 1932; that he has served two years, one month, and four days of his sentence ; is entitled to five months and eighteen days’ commutation for good 'behavior; also is entitled to one year, five months, and eight days commutation for overtime work, all of which he avers aggregates four years, and that he was entitled to his discharge from prison on November 23, 1933. Apparently being in doubt as to the proper construction of the statutes applicable, the district judge remanded appellant.

The meager statement of facts, has caused us such trouble as that we were, tempted to merely affirm the judgment without analysis or discussion, but the gravity of some matters of procedure on the part of prison officials of much importance, if in error, is so strongly suggested as that we express our views. The statement of facts referred to consists almost entirely of two purported prison records of this appellant, “figured both ways,” as stated by appellant’s attorney when he introduced said purported records. The records are but conclusions, the result of computations, and are signed by Lee Simmons, General Manager, by W. M. Thompson, Chief Bureau of Records and Identification, E. A. S. We do not know how much weight was given to these documents by the learned trial judge.

As above stated, this conviction was on October 19, 1931. Prisoners are entitled to credit on their sentences for time spent in jails after conviction and sentence, hence this appellant would be entitled to credit on his four-year sentence for the five months and twenty-eight days between October 19, 1931, and April 17, 1932, when he was received at the penitentiary, but not entitled to any overtime credit for work done before said date.

Chapter 212, Acts Regular Session, 40th Legislature, 1927 (Vernon’s Ann. Oiv. St, art. 6166a et seq.), contains our law on commutations for good behavior,. and in terms says, in fixing commutation-therefor: “Two days per month off of the first year’s sentence; three days per month off of the second year of sentence; four days,” etc. 'Section 23 (Vernon’s Ann. Oiv. St. art. 6166v). Under all the authorities, the word “month” in such usage means a calendar mo-nth. See Words and Phrases, Third Series, vol. 5, page 209, citing many authorities. The specific words “Per month” in such use are construed to mean a calendar month. Frazier v. Nashville Veterinary Hospital, 139 Tenn. 440, 201 S. W. 751, 139 Tenn. 440. It is said in State Board of Charities and Corrections v. Combs, 193 Ky. 548, 237 S. W. 32, 37: “The Board * * *■ could not determine whether the prisoner had’ been of good conduct and was entitled to a credit for good behavior for one month until the month had expired.” It is not doubted that our law regarding punishments, sentences, and commutations thereof must, be-reckoned in terms of calendar days, months,, and years, i. e., in days twenty-four hours long, so mány of which make up the calendar months as they come in due order, twelve of which make up a calendar year. In our view, appellant could in no event claim commutation for good behavior, in excess of the-two days off for each calendar month of..the-first year of sentence,' amounting to twenty-, four days'; and three days per month for the second year of sentence, amounting to thirty-six days, plus four days per calendar month for each month of the third year of actual service, amounting on November 23d to about three days, or a total of sixty-three days.

When we -come to consider appellant’s claim for credit upon his sentence, for one year, five months, and eight days overtime work, we are confronted with a serious proposition. All the provisions of title 108, Rev. Civ. Stats. 1925 (article 6166 et seq.), — save such as related to the board of pardons — were expressly repealed by chapter 212, Acts Regular Session, 40th Legislature. Section 26 of said chapter was amended- by chapter 229, Acts Regular Session, 41st Legislature (Vernon’s Ann. Civ. St. art. 6166x), in which last act appears our present law regarding credits for overtime work which sho-u-ld be given convicts in our penitentiary under the control of our prison board. It provides that a workday for a convict shall be ten hours of work, and then further provides that,, when there is work “necessary and essential to efficient organization of convict forces,” convicts may be work-, ed overtime, which plainly means that by such overtime is meant work more than ten hours per day. It is -provided that for such overtime .work such convict shall receive a credit on his sentence of double the hours of overtime so worked. It is also provided that this “necessary and essential work” shall be subject to the recommendation of the general manager to the prison board, and shall become effective only after approval by the board. It is also provided that a strict accounting of overtime work shall be kept, and -that the officer in charge of the inmate shall certify that of his own knowledge the overtime was-actually earned. Attention is called to these provisions in view of what we are about to say.

Among the provisions of title 108, supra, which were expressly repealed, was a provision fixing the number of overtime horns which should amount to a day. No such .provision is now found, in the law. It is plain then that in now computing such overtime work, in order to give credit therefor on sentences of convicts, the prison authorities must compute same in terms of hours until double the number of hours of overtime work reach such aggregate as equals a calendar day of twenty-four hours; and equally true that the same method of computation must he pursued in arriving at months or years for credit for overtime upon such sentences. In other words, under our present law the convict must have worked his regular ten hours per day before he could begin to earn overtime — if work be then compelled because of press of work “necessary and essential to efficient organization of convict forces.”

If we be correct in this view, it would appear physically impossible for any human being during one year, seven months, and six days of confinement in the penitentiary — as was the case of this appellant between April 17,1982, and November 28, 1933 — to have given to the state of Texas the days of regular work required by law, and in addition to have worked overtime 'hours enough to aggregate a year, five months, and eight days, as claimed by him, allowing him a credit for double the overtime hours actually worked. The meager statement of facts does not show how or in what manner such work was done or that in fact it was done.

Another matter is suggested for our discussion, i. e., that this appellant is entitled to commutation for good behavior calculated on that part of his sentence which he says must he deducted by reason of credits for overtime work from the four years given him. In other' words, he says that, if he is entitled to a year’s credit for overtime work, his sentence must be cut by a further credit of so many days off for good behavior figured on the basis of such time credited for overtime, hut not actually served by him. The proposition is not sound. A, a convict who serves one calendar month on Ms first year, is entitled under our law to two days’ credit on his sentence, in computing the actual time he must serve, if he has behaved all during said month. Suppose A was physically able to work each day of said calendar month seven hours overtime in addition to the ten hours which make up his statutory workday as a convict, which seven hours, when doubled, would make up the fourteen hours necessary to fully consume the twenty-four hours in each day of said month. Our law would say to A: “You are entitled under my provisions to credit for two days for good behavior during all the hours of all the days of this past calendar month.” If A should demand credit for two other days off said month as a good behavior credit for overtime work done, such demand would be answered by the plain proposition that there is no such law written on our statute books, and to give him such two days would be simply donating two extra days for the month upon which the two days’ good behavior allowed by law had already been computed. This attempted donation of time would be a direct invasion of the pardoning power of the Governor, who alone can exercise it under our Constitution. As said in the Combs Case, supra: “No contemporaneous construction by administrative officials can be allowed' to defeat the plain purpose and language of a statute.” It might be added that no construction of a statute which would contravene the plain provisions of the constitutional grant of the pardoning power of the Governor should be tolerated.

If our observations be correct in the above, appellant’s commutation for good behavior on November 23,1933, would be about sixty-three days.plus a fraction for such commutation. We are not undertaking to say when appellant would be entitled to his discharge, but have indicated the line of computation regarding same which, in dur judgment, should be followed. It is plain that in our view of the law appellant is not now entitled to his discharge.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

In the motion for rehearing some dis>appointment is evinced because of the failure oí the court to give more specific declaration as to when and. under what circumstances the relator would be entitled to a discharge. It is to be borne in mind that the solé ground upon which this court would have jurisdiction of the application for writ of 'habeas corpus was that it might determine whether or not relator was entitled to discharge at the present .time. Having reached the conclusion that he was not illegally restrained of his liberty, this court would be out of its sphere in endeavoring to determine at what time and under what circumstances the relator would be entitled to discharge. There is more or less confusion and conflict in the statutory provisions. At all events, the sole ground upon which this court can entertain jurisdiction is to determine whether or not the relator was entitled to discharge. A further discussion upon the subject would be merely dicta, and is therefore pretermitted.

We are constrained to overrule the motion for rehearing.


source: Caselaw Access Project

author: PLEASANTS, Chief Justice.

license: Public Domain

text:
    GARNER et al. v. HARRIS COUNTY HOUSTON SHIP CHANNEL NAV. DIST. et al.
    No. 9925.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 31, 1934.
    A. T. Norman, of Houston, for plaintiff in error.
    D. A. Simmons and W. N. Arnold, Jr., both of Houston, for defendant in error Harris County Houston Ship Channel Nav. Dist.
    Royston & Rayzor, of Houston, for defendant in error Southern S. S. Co.
   PLEASANTS, Chief Justice.

This is a suit by plaintiff in error E. C. Garner, for himself and for his minor son, Felix Garner, against the navigation district and the Southern Steamship Company to recover damages for personal injuries sustained by the minor plaintiff and alleged to have been caused by the negligence of defendants.

The allegations of negligence embraced in plaintiff’s petition are:

“I. That heretofore on or about the 13th day of April, 1930, Felix Cecil Garner, age twelve (12) years, the minor son of plaintiff, together with several other boys of tender age, were attracted to the concrete platform of wharf No. 4 at Port of Houston as a suitable place to play hand ball in the shade of the spacious wharf and platform sheds, such sheds had frequently theretofore been used for similar purposes 'by such boys and others,1 including adults and' children, which such facts were well known to defendants; at the immediate time and place in question a hand ball game was in progress between employees or others immediately adjacent to such wharf platform, and Felix Cecil Garner and his companions, after watching the game in progress, proceeded to pay (play) with their ball, which after a time became lodged among the frame work, beams and supports of the warehouse sheds; in an effort to recover their ball the boys discovered a ladder in the side of one of the large up-right steel beams, leading to the cage used by the operator of the traveling unloading crane; upon reaching the vicinity of the crane plaintiff’s minor son, Felix Cecil Garner, and his three companions, all being from nine to twelve years of age, proceeded along a large steel cross beam or girder in a general southeastern direction toward the southern terminal of the large unloading crane, which terminates in a well sunk in the side of the warehouse to the south of wharf shed No. 4, where they climbed from the large beam by means of a ladder on the side of the .up-right beam to the concrete base landing and such crane terminus; later in climbing back to the steel cross beam to return the same route to the wharf plat'form, Eelix Cecil Garner had reached a position near the top of such beam when without warning he made contact with the defendants’ highly charged electric cable, and fell to the concrete floor of such crane terminus, or well.
“II. That the public generally, including children, frequented such wharf No. 4 platform and the other wharfs and platforms in the vicinity of the Houston Port turning basin with the knowledge of defendants; at the .time the injured Felix Cecil Garner and his companions entered upon such wharf platform defendants had a watchman who was then in the west door of wharf No. 4, looking in the general direction of Felix Cecil Garner and his companions; that such watchman, whose name is unknown to plaintiff, later closed such door and left the vicinity of such platform without notifying or warning such boys of any danger or regulations in connection with the use and operation of such platform ; that the injuries to Felix Cecil Garner occurred immediately after such watchman left the scene of the play of such boys.
“III. At the time and upon the occasion of the injuries to Felix Cecil Garner, the wharf jilatform, steel cage, crane, machinery and equipment was idle, and was not in use but was under the joint control and management of defendants herein, the exact nature of the relationship of defendants 'being unknown to the plaintiff, but plaintiff understands and is informed that defendant Southern Steamship Company operates and controls such wharf at stated intervals under a contract of lease, the terms and conditions of which are impossible to set out by virtue of the said contract and lease being in the possession and hands of defendant, and notice is here now given to .defendants to produce .such contract and lease upon the trial of this cause, otherwise secondary evidence will be introduced to pz-ove the terms thereof.
“IV. At the time and upon the occasion of the injuries to plaintiff’s minor son, while the machinery and equipment was idle and .not in use, it was a rule, regulation and custom, for the electric current to be cut off; that plaintiff’s minor son atad his companions were incapable because of their tender age to appreciate or know the danger incident to a ■possible highly charged electric wire or cable, if in fact they knew that there was any such cable on such beams; that Felix Cecil Garner acted upon the impulse of a boy of his age in playing upon such platform, and in climbing the .ladder to the steel cage and crossing the steel girders without appreciating the imminence of any danger, if any, in connection therewith; that defendants’ rules, regulations and operating customs require and provide for adequate police and watchmen at all times on such wharf platform to prevent trespassing and encroachment in places of danger by the public in general, which such customs and regulations were well known to and relied upon by the public in general as a safeguard and protection to those frequenting this platform, including this plaintiff’s minor son.
“V. Defendants, jointly and severally, were negligent at the above time and. place as follows, to-wit:
“(a) In failing to provide and maintain competent and diligent watchman at such platform and sheds and prevent plaintiff’s minor son and others from suffering injuries;
“(b) In the alternative, if defendants did maintain a watchman, in failing to warn plaintiff’s minor son and his companions, and prevent them from climbing such ladder and beams, resulting in Felix Cecil Garner’s fall and injuries;
“(c) In knowing and observing plaintiff’s minor son and his companions at- such warehouse platform and sheds and failing to warn them of the imminence of danger should they climb such ladder and attempt to cross such steel girders'and beams, and prevent their climbing and the subsequent fall and injuries to Felix Cecil Garner;
“(d) In failing to throw the switch and disconnect the electric current from the highly charged cable wire as was the custom and requirements when such machinery and equipment was not in use;
“(e) In realizing and knowing the inclination of boys of tender age to climb and the presence of plaintiff’s minor son and his companions on such platform and abandoning such platform and leaving same unguarded while such boys were there and rendering it possible for such boys to climb as hereinabove set out, resulting in the fall and injuries of Felix Cecil Garner; which such acts, jointly and severally, constitute negligence on the part of defendants, all of which were a proximate cause of plaintiff’s minor son’s injuries and the damages to plaintiffs. * * *
“VI. Still further pleading herein, plaintiff would show as further negligence on the part of defendants that the platform of wharf No. 4 was shady and when not in use was frequented by visitors to the ship channel, and sightseers, including, children of tender age; that- on the occasion of the injuries of plaintiff’s minor son, a handball game was in progress between adults near such platform and sheds, which were not then in active use, and the plaintiff’s minor son and other small boys were attracted thereto as a suitable place for a handball game in the shade, and they played for a time on such platform; that the steel cage near the roof of such shed and the ladder leading thereto and to the large steel beams and supports, thereafter attracted such boys, including plaintiff’s small son, and inspired them to climb such ladder to the cage and to walk such beams; that defendants were severally and collectively owners and operators, and in charge and control of such wharf, shed and platform, and responsible for their maintenance and upkeep; that they were severally and collectively responsible for the turning on and off of the electric current charging the electric cables, and wires of such sheds, and for their proper insulation and safety; that defendants knew that visitors, including small boys, frequented such platform, and knew and were charged with knowledge of the attractiveness of such platform, sheds, ladder, cage and steel beams to boys and children of tender age, and of the tendency and habits of such boys and children to frequent such places and of their tendency to climb; that defendants knew and were charged with knowledge of the highly charged electric cables and electric wires in such sheds, and the danger to small boys or children playing thereunder, attracted thereto, and climbing or coming in contact with such cables and the imminent danger of their being injured and suffering death by reason thereof; that defendants knew the platform of concrete below the cable and steel beam supports were thirty to forty feet, and that should children or others climb such ladder or walk such beams they would be in danger of electrocution, or of falling to their death; that by reason of the attractiveness of such 'sheds, ladder, cage and steel beams to small boys, as a suitable place to climb and play, and the danger from coming in contact with highly charged electric wires, and being electrocuted, or of falling to their death, full knowledge of which is charged to defendants, their agents and employees, and their failure to properly guard and prevent such boys from climbing and being injured, including this plaintiff’s minor son and others, constituted negligence on the part of defendants, and constitute a proximate cause of the injuries to plaintiff’s minor son.”

The trial court sustained a general demurrer to plaintiffs’ petition presented by each of the defendants, and, plaintiffs declining to amend, their suit was dismissed.

Unless the minor plaintiff was a' licensee or invitee under the “attractive nuisance” doctrine as that doctrine has been declared and enforced by our courts, he was ai mere trespasser and could only recover for-' injuries willfully or intentionally caused him? by the defendants. W'e think the allegations1 of the petition are insufficient to show that the minor plaintiff, when, in his effort to recover a ball that had been thrown under the-roof of the warehouse across the railway tracks and some distance from the platform,* upon which he and other boys were playing' handball, he climbed to the top of the platform roof and proceeded along a beam across-the railway tracks and into the warehouse where he fell and received his injuries, was-not a trespasser, but was impliedly invited! to undertake this dangerous means of. regaining his ball, under the “attractive- nui- ■ sanee” doctrine.

The rule first declared by the eourts of this state in the “turntable cases,” that the-unguarded maintenance by the owner of dangerous appliances and machinery upon his* property, unusually attractive to children,. is: an implied invitation to the children to go> upon the property, cannot be applied to the-facts alleged in plaintiff’s petition. In order to invoke this rule the facts alleged must', show not only that the instrumentalities* which caused .the injury were dangerous an® unguarded, but unusually attractive to children and allured them to go upon the premises, and that the owner knew or should have known that children were so attracted to go-upon the premises and make .use- of. suolr dangerous instrumentalities.

The instrumentalities and' appliances* through and by which the injury is -alleged 'to have been inflicted upon the minor'plaintiff were the roof-covered platform where-handball was frequently played by children,. and also by adults, the ladder leading to > the conveyer situated near the roof of the-platform and extending .across the railway tracks .to and under the roof of the warehouse,.and the electric-cable by which the defendant--steamship company had been operating the conveyer. The allegations of the petition as to> the attractiveness of the platform as a place-for playing handball and its frequent use for-' that purpose by children and others, with-the knowledge of the defendants,, present' no-cause of action by the minor- plaintiff for injuries not received on the platform and wholly disconnected from any danger incident-to-such use. There are no allegations that the ladder, the conveyer, and the electric cable were not the necessary and usual appliances for the operation of the wharf ¡property. It is true the petition alleges “that defendants knew that visitors, including small boys, frequented such platform, and knew and were charged with knowledge of the attractiveness of such platform, sheds, ladder, cage and steel beams to boys and children of tender age, and of the tendency and habits of such boys and children to frequent such places and of their tendency to climb.” This allegation is a mere conclusion of the pleader. It is not alleged that any of the minors who frequented the platform had ever before climbed the iadder and'gone along the beams carrying the conveyer and electric cable into the upper part of the warehouse across the railway tracks, and the allegations óf the petition neg-ativé the conclusion that the minor plaintiff and the boys who were with him were allured to use these instrumentalities because of their unusual attractiveness, but only for the purpose of recovering their ball.

' In the case of Simonton v. Electric Light & Power Co., 28 Tex. Civ. Ajpp. 374, 67 S. W.- 530, 532, in which writ of error was re? fused, this court held: “Appellant contends that • uhder this rule (Turntable Doctrine) the facts stated in the petition are sufficient ■ to authorize a finding that his son climbed upon appellee’s pole by the implied invitation of the latter. We cannot concede the soundness of this contention. In considering the question of the sufficiency of the petition, we must disregard the statement by the pleader of mere legal conclusions, and test the petition solely by the facts stated therein. The facts pleaded do 'not show that the pole which is alleged to have been negligently maintained by the defendant was specially or unusually attractive, or that such pole was nqt constructed and maintained in the manner in which poles of this character are ordinarily constructed throughout the country.”

Our Supreme Court, in the case of Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S. W. 375, 377, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111, says: “But we cannot agree that one who erects upon his own land an oilmill, or other like establishment for pursuing in the ordinary way one of tlie ordinary businesses of the country, is under a duty arising merely from the construction and úse of the plant to adopt in advance safeguards against danger from his machinery to children who may intrude upon his premises. Such businesses, at least, do not belong to that class of things that are to be regarded as so attractive as to impose the duty of guarding against the entrance of persons not induced to enter by the owner in any of the ways indicated.”

The same -rule is announced and enforced in the cases of Missouri, K. & T. Ry. Co. v. Edwards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825; San Antonio & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S. W. 28.

The long-established rule of law and reason, that one can only be held liable for injury to another that he should have anticipated might be the natural result of his alleged negligent act, must be applied in this case. From the facts alleged in this petition, it cannot be held that either of the appellees could have reasonably anticipated, when they failed to have the electric current cut off from the cable operating the conveyer, high up in the roof of the platform and warehouse, that the minor plaintiff in his effort to recover the ball with which he had been playing would come in contact with the cable and be injured in the way alleged in the petition. It seems to us that to so hold would be to demand a foresight on the part of appellees far in excess of that bestowed upon ordinary human beings.

These conclusions require an affirmance of the judgment and render it unnecessary to pass upon the other questions presented by the briefs.

Affirmed.


author: PBLPHRBY, Chief Justice.

text:
    McDORMAN v. GOODELL et al.
    No. 2957.
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1934.

      W. H. Winter and P. C. Knollenberg, both of El Paso, for appellant.
    Norcop & Momsen, of El Paso, for appel-lees.
   PBLPHRBY, Chief Justice.

On January 17, 1931, P. McDorman executed a note in the sum of $352.50 to the Citizens’ Finance Company, and gave a chattel mortgage orí a 192S Cadillac sedan. The note was payable in ten monthly installments of $35.25 each, the first one due on February 17, 1931. Among the provisions of the chattel mortgage were these:

“Said mortgagor promises that he will use said goods and chattels with reasonable .care, skill and caution, and keep the same in good repair, and will not permit the same to be used for hire, damaged, injured or depreciated, and will not sell or attempt to sell, assign or dispose of said goods and chattels, or any interest therein, or remove or permit the same to be removed from the County wherein he, she, it now resides without the written consent of said note holder, and will not encumber or permit any encumbrance or lien of any character whatsoever against the same; and that he will pay all taxes that may be levied against said goods and chattels, this instrument or the. indebtedness secured hereby.
“Mortgagor further agrees that he will not use or cause or permit to be used the car, truck or tractor herein mentioned for the transportation of liquor, wines or any other beverage, for personal or commercial use, prohibited by any Federal or State Statute tp be transported, and it is hereby agreed that should the ear, truck or tractor hereinbefore described be used for such purpose or any other unlawful purpose, it shall be considered as a default under the mortgage, whether or not there shall be a default under any other terms or conditions thereof, which shall entitle the holder of said note to immediate and continued possession of the car, truck or tractor herein described with or without process of law.
“In case default be made in the payment of said debt or interest after maturity, or of any of the payments scheduled on said note, or any extensions or renewals thereof, or if any execution, attachment, sequestration or other writ shall be levied on said goods and chattels, or if a petition in bankr ruptcy shall be filed by or against said mortgagor, or if said mortgagor shall make an assignment for the benefit of his creditors, or said mortgagor shall fail to keep and perform any of the covenants, stipulations and agreements herein contained on his part to be performed, or if said note holder at any time deem said mortgage, said chattels, said debt, or said security unsafe or insecure, of shall choose so to do, then upon the happenings of said contingencies, or any of them, the whole amount herein secured, on each of said payments scheduled on the note remaining unpaid is by said mortgagor admitted to be due and payable, and said note holder may at his option (notice of which option is hereby expressly waived), foreclose this mortgage by action or otherwise, and said note holder is hereby authorized to enter upon the premises where said goods and chattels may be, and remove with or without process of law, sell the same and all equity of redemption of the mortgagor therein, either at public auction or private sale, without demand •for performance, and out of the proceeds of said sale pay the cost of foreclosing this mortgage and the expense of pursuing, taking, keeping, advertising and selling said goods and chattels, including a reasonable attorney’s fee, and applying the residue thereof toward the payment of said indebtedness or any part thereof, in such manner as said note holder may elect, rendering the surplus, if any, unto the said mortgagor, his executors, administrators and assigns.”

On January 23, 1931, McDorman also executed a bill of sale, to the Citizens’ Finance Company, to a platinum bracelet and a diamond Masonic ring. This bill of sale was executed for the purpose of securing a' loan of $800 to be repaid at the rate of $80 per month. Four installments were paid on the $352.50 note and one payment of $80 made on the $800 one.

The automobile was repossessed in the latter part of June and it was sold on January 25, 1932, for $75. The ring was sold on February 17, 1932, for $360, and $195 of that amount appears to have been applied on the $800 loan and $165 on the automobile note. The bracelet was sold July 28, 1931, for $525, which was applied on the $800 note. Mrs. Genevieve McDorman, the wife of Fred McDorman; filed this suit December 5, 1932, against appellees for conversion of the automobile, ring, and bracelet, alleging them to have been her separate property. Appel-lees answered by general demurrer, special exception, a' general denial, and specially pleaded the execution of the above-mentioned loans, mortgage, and bill of sale, default on both loans by McDorman, and the sales of the different articles. Appellees further alleged the sale of the automobile as being under the power in the chattel mortgage and the sales of the bracelet and'ring to have been made’ at private sales to which appellant and her husband agreed, and that appellant and her husband agreed that the proceeds of the sales of the ring' and bracelet should first be applied to payment of the $SO0‘ note and any surplus remaining to payment of the automobile note.

In the alternative appellees alleged that if the property was the separate property of appellant, then her husband was her duly authorized agent in the transactions with ap-pellees ; that his borrowing the moneys, mortgaging of the automobile, and pledging the ring and bracelet were within the scope of his agency and such acts were authorized by and binding upon appellant; that she and her husband both agreed to the sales of the ring and bracelet; that his agreement to such sales was within the scope of his agency; and that appellant- having received the benefits from both the automobile and jewelry loans, she is estopped to deny McDorman’s authority to make the loans or the authority of the Citizens’ Finance Company to make the sales of the property.

In response to special issues the jury found that the ring was not the separate property of appellant; that the automobile and bracelet were; that she impliedly authorized her husband to mortgage the automobile and pledge the bracelet; that she ratified both loans;' that the automobile was worth $400 when it was repossessed by appellee Citizens’ ■Finance Company, and the bracelet $650 when sold by it; that appellant received the proceeds or benefit of both loans, and used the same knowing them to be such; that F. McDorman agreed to the sales of the car and! bracelet, as the same were made; that appellant did not agree to the sale of the car as made, but did agree to the sale of the bracelet; and that she did not authorize her husband to agree to the sale of the car, but did authorize him to agree to the sale of the bracelet.

Upon such findings the court rendered judgment that appellant take nothing and she has appealed.

Opinion.

Appellant’s brief contains fifty assignments of error with thirty-five propositions thereunder.

We shall not attempt to enter into a discussion of either the assignments or propositions, separately, but shall content ourselves with ruling upon those which we consider material to a proper disposition of the case.

The answer of appellees contained the following:

“For further answer herein, these defendants allege that the benefit of said automobile and diamond loans accrued to the plaintiff and that she is estopped to deny the validity of said mortgage and pledge, and to deny the authority of said E. McDorman to execute said mortgage and pledge individually and as agent for plaintiff, and that she is further estopped to deny the authority of the Citizens Finance Company, Inc., to sell said diamonds and automobile and apply the proceeds derived from said sales to the balance due the said defendant, Citizens Finance Company, and that to allow the plaintiff to deny the same would be a fraud upon these defendants.”

Appellant filed the following exception to the answer: .

“Now comes Genevieve McDorman, and excepts to the answer filed herein of the defendants and for grounds of exception assign the following:
“1. The said answer states no defense to plaintiff’s causes of action and that same is .insufficient in law and should be dismissed.
“Wherefore plaintiff prays the judgment of the court.
“2. Without waiving the foregoing general exception, but insisting on same, the plaintiff excepts especially to defendant’s third special answer to plaintiff’s causes of action alleged in her petition and say that said special answer is insufficient in law and states no defense to plaintiff’s causes of action; states only conclusions and states no facts 'constituting an estoppel against plaintiff’s causes of action and states no fact alleging fraud upon the part of this plaintiff against defendants or either of them.”

After the jury was impaneled and sworn, appellant requested the court to rule on the above exceptions. Appellees objected to any action by the court because they had not been called to the attention of the court before the impaneling of the jury. The court thereupon stated that he would first hear the evidence, and, during the introduction of evidence, appellant objected to the introduction of testimony on the ground that there was no pleading to support it and again asked the court to rule on her exceptions. No ruling was made, however, until the hearing was had on the motion for judgment, when the same were overruled.

Appellant assigns error to the court’s ruling thereon. In connection with her objections appellant urges that there is no allegation that she made any false representation; that there is no allegation that appel-lees relied upon any representation made to thém by her or that they suffered any damage by reason of any act of appellant.

We agree with appellant that the allegation of such facts' is essential to a plea of ordinary estoppel, but there is also a character of estoppel as to which all of these elements are not necessary.

In 21 O. J. § 207, p. 1206, we find an announcement of it as follows:

“Where one having the right to accept or reject a transaction takes and retains benefits thereunder, he ratifies the transaction, and cannot avoid its obligations or effect by taking a position inconsistent therewith.”

In 10 It, O. L. § 22, p. 69A, it is said:

“The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it' would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced or of which he has accepted any benefit. ⅜ * ⅜ And g0 also the acceptance of any benefit from a transaction or contract, with knowledge or notice of the facts and rights, will create an estoppel.” . _ .

In discussing estoppel as applied to the relation of principal and agent, we find in 10 R. G. L. § 83, p. 765, this announcement:

“And when a principal, with knowledge of the facts, adopts and takes the benefits of the acts of his agent, he cannot afterwards impeach the agent’s act in that particular.”

Our Supreme Court in City of San Antonio v. Marie O. Grandjean et al., 91 Tex. 430, 41 S. W. 477, 480, 44 S. W. 476, we think clearly recognized the doctrine laid down in the first two quotations and, furthermore, applied it as to a married woman. In that case Mrs. Grandjean sued the city of San Antonio in trespass to try title to recover a parcel of land in San Antonio claimed by the city as part of one of its streets. The city, among other things, pleaded that the property at one time belonged to the community estate of Mrs. Grandjean and her husband, Ulysses Grandjean; that there had been a regular proceeding instituted against the husband to condemn the property as a street; that the land had been condemned, damages assessed and paid, and that Mrs. Grandjean, with knowledge of the facts, had accepted one-half of the sum assessed as damages. The court, in its discussion, said:

“In this case the city council had declared that the property should be condemned for use as a street, and had caused the damages to be assessed. Mrs. Grandjean was not made a party to the proceedings, and was not bound by tbe assessment. But sbe had the election to take what was tendered her, or to decline it, and take her chances upon a new assessment. She accepted one-half, the other half having been paid to her husband; and we think that she is bound by her election.”

We have concluded that the pleading was sufficient and that no error was committed by the court, in overruling the exceptions thereto.

Another contention of appellant is that the jury having found the automobile and bracelet to be her property; that she did not expressly consent to the mortgage, pledge, sale, or conversion of the automobile and bracelet ; and that the market values of the automobile and bracelet were $400 and $650, respectively; she was entitled to a judgment. Appellant argues, in support of the above position, that implied authority is based upon estoppel and that estoppel being neither pleaded nor proved, the court erred in rendering judgment for appellees upon the jury’s finding that appellant impliedly authorized her husband to mortgage the automobile and pledge the bracelet.

There is no difference in principle between an express and implied contract of agency. These distinctive terms are used merely to mark differefices in the character of the evidence by which the relationship of principal and agent is proved. 2 Tex. Jur. 398; Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S. W. 631. Implied authority of an agent is not based upon estoppel. City National Bank v. Conley (Tex. Civ. App.) 228 S. W. 972.

See, also, Denison v. Nunn (Tex. Civ. App.) 293 S. W. 838; Continental Oil Co. v. Baxter (Tex. Civ. App.) 59 S.W.(2d) 463.

Some of the Texas courts seem to have confused the terms “implied authority” and “apparent authority” and in so doing have inadvertently held that implied authority was based upon estoppel. We think the'pleadings of appellees sufficient to raise the issues of express and implied authorization.

Without here attempting to detail the evidence, we think it was sufficient to support the jury’s findings on the material issues.

Ratification need not be specially pleaded ; it may be proved under a general allegation of the agent’s authority to act as it is equivalent to antecedent authority. 2 Tex. Jur., § 216, pp. 636, 637, and authorities cited.

It follows, therefore, that there is no merit in appellant’s contention that the court erred in submitting the issue as to ratification. We cannot agree with appellant that the case was submitted upon a wrong theory' and her propositions to that effect are overruled.

Tt is true, as contended by appellant, that as a general rule similar transactions with different parties may not be shown to prove the transaction in controversy, the maxim being res inter alios acta, alteri nocere non debet. The law of agency, however, furnishes important exceptions to this rule and in those cases where the actual agency or authority is in question the rule is that proof that the alleged principal adopted similar acts in transactions with others about the time of the transaction in question is admissible in evidence upon the issue of authority vel non. 2 Tex. Jur. § 114, p. 512, and cases cited.

We have given careful consideration to the many questions presented by appellant in her brief and, while we shall not discuss each of them separately, we have concluded that no error is shown and her assignments are, accordingly, overruled.

■The judgment is affirmed.


author: JOHNSON, Chief Justice.

text:
    SMITH et al. v. VICTORY et al.
    No. 4447.
    Court of Civil Appeals of Texas. Texarkana.
    March 2, 1934.
    Rehearing Denied March 8, 1934.
    Geo. G. Clough, of Houston, -for plaintiffs in error.
    Dacy & Molhusen, of Longview, for defendants in error.
   JOHNSON, Chief Justice.

Plaintiffs in error were the plaintiffs in the trial court, and the defendants in error were the defendants in the trial court. The suit is between the heirs of Jarrett Dean, deceased, the common source of title. Jarrett Dean died intestate in 1873, and left surviving five children, to wit: Belona Victory, Maria McFarlin, Rebecca Moore, Lucinda Smith, and Daisy D. Wilson. On January 10,1885, W. H. Victory, the husband of Belona Victory, one of the five heirs, purchased from the other four heirs, to wit, Rebecca Moore, Maria McFarlin, Lucinda Smith, and Daisy D. Wilson, their undivided four-fifths interest in the land in controversy; that is to say, that four of the heirs joined in a deed of conveyance to the husband of the fifth heir. W. H. Victory and his wife went into immediate possession of the land, and they, and those claiming under them, have had and held continuous, peaceable, and adverse possession thereof, paying all taxes thereon as they became due, since 1885. This suit was filed in the district court of Gregg county, Tex., in May, 1932, by Maria McFarlin, now Maria Wright, and the heirs of Lucinda Smith, and George D. Clough; the latter being the attorney for the plaintiffs and holding an assignment of an interest from them. Plaintiffs’ suit was an action in trespass to try title to recover the Maria McFarlin and Lucinda Smith two-fifths undivided interest in block 33 of the town of Gladewater, Tex. The defendants in error ax-e the heirs of W. H. Victory and wife, Belona Victory, and answered by plea of not-guilty and .the several statutes of limitation.

The case was tried to a jury. At the close of the evidence the court instructed the jury to return a verdict for the defendants. From an order of the court overruling their motion for new trial, the plaintiffs have perfected this appeal.

Under appropriate assignments the plaintiffs in error make the contentions: (1) That the court erred in permitting in evidence, over the objections of the plaintiffs, the deed of January 10, 1885, to W. H. Victory, in so far as it purports to convey the interest of M. A. (Maria) McFarlin and Lucinda (Cindei--ella) Smith, joined by their respective husbands, for tlie reason assigned that the certificate of the acknowledgments of these two married women were not in conformity with law, and therefore the instrument as to them was void as a conveyance; (2) that the deed being inoperative as a conveyance of the interest of Mrs. McFarlin and Mrs. Smith, hence W. H. Victory and wife as a matter of law acquired and held possession as co-tenants of Mrs. McFarlin and Mrs. Smith, and that the statutes of limitation did not run against them for the reason that W. H. Victory and those claiming under him did not repudiate such cotenancy and notify Mrs. McFarlin or Mrs. Smith of such repudiation.

The acknowledgment of Mrs. Smith was that of a single person, as to form, and, as conceded by defendants, is insufficient to convey her interest. The court limited consideration of the evidence presented by the deed and permitted its introduction, not as a conveyance of Mrs. Smith, but only as evidence of notice to her of the character of the subsequent possession held by W. H. Victory thereunder. This will be further discussed below.

The certificate of acknowledgment of Mrs. M. A. (Maria) McFarlin is in form as follows:

“Before me, C. H. Slagle, J. P. and Ex Officio Notary Public, Upshur County, on this day personally appeared W. E. McFarland, and - known to me to be the persons whose names are subscribed to the foregoing instruments, and stated they had executed the same for the purposes and consideration therein expressed; and the said M. A. McFarland having been examined by me privily and apart from her husband and having the same fully explained to her, she, the said M. A. McFarland, acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it.
“Given under my Hand and Seal of Office, this 26th day of Jan. A. D. 1885. [R. S.] 0. H. 'Slagle, Notary Public Upshur County, Texas.”

It is urged that by the omission to insert the name M. A. McFarland in the blank space above indicated, the certificate fails to certify that M. A. McFarland is known to the notary taking the acknowledgment; and that the certificate is also defective in that the name M. A. McFarlin (as it appears to the deed) is spelled “M. A. McFarland” in the notary’s certificate. When considered in connection with the remaining terms of the certificate, the omission of the name in the blank indicated, does not, in our opinion, render the certificate void. Smith v. Burgher (Tex. Civ. App.) 136 S. W. 75. And as ordinarily pronounced it is thought that an attentive ear will find difficulty in distinguishing the sound of McFarland and McFarlin, and it is thought that they should be considered as idem sonans. A certificate of acknowledgment of Emma A. Arnoll was held sufficient when spelled by the notary Emma A. Arnold. Arnall v. Newcomb, 29 Tex. Civ. App. 521, 69 S. W. 92.

But, assuming that the acknowledgment of Mrs. McFarlin was not a sufficient, substantial compliance with the statute, thus rendering the deed as to her interest, as well as the interest of Mrs. Smith, inoperative as a conveyance, it was admissible in evidence as notice in fact to said purported grantors of the hostile character of the subsequent adverse possession held by the purported grantee thereunder, and removed any legal presumption that W. H. Victory and wife were holding possession as cotefiants of and in trust for Mrs. McFarlin and Mrs. Smith. Carr v. Alexander (Tex. Civ. App.) 149 S. W. 218; Fleming v. Canterbury (Tex. Civ. App.) 255 S. W. 678; Leverett v. Leverett (Tex. Civ. App.) 59 S.W.(2d) 252; 11 Tex. Jur. § 28, p. 445; 2 C. J. § 260, p. 148; McBurney v. Knox (Tex. Com. App.) 273 S. W. 819.

No error is presented by the record.

The judgment of the trial court is affirmed.


author: JACKSON, Justice.

text:
    CANNADAY et al. v. MARTIN et al.
    No. 4170.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1934.
    Rehearing Denied March 19, 1934.

      Ayres & Ayres, of Floydada, and Joiner & Cook, of Plainview, for appellants.
    A. J. Folley, of Floydada, and Bernard Martin and W. E. Fitzgerald, both of Wichita Falls, for appellees.
   JACKSON, Justice.

This suit was instituted in the district court of Floyd county by appellees to recover damages claimed to have been sustained by them on account of the alleged breach by appellants of two written contracts, one for the sale of certain lots, the other for the erection of certain buildings, asserted by appel-lees to have been made and executed' at the same time and to constitute but one contract. A copy of each of said contracts they attach to their petition as a part thereof.

They alleged that on July 9, 1928, appellants owned lots 13, 14, 15, and 16 in block 85 in the town of Floydada, and on said date they purchased lots 14, 15, and 16 for a cash consideration of $10,000, as shown by the sales contract. On the same day they entered into the building contract by the terms of which they employed appellants to erect on lots 14, 15, and 16 a certain building. The lots were conveyed, the consideration paid, the building completed by appellants according to contract and accepted by appellees on February 3, 1929, since which day they have conducted their mercantile business therein. That the west wall of appellees’ building was to be and is on the common line of lot 14 and lot 13, and the cost of such party wall was: to be paid one-half by appellants and one-half by appellees, and such stipulations of the contract were performed. That the building contract also provides that appellants “agreed themselves to build a brick building on lot-13 in block 85 within ninety days from time they complete building for” appellees on lots 14, 15, and 16. That under this provision appellants were obligated to erect a brick building on lot 13 within 90 days from February 3, 1929, the date on which appellees’ building was completed. That the written contract is incomplete as it does not set out in detail the kind of the building to be erected on lot 13, but prior to and at the time such written contract was executed, appellants orally agreed to erect on lot 13 a modern 1-story brick business house, 25 feet in width and TOO feet in length, “to be used and occupied as a mercantile establishment and business.”

That the reasonable market value of lots 14, 15, and 16, with the building completed thereon, on May 4, 1929, would have been $35,000 had appellants complied with their agreement and erected the building on lot 13, but without such building the reasonable market value of appellees’ said lots and building was $27,500.

Other measures of damages were alleged, but the above measure is the one submitted by the court to the jury.

Appellants answered by general demurrer, numerous special exceptions, general denial! and specially denied that any oral agreement was made as, to the nature of the building they were to construct on lot 13. They pleaded, however, if there was any oral agreement, it was that they should erect a building on their said lot 13 suitable for and adapted to the requirements of any tenant, only when such tenant might be found, and that they had been unable to find a tenant for such prospective building.

On the answers of the jury to the special issues submitted, judgment was rendered that appellees have and recover $4,546, with interest from June 10, 1933, at the rate of 6 per cent, per annum, together with their costs.

The appellants challenge as erroneous special issue No. 4 as submitted by the court, because such issue as written assumes that the jury would answer special issue No. 3 in the affirmative, and constituted an invasion of the province of the jury.

Special issues Nos. 3 and 4 appeared in the charge as follows:

Special Issue No. 3.
“Do you find from a preponderance of the evidence that at the time defendants entered into the written contract described in plaintiffs’ petition, defendants agreed with plaintiffs that the building mentioned in said written contract which defendants were to build on lot 13 in block No. 85, would be a one-story brick building, 25 feet by 100 feet in dimensions?”
Special Issue No. 4.
“Do you find from a preponderance of the evidence that if the defendants had completed the construction of said brick building on lot No. 13 in block No. 85, on or about May 4, 1929, that the same would have increased the reasonable market value of plaintiffs’ building and lots on which it is located on said date?”

Both of these issues were answered affirmatively.

The only evidence as to the dimensions of the building to be erected on lot 13 was given by J. G. Martin, who testified that under the oral agreement such building was to be a 1-story brick building, 25 feet in width and 100 feet in length. The appellants testified, in effect, that the only oral agreement had was to the effect that the building to be erected on lot 13 was to be suitable to a tenant if one should be found who would occupy such building as a grocery, dry goods or drug store, as appellees stipulated that no garage, prodftee house, or filling station should be constructed on said lot. That there was no oral agreement as to the dimensions of said building and no building was to be erected until a tenant should be found, and, since none had been found, the building had not been erected. Whether the dimensions were agreed upon and, if so, what the dimensions were, presented controverted issues. It was incumbent on appellees to prove the oral contract substantially as they alleged. These were issues of fact the “appellant was entitled to have passed on by the jury without any suggestion or intimation or assumption from the court.” City of Amarillo v. Rust (Tex. Civ. App.) 45 S.W.(2d) 285, 288. It is obvious, we think, that the language in special issue No. 4, “said brick building on lot No. 13 in Block No. 85,” refers to the building described in issue No. 3 as “a one-story brick building 25 feet by 100 feet in dimensions.” This was an assumption by the court that the jury would answer issue No. 3 in the affirmative. The fact that the court submitted to the jury in issue No. 3 whether the oral agreement was to erect a 1-story brick building 25 by 100 feet would not correct this error, since he assumed in issue No. 4 an affirmative answer to issue No. 3. Texas Power & Eight Co. v. Culwell (Tex. Com. App.) 34 S.W.(2d) 820; Chicago, R. I. & G. R. Co. v. Bernnard (Tex. Civ. App.) 290 S. W. 292, 295, and authorities cited; Gordon et ux. v. McIntosh et ux. (Tex. Civ. App.) 54 S.W.(2d) 177. This assignment is sustained.

It is unnecessary to discuss the other assignments, as they do not, in our opinion, under the record present reversible error.

In view of another trial, we call attention to the following principles: “The general rule is that in an action upon a contract, evidence is admissible in defendant’s behalf under a general denial to show another and different contract to the one declared upon by plaintiff, and that, in any event, plaintiff was not entitled to recover.” Amarillo Oil Co. v. Ranch Creek Oil & Gas Co. (Tex. Civ. App.) 271 S. W. 145, 151, and authorities cited.

See, also, Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058.

It is settled that the defendant is entitled to an affirmative submission of his defenses where the proof tends to sustain them. Dallas Ry. & Terminal Co. v. Garrison (Tex. Com. App.) 45 S.W.(2d) 185.

The written contract provided that the building to be erected on lot 13 by appellants should be constructed within 90 days from the date the building on appellees’ lots was completed. This time limit could have been waived, 10 Tex. Jur. 428, § 246, but the issue of waiver was not pleaded and is not before us for consideration.

The appellees are not entitled to recover for any depreciation in the value of their property due to depressed financial conditions. City of Waco v. Craven (Tex. Civ. App.) 54 S.W.(2d) 883. However, appellants do not object to the measure of damages or the manner of the submission thereof. Under the record, the issue of whether the two contracts should be construed as one is immaterial.

The judgment is reversed, and the cause remanded.


author: COMBS, Justice.

text:
    STANDARD FINANCE CORPORATION v. HAVINS.
    No. 2523.
    Court of Civil Appeals of Texas. Beaumont.
    March 17, 1934.
    Rehearing Denied March 21, 1934.
    W. H. Dunlay and E. F. Gray, both of Houston, for plaintiff in error.
    B. J. D'eCoüx, of Houston, for defendant in error.
   COMBS, Justice.

Appellee, as plaintiff, filed this suit against appellant, as defendant, in, the justice court, precinct No. 1, of Harris county, to recover $120.20 in the nature of a penalty, for usurious interest charged by appellant and paid by appellee on a loan. See article 5073, R. S. 1925. From an adverse judgment appellant appealed to the county court at law of Harris county where a trial de novo resulted in a judgment in favor of plaintiff for $98.40. This appeal was to the Court of Civil Appeals at Galveston and is before us on transfer by the Supreme Court.

On January 19, 1932, plaintiff borrowed from defendant $150 and gave defendant his note for $210.20, payable in twelve monthly installments of $21.02 each beginning one month after date. The note was secured by a chattel mortgage on an automobile. Plaintiff paid one-half the indebtedness, and then arranged with Tennison Finance Company to refinance the loan. And that agency gave defendant its check for the unpaid balance, and the mortgage and note were delivered to Tennison Finance Company. Later, after paying a part of his indebtedness, plaintiff sold the car to a third party who assumed, by agreement, the balance of the indebtedness to Tennison Finance' Company as part of the purchase price. Plaintiff then brought this suit, within proper time, to recover double the amount of excess of the n'ote, over and above the $150 which he actually obtained from appellant on the note.

The excess was $60.20, but it is shown that appellant expended $11 for insurance on the ear, leaving $49.20 as the amount of interest, and the court rendered judgment for double that amount.

We think the judgment was proper. The interest charge was clearly usurious. Appellant makes no Contention that it was not. But it seeks to avoid liability for the penalty prescribed by the statute, on the proposition presented in different ways by numerous assignments, but all to the same effect, that, since appellee had paid only one-half of the note at the time it was refinanced by Tenni-son Finance Company, it follows that ap-pellee did not pay to it the usurious interest.

This contention is without merit. It is true that, in order for a debtor to recover the penalty, he must plead and prove payment of the usurious interest. Yonack v. Emery (Tex. Com. App.), 13 S.W.(2d) 667, 70 A. L. R. 684; Southern Industrial Corporation v. Bolton (Tex. Civ. App.) 22 S.W.(2d) 495. But appellee, in this case, pleaded such fact and proved it. It is shown that he personally paid one-half of the installments to appellant, and that he arranged with Tennison Finance Company to pay appellant the balance, which was done. It is further shown, although we do not mean to here pass upon the question of whether such proof was necessary, that appellee had fully discharged his 'obligation to Tennison Finance Company.

No do we think it material that Tennison Finance Company took a transfer of the lien held by appellant on the automobile, instead of obtaining a cancellation of it. In its dealings with appellant, Tennison Finance Company was the agent of appellee, and appellant received from appellee and his agent payment in full of its note which included the usurious interest. Appellant cannot thus reap the full benefit of its usurious contract with appellee and escape the consequences which the statute imposes.

The judgment of the trial court is affirmed.


author: LOONEY, Justice.

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. WRIGHT et ux.
    No. 11704.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 3, 1934.
    Rehearing Denied March 10, 1934.
    Seay, Malone & Lipscomb and Tarlton Stafford, all of Dallas, for appellant.
    Houston & Johnson, of Dallas, for ap-pellees.
   LOONEY, Justice.

This case arose under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art.. 8306 et seq.). Ernest Wright and wife, Mary,, sued the Indemnity Insurance Company of" North America, insurer, in the nature of an. appeal from the final decision of the Industrial Accident Board denying appellees compensation for the accidental death of Samuel. Wright, their minor son, alleged to have re-, suited from carbon monoxide gas poisoning,, received in the course of employment with.. Goodman Produce Company of Dallas.

No question is raised as to the sufficiency-of the pleadings; the issues joined are indicated by the questions submitted to the-jury, and the regularity of all preliminary-X>roceedings being admitted, we are brought, at once to incidents connected with the trial..

After overruling appellant’s motion for an-instructed verdict, the court submitted the-case on the pertinent issues, and the findings of the jury, assigned as error, are that deceased, an employee of the Goodman Produce - Company, received fatal injuries in the course • of his employment; and that appellees would suffer a manifest hardship and injustice if' a lump-sum payment should be denied. The • other findings are not involved.

Appellant moved to set aside the verdict. and for judgment non obstante veredicto; these being denied, the court rendered judgment against appellant on the jury findings, for $3,047.8S, apportioned two-thirds to ap- - pollees and one-third to their attorney, from which this appeal is prosecuted.

By appropriate assignments and propositions, appellant contends that the judgment should be reversed and rendered in its favor, because of the absence of evidence showing that, at the time of his injury, deceased was an employee of the Produce Company, within the meaning- of the "Workmen's Compensation Law; and because of the absence of evidence showing that he was injured in the course of his employment, in that the undisputed evidence shows that he departed from the course of any employment he may have had prior to being- injured, and, in the alternative, appellant contends that the cause should be reversed and remanded, because of the court’s error in rejecting the testimony of the witness Banks; because of the insufficiency of evidence to support findings, to the effect that deceased was an employee when injured, that he sustained injury in the course of his employment, and further because of the insufficiency of evidence to authorize submission of the question or the finding of the jury thereon in favor of a lump-sum payment.

The findings of the jury, although based upon conflicting evidence, are, in our opinion, fully sustained and are adopted as our conclusions of fact op the issues involved. The ease, as made by evidence favorable to appellee, is to the effect that their son, Samuel Wright, a minor nineteen years of age, prior to his death, had worked for the Goodman Produce Company of Dallas more than a year, not continuously but irregularly and only when needed, as illustrated by the record of his services from March to December, 1930, inclusive. This record shows that he was paid $2.25 per day, and received for services in March $5.15, in April $24.85, in May $15, in June $3, in July $18.80, in August $47.50, in September $52.25, in October $16.50, in November $25.75, and in December $20.75. That on December 22, 1930, deceased, wearing an apron, was at work putting up shorts in the place of the Produce Company, that is, getting together in boxes fruits and vegetables ordered by customers ready for delivery the following morning; that about 2 or 2:30 a. m., December 23d, deceased remarked to another employee, “I am going in the box in a few minutes’’; his purpose in going into the box is not disclosed, except by inference. The “box” referred to is an air-tight room kept by the Produce Company-in which bananas are placed to be ripened, and a temperature necessary for that purpose was maintained by means of a gas stove. After going in the banana room, deceased did not return, but was found apparently asleep about an hour later, by Simon Goodman, who kicked the boy in the ribs, cursed him,_ saying: “Get up from there, you * * ⅜, you know you are not supposed to work in the box, come out here.” Repfiying, the boy said: “Yes sir, I will be out in a minute.” However, he did not come out and was found by Goodman about 7 a. m., unconscious, with froth exuding from his mouth, nostrils, and eyes, and in this condition was immediately taken to a hospital, where he died two days later. The physician in charge, Dr. Dexter H. Hardin, testified that, when the boy reached the hospital, he was in an unconscious condition, caused by carbon monoxide gas poisoning; that he died of bilateral lobar pneumonia, the direct contributing cause being carbon monoxide gas poisoning; and that pneumonia may follow such poisoning.

In support of its several contentions, appellant cites many decisions, more or less in point, but these are of no special benefit in solving the problem, because, as we view the matter, this is essentially a fact case and the jury having found, upon sufficient evidence to warrant their findings, all disputed issues, in favor of appellees, we think their verdict was properly approved, and that the trial court committed no error in rendering the judgment appealed from.

Appellant insists, however, that when deceased entered the banana room, he departed from the course of any employment he may have had, and further that, in failing to leave the room, in obedience to the command of his employer, he became a trespasser and departed from his employment; therefore, appellant is not liable, as insurer, for the injury sustained under these circumstances.

The evidence tends to show, and justifies the belief, that deceased entered the room in quest of bananas to fill orders of customers, and in doing so was in the course of his employment.' Evidently the banana room was permeated with the colorless, inodorous gas, and on entering the boy must have been immediately stricken, and rendered semiconscious, and was in that condition when discovered and ordered out by Mr. Goodman. If simply asleep and in possession of his normal faculties, the negro, in our opinion, would have left the room immediately on being kicked, cursed, and ordered out by his white employer; and the fact that he did not do so, after being subjected to the unusually rough-treatment, indicates strongly - that he was asphyxiated and only partially aroused when kicked and cursed by Goodman.

The contention that the negro boy entered the banana room for sleep, thus departing from his employment, is answered by evidence to tlm effect that employees of the Produce Company were permitted, while on duty, to nap on the premises; so, if in fact deceased did enter the room for the purpose of taking a nap (in view of the evidence, the jury was warranted in so believing), that fact would not, in our opinion, constitute a departure from the course of his employment. 'See cases in point on principle, Malley v. Union Ind. Co. (Tex. Com. App.) 12 S.W.(2d) 1002; Southern Surety Co. v. Shook (Tex. Civ. App.) 44 S.W.(2d) 425; Parker v. Royalty Ind. Co. (Tex. Civ. App.) 59 S.W.(2d) 243, 246.

Appellant further contends that the evidence neither required the submission of the issues nor justified the finding that a manifest injustice and hardship would result to appellees, unless the compensation to which they are entitled is paid in a lump sum.

The evidence bearing upon this question is, in effect, that Ernest Wright, father of deceased, was 42 years of age, uneducated, inured to hard labor, was familiar with farming, had been without regular employment for about two years, his wife being employed only at washing and ironing. Appellees expressed the desire and purpose, if awarded a lump sum, to purchase a small farm and run a woodyard. Under prevailing economic conditions, we think they would be enabled, with the amount awarded them, to purchase and pay for a small farm, and that, under the circumstances, to deprive them of the opportunity of acquiring a home and becoming self-sustaining would constitute a manifest injustice and hardship, within the meaning of the statute.

Lump-sum payments have been permitted to enable a beneficiary to invest in a business of his own. See Consolidated, etc., v. Saxon (Tex. Com. App.) 265 S. W. 143, 146; Texas Employers’ Ins. Ass’n v. Herring (Tex. Civ. App.) 269 S. W. 249, 253; Herzing v. Texas Employers’, etc. (Tex. Com. App.) 17 S.W.(2d) 1046; Gulf Cas. Co. v. Garner (Tex. Civ. App.) 48 S.W.(2d) 746, 748.

The question of allowing or refusing a lump-sum settlement is largely a matter of discretion with the trial court and, unless an abuse of discretion is shown, its action should be approved. In Georgia Casualty Co. v. Little (Tex. Civ. App.) 281 S. W. 1092, 1095, the Austin court, through Judge Baugh, said: “The question of a lump sum payment is a matter addressed largely to the discretion of the trial court, and in the absence of abuse of such discretion his judgment should be sustained,” citing Texas Employers’, etc., v. Boudreaux (Tex. Civ. App.) 238 S. W. 697; Texas Employers’, etc., v. Downing (Tex. Civ. App.) 218 S. W. 112.

The proposition is urged that, in view of the testimony of several witnesses for ap-pellees, to the effect that they saw deceased working on the premises and in the business establishment of Goodman Produce Company on the night of December 22d, and early morning of December 23d (no direct evidence showing that he was required, by any one in authority to work at the time), that it was error for the trial court to refuse to permit appellant to show by G. G. Banks, bookkeeper for the Produce Company, that deceased “was not supposed to work that night or morning,” the contention being that, if he was not supposed to work at that time, his act in doing so was that of a volunteer, and that appellant, as compensation insurer, would not be liable for an injury sustained under the circumstances.

We do not think the court erred in excluding the testimony’of Bookkeeper Banks. After its ruling the following colloquy ensued between the court and counsel for appellant, which clearly shows that appellant was not cut off by any ruling of the court from introducing competent evidence to prove the fact sought to be established by the rejected evidence:

“The Court: Here is the way the matter strikes the court, gentlemen. It don’t make any difference as to who was to be there. The issue is who was. The question is was this man working there that night? It makes no difference what he was supposed—
“Mr. Stafford: If he- came there and worked when he was not supposed to work, he was a mere volunteer and we are not liable.
“The Court: If he was working there?
“Mr. Stafford: Suppose I walked in there as a mere volunteer?
“The Court: Is there any suggestion here that anybody walked in and volunteered? I will let you go into it very fully how come him there.
“Mr. Stafford: The question is whether or not he was required to work that night.
“The Court: The only question is whether he was employed that night.
“Mr. Stafford: Yes. If he went in there and worked as a mere volunteer, then we are not in any way liable.
“The Court: Of course, if you show he worked there as a volunteer unquestionably you are right about that.
“Mr. Stafford: Therefore, I have the right to show who was on duty that night.
“The Court: I will let you show who was on duty, but not who was supposed to be on.
“Mr. Stafford: Note our exception.”

The episode closed as above shown. But aside from this, the fact sought to be established by the rejected evidence was testified to by Simon Goodman, the employer, rendering harmless the error, if error was committed by the court in its ruling. Finding no reversible error, the judgment of the court below is affirmed.

Affirmed.


author: PELPHREY, Chief Justice.

text:
    FRANCIS v. FEDERAL RESERVE BANK OF DALLAS.
    No. 2903.
    Court of Civil Appeals of Texas. El Paso.
    March 1, 1934.
    Rehearing Denied March 22, 1934.
    G. W. Dunaway, of Midland, for plaintiff in error.
    Locke, Locke, Stroud & Randolph, of Dallas, for defendant in error.
   PELPHREY, Chief Justice.

On January 1, 1931, John Francis executed to the Citizens’ National Bank of Odessa, Tex., his note in the sum of $2,725 payable six months thereafter. The note was given in renewal of another note, besides including a small overdraft and some interest due. Some time thereafter the note was criticized by the bank examiner, and Henry Pegues, president of the bank, requested plaintiff in error to sign the note along with his brother, John Francis. On March 21, 1931, plaintiff in error furnished the bank a financial statement, and it appears that shortly before so doing he signed the note -in question. The bank, on March 23d, made application to defendant in error, through its El Paso Branch, to rediscount certain negotiable paper held by it, among them being the note involved in this suit. April 23, 1932, defendant in error filed this suit against both John and A. C. Francis, seeking to recover the principal of, and interest, on, the note, together with attorney’s fees.

John Francis made no defense, but plaintiff in error filed a general demurrer, a general denial, and specially pleaded that the note was signed by him after its execution by John Francis alone and acceptance by the bank; that he added his name thereto solely as an accommodation to the bank and that such signing by him was without consideration; that the bank was guilty of fraud in the procurement of his signature to the note; and that defendant in error had notice of the defects in the note and lack of his liability thereon. He specially denied that the note was transferred by the bank to defendant in error for a valuable consideration and that defendant in error was a bona fide holder in due course.

The cause was submitted to a jury on two special issues:

“Special Issue No. 1: Do you find from the preponderance of the evidence that at the time Henry Pogues requested the defendant, A. G. Francis, to sign the note in question that Henry Pegues represented to the defendant, A. 0. Francis, that A. 0. Francis would never be held liable on the note? Answer yes or no.
“Special Issue No. 2.: Do you find from the preponderance of tlie evidence that at the time the plaintiff, Federal Reserve Bank, accepted the note in question that it had knowledge of any, facts or circumstances that would have caused a reasonably’ prudent person to make inquiry as to the liability of A. 0. Francis upon said note? Answer yes or no.” *

The jury answered both issues in the negative and, upon such findings, the court rendered judgment against John and A. 0. Francis, jointly and severally, for $3,440.25, being $3,127.50 principal and interest, and $312.75 as attorney’s fees. A. 0. Francis sued out his writ of error to this court.

Opinion.

Plaintiff in error moved the court for judgment in his favor notwithstanding the verdict on the ground that the issues submitted were immaterial to any issue necessary to a rightful determination of the case; that the undisputed evidence showed that he had signed the note after it had been executed, delivered, and accepted by the bank; that no consideration was given for his signature by the bank; and that defendant in error was not a holder in due course.

The overruling of such motion is made the basis for plaintiff in error’s three assignments of error and his two propositions thereunder.

The propositions are:

“First Proposition. The note having been duly executed and accepted by the Citizens National Bank of Odessa, Texas, before plaintiff in error signed the same, and there being no new consideration for plaintiff in error’s signature on the note as between the original parties, plaintiff in error could not be held liable thereon.”
“Second Proposition. Under the undisputed evidence in this case defendant in error’s title to the note was not such that made it a holder in due course and its rights were no greater than the rights of the original payee.”

It is true that the signature of a person, placed upon a note after its completion and delivery as between the original parties, in order to be effective, must have the support of a new and independent consideration. King v. Wise (Tex. Com. App.) 282 S. W. 570; Central Nat. Bank v. Lawson (Tex. Com. App.) 27 S.W.(2d) 125. But, as said by the Commission of Appeals in King v. Wise, supra, this would not be true where the signature is for the accommodation of the payee and the paper has been further negotiated. This being true, then a proper .decision of the question as to plaintiff in error’s liability to defendant in error will depend upon whether or not defendant in error is a holder in due course of the noté here sued on and entitled to be protected as such.

J. L. Hermann, managing director of the El Paso Branch of the Federal Reserve Bank of Dallas, testified:

“Q. Mr. Hermann, when did the Federal Reserve Bank acquire this note? A. It was sent ,to us in an application for Odessa dated the 21st of March. We received it on the 23rd of March and credited it to the account of the Citizens National Bank on the 31st, of March.
“Q. What was the consideration, if any,, paid for that note? ⅜ ⅜ * A. We credited the account of the Citizens National Bank of Odessa, Texas, with $2725.00, less three and one-'half per cent discount for ninety-two-days.
“Q. Did you credit them with twenty-seven hundred dollars and some odd cents? A. Yes,, sir.
“Q. Was that the standard rate at which you purchase notes? A. Yes, that is the standard rate at which we purchase at all times, or at that time.
“Q. 1-Iow did you make payment to the Citizen’s National Bank for that note? A. The Citizens National Bank carries an account with us on their books and the amount was credited to them for this note, together with five other notes on the 31st of March, the total credit being $6751.20.
“Q. Do you or not, by saying ‘credited to the account,’ mean you gave them credit on your books .as having that much money in the bank, the same as if I would make a deposit in the Citizen’s National Bank and they gave me credit for what I deposited? A. Yes, their account was increased by that amount.
“Q. Could they have drawn on that account?. A. Yes, they did draw on it the same day. * ⅜ ⅜
“Q. You gave them credit on March 31st for that? A. Yes.
“Q. It (meaning the Citizens National Bank) closed its doors about ten days later, didn’t it? A. I think it was the 14th of April.
“Q. How much account did it have with the Federal Reserve at the time it closed its doors on the 14th of April? A. I didn’t bring the account past the 31st of March and do not remember.
“Q. From your general knowledge of the situation, do you know approximately what the amount of its balance was ? A. I can tell you the balance on the 31st. That is the last I have.
“Q. What was it? A. $24,776.32. * * *
“Q. Do you say the note came to you with an application? A. Yes, sir.
“Q. Do you have that application? A. Yes, sir.
“Q. Where is it? State whether or not that (indicating) is the application that accompanied that note? A. Xes, this is the application from the bank on which the note was listed.
“Q: And this particular note is listed among the notes on that list? A. Yes. ⅜ * ⅜
“Q. Whatever amount of credit you had on hand at the time the Citizens National Bank closed its doors you retained that, didn’t you? A. You mean immediately? Do you mean up to now, or what? I don’t understand your question.
' “Q. Assuming they had not drawn anything, they would have about $24,000.00 credit when they closed their doors a few days later and its credit was $24,000. Now, if they had .a credit on their books at the time they closed their doors, you didn’t pay it to them, did you ? A. Do you mean after the receiver had taken it over?
“Q. Yes. A. I don’t know whether the Receiver, took it or not, or whether it was turned over to the Receiver or not. I may state we are a branch of the Federal Reserve Bank of Dallas and, if a bank in our territory becomes insolvent, the papers are then and air records are immediately turned into our head office and the transactions are handled from then on at the head office. We simply handle transactions with the banks that are going institutions.
“Q. It is also a custom that the Federal Reserve Bank follows when a bank closes its doors and has on hand a credit with you of •so miich money, that you hold the deposit until all obligations to the Federal Reserve Bank have been paid. Isn’t that true? A. Not necessarily, no.
“Q. You could do it, couldn’t you? There is no law or rule or custom' to prevent you from doing it, is there? A. I am not familiar enough with the law to tell whether -we legally could or not. Sometimes we leave certain amounts and sometimes we don't.
“Q. That deposit remains there, doesn’t it, until all affairs between you and the liquidation agent have been settled? A. Not necessarily. * * *
“Q. These notes that you have mentioned here, do you say they were received at your bank on the 23rd of March? A. Yes.
“Q. But you didn’t pass them for credit until the 31st of March? A. That is right.
“Q. Do you know what caused the lapse of time in there? A. I don’t know positively. I can give you one or two probable reasons,— but I don’t remember positively in this case.
“Q. All right, what was that? A. One reason would be, banks frequently send us notes to approve and hold until the dates they need them. Other times they send us notes and will send us out collateral to protect their endorsement, and if the collateral to protect their endorsement on the original notes we purchase does not come along in time we hold up the credit and it could be either of those two reasons.
“Q. At that particular time when these notes were transferred to you, I will ask you if it isn’t a fact the Federal Reserve Bank at that time was relying on additional collateral to rediscount the notes? A. Yes, sir.
“Q. At what percent? a. Twenty-five.
“Q. Was additional collateral sent along with this batch of notes listed in that contract? A. Let me see the application. It might show (Exhibit ‘A’ is handed the witness). No, from the Application it indicates we passed on the acceptability of the notes but withheld credit waiting the additional collateral. ⅜ * ⅜
“Q. Do you have a form of contract that is entered into when you do take additional collateral? A. Yes.
“Q. Do you have that in this instance — the contract that was entered into ? A. I haven’t it with me, no. * * ⅜
“Q. Anyway, that collateral contract provides that you may hold these additional collateral notes to satisfy any balance that you may fail to collect on the rediscount notes, doesn’t if? A. I don’t remember the wording of it.
“Q. Do you know what your custom is with reference to it? For instance, in this batch of notes at the time you took the note the suit is about you required additional collateral notes. In the event all of this batch of notes should be paid, what would you do with these collateral notes? A. Do you mean you -want me to state what we would have done if these had been paid?
“Q. Yes. A. If the Citizens National Bank had paid us off, had redeemed all the notes we’had rediscounted and that obligation to us as endorser, we would have returned the additional collateral to the Citizens. * * *
“Q. In the event yon collect this note, it would release the collateral security, wouldn’t it? A. There is no particular collateral against this note but on the endorsement. * * *
“Q. All the money you paid for this note, or everything you paid of value for it, was to augment the credit to the Federal Reserve Bank, wasn’t it? A. Yes, that is the only way we had of paying for anything with a member bank.
“Q. This money that was credited to the account — deposited to the account of the Citizens National Bank was actually checked out by the Citizens National Bank of Odessa, wasn’t it, Mr. Hermann?
“Q. Does that (indicating) show it was checked out by the statement you have there? A. This credit for this note and the other five .notes increased their balance by $6751.20 and on the same day they drew drafts against the account of $9899.95.
“Q. This entire amount that was credited to the account of the Citizens National Bank of Odessa could have been checked out by that Bank, couldn’t it? A. Well, the draft checked out that and some more of the balance they previously had.
“Q. They could have checked out all of it, couldn’t they? A. Yes.
“Q. There was no rule to keep them from withdrawing all of it? A. No. •
“Q. Just the same as a depositor putting money in the bank and drawing a check against it. Isn’t that correct? 'A. Yes.
“Q. Mr. Hermann, what was the balance to their account at the close of business that day they got credit for the notes? A. $24,-776.32. * * *
“Q. Whatever drafts they might have drawn that day .didn’t bring their balance down to the amount of these notes. That is, they had, in addition to the credit” they got on the notes on that particular day, they stili had other credit? A. Yes, they had a balance from the previous day.
“Q. Mr. Hermann, I will ask you if the form that has been introduced here that was used in sending in these notes for rediscount is not identically the same form as that used when the notes are sent in with additional collateral, with the exception of the line— the blank here (indicating) that is filled in? A. Yes, the printed form is the same.
“Q. What line is filled in definitely? A. The purpose for which this offering is submitted, whatever is put in after that, explains whether it is sent in to sell to us or is additional collateral.
“Q. The form you had would be the same as this, except with the line filled in definitely? A. Yes, sir.
“Q. Speaking of that form, Mr. Hermann, is any of that collateral listed to any particular note, or is it a collateral deposited with you or indebtedness deposited with you to secure you on the endorsement of the Citizens National Bank at Odessa? A. It is collateral for any indebtedness or liability that the Citizens National may have to us, but not any particular item. It could be against an overdraft or any business transaction-with this bank.
“Q. And is it to secure the endorsement or the signatures of a maker or any party to any note other than the Citizens that tenders it to you? A. It is Security to protect, to further secure the endorsement of the bank on the various obligations they have with us.
“Q. Mr. Hermann, whep this note of suit was tendered to the Federal Reserve Bank, was any instrument or collateral attached to the note itself? A. No, sir.”

Mr. Pegues testified, relative to the transfer of the note to defendant in error, as follows:

“Q. Did you ever tell the Federal Reserve Bank of Dallas at the time you presented this note to them to sell it to them that Mr.‘ A. O. Francis’ signature wasn’t binding on that note? A. No, I didn’t tell them that.
“Q. You didn’t tell them anything about the circumstances of his signature? A. I don’t remember discussing it.”

Mr. Lynch, receiver of the bank, testified that the bank’s balance with defendant in error at the time the bank closed was less than $2,600.

We have quoted extensively from the testimony because of certain contentions advanced by the plaintiff in error. They are: (1) That the course of dealing between the parties brings into play the provisions of our statutes relative to restrictive endorsements; (2) that the Federal Reserve Bank held the note in question merely as agent or trustee for the Citizens’ Bank; and (3) that no money was paid by the Federal Reserve Bank for the note.

Article 5935 (Rev. St.) defines a “holder in due course” to be one who has taken the instrument under the .following conditions:

“1. That it is complete and regular upon its face;
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith and for value;
“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

In our opinion, the facts, as disclosed by the testimony set forth above, are sufficient to show defendant in error to be a holder in due course under the above provisions, and, therefore, not subject to the defenses which are attempted to be interposed here.

The statement of plaintiff in error in his brief that: “The custom was when a note would come due it would be returned to the Citizens National Bank for collection and other notes be substituted in its place. At any time it could charge the note back to the Citizens National Bank and reduce its balance to that extent. It never paid a cent for the note and never could be held to have any investment in it unless on a final adjustment of accounts when all the notes held by the Federal Reserve Bank were collected or charged off there was a balance still owing, and there is no evidence in the record that indicates a situation of that kind exists or could ever exist,” is not borne out by the record here.

The trial court correctly overruled plaintiff in error’s motion for judgment non ob-stante veredicto, and its judgment is in all things affirmed.