author: JOHNSON, Chief Justice.

text:
    STARR v. DUNBAR et al.
    No. 4452.
    Court of Civil Appeals of Texas. Texarkana.
    March 12, 1934.
    Rehearing Denied March 22, 1934.
    Edwin M. Fulton and C. E. Florence, both of Gilmer, for appellant.
    W. Edward Lee, of Longview, and H. S. Garrett, of Fort Worth, for appellees.
   JOHNSON, Chief Justice.

This suit was filed June 8, 1932, by appellant, El Starr, against appellees, T. J. Dunbar and the Texas Company, seeking to recover an undivided interest to the amount of 31.9 acres in a described 105-acre tract of land in Gregg county, and for partition. Appellees pleaded not guilty and the several statutes of limitation. The case was tried to the court without a jury. From a judgment in favor of defendants (appellees) and against the plaintiff (appellant), the plaintiff, El Starr, has perfected his appeal.

Plaintiff’s claim of title to the land is based upon his right of inheritance through and from his deceased wife and deceased child of a one-ninth undivided interest in the estate of G. W. Dunbar, deceased, same being a one-eighteenth undivided interest in the community estate of G. W. Dunbar, deceased, and his surviving wife, M. A. Dunbar. G. W. Dunbar and wife, M. A. Dunbar, owned a community estate of 570 acres of land, located in Upshur and Gregg counties; the 105 acres in controversy located in Gregg county being a part of which that constituted their homestead, and on which they had resided since about 1866. G. W. Dunbar died intestate May C, 1888. He was survived by his wife, M. A. Dunbar, and nine children, constituting his sole heirs. Ada Dunbar, daughter of G. W. and M. A. Dunbar, was married to El Starr, one child was born unto this union, and the mother, Ada Starr, died intestate' in 1894; the child died within a few weeks after the death of its mother, thus vesting in El Starr a one-ninth undivided interest in the estate of G. W. Dunbar, deceased. On August 18, 1899, the eight surviving Dunbar children, all of whom appear to have been of age or married, met at the old home place for the purpose of partitioning the land. The 570 acres, except 160 acres of the homestead on which the mother, M. A. Dunbar, lived, was divided into eight tracts or parts and each numbered. Corresponding numbers were placed in a hat and each of the eight children drew therefrom. Mrs. M. A. Dunbar, joined by the other children, executed to each of the eight children deeds to the respective tracts so drawn. E. L. Dunbar, a son, testified: “We met at Mother’s to divide up this land. She said she was willing to divide up this land and "we just left her a homestead of 150 acres or 160' acres. Well, we just numbered each tract of land, began numbering from one up to number eight, and put these numbers in a hat and each one drew out a number and that number stated what tract of land you got.”

El Starr was present on this occasion, and knew about the drawing, but it does not appear that he was consulted or that he took any part in the division. The eight children placed their deeds of record and went into possession of their respective tracts; and they, or their grantees, have continuously since remained in peaceable and adverse possession thereof. No conveyance was executed to the 160 acres of the homestead left to Mrs. M. A. Dunbar, but she subsequently sold off 45 acres and 10 acres, and continued to occupy the remaining 105 acres as her homestead, and claimed title to it until she sold it to T. J. Dunbar shortly prior to her death in 1925. On November 18, 1925, Mrs. M. A. Dunbar Baker, joined by W. H. Baker, who was her husband at that time, by general warranty deed conveyed the 105 acres to appellee, T. J. Dunbar. The deed was duly recorded on November 19, 1925. On May 21, 1926, the heirs of G. W. Dunbar, deceased, executed a quitclaim deed to the 105 acres to T. J. Dunbar. El Starr did not join in these deeds. On July 18, 1928, T. J. Dunbar executed an oil and gas lease on the 105 acres to John W. Easterwood, which mineral interest is now held by the Texas Company.

That El Starr is entitled to recover an undivided interest amounting to 31% acres out of the 105 acres is not controverted, unless he is barred from so doing by one or both of appellees’ pleas of five and ten year statutes of limitation (Rev. St. 1925, arts. 5509, 5510).

As to their plea of ten-year limitation, it is the contention of appellees: “Title by limitation ripened in M. A. Dunbar, a cotenant with El Starr, because notice of the hostile claim of M. A. Dunbar the tenant in possession, against the cotenant out of possession, El Starr, was given in 1899 by partitioning the land and placing the respective parties in possession thereof in the presence of appellant and the statutes of limitation began running from the time of such notice.”

It is not thought that appellees’ contention can be sustained, for the reason that, as to the 105 acres which she continued to occupy as her homestead, the relation of cotenancy did not exist between Mrs. M. A. Dunbar, the surviving widow, and El Starr, for want of right of possession in El Starr. Unity in right of possession is an essential element of tenancy in common. 11 C. J. §§ 2 and 3, p. 410, § 12, p. 419; 62 C. J. §§ 1 and 2, p. 408. It is testified that she claimed title to the homestead after it was “left” to her at the time of the division of the remainder of the land among the eight surviving children in 1S99, but it does not appear that she at -any time abandoned or relinquished her homestead rights in and to the 105 acres. It was a pant of the homestead on which she and her husband lived at the time of dais death. She continued to use and occupy it as her homestead until she sold it to appellee, T. J. Dunbar, in 1925. At no time during this period, because of her homestead rights, could El Starr have maintained a suit for partition and possession of any part of the 105 acres against Mrs. M. A. Dunbar. Articles 3496. 3497, 3498, R. S. 1925. Therefore, as to. the 105 acres, El Starr possessed no “right of action for the recovery of land” against which limitation could run. Article 5510, R. S.; Perkins v. Perkins (Tex. Civ. App.) 166 S. W. 915, 917; McAnulty v. Ellison (Tex. Civ. App.) 71 S. W. 670; Crump v. Andress (Tex. Civ. App.) 265 S. W. 1074. In Perkins v. Perkins, supra, it is said:

“If it be conceded that the evidence was sufficient to sustain a finding that defendant’s (surviving widow) claim of ownership of all of the property was known to plaintiff (heir) for more than ten years before the suit, was brought, that such claim was continuous during all of said time, and that defendant’s possession was continuous during said ten years, no title by limitation could be acquired by her because her possession of the property as a homestead being lawful was not adverse to plaintiff. The defendant’s claim of ownership of the whole of the property did not affect her right to its use and occupancy as a homestead, and plaintiff could not because of such claim recover possession of any part thereof. This being true, his title would not he lost by his failure to sue within ten years after he received notice of defendant’s claim.

“The case is not like that of a tenant in common who repudiates the title of his co-tenant. In such case the tenant in possession has no right to the possession of the whole of the premises as against his coten-ant, and, when he repudiates the rights of his cotenant and takes possession of the' whole, the cotenant can sue and recover possession of that portion of the property owned by him.
“Plaintiff having no right of possession in this case, he was not required to bring suit in order to prevent defendant’s claim ripening into a title. There can be no difference in principle, so far as limitation is concerned, between the possession of one holding under a homestead right and the possession of a life tenant, and it is well settled that limitation will not run against a remainderman in favor of the life tenant, or one claiming under him during the life of such tenant.”

Concerning appellees’ plea of title under the statute of five-year limitation (Rev. St. 1925, art. 5509), it appears that El Starr had actual as well as constructive notice of appellees’ adverse claim under the deed from Mrs. M. A. Dunbar Baker to T. J. Dunbar, and that appellees have fulfilled all the requirements to prescribe under this statute except the requirement with respect to the payment of taxes. Appellee T. X Dunbar’s tax receipts show that he paid taxes on 70 acres, only, of the 105-acre tract described and designated in his deed. T. J. Dunbar’s explanation as to why he assessed and paid taxes on only 70 acres of the 105 acres was because he thought that was all there was in the tract. It appears, though, that his purchase was of 105 acres, and his deed calls for 105 acres, more or less. He described it in the lease he executed to the Texas Company in 1928 as being 105 acres correctly described in his deed from his mother by reference to the volume and page of the record thereof. In Henning v. Wren, 32 Tex. Civ. App. 538, 75 S. W. 905, 910 (writ of error refused 97 Tex. 636), it is said: “It is insisted, because there was evidence tending to show that the lands held by defendants actually contained a-larger number of acres than rendered by them, that this would defeat the operation of the statute, at least as to the excess. The court found that the defendants rendered as many acres as their deeds called for, and as many acres as they thought they had. We do not hold that such a disparity might not exist between the quantity of land held in possession and that rendered for taxes as to prevent the statute from running, nor do we hold that the number of acres called for in the deed is conclusive; but we do not believe, where a grantee in a recorded deed pays on the number of acres called for in his conveyance, actually believing that he is paying for the full quantity in his possession, that he should be deprived of the benefit of the statute, because it may subsequently be ✓ascertained that his tract is somewhat larger than he believed it to be.”

We are of the opinion, in the circumstances of the case before us, that the proportionate difference is too great to hold that the payment of taxes on only 70 acres was a sufficient, substantial compliance with the requisite of the statute in this respect to ripen title under the five-year statute of limitation in T. J. Dunbar to the 105 acres claimed and called for in his deed. Hoencke v. Lomax, 102 Tex. 487, 119 S. W. 842, in which case Judge Williams, speaking for the Supreme Court, said: “We do not think, however, that a claim of title under the 5-year statute can be maintained where for some of the years making up that period taxes were paid on some undefined part of the land claimed under the deed.”

For the reasons above stated, we are of the opinion that the appellees have not by any of the statutes of limitation acquired the interest of El Starr in the land. Accordingly, the judgment of the trial court is reversed and judgment is here rendered in favor of appellant, El Starr, and against appellee T. J. Dunbar and the Texas Company for title to an undivided interest to the amount of 31⅜ acres in the 105 acres in controversy described in plaintiff’s petition. The trial court will proceed to partition the land described above in accordance with the directions contained in this judgment and with the provisions of the law having relation thereto. The cost of this appeal is adjudged against appel-lees.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    FIRST COLEMAN NAT. BANK OF COLEMAN v. WHITFIELD et ux.
    No. 7980.
    Court of Civil Appeals of Texas. Austin.
    Jan. 31, 1934.
    Rehearing Granted in Part and in Part Overruled Feb. 14, 1934.
    Critz & Woodward, of Coleman, for appellant.
    Woodruff & Holloway, of Brownwood, for appellees.
   BAUGH, Justice.

Appellant herein, as purchaser, in January, 1933, at a sale under a deed of trust, sued appellees in trespass to try title and for possession of the lands so purchased by it in Coleman county. Appellees asserted no title to the land, but claimed the right of possession thereof until they could mature and gather crops thereon for the year 1933, under a rental contract entered into in 1932 with W. M. Whitfield, the then owner of the legal title to said lands. Trial was to the court upon an agreed statement of facts, the court awarded title to the lands to appellant, subject to the rights of appellees to cultivate, mature, and gather the crops thereon in 1933, and directed payment by appellees of the rents thereon to appellant. From this judgment, the bank appealed.

Appellees now file motion to dismiss the case, on the ground that the questions involved have become moot. This motion is resisted by the appellant on the grounds that the court had no authority to determine the amount of rents appellees should pay to it, regardless of the question of title and possession.

We have reached the conclusion that the motion should be sustained. An examination of the appellant’s briefs discloses that its chief contention is that the court erred in not awarding it immediate and exclusive possession of the premises, in addition to title, and that it had no power to render any judgment as to the amount of the rents to be paid. Nowhere do we find any assignment or contention made by appellant on its appeal as to the amount of the rents decreed; or that, in the event appellees were entitled to retain possession of the premises for 1933, the rents decreed to be paid, which were those agreed upon between the appellees and W. M. Whitfield, were not proper as to amount.

Appellant’s contention in these respects is disclosed by its prayer in the briefs filed, as follows:

“We, therefore, respectfully pray the court that the judgment of the District Court in so far as the sarnie refuses immediate possession of said land to the plaintiff, appellant herein, and in so far as said judgment gives the defendants the right of use and possession of said land for the year 1933 or any other term, or the right to the use or occupancy of the .same or to raise or gather a crop thereon be reversed and rendered for the appellant.”

It is obvious, of course, that the issue of possession for the year 1933, that term having expired, has become moot. And showing is made in appellees’ motion to dismiss that the rents have already been paid by the appellees to the appellant as directed in the judgment of the trial court. This statement in the motion is not controverted by the appellant. Having therefore accepted the rents payable to it under the judgment, the matter of rents also has likewise become moot. That being true, the proper order for this court to enter in the premises is to reverse and dismiss the ease, rather than merely to dismiss the appeal; and it is accordingly so ordered. See McWhorter v. Northcut, 94 Tex. 86, 58 S. W. 720; Dallas Joint Stock Land Bank v. Dallas County Levy Improvement Dist. (Tex. Civ. App.) 263 S. W. 1103; Danciger Oil & Ref. Co. v. R. R. Com. (Tex. Sup.) 56 S.W.(2d) 1075; Teer v. McGann (Tex. Civ. App.) 65 S.W.(2d) 362.

Reversed and dismissed.

On Motion for Rehearing.

Since appellees do not controvert appellant’s title to the land involved, and a reversal as to that portion of the judgment might in the future cast some cloud upon its title decreed to it by the judgment of the trial court, we' have concluded that a better course would be to affirm said judgment in so far as it awarded title to appellant; but to reverse and dismiss said cause in so far as the questions of possession and rents for the year 1983 are concerned, those issues having become moot. Our former judgment herein is therefore modified so as to affirm the judgment of the trial court as to appellant’s title to said land; but as to the issues of possession and rents the judgment of the trial court is reversed and dismissed. In all other respects appellant’s motion for rehearing is overruled.

Granted in part and in part overruled.


author: ALEXANDER, Justice.

text:
    COMMERCIAL STANDARD INS. CO. v. HARPER.

    No. 1481.
    Court of Civil Appeals of Texas. Waco.
    March 15, 1934.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
    E. R. Valentine and J. W. Spivey, both of Waco, for appellee.

       Rehearing denied May 10, 1934.

   ALEXANDER, Justice.

The plaintiff, J. W. Harper, recovered judgment in the lower court against the defendant, Commercial Standard Insurance Company, on an insurance policy issued by the defendant to insure the plaintiff against loss of his automobile by theft. The insurance company appealed.

The policy required the insured, in the event of the loss of his automobile by theft, to give “immediate notice” of such loss to the company. The appellant, by an un-sworn plea, alleged that notice was not given within the time provided for in the policy, and sought to defeat liability by reason thereof. The evidence shows that the automobile was stolen on June 30, 1932. The insured reported the loss to the municipal police on the same day, but did not report to the company until July 28th of the same year. The jury found that notice of the loss was given to the company within a reasonable time.

Article 5546, Revised Civil Statutes of 1925, provides:

“No stipulation in a contract requiring notice to be given of a claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable. Any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void. * * * In any suit brought under this * * * article it shall be presumed .that notice has been given unless the want of notice is especially pleaded under oath.”

By the terms of the above statute, the provision of the policy requiring the insured to give "immediate notice” of the loss to the company is void unless it be held that by such provision it was intended that such notice •should be given within a reasonable time. 24 Tex. Jur. 1093; Citizens’ Guaranty State Bank v. National Surety Co. (Tex. Com. App.) 258 S. W. 468; Ætna Casualty & Surety Co. v. Austin (Tex. Civ. App.) 285 S. W. 951; Id. (Tex. Com. App.) 300 S. W. 638; Francis v. International Travelers’ Ass’n (Tex. Civ. App.) 260 S. W. 938; Id., 119 Tex. 1, 23 S.W.(2d) 282; American Surety Co. v. Blaine, 115 Tex. 147, 277 S. W. 619; Western Indemnity Co. v. Free & Accepted Masons (Tex. Com. App.) 268 S. W. 728. If we undertake to give said, provision of the policy that construction which will make it legal, and, as a consequence, hold that it was intended that such notice should be given within a reasonable time, then under the terms of the statute we must hold that a notice given within ninety days after the loss was within a reasonable time. The undisputed facts show that notice was given within thirty days after the loss and therefore within the time provided by statute. Moreover, the jury found that notice of the loss was given within a reasonable time, and the finding of the jury on this issue is binding on the appellant. General Accident Fire & Life Assurance Corp. v. Butler’s Ice Cream Factory (Tex. Com. App.) 5 S.W.(2d) 976. Furthermore, we do not think the appellant could raise the issue of want of notice in the absence of a sworn plea. American Indemnity Co. v. Mexia Independent School District (Tex. Civ. App.) 47 S.W.(2d) 682, par. 4.

In the case of Lone Star Finance Co. v. Universal Automobile Ins. Co., 28 S.W.(2d) 573, the Court of Civil Appeals at Galveston held that the statute in question did not apply to a clause in an automobile tbeft policy requiring immediate notice of the theft. We think such holding is contrary to the holding of the Supreme Court in the cases hereinbefore cited. Moreover, we think the disposition made by the Galveston court of that case can be fully justified on another and different reason given by the court therein and that the ruling of the court on the point here under consideration was unneces-' sary to a disposition of that case. The appellant’s contention in this respect is overruled.

There was a rider attached making the policy payable to Standard Realty Company, mortgagee, “as its interest may appear,” to secure the payment of the sum of $119 as evidenced by two promissory notes, one in the sum of $S7 dated February 23, 1932, and' payable in monthly installments of $14.50, and the other in the sum of $32.40 dated February 27, 1932, and payable in monthly installments of $8.10, which indebtedness was warranted to be the only indebtedness against the property. Said rider contained the following provision:

“ ⅞ * ⅜ xhis p0jiCy shan he wholly void if any of the above statements are inaccurate in any respect, or if any change is made in any of the notes representing said indebtedness or encumbrance, otherwise than by payment thereof, or if the property shall become otherwise encumbered in any way whatever by any lien of any amount whatever, or if any of the said notes shall not be completely paid and the indebtedness represented thereby wholly discharged on or before ten d’ays after the maturity thereof, without grace. * * * ”

After the issuance of the policy, the installment notes above referred to were transferred by Standard Realty Company to Joe Gooch and the latter owned said notes at the time the automobile was stolen. The company insists that the transfer of these notes to- Gooch amounted to a violation of the above-quoted provision of the rider wherein it is provided that »“if any change is made in any of the notes representing said indebtedness or encumbrance otherwise than by payment thereof,” the policy shall be void. In our opinion, the above-quoted provision does not undertake to prevent a change in the ownership of said indebtedness and consequently there was no breach of the terms thereof by merely transferring the notes from Standard Realty Company to Gooch.

The insurance company introduced some evidence to the effect that after Gooch acquired the notes in question he entered into an oral agreement with I-Iarper by which the terms of said notes were changed and Harper was given additional time in which to pay said indebtedness. The company here contends that such change in the maturity date of said installments amounted to a violation of the terms of the above-quoted provision of the policy and that by reason thereof the court should have given an instructed verdict in its behalf. We are of the opinion, however, that the .evidence is insufficient to establish as a matter of law that the parties so agreed to change the maturity date of said installments, and since appellant failed to request a finding of the jury on. this issue, such defense was waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

At the time of the loss of the automobile on June 30, 1932, the installments due on the two notes hereinbefore described for the months of May and June were unpaid. At least one installment on each of said notes was more than ten days past due. The appellant insists that this amounted to a breach of the above-quoted provision of the rider. It is a familiar rule that provisions of this kind are to be construed most strongly against the insurance company. The above provision does not undertake to provide that there shall be no liability if any installment of said indebtedness shall not be completely paid within ten days after its maturity. The policy was to be void “if any of said notes shall not be completely paid and the indebtedness represented thereby wholly discharged on or before ten days after maturity thereof.” The fact that said provision of the contract required that the “notes” be “completely paid” and the indebtedness represented thereby “wholly discharged” within the time mentioned in order to avoid a forfeiture, demonstrates clearly that liability was to be defeated only in the event all of the in ■ debtedness evidenced by the notes was past due and in condition to be “completely paid” and “wholly discharged.” The whole of the indebtedness represented by either of said notes was not due at the time of the loss and consequently there was no forfeiture of the policy.

The judgment of the trial court is affirmed.


author: STANFORD, Justice. GALLAGHER, Chief Justice, and ALEXANDER, Justice

text:
    FREEMAN v. ANDING.
    No. 1479.
    Court of Civil Appeals of Texas. Waco.
    March 15, 1934.
    Oltorf & Oltorf, of Marlin, for plaintiff in-error.
    Carrol Pearce, of Marlin, and Geo. Clark,, of Waco, for defendant in error.
   Statement of the Case.

STANFORD, Justice.

Defendant in error, plaintiff in the court, below, sued the plaintiff in error, T. I-I. Freeman, for an alleged balance due defendant in error on two policies of insurance on the life of her deceased husband, M. A. Anding, in which Freeman and Taylor, predecessors of: plaintiff in error, T. H. Freeman, were designated as beneficiaries, balance, if any, payable to defendant in error.

Trial wras to a jury, and on the verdict of' the jury, together with other findings of the-court, the court below rendered judgment in favor of defendant in error against plaintiff in error in the sum of $547.99, with interest thereon at the rate of 6 per cent, per-annum from the 7th day of October, 1930.

Plaintiff in error filed his amended motion for a new trial, which motion was overruled, and plaintiff in error has duly appealed to this court.

The court submitted to the jury two special issues, only one of which was answered by the jury; said issue as answered by the-jury being as follows, to wit: Special issue No. 1. “Do you find from a preponderance of the evidence that the note for the sum of $i030.11, executed by M. A. Anding toT. I-I. Freeman, was all the money that M. A. Anding owed to- the said T. H. Freeman at the • time of the death of M. A. Anding, except the insurance account of $121.61?” Answer “yes” or “no.” To which the jury answered: “Yes.”' On the verdict rendered, the court entered' judgment for defendant in error for. $547.99 • and costs of suit.

Opinion.

It 'appeared from the evidence that on the'1st day of November, 1928, the Home Benefit Association of Marlin issued a certificate of membership in its class D to M. A, Anding for a maximum benefit of $1,000, payable to Freeman & Taylor Company, creditors, as their interest may appear, balance, if any, to Cora Anding, wife. This policy was taken out for benefit of Freeman and Taylor for the purpose of collecting the $1,-000 on the death of Anding. The premium of $121.61 was charged to Anding and after his death paid by money belonging to T. H. Freeman. This policy for $1,000 had been charged to the loss and gain account on the books of said Freeman & Taylor Company on January 0, 1926.

The Home Benefit policy was procured on the 1st day of November, 1928, nearly two years after the Anding account was charged to loss and gain, to wit, on January 9, 1926, by Freeman and premium charged to Anding. On December 6, 1929, a little more than a year after the policy of insurance was procured from the Home Benefit Association, the said M. A. Anding made, executed, and delivered his note to Freeman and Taylor for the sum of $1,030.11, payable on December 6, 1930, with interest at the rate of 10 per cent, per annum from date until paid.

The only explanation as to why this note was taken for the sum of $1,030.11 instead of for the sum of $1,344.10 is explained in the testimony of Mr. Freeman as follows: “Q. Xour ledger showed that the amount he, Anding, owed you was $1344.10 — do you know why just the note and the insurance account of $121.61 charged to Anding was sent in? A. The bookkeeper made out this insurance account, and we didn’t expect to get any more than that $1000.00; that was all I knew to collect from, and I didn’t know of the Brazos Mutual policy.”

Mr. Anding died some time during May or June of 1930, and Mr. Freeman, plaintiff in error, submitted to the Home Benefit Association his proof of interest in the proceeds of the policy, submitting the said note in the sum of $1,030.11, together with an account for insurance paid, $121.61, and account due by Mrs. Anding of $95.

On said proofs the Home Benefit Associa-tiou issued its draft or voucher for the sum of $1,000 payable to T. H. Freeman as creditor and to Mrs. Cora Anding, wife, defendant in error, which draft or voucher was signed by Mrs. Cora Anding.

Mr. Freeman further testified that the $1,-030.11 note was not taken in full settlement of the $1,344 account. If said note was not taken in full settlement, then why was it taken at all and for the exact amount of $1,-030.11? I-Ie further testified that he didn’t expect to get more than the $1,000 from the Home Benefit policy, and that at the time he did not know of the Brazos Mutual policy, and did not learn of it until afterwards; that he (Freeman) did not have anything to do with the taking out of the Brazos Mutual policy; that he did not know anything about it until he received an assessment card.

The circumstances relied on by the plaintiff in error to procure a verdict from the jury were that Freeman and Taylor at the time they took the note for $1,030 did not make such note for the full amount due, and explained the testimony of Mr. Freeman to the effect that the account had been charged to profit and gain account'on his books, and they did not have any other source from which to collect the entire amount, and that the note was merely to cover by a safe mar-, gin the $1,000 which he hoped some day to get from the Home Benefit Association. The other circumstance was that Mr. Freeman had a new bookkeeper to make out a statement of the account for the purpose of filing same with the Brazos Mutual, and that such bookkeeper included therein compound interest of the date of each item; that Mr. Freeman signed and filed same with the Brazos Mutual, but contended he did not recover from the Brazos Mutual a sum sufficient to pay what was actually due.

In other w’ords, according to calculation and statement here made, all of the two policies amounting to $1,900 was collected and credited by Mr. Freeman to himself, which left, as he contended, a balance due Freeman of $2SS.59.

The record shows that Mr. Anding had a policy of insurance on his life for $1,000 payable at his death to T. H. Freeman and Taylor for $1,000, with balance, if any, to his wife. That some two or three years before Anding’s death, Freeman induced him (Mr. Anding) to make a note for the amount of said indebtedness; that Anding did so, but when it was made said note was for $1,030.-11 instead of for $1,000. After the death of Anding, appellant contended that the amount that Anding owed was $1,344.10. The fact that the note was made for $1,030.11 is almost conclusive that same was the amount, and all that Anding owed, except $121.61 premium on first policy It would be very unusual for a debtor and creditor in closing their business affairs by a note to take or execute a note for only a part of such debt. If Anding had owéd the $1,344.10, the note would evidently have been for such amount and not for $1,030.11.

The record shows there wa? a note for $1,-030.11, but that $30.11 of same was accrued interest; that said note was for only $1,0001 and was so treated in the proof of interest by Mr. Freeman, and the only other claim was the account for insurance, $121.61, and $95 due Mrs. Anding. The Home Benefit policy for $1,000 was applied to, and paid in full, said policy. Mr. Freeman further testified that the $1,030.11 note was not taken in full settlement of the $1,34-1 account, but the record shows he did take said note for $1,030.-11 in settlement of said note — at least this is the natural conclusion.

The Brazos Mutual policy of Bryan was for $2,000, and M. A. Anding, or his wife, Cora Anding, was named as beneficiary in, this policy. We do not know who took this policy but, but we do know that the Brazos Mutual denied liability, and Mr. Freeman, together with two or three others, went to Bryan to collect said policy, and while there settled the amount of said policy for $900. At the time this settlement was made, said money belonged.to Mrs. Cora Anding, wife of M. A. Anding, deceased, as trust funds, subject, however, to the expense of the' recovery of same. In the recovery of said money the court and the jury awarded to Coya Anding, wife of M. A. Anding, deceased, the sum of $547.99 of said $900, and T. H. Freeman received $352 of said $900, said last named sum consisting of the sum of $84.40 principal and interest unpaid of the note of $1,030.11; the sum of $121.61 account for insurance premium paid by the defendant, T. I-I. Freeman; the sum of $35 paid to I-I. O. Lewis by the said T. I-I. Freeman; the sum of $22.50 traveling expense paid by said T. I-I. Freeman in collecting said $900; and the sum of $98.50, being principal and interest on the note signed by the plaintiff, Mrs. Cora And-ing, of date of April 19, 1927.

Plaintiff in error’s contentions herein are all overruled, and the judgment of the trial court is affirnjed.

GALLAGHER, Chief Justice, and ALEXANDER, Justice

(concurring).

T. H. Freeman collected the proceeds of two life insurance policies issued on the life of M. A. Anding. It is admitted that he was entitled to retain in his possession so much of said funds as was necessary to cover the amount owing by Anding to.him and that the balance of said funds belong to Mrs. Anding. The jury found that Anding owed Freeman $1,031.11. After deducting the above indebtedness, together with certain other properly deductible items of expense, from the amount collected by Freeman on said insurance policies, there remained a balance of $547.99, for which judgment was entered in favor of Mrs. Anding.

Freeman’s only contention is that the verdict of the jury is not supported by the evidence. We have very carefully considered the evidence and have reached the conclusion that it is sufficient to support the verdict of the jury. We therefore concur in the affirmance of the judgment of the trial court.


author: SMITH, Justice.

text:
    AMERICAN STATE BANK & TRUST CO. v. JASPERSON.
    No. 9282.
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1934.
    Rehearing Denied March 28, 1934.
    Montgomery, Hall & Taylor, of Edinburg, for appellant.

      A. G. Haigh and J. R. Norvell, both of Edin-burg, for appellee.
   SMITH, Justice.

This controversy between appellant bank and appellee Jasperson is over a fund impounded under writ of garnishment and deposited into the registry of the court by the garnishee, Central Power & Light Company, who owed it to West, a judgment debtor of Jasperson.

The hank claims priority over Jasperson by reason of a written assignment from West, whom the bank was financing in his dealings with the garnishee.

The written assignment from West to the bank was of “all of the proceeds due me by your concern from the sale to you of salt.” The hank pleaded this assignment as including not only “proceeds due” West at the date of the assignment, but those to become due in the future, as well.

The hank tried the ease upon that pleading. At the conclusion of the evidence, however, the trial judge ruled that under the language of the assignment it did not include future payments to be made to West. In this situation the bank amended its pleading, and therein set up that the true agreement between West and the garnishee was that said assignment should include future payments, but that through mutual mistake of the parties did not do so in terms. And upon this allegation of mutual mistake the bank prayed that the assignment be reformed to show said true agreement, and enforced as so reformed. The trial court refused that equitable relief, and rendered judgment for the garnish- or, Jasperson.

Appellant, both parties, in fact, present numerous interesting questions in their briefs, fortified by able presentations by learned counsel. But those questions are of moment only in the event the trial court erred in denying reformation of the assignment. If the as-' signment be reformed and, as reformed, have precedence over the writ of garnishment, then the remaining questions presented become important. But if the assignment be not reformed, then, in view of the shifting balance in West’s account in the bank, the judgment should be affirmed, without further ado.

The issue of mutual mistake vel non is one purely of fact, when raised by the evidence. The testimony upon that phase of the case was given by officials of the assignee bank, and by West, the assignor, whom the record indicates was a partisan of the bank. The assignment was written at the instance of the active vice president of the bank, who called the bank’s attorney to prepare it. As a result and at the conclusion of the ensuing conference, the attorney dictated the instrument to a stenographer in the presence of West, if not of the vice president, as well, and while the terms of the agreement were fresh in the minds of all of them. It was typed, presumably, as dictated. It was signed by West and his wife (who was by no means his silent partner, legally), addressed, and delivered to the vice president. Its sufficiency as a complete expression of the agreement of the parties was never questioned until years afterward, at the trial of this cause. The bank’s vice president and West testified to the alleged mutual mistake, their testimony being in the main alike. But the bank’s attorney, who dictated the assignment on the spot, from information given him at the time by the parties as to the true agreement, was not placed on the stand, or the omission to* do so explained. Appellee insists that this circumstance must be given the significance usually attributed to the failure of a party to produce and tender the key witness in a transaction, the true facts of which are known only to such party.

The nature of appellant’s claim is such as to render the question of mutual mistake peculiarly one of fact in this case, as it is indeed always one of fact, in the presence of evidence. Here the trial judge, by necessary implication, found against appellant upon that issue, and declined to rewrite the assignment. It was the prerogative of the court, at least under all the facts and circumstances and implications of the case, to believe all, either, or neither of the interested and partisan witnesses, and to conclude that the assignment as written was not shown to have misstated the true agreement of the parties. That being so, it was not sufficient to defeat the writ of garnishment, in view of the implied findings of the court that the assignment as written had been satisfied.

The judgment is afljrmed.


author: GALLAGHER, Chief Justice.

text:
    MARYLAND CASUALTY CO. v. TEXAS FIREPROOF STORAGE CO.
    No. 1475.
    Court of Civil Appeals of Texas. Waco.
    March 1, 1934.
    Rehearing Denied April 5, 1934.
    Jos. W. Hale and Geo. Clark, both of Waco, for appellant.
    Gene Maddin and Tirey & Tirey, all of Waco, for appellee.
   GALLAGHER, Chief Justice.

This suit was instituted by appellee, Texas Fireproof Storage Company, against appellant, Maryland Casualty Company, to recover the sum of $600’ claimed by appellee under the terms and provisions of a policy of indemnity insurance issued to it by appellant. Appellee alleged that the sum sued for was paid by it in compromise and settlement of three damage suits brought against it by certain parties who had sustained personal injuries as the result of the negligence of its employees in the discharge of the duties of their employment. Appellee alleged that under the terms of its said policy, appellant was obligated to-reimburse it for -the sum so paid. Appellant alleged that the accident which caused such damages was not covered by the terms of ap-pellee’s policy. The case was tried by the court without a jury and judgment rendered in favor of appellee against appellant for the sum so sued for. There was little, if any, contradiction in the testimony. The court, at the request of appellant, filed rather elaborate findings of fact and conclusions of law.

Opinion.

Appellant presents numerous assignments of error assailing the judgment of the court on the ground that appellee’s policy did not cover the accident in which the several plaintiffs in the suits compromised and settled by it sustained their injuries. Said policy, in item IV (a), recited that the business conducted by appellee was a warehouse; that the same was located at 219-227 -South Eleventh street in Waco ; and that said premises had a total street frontage of 296 feet. The principal obligation assumed by appellant under the terms thereof was expressed as follows:

“Maryland Oasualty Company of Baltimore, in consideration of the premium herein provided, does hereby agree with the assured named herein, subject to the limitations, conditions and exceptions hereof as follows:
“General Insuring Agreements — Section I.
“I. To insure said named assured' against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered by any person or persons not employed by the assured, while within or upon the premises described in Item IY (a) of the Schedule of the'Statements hereof or upon the sidewalks or other ways immediately adjacent thereto, (and elsewhere, if caused in the course of their employment by employees of the assured engaged as such at said premises, but who are required in the discharge of their duties to be from time to time at other places).”

Subdivisions II to VI, inclusive, of said section of the policy are not material to the issue under consideration. Subdivision YII of said section was in part as follows:

‘‘This policy does not cover: * * *
“(6) any accident caused directly or indirectly by any automobile vehicle or by any draught or driving animal or vehicle owned or used by the assured or by any employee of the assured in charge thereof, unless such aci-cident shall occur upon the premises specifically described in Item IV (a) of the Schedule hereof or on the public ways immediately adjacent thereto;
"(7) any accident caused directly or indirectly by the consumption, use, installation, removal, repair, change or demonstration, elsewhere than at the premises specifically described in Item IV (a) of the Schedule hereof, of any goods, article or product manufactured, handled or distributed by the assured.”

The court found, in substance, that the accident in which the several plaintiffs in the suits compromised and settled by appellee sustained their injuries, did not occur on the premises described in the policy aforesaid, nor on the sidewalks or ways immediately adjacent thereto, but that the same occurred on North Fourth street in Waco at a point about thirty-three city blocks from such premises ; that said accident arose out of the execution by appellee of a contract to transport certain 8-inch iron water pipe from a depot in the city of Waco and distribute the same and to end along said street; that the injuries sustained by said plaintiffs resulted from the collision of the car in which they were riding with such pipe; that appellee’s employees engaged in so distributing said pipe were regularly engaged as such at the premises described in the policy when not assigned to such duties as took them away from such premises. The court further found specifically that said accident was caused directly or indirectly by an employee of appellee in charge of one of the automobile trucks owned and used by it, and further, that such accident was caused directly or indirectly by the installation, removal, and change of goods and articles being handled and distributed by appel-lee.

The court concluded as a matter of law that paragraphs (6) and (7) of subdivision YII of section I of said policy, as above rer cited, if effective, would, under the findings aforesaid, prevent recovery herein by appel-lee, but further concluded that the same were not effective because they were antagonistic to and in conflict with the provisions of subdivision I of section I of such policy, and, when considered therewith1, created an ambiguity. Said paragraphs, as do all the others contained in subdivision VII, purport to except certain particular risks from the general coverage of appellee’s policy. The ordinary office of an exception is to take something out of the contract which would otherwise have been included in it. When the meaning of an exception is reasonably certain, it must be given effect, unless wholly repugnant to the provision intended to be limited thereby. 13 C. J., p. 567, § 537; South Texas Mortgage Co. v. Coe (Tex. Civ. App.) 166 S. W. 419, 422, par. 6, and authorities there cited; Palatine Insurance Co. v. Coyle (Tex. Civ. App.) 196 S. W. 560, 563, par. 2, and authorities there cited (affirmed [Tex. Com. App.] 222 S. W. 973). The rule for determining whether á particular provision in a contract or conveyance shall be held invalid on the ground of repugnancy to preceding provisions is carefully stated by Judge Speer in Associated Oil Company v. Hart (Tex. Com. App.) 277 S. W. 1043, 1044, pars. 3 and 4. We quote therefrom as follows:

‘‘Generally, of course, the parties to an instrument intend every clause in such instrument to have some effect and in some measure to evidence their agreement, and this purpose should not be thwarted except in the plainest case of necessary repugnance. In truth, a reservation or exception which is repugnant to the grant is stricken from the instrument for the sole purpose of giving effect to the evident intention of the parties to the instrument. It is an artifice or arbitrary device ^adopted by the courts to accomplish the wholesome purpose of giving effect to the intention of the parties as gathered from the instrument as a whole. The rule permitting this arbitrary rejection of part of an instrument’ does not prevail, however, where there is room for construction through reconcilement of the parts. Bearing in mind that reservations and_ exceptions out of the thing granted are clearly allowed, it is necessarily true, as pointed out in Cravens v. White [73 Tex. 577, 11 S. W. 543, 15 Am. St. Rep. 803], in the nature of things ‘there»is more or less repugnancy in the provisions of all deeds in which a part of the. thing embraced in the general description is excepted from the operation of the instrument.’ This statement is not absolutely accurate when technically tested, but is abundantly true according to the common understanding. Of course, in law there is no repug-nancy if the reservation or exception is explicable without destroying the grant in whole or in part. It merely presents a proper case for construction. Obviously, any disregard of any portion of the deed does violence to the act of the parties in employing such language and will never be resorted to arbitrarily. See Benskin v. Barksdale (Tex. Com. App.) 246 S. W. 360, and authorities there cited.”

See, also, Koenigheim v. Miles, 67 Tex. 113, 121, 122, 2 S. W. 81; Watkins v. Tucker, 84 Tex. 428, 430, 431, 19 S. W. 570. An insurance company that issues a policy in which its obligation to the insured is expressed in general terms, may ordinarily insert as many clauses excepting particular -risks from the general coverage as it sees fit, notwithstanding such obligation, after excluding the risks specifically excepted, may be materially limited in its scope. 1 Couch on Insurance, p. 391; Fidelity & Casualty Company v. Palmer Hotel Co., 179 Ky. 518, 200 S. W. 923, 924, par. 2, and authorities there cited, L. R. A. 1918C, 808; National Life Ins. Co. v. Coughlin, 72 Colo. 440, 212 P. 486, 487, par. 2; Pelican Ins. Co. v. Troy Co-op. Ass’n, 77 Tex. 225, 13 S. W. 980, 981; Phoenix Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484.

The clause in the policy sued on which obligated appellant to indemnify appellee, as the same has been hereinbefore recited, was expressly made “subject to the limitations, conditions and exceptions hereof.” Said obligation, so far as applicable here, was to indemnify appellee against liability for accidents caused by certain of its employees in the course of their employment occurring elsewhere than on the particular premises described in the policy. It was general in its tenas, and unless limited by subsequent provisions, embraced all accidents of every kind occurring off the premises, if caused by such employees in the discharge of the duties of their employment. Clearly, the purpose of paragraphs (6) and (7) of subdivision VII was to except from the obligation created by the policy liability for damages arising out of accidents of the particular kinds and classes specified therein. Liability for all other kinds or classes of accidents except those so enumerated remained within the original obligation. Since such obligation was both conditional and general, such exceptions are not repugnant • to the promise of indemnity .contained therein but are valid limitations therei-of. The-court erred in holding them invalid. See,_ in addition to the authorities above cited: U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co. (Tex. Com. App.) 34 S.W.(2d) 815, 818, 819; International Travelers’ Ass’n v. Yates (Tex. Com. App.) 29 S.W.(2d) 980, 981, pars. 6 and 6; General Accident Ins. Co. v. Hayes, 52 Tex. Civ. App. 272, 113 S. W. 990, 991, 992; Southern Surety Co. v. Hartman (Tex. Civ.App.) 206 S. W. 379, 380, par. 3; Northwestern Casualty & Surety Co. v. Barzune (Tex. Civ. App.) 42 S.W.(2d) 100, 102, pars. 1 and 2; Great Southern Life Ins. Co. v. Kirkpatrick (Tex. Civ. App.) 48 S.W.(2d) 759, 760, par. 2.

The trial court found the existence of every fact necessary to support appellant’s contention that the accident in which the several plaintiffs in the suits compromised and settled by appellee sustained their injuries, was not covered by the policy sued on, and erred only in the, application of the law to the facts so found. The judgment of the trial court is reversed -and judgment is here rendered for appellant. McLendon v. Federal Mortgage Co. (Tex. Civ. App.) 60 S.W.(2d) 324, 326, par. 4 (writ refused).


author: HIGGINS, Justice.

text:
    FRENCH v. HILL.
    No. 2965.
    Court of Civil Appeals of Texas. El Paso.
    March 15, 1934.

      R. M. A. Dolan, of El Paso, for plaintiff in error.
    H. A. Van Tassel and John T. Hill, both of El Paso, for defendant in error.
   HIGGINS, Justice.

The record contains no statement of facts. Briefs have not been filed by plaintiff in error. Defendant in error has filed brief and orally argued the case upon submission. In the absence of brief by plaintiff in error we are limited to the consideration of fundamental errors, if any.

The suit was filed June 28, 1932, by defendant in error, Hill, against the plaintiff in error, French. The parties will be designated as they were in the trial court. The suit was to recover the sum of $1,000 alleged to be a reasonable attorney’s fee for legal services rendered by plaintiff to defendant during the preceding twelve years “due and owing upon demand.” Defendant answered by general and special exception, general denial, and special pleas of payment and two-year statute of limitations. The special exception complained of the generality of the petition and to meet such exception plaintiff filed a supplemental petition in substance setting up that the sum sued for was for attorney's fees in three suits filed by plaintiff for defendant in the district court of El Paso county, describing such suits, which suits are still pending. The supplemental petition further avers that the fees in said cases “became due on demand during said litigation” and demand for adjustment and settlement had been made within two years preceding the filing of the suit.

The case was submitted upon special issues.

In response to the first three issues the fees were fixed as follows:

In suit No. 11997, at $600; in suit No. 229*19, at $150; in suit No. 23733, at $100.

In response to question 4, it was found that it was understood between the parties the services of plaintiff “were to be paid for on the entry of final judgment in said causes.”

In answer to question 5, it was found plaintiff’s fees “were to- be due by the defendant on demand.”

Question 6 called upon the jury to “give the approximate date of such demands on the defendant, William French, if you find there were any demands made.”

This was answered “about one year or more ago.”

In answer to question 7 it was found defendant was entitled to credits of $100 paid December 31, 1920, and $50 paid on or about November 23, 1923.

On December 10, 1932, judgment was rendered upon these findings in plaintiff’s favor for $700.

The petition alleges the employment in suit No. 19997 was in 1920. It does not appear when the plaintiff was employed in the other two suits.

Money payable on demand is ordinarily regarded as payable immediately and no demand is necessary to start the running of the statute of limitations.

But if, under the terms of the contract or the relationship between the parties, demand for payment is an integral part of a cause of action upon an obligation to pay, or a condition precedent to the right to sue, the statute does not begin to run until a demand is made, unless demand is waived or is unreasonably delayed. 28 Tex. Jur., title, Limitation of Actions, §§ 57, 58, 59; Cavitt v. Amsler (Tex. Civ. App.) 242 S. W. 246; Arnold v. Penn, 11 Tex. Civ. App. 325, 32 S. W. 353; Teaman v. Galveston City Co., 106 Tex. 389, 167 S. W. 710, Ann. Cas. 1917E, 191; Clements v. Lee, 8 Tex. 374; 37 C. J. p. 957, § 331.

It is evident the plaintiff’s pleading is drawn in an effort to bring his ease within the last stated rule. No opinion is expressed by us as to its sufficiency in that respect.

Findings 4, 5, and 6 are upon the issue of limitations. The plaintiff’s petition shows the suits are still pending and the fourth finding is that the fees were to be paid on the entry of final judgment in the suits. According to this finding the fees sued for are not yet payable and there has been no breach by defendant of his obligation to pay. Defendant’s time for performance of his obligation to pay. has not expired and plaintiff’s action is not maintainable. 1 Tex. Jur., title,Actions, § 67, and cases there cited.

On the other hand the fifth finding is the fees were payable on demand and the sixth finding shows demand “about one year or more ago.” These findings show plaintiff’s cause of action had accrued prior to the filing of the suit and a right to maintain the suit. The findings mentioned are in obvious conflict. Conflicting findings, upon material issues presented by the pleadings, cannot form the proper basis for judgment.

Furthermore, the sixth finding is too indefinite to decide the issue of limitations. It is impossible to determine from the finding whether the demand 'had been made within two years prior to the filing of the suit.

The insufficiency of the findings to support the judgment is apparent upon the face of the record and the error in rendering judgment upon such findings is fundamental.

.Reversed and remanded.


author: JONES, Chief Justice.

text:
    CITY OF DALLAS v. FRANK.
    No. 11735.
    Court of Civil Appeals of Texas. Dallas.
    March 10, 1934.
    Rehearing Denied April 7, 1934.
    Hugh S. Grady, H. P. Kucera, W. Hughes Knight, and A. J. Thuss, all of Dallas, for appellant.
    John A. Erhard and Dick P. Wood, both of Dallas, for appellee.
   JONES, Chief Justice.

This is an appeal from a judgment refusing, on a hearing, to dissolve a temporary writ of injunction theretofore issued, restraining appellant from “forcibly entering the premises of the plaintiff, Tom Frank, and dispossessing him of or causing him to vacate such premises known as Tom Frank’s Place, and from molesting or in any wise interfering with his peaceable pursuit of his business, and from cancelling, abridging or abrogating his contract with the defendant.” The injunction was issued in a pending suit filed by appel-lee, Tom Frank, against appellant, City of Dallas, and its executive officers.

The case is before this court on an agreed statement of the material facts, as there was no dispute as to the facts on the motion to dissolve the temporary writ of injunction. There is presented, therefore, only a question of law as to .the legal effect of the undisputed facts.

On May 1,1933, appellee and appellant city, through its park board, entered into a written contract, under the terms of which appellee was given a concession to operate a place of business on land owned by appellant and dedicated for use as a public park, under the name of White Rock Reservoir. Appellee’s right to operate such place of business was to end April 30, 1934. For several years theretofore appellee had been granted such concession each year, and for the contract under review was charged a consideration of $150; this consideration had' been paid. There were located on said premises a frame building and two smaller buildings, owned by appellee. These buildings are described as being “portable,” and had been constructed long prior to the execution of the instant concession contract.

Paragraph 1 of the contract declares that appellee is given the right “for carrying on concessions hereby granted, and to construct thereon a stand, and to maintain thereon a business of renting (boats) and selling minnows and refreshments, confections, cold drinks, cigars, tobaccos and groceries.”

Paragraph 4 of the contract provides that “appellee shall conduct the business herein allowed at all times in strict accordance with the charter and ordinances of the City of Dallas, regulating and controlling White Rock ahd the property adjacent thereto, belonging to the City of Dallas, and the rules and regulations of the Park Board and other duly constituted authority, and such future charter or ordinances, rules and regulations, and directions, as may be hereafter passed.”

Paragraph 6 of said contract reads: “It is hereby agreed that any time the Park Board may deem advisable it may cancel the rights herein granted to the Contractor, and in such event the consideration shall be prorated and the Contractor may be required to pay for the actual time he is permitted tó use the said ground and may be granted a refund if he has paid for more than such time. If at any time the Park Board deems it advisable to cancel the rights of said Contractor herein, the Contractor agrees that upon ten days notice to him by the City of Dallas, he will vacate said premises without delay, and in ease Contractor fails to vacate said premises upon said notice aforesaid, the City of Dallas shall have the right to enter the premises and dispossess the Contractor without any further notice; and it is expressly stipulated and agreed that the City of Dallas shall not be responsible for said damage caused by the cancelling of the privileges herein granted, nor shall it be responsible for any damage that might occur to said Contractor by virtue of the City of Dallas forcibly entering and dispossessing the said Contractor.”

Under paragraph 10 of the concession contract, appellee binds himself at all reasonable times to keep for sale and shall supply the public with all brands of cold drinks, including- Coca-Cola and Dr. Pepper, properly iced and ready to serve to the public, for which there shall be a reasonable demand. This paragraph also provides that what is known as “popular prices” shall be charged for his goods, and that by “popular prices” is meant that all 5 cent drinks shall be sold for 5 cents.

The agreed statement of facts shows: That the lands on which is operated appellee’s business, under his concession contract, are the property of the city of Dallas, and consist of a part of its public park system under the control and jurisdiction of the park board, and that White Rock Reservoir is one of several parks under the control of such board, and located in the metropolitan area of the city of Dallas. That appellee had operated his concession under contractual relations between himself and the city of Dallas for a number of years. That the improvements made on the premises used by appellee were made long prior to May 1, 1933, and that the buildings thereon are owned by appellee. That appellee has the right to remove same at any time. That on September 12, 1933, the park board adopted and caused ■ to be recorded on the minutes of such board the following order: “It was moved, seconded and carried that park concessionaires be advised that the selling of beer will not be permitted in municipally owned parks in the Oity of Dallas.” That appellee was at once given written notice of the adoption of such regulation. That, under the advice of the legal department of the city of Dallas that it had the power to do so, on September 26, 1933, the park board adopted a resolution that appellee be given legal notice to vacate his concession site within ten-days, for the reason that he had been violating park regulations by the selling of beer at his concession stand, and that the notice authorized by such resolution was duly served upon appellee, and appellee was further advised that if, at the end of the ten days from-the date of such notice, he had failed to vacate and abandon said premises, the city of Dallas would have the legal right to enter such premises and dispossess him, without further notice. Appellee was also informed that the park board would refund to him any pro rata part of the consideration he had: theretofore paid, because of the unexpired term of his contract; that the reason assigned by the park board for canceling appellee’s concession contract was the fact that he was selling 3.2 beer on the premises in question; that appellee admits he has, been selling 3.2 beer on the premises ever since it was legalized by law, i. e., since September 15, 1933; that appellee has been tendered by the park board, hs a refund to him, that portion of the $350 consideration represented by the unexpired portion of the year; and that such board stands ready and willing to pay same.

Section 217 of the charter of the city of Dallas vests control of park property in the park board; and section 215, supra, declares that “The Park Board shall adopt such rules and regulations as it may be deemed best for the management of the public parks of the City, and shall elect one of its members president of the Park Board.”

It thus appears from the contract that appellee’s concession to serve the public with cold drinks and the other commodities mentioned therein was made subject to the “rules and regulations of the Park Board and other duly constituted authority, and such future charter or ordinances, rules and regulations and directions, as may he hereafter passed.” At the time the contract was entered into, 3.2 beer could not be legally sold in the city of Dallas, and it is elementary that his contract did not include the right to sell such beverage when the contract was executed. No part of the consideration paid was for such right.

On September 15, 1933, the sale of 3.2 beer .was legalized in the city of Dallas, but this change in the status of such beverage did not enlarge appellee’s concession; it remained the same and included only those commodities that were in contemplation of the parties at the time the concession contract was entered into. When the consideration was fixed by agreement of the parties at $150 per year, to be paid in installments of $75 in cash and $75 at the end of the first six months, it was fixed in view of those cold drinks that could be legally sold, and not in view of those that were prohibited by law to be sold at that time, though subsequently, by change of law, might be legally sold. The conclusion therefore is inescapable that appellee had no contractual right to sell 3.2 beer under the terms of the concession granted him.

However, if we concede that, from the time the sale of 3.2 beer became legal in the city of Dallas, appellee’s concession was enlarged to include 3.2 beer in the concession 1-ights granted him by his contract, there is still an insuperable barrier to appellee’s right to sell such beverage. The park board, by section 217 of the city charter, is granted “exclusive jurisdiction over the control and management and maintenance of the public parks of the City of Dallas”; and section 215, supra, declares that “The Park Board shall adopt such rules and regulations as it may deem best for the management of the public parks of the City.” Under this power, the park board could prohibit the sale of any beverage or commodity within the park territory of the city that it did not believe was for the best interest of the public in its use of the park.

On September 12, 1933, three days prior to the legalizing of the sale of 3.2 beer, the park board passed a regulation declaring that “Park concessionaires be advised that the selling of beer will not be permitted in municipally owned parks in the City of Dallas.” By paragraph 4 of the contract in question ap-pellee bound himself to conduct his business, not only under the rules and regulations of the park board and other duly constituted authority, as such rules and regulations then existed, but also under “such future charter or ordinances, rules and regulations and directions, as may be hereafter passed.”

When appellee elected to ignore the regulation of September 12,1933, duly passed by the1 park board, prohibiting the right to any concessionaire to sell, within the territory of any park owned by the city of Dallas, 3.2 beer, he violated the terms of his contract, and thereby, under the terms of paragraph 6 thereof, the park board was authorized to cancel the concession contract and to direct him to cease to operate thereunder. The following authorities sustain the views herein expressed: Alabama Oil & Pipe Line Co. v. Sun Co., 99 Tex. 606, 92 S. W. 253; Halldeman v. Chambers, 19 Tex. 1; Johnston et al. v. Port Worth Driving Club (Tex. Civ. App.) 164 S. W. 875; Coleman v. Ford Motor Co., 195 Mo. App. 554, 193 S. W. 866; Schwab v. Baremore, 95 Minn. 295, 104 N. W. 10; Port Worth Driving Club v. Port Worth Pair Association, 103 Tex. 24, 122 S. W. 254, Ann. Cas. 1912D, 67.

We therefore hold that, as the undisputed facts show that the park board had the legal right, under the concession contract and under the rules and regulations which all concessionaires must obey, to cancel the contract, the court erred in granting the temporary writ of injunction, and such injunction is hereby dissolved.

Reversed, and temporary writ of injunction dissolved.


author: ELY, Chief Justice.

text:
    BEIL v. SAN ANTONIO AMUSEMENT CO. et al.
    No. 9284.
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1934.
    Rehearing Denied March 28, 1934.
    Saunders, Saunders & Whipple and A. H. Lumpkin, all of San Antonio, for appellant.
    Eskridge & Groce and Geo. S. Rice, Jr., all of San Antonio, for appellees.
   ELY, Chief Justice.

This cause was instituted by George L. Beil, appellant, against Meyer Reich, Publix Theatres, Inc., and the San Antonio Amusement Company, to recover damages for injuries received by appellant while passing along the sidewalk and being inflicted by a cold-chisel that dropped from above the sidewalk where workmen were engaged in placing a sign for the appellee San Antonio Amusement Cbmpany in front of its place of business. The San Antonio Amusement Company defended against the charge on the ground that it was not responsible for the accident because the workman who dropped the chisel was not in its employ but was in the employ of Meyer Reich, an independent contractor.

The cause was heard by a jury on special issues, and at the conclusion of the testimony the court, instructed the jury to return a verdict in favor of appellees San Antonio Amusement Company and Publix Theatres, Inc. The jury returned answers as to Meyer Reich, the independent contractor, and found a verdict in favor of the other two defendants as instructed by the court. Upon the answers of the jury to the special issues the court rendered judgment in favor of appellant against Reich for the sum of $1,500 and against appellant as to the defendants San Antonio Amusement Company and Publix Theatres, Inc. From that judgment appellant -alone perfected an appeal. No complaint is made as to the judgment in favor of Pub-lix Theatres, Inc., and consequently no further notice will be taken of that corporation in this opinion.

The facts show that Reich was an independent contractor who had been employed by the San Antonio Amusement Company to erect and repair a sign in front of its premises.

The case comes before this court upon an agreed statement of all the facts, and consequently no question of fact is presented, and it is admitted by appellant that the sole question for.decision in this court is: Did the San Antonio Amusement Company have the power and authority to delegate to an independent contractor the erection and repair of the sign and thereby escape all liability for the accident, as the owner of the property?

The sign being erected by Reich was probably forty feet above the sidewalk and did not necessarily involve anything being done on the sidewalk which might become dangerous to pedestrians passing along. The whole of the work to be accomplished was far above the easement in favor of those using the sidewalk below. There was no necessity growing out of the work to be done that in any manner created a dangerous condition on the sidewalk. In the performance of the terms of the contract there was no necessity for interfering in any manner with the safe use of the sidewalk, and in order to create any danger an act of negligence would be required in order to injure any one. As the facts in this case indicate, the accident by which appellant was injured did not occur from the erection or repair of the sign, but from an act of negligence of one of the employees of the independent contractor employed to work on the sign. The negligence consisted in'the dropping of the chisel oil the person of appellant as he was passing along the street. It would seem that no warning to pedestrians under the circumstances was necessary, because it was obvious to any one that labor was being performed on the sign in front of the premises of the Amusement Company, No warning was possible against the intervening negligence of a workman .employed in the erection of the sign. If the injury to appellant had resulted from the erection of the sign itself, it may be that the owner of the property might be held liable for injuries inflicted in such erection. This case is not a parallel one with cases involving the erection of obstructions on a sidewalk. For instance, when it necessarily becomes a part of the work of the independent contractor to dig ditches across the sidewalk, that was necessarily a part of the work for which he was employed and the landowner would be held responsible for the necessary digging of the ditch or the placing of an obstruction on the sidewalk. In all of the cases cited in regard to obstructions placed on the sidewalk by the independent contractor, they were necessarily a part of the work for which the owner of the land had contracted, and such owner could not by delegating such authority to others evade a responsibility for acts growing directly out of the performance of the contract with the contractor. While this may seem like a fine and delicate distinction, it is one which we think is clear and-should be applied in all cases arising from work performed by an independent contract- or. The theory advanced is well sustained by decisions of some of the most highly respected courts in America. In the case of Davis v. John L. Whiting & Son Co., 201 Mass. 91, 87 N. E. 199, 200, by the court of last resort in Massachusetts, the principle propounded was sustained thoroughly. In that case an independent contractor had been employed by an owner of a building fronting on a sidewalk to paint the shutters on the building. While engaged in this wbrk, through some negligence on the part of the independent contractor, one of the shutters was dislodged, fell to the walk, and injured a pedestrian. It was held by the Massachusetts court that the owner was not liable for damages to the injured person: “The cases in which this liability exists are generally where the defendant contracts for the creation of a condition of his property, or for a use of his property, which condition or use necessarily causes danger to others, unless precautions are taken to protect them from the consequences of such condition or use. One who brings into existence such a danger, even if he does it through an independent contractor, ought to guard against the probable effect of it. But the principle does not apply to cases where the danger does not come from the condition of the property or the use of it with proper skill and care, but comes only from an unskillful or negligent act of the contractor or his servants, even if a lack of skill or care on the part of some of the persons engaged in the business reasonably may be expected.”

In the Massachusetts case another case arising in that court was quoted as follows: “The accident was caused by the act of the contractor in doing what it was not necessary for him to do and what he did not intend to do. If it had been necessary for him to topple the chimney over into the street, or remove the brick's by letting them fall into it, or the contract had contemplated such action, the instructions would not have been objectionable. But as this was not necessary or intended, the work could not be classed with work which, if properly done, was ordinarily attended with danger to the public.”

In the Missouri case of Carson v. Blodgett Construction Co., 189 Mo. App. 129, 174 S. W. 447, 448, the court in discussing the question now before this court held: “The distinction seems to be that if the doing of the work necessarily causes dangers which must be guarded against, then the employer must see to it that such dangers are guarded against, and cannot relieve himself by casting this duty on an independent contractor. If, however, the work is dangerous only by reason of negligence in doing it, then the liability falls only on the independent contractor. In the one ease the doing of the work creates danger and requires active care to countei’aet. the danger. In the other there is no danger unless created by negligence. The one stalls with danger and requires preventive care to make safety, while the other starts with safety and requires negligence to make danger.”

The rule stated is well sustained by decisions of courts of numerous states of the Union, and there can be no doubt that it is sustained by the best judicial authority in America.

It follows from the long line of judicial decisions on the subject that the court below did not err in instructing a verdict in favor of the San Antonio Amusement Company, for whom the sign was being erected by an independent contractor.

The judgment will be affirmed.