author: MARTIN, Justice.

text:
    ASHBY v. GIBBON et al.
    No. 4164.
    Court of Civil Appeals of Texas. Amarillo.
    March 5, 1934.

      Tatum & Strong, of Dalhart, for appellant.
    B. N. Richards and J. B. Honts, both of Dalhart, for appellees.
   MARTIN, Justice.

Appellant sued appellee Robie A. Ashby Gibbon (referred to herein as appellee), joined pro forma by her husband, and alleged, in part and in substance, that prior to November 28, 1929, appellant and appellee were husband and wife and' that a divorce suit was then pending and a judgment was, on November 29, 1929, entered dissolving the bonds of matrimony between them. That on the day prior to the entry of this judgment they entered into a contract whereby their property was divided and their, property rights settled, and which contract contained the following stipulation:

“It is agreed that the custody of the children, Louise, a girl, and Lawrence, Jr., a boy, both of tender years, shall be awarded to Second Party, subject to visitation of First Party at seasonable times and places, and First Party agrees to contribute to- their support the sum of $65.00 per month, which shall be paid by First Party between the 5th and 10th of each and every month to the Clerk of the District Court of Dallam County, who shall transmit same to the Second Party regularly for the use and benefit of said children.”

He further alleged that at the time of and prior to the execution of this contract, the appellee and her attorney perpetrated a fraud on him, the exact, nature of which wjll appear in the special issues submitted to the jury, which we hereinafter quote. He further alleged that the judgment of divorce made no reference to the property settlement and contract in question further than to dismiss it from the suit and that the custody of his two minor children was awarded to ap-pellee and that as long as he was financially able he paid the $65 a month provided in said stipulation. He then makes extended allegations to show that the general financial needs of the children, was not as much as it was in 1929 and that his financial condition had changed and that he was no longer able to pay the $65 per month, supporting same with specific facts with reference to such matter. He further alleged that his obligation should be based on his financial condition, circumstances, and the conditions as to expenses for the reasonable and necessary support of said minor children and of his station and their station in life and plaintiff’s ability to pay same. He further alleged that both he and appellee have married since the date of said divorce and alleged certain matters intended to show that he was entitled to the custody of the children and that appellee was unfit to have their custody. He alleged certain other matters intended to show jurisdiction and that he was being harassed by small suits claiming an enforcement of the contract as written. He further alleged that said contract was against public policy, was vague and indefinite, and was without consideration. His prayer, in part, was:

“That the contract with reference to paying $65.00 per month for the support of said children as alleged herein be held to be void and cancelled, and in the alternative, if said contract be held to be not void and is not can-celled, that same be modified so as to include the provision omitted therefrom as hereinbe-fore. alleged, and that the monthly payments be reduced in accordance therewith, and that a permanent writ of injunction be granted restraining said defendants, their attorneys and agents, from instituting suit upon said contract against the said Lawrence Ashby, and that the judgment of divorce wherein said children were awarded to Robie A. Ash-by be modified and changed so as to award the custody of said children to the plaintiff.”

The case was submitted to the jury upon seven special issues. The seventh relates to the custody of the minor children and is omitted. The other six are as follows:

“Special Issue No. 1.
“Did the plaintiff, Lawrence Ashby, at the time and before the signing of the contract entered into the 28th day of November, 1929, between himself and Robie A. Ashby, (now Robie A. Ashby Gibbon) request that a provision be placed in the contract to the effect that ‘said monthly payments of $65.00 should be reduced in the future in proportion to the ability of the said Lawrence Ashby to pay said amount, should conditions become worse and he not be able to pay said amount’ ?
“You will answer Yes or No.
“If you answer Special Issue No. 1 ‘Yes,’ you will answer the following issue: but if you answer Special Issue No. 1 ‘No,’ you need not answer the following issue:
“Special Issue No. 2.
“Did B. N. Bichards, at the time of the drawing of the said contract represent to the said Lawrence Ashby that it was wholly unnecessary to include said provision in the said contract, ‘that if at any time in the future he should be unable to make said payments, he could go into court and have them reduced in proportion to his ability to pay same, in proportion to the expenses reasonable and necessary for the support and maintenance of the minor children mentioned in said contract’ ?
“You will answer Yes or No.
“If you answer ‘Yes’ to the Special Issue No. 2 above, you will answer Special Issue No. 3; but if you answer ‘No’ you need not answer Special Issue No. 3.
“Special Issue No. 3..
“Were said representations, if any, made as a positive assertion of facts?
“You will answer Yes or No.
“If you answer ‘No,’ you need not answer the following issue, but if you answer ‘Yes,’ answer the following issue:
“Special Issue No. 4.
“Did the said Lawrence Ashby rely upon said representations, if any?
“You will answer Yes or No.
“If you answer ‘No,’ you need not answer the following Issue; but if you answer ‘Yes,’ you will answer the following issue:
“Special Issue No. 5.
“Did the said Lawrence Ashby believe such representations, if any, to be true?
“You will answer Yes or No.
“If you answer ‘Yes,’ you will answer the following issue; but if you answer ‘No,’ you need not answer the following issue:
“Special Issue No. 6.
“Would the said Lawrence Ashby have executed the contract if he had known said representations, if any, were made, were not true?
“You will answer Yes or No.”

Issues Nos. 1 and 2 were answered “Yes” and issue No. 3 “No.” Issues Nos. 4, 5, and 6 remained unanswered, presumably under the court’s direction.

Both sides claimed the right to a judgment under the answers of the jury. The court .entered judgment for appellee, denying plaintiff any relief.

It will be observed that the hotly contested issue revolved around the matters contained in special issues Nos. 1 and 2.

This case will have to be reversed, and in view of another trial we deem it best to discuss generally some of its many legal phases, whether supported by proper assignments or not.

A husband and wife, living apart and in contemplation of an immediate divorce decree, as in this ease, may validly make a contract settling their respective property rights, including also a provision for the payment of an agreed sum monthly by the husband for the support of their minor children. Such a contract is not without consideration, nor is it against public policy. Smith v. Blanton (Tex. Civ. App.) 240 S. W. 651; 23 Tex. Jur. pp. 30 and 169; 30 C. J. pp. 1059, 1069, and 1070; Henderson v. Henderson, 37 Or. 141, 60 P. 597, 61 P. 136, 48 L. R. A. 766, 82 Am. St. Rep. 741; Johnson v. Johnson, 206 N. Y. 561, 100 N. E. 408, Ann. Cas. 1914B, 407. .

But of such contracts it has been said: “Post nuptial contracts are not favored by the law; they will be enforced when they are just and fair, but it is said they must be such as appeal to the conscience of the court1.’” 23 Tex. Jur., p. 30. See, also, 30 C. J. p. 1057; Link v. Link (Tex. Civ. App.) 63 S.W.(2d) 1045.

Since the present case presents equitable grounds for relief, it is not necessary for us to expressly decide whether or not the naked fact of a change in the financial condition of the husband affords to him a legal basis for asking a modification of this contract to pay a monthly sum for the support of his children. We see no reason to doubt, how'ever, that a husband who faces the probability of having his property placed in the hands of a trustee by the court for the support of his minor children may not, to escape such result, make .a valid provision of this character, which would not thereafter be subject to modification upon the ground of a subsequent change in his financial condition. See 30 C. J., pp. 1069 and 1070, and, Henderson v. Henderson, supra.

I11 this case the prayer is for a cancellation of the one provision in the separation agreement for the children’s support, and in the alternative for its modification. The entire contract was not introduced in evidence, and is not before us. Obviously, a contracting party cannot rescind his obligation-in part, keeping its benefits and avoiding its disadvantages, unless such portion is entirely severable from the remainder, so as in effect to constitute two independent contracts. 13 C. J. 619. Moreover, a rescission of the entire contract ordinarily demands a restoration of the status quo of the parties. We judge from the general description of the present contract in the appellant’s brief that it is an indivisible contract, and therefore not subject to rescission, except in toto. There is present here no offer to restore the status quo of the parties, and, if the contract is not severable, the prayer for a rescission of the portion under attack is not tenable, and only that for a modification remains. This brings us to the real question in the case, which apparently was submitted and decided upon an entirely erroneous theory, acquiesced in by all parties.

It will be observed that the entire question was made to depend upon the answer to the questions quoted above. The third was in our opinion immaterial and one of the controlling issues was not submitted, nor was its submission requested. All parties seem to assume that if the fraud alleged was found by the jury to have occurred, a judgment modifying the contract could be entered. This is an incorrect hypothesis. In no event could the contract be changed, unless and until it was found that the contracting parties had actually agreed to a stipulation prior to the execution of the contract in accordance with the contention of appellant. Otherwise expressed, there must have existed a contract of the character claimed by appellant, before he could rectify it. He was not entitled to modify something which never existed. 53 O. J. 25. There was a disputed issue as to this matter. Again, appellant must have believed the alleged fraudulent statement and been induced thereby to execute the contract in order to modify same. Such issues remained unanswered in this case, apparently under the court’s instructions, who made the entire case’turn on the single question of whether or not the alleged fraudulent representations were made as a “positive assertion of fact.” No objections or exceptions of any kind appear to have been made to the court’s charge by either side, nor were any special issues requested. The opinion is expressed that the present case was tried by all parties upon an erroneous theory. This we now undertake to demonstrate. Appellant’s cause of action has for its basis the existence of an agreement claimed to have been omitted from a written contract and a misrepresentation as to the legal effect of such contract. Can a legal fraud in this character of case be perpetrated only by a representation which amounts to the “positive assertion of a fact” ? We think our Supreme Court has answered this question in the early case of Ramey v. Allison, 64 Tex. 697. We quote from this case:

“Mrs. Allison seeks in her answer to be relieved against her mistake as to the law when she signed the deed of trust. That mistake was superinduced by representations made to her under circumstances, taking into consideration the nature of the legal question involved, which entitle her to protection the same as if the mistake had been as to matters of fact. Her mistake resulted, according to the answer, from the fraudulent and misleading representations made to her as to the state of the law in respect to the vital consideration on which alone she could have been induced to sign the instrument. ⅜ * * A contract obtained in such a manner is fraudulently obtained, if the representations were fraudulently made and intended to deceive; if not thus fraudulently conceived and intended, they are not the less misleading and inducing a fatal mistake on. the part of the party relying on their correctness. In either case, the contract is not that of a person giving consent to it under circumstances that will render it binding in equity. * * * ‘A misrepresentation of a matter of law does not constitute fraud at law, because the law is presumed to he equally within the knowledge of all the parties. Thus, the misrepresentation of the legal effects of a written agreement which a party signs with a full knowledge of its contents is not a sufficient ground at law for avoiding the agreement. But if a man dealing with another misleads him, and takes advantage of his ignorance respecting his legal position and rights, though there may be no legal fraud, the ease may come within the jurisdiction exercised, by courts of equity to prevent imposition.’ Kerr on Fraud and M., p. 90. A misrepresentation as to the legal effect of an instrument may be fraudulent. Colter v. Morgan, 12 B. Mon. [Ky.] 278; and see Townsend v. Cowles, 31 Ala. 428; Drew v. Clarke, Cooke (Tenn.) 374 [5 Am. Dec. 698]; Broadwell v. Broadwell, 1 Gilman [Ill.] 599.”

See, also, the case of Ferguson v. Mounts (Tex. Civ. App.) 281 S. W. 616, and numerous authorities there cited.

Again it has been said: “One is hot permitted to accept a promise which he knows that the other party understands in a different- sense from that in which he understands it” and “equity sometimes rectifies the contract so as to make it express the real intention.” 13 C. J. 375. See, also, Lapish v. Wells, 6 Me. (6 Greenl.) 175; Hudson Structural Steel Co. v. Smith & Rumery Co. et al., 110 Me. 123, 85 A. 384, 43 L. R. A. (N. S.) 654. These are quoted and cited only to show generally the reasoning in cases involving somewhat similar facts.

We quote further from 53 C. J. 935: “If an instrument fails by reason of misapprehension as to its legal effect to effectuate or conform to the agreement made, relief will be granted, even though its contents are known to both parties.” All these legal principles are at variance with the theory that appellant can recover only if the alleged fraudulent representations amount to a “positiv§p>ssertion of a fact,” and will, we think, sufficiently illustrate the real issue for determination. We suggest that appellant should more specifically allege the existence of an agreement covering the matters now claimed to have been omitted.

To all that part of the appellant’s petition purporting to set out in detail his changed financial condition' and showing his inability to pay the $65 per month, the trial court sustained special exceptions. This was error. These allegations were part of the appellant’s case necessary to allege and prove in order to secure a reformation of the contract. They were intended to show that the instrument expressed something which made it inequitable and unjust to enforce. Link v. Link (Tex. Civ. App.) 63 S.W.(2d) 1045. Manifestly a court of equity will not concern itself with an empty legal right that no injury has or could grow out of.' 53 C. J. 924; 30 C. J. 1060. The court evidently had in mind that this contract could not be modified upon the naked fact alone that appellant’s financial condition had changed. As before indicated, this question is not before us. Its proper solution has already been indicated, but before the trial court or this could intelligently pass on this question, we would have to have the entire contract with all the surrounding facts and circumstances in the record.

We overrule appellee’s assignment that the Ashby children were necessary parties to this suit. Smith v. Blanton (Tex. Civ. App.) 240 S. W. 651.

Nor do we think there is any merit in appellant’s assignment that the contract in question is not enforceable because it fails to fix a definite time for its duration. The inherent nature of the contract in question is such as that it must necessarily be limited in its duration by the happening of any one of several contingencies. 10 Tex. Jur. 339. For example, the jurisdiction of the trial court over the custody of these children was a continuing one. A transfer of their custody, their death, and the death of appellee are some of the contingencies that made the contract inherently one of uncertain duration.

We regard the testimony as clearly raising an issue that appellant did hot rely on and was not induced to sign the contract in question by reason of the alleged misrepresentations and therefore the court properly overruled appellant’s motion for a judgment. This in addition to other reasons heretofore given.

The judgment is reversed and cause remanded.


source: Caselaw Access Project

author: PLEASANTS, Chief Justice.

license: Public Domain

text:
    ELLIS v. HOLCOMBE et al.
    No. 10104.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 22, 1934.
    Rehearing Denied March 21, 1934.

      James E. Kilday, of Houston (Ben Campbell, of Houston, of counsel), for appellant.
    R. R. Lewis, Sewall Myer, and W. M. Holland, all of Houston, for appellees.
   PLEASANTS, Chief Justice.

This is a suit brought by appellant against appellees, the mayor, and the civil service commission for the city of Houston, for an injunction, and mandamus to obtain a hearing by the civil service commission of an appeal by appellant from an order dismissing him from employment by the city as superintendent of the identification bureau of the police department of the city.

The petition, to which a general demurrer was sustained by the trial court, is necessarily lengthy but its allegations will not be copied in full, since it is only necessary for the decision of this appeal to set out the substance of the allegations which, in our opinion, show a cause of action.

It alleges in substance that appellant was employed by the city in 1929- as an expert in making identification of persons charged with crime, and filing and keeping in order the identification records of the police department of the city. At the time of appellant’s employment the charter of the city, by an amendment thereto which was adopted in 1913, created and established a civil service commission, composed of three resident citizens to be appointed by the mayor and confirmed by the city council, one of whom should be a member of the city council, and all over the age of 25 years.

The members of the commission receive no pay and hold office for a term of two years. Any vacancy from any cause must be filled by the Mayor with the approval of the council. The commission, with the approval of the city council, is authorized to make the necessary rules and regulations for the conduct of its business.

The charter expressly directs that:

The civil service commission “shall provide for the' classification of all employees eligible to civil service, except day laborers, and of all officers and appointees, including peace officers and firemen, except the heads of departments now existing or which may be hereafter created by City Council, and the officers and appointees hereinafter named: The City Attorney and his assistants ; City Tax Attorney, if there shall be one; City Engineer; Tax Assessor and Collector; Chief of Police; Chief of Fire Department ; Fire Marshal; Purchasing Agent; City Health Officer; City Pathologist; City Scavenger; and all of the chief clerks of any and all departments of the city government, and the members of all the boards created and appointed by the Council shall not be subject to civil service rule; provided, however, that the naming of particular departments and the heads thereof as hereinbefore given shall not be exclusive of other departments that now exist, or that may be hereafter created by the Council, and no head of any department, nor his chief clerk, shall be subject to civil service rule. The Civil Service Commission shall also make provision for open, competitive and free examination as to the fitness in regard to classified services for an eligibility list from which vacancies shall be filled, for a period of not less than 12 months’ probation before being placed upon the classified list of appointees or employees and for promotion on the basis of merit, experience and record.

“Employees of the city who may at the time of the adoption of this Article be in the actual service of the city shall retain their respective positions unless removed by the Mayor and City Council under the provisions of this Charter, until placed on the classified list after having served their probation.
“The City Council may by ordinance confer upon the Commission such further and additional rights and duties as may be deemed necessary to enforce and carry out the principles of this Article.”

In compliance with the charter provisions each succeeding mayor since the adoption of the amendment has, with the approval of the city council, appointed members of the civil service commission, and such commission has at all times since its establishment been one of the governmental boards of the city. The commission, with the approval of the city council, has adopted and promulgated rules for the conduct of its business. These rules were all observed in the appointment of appellant in 1S>29 to the position he .is now seeking to retain, and he has been carried on the classified list of civil service employees in accordance with, the directions of the charter before quoted, and rules adopted by the commission. Section 1, rule 1, of the commission classifies all employees subject to civil service into classes, grades, and groups. Within each class there are grades “having duties of substantially similar authority, importance, and responsibility.” Within each grade there are groups being similar as to compensation and length of service. Class I> includes the police department. The appellant’s position, with others in the same grade, is thus listed by the commission in grade 3 of class D: “Position of Warrant Officer,. First Grade Sergeant, Lieutenant of Police, Captain of Police, Supervisor of Identification.”

Shortly after the qualification of appellee mayor for his present term he, with the approval of the city council, reorganized the city governmental plan by combining the various departments of the city government into four larger departments, each headed by a director, appointed by the mayor and confirmed by the council.

The police department under this reorganization was put under control of Mr. George E. Woods, director of public safety. Soon after Mr. Woods’ appointment he sent the appellant the following letter:

“Houston, Texas, May 1, 1933.
“Mr. W. R. Ellis,
“Police Department,
“Houston, Texas.
“Dear Sir:
“On account of the condition of the'City’s finance, it is necessary for me to relieve you from service effective today.
“It is with regret that this step was necessary, but the Police Division of the Department of Public Safety must get within its budget immediately.
“Yours very truly,
“[Signed] Geo. E. Woods,
“Director, Department of Public Safety.”

Upon receiving this letter of dismissal appellant within the time fixed by the charter and in compliance with the rules of the civil service commission filed his appeal with the commission from the order of dismissal, in which he expressly stated that he was willing to perform the duties of his position for the salary which was being paid his assistant, who had been promoted to appellant’s position. After this appeal was filed the mayor sent the following letter to appellant:

“Houston, Texas, May. 6,1933.
“Mr. W. R. (Bobby) Ellis,
“c/o James E. Kilday,
“2223 Gulf Building,
“Houston, Texas.
“Dear Sir:
“You were relieved from your duties as Superintendent of the Identification Bureau by Mr. George E. Woods, Director of Public Safety, under my instructions.
“You are hereby dismissed from the service of the City as of May 2nd, 1933. This action is taken by me under authority vested in me by Section 2, Article No. 5, of the City Charter.
“Yours very truly,
“[Signed] Oscar F. Holcombe, “Mayor.”

Upon receipt of this letter appellant filed supplemental appeal asking relief against both orders of dismissal.

The civil service commission has declined to act upon this appeal, presumably under the view expressed by the trial judge in sustaining a general demurrer to appellant’s petition, to the effect that the civil service provisions of the charter of the city do not repeal or limit the power of the mayor contained in other provisions of the charter to discharge civil service employees without cause, and gives no right of appeal to the civil service commission from the exercise of such power by the mayor.

The only proposition presented in ap-pellees’ brief in answer to appellant’s brief is: “The trial court did not err in sustaining the general demurrer to appellant’s second amended petition, for the reason that under the Charter of the City of Houston and Laws of the State of Texas, the Civil Service Commission of the City of Houston is without authority or power to grant or hear appeals from the discharge of a city employee where such discharge or removal was made by the Mayor of the City of Houston.”

Upon this state of the record the only question we are called upon to decide in disposing of this appeal is whether the provisions of the charter as a whole can be interpreted as placing no restriction upon the authority of the mayor to discharge at will and without cause any or all of the employees of the city who are classified and listed as being under the civil service provisions of the city charter.

We cannot bring ourselves to believe that there is any rule of law, or dictate of reason, which requires such interpretation to be placed upon the provisions of the charter.

In support of their proposition above stated, appellees cite and rely upon the well-settled salutary rule of decision that repeal of an existing statute by implication is never favored, and a repeal should only be implied when the conflict between the later and former statutes is so positive that the purpose to repeal is manifest. The antagonism must be so pronounced that both statutes cannot stand. “Though they seem to be repugnant, if it is possible to fairly reconcile them such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total repugnance cannot be said to exist, and, therefore, an implied repeal does not result, since in such case both may stand and perform a distinct * ⅜ ,⅜ office.”

This statement of the rule is taken from the case of Cole v. State ex rel. Cobolini, 106 Tex. 472, 170 S. W. 1036, the first case cited by appellees, and one of the clearest opinions discussing and applying the doctrine of repeal by implication.

It seems clear to us that when this rule is applied to the conflicting provisions of the city charter, which we will presently set out, there is such positive repugnance between the provisions of the civil service amendment and those contained in the charter prior to that amendment, which permitted removal of any appointed employee of the city by the mayor or city council, without cause, that the amendment must be held to supersede or repeal the authority of the mayor and council to so remove or discharge employees classified and protected by the civil service amendment.

The provisions of the city charter under which appellees contend that the mayor and city council have authority to remove any employee of the city at will, notwithstanding the provisions of the civil service amendment, are the following:

Section 2, art. 5, of the charter: “Appointive Officers — The Mayor shall have power to appoint, subject to confirmation by the Oity Council, such heads of departments in the administrative service of the city as may be created by ordinance, and shall have power to appoint and remove all officers or employees in the service of the city for cause, whenever in his judgment the public interests demand or will be better subserved thereby; and no officer whose office is created by ordnance shall hold the same for any fixed term, but shall always be subject to removal by the Mayor or may be removed by the City Council. In case of such removal, if the officer or employee so removed requests it, the Mayor or City Council, as the case may be, shall file in the public archives of the city a written statement of the reason for which the removal was made.”

Section 8, art. 7, of the charter: “The City ■Council shall, consistent with the provisions of this act, have power to establish any office that may in its opinion be necessary or expedient for the conduct of the city’s business or government, and may fix its salary and define its duties; provided, however, that all offices established by the Council shall be subject to discontinuance or be abolished by the Council at any time, and any incumbent of any office, except the Controller, may be removed at any time by tbe Mayor, with or without the concurrence of the Council; and in no case shall any officer or employee of the city be entitled to receive any compensation or emolument of any office which may be abolished, or from which he may he removed, except for services rendered to the date when the office was abolished or the incumbent removed.”

Section 6, art. 9, of the charter: “All elective officers elected at the last regular city election, except the Mayor, Aldermen and City Attorney, unless sooner removed by the Mayor or City 'Council for cause, shall retain their offices and receive the pay at present provided, until two years have expired from and after the date of their election and qualification in April, 1904.

“All appointive officers, or all officers whose positions are created by charter or ordinance, not elected by the people, shall hold their offices and continue in the service of the city subject to the will and pleasure of the Mayor.”

Appellees cannot invoke section 2, art. 5, in support of the mayor’s authority to discharge appellant for cause because the facts pleaded by plaintiff show that appellant was not discharged for cause. It is true the letter discharging appellant recites that appellee mayor is acting under the authority conferred upon him by section 2, art. 5, of the charter, but he gives no intimation of the cause further than may be inferred from the statement that Director Woods in his letter of May 1st, removing appellant, was acting under the mayor’s instructions. Mr. Woods’ letter shows on its face .that there was no cause of complaint of appellant’s discharge of the duties of his office, or that he was in any way unfit or unworthy to fill his position; upon the contrary, it expresses the regret of the director that the removal of appellant was necessary in order to reduce the expenses of the department.

It was only after appellant had appealed from his dismissal by Woods that the mayor sent his discharge letter before mentioned.

The allegations of appellant’s petition aré in substance that the only cause or reason for his discharge by the mayor was to give appellant’s position to his assistant, who had supported the mayor in the election which returned him to office in 193⅜ It was human for the mayor to prefer his political friend for any’ position of employment by the city at his disposal, but such human interest or feeling is certainly no cause for removal of a faithful, efficient public employee protected by the civil service amendment. The necessity for reducing expenses of the department cannot constitute legal or just cause for the removal of appellant for two reasons: First, the rules of the civil service, commission adopted with the approval of the city- council provide in effect that when it becomes necessary to reduce the number of civil service employees to cut down expenses, such reduction shall begin at the bottom, not at the top. And, second, appellant was and is willing to retain his position at the salary paid his successor, and so informed the director, and states in his appeal to the civil service commission.

The provisions of section 8, art. 7, of the charter are equally unavailing to appellees as authority for the discharge.of appellant. The provisions of this article, giving the council the authority to abolish any office created by it, and also providing for the removal by the mayor of the incumbent of any office, except the comptroller, with or without the concurrence of the council, and that in no case shall any officer or employee of the city be entitled to receive any compensation or emolument of any office which may be abolished or from which he may be removed, except for services rendered to the date when the office was abolished or the incumbent removed, are only in conflict with the civil service amendment in further authorizing the mayor to discharge any officer or employee of the city at will. When an office is abolished, as provided in article 7, the incumbent of the office and his employees are clearly not entitled to the emoluments of the office or to any compensation for services rendered after the office is abolished. This is the main purpose and intent of the article. If, however, the office is not abolished, the incumbent and his employees are protected by the civil service amendment because the provisions of that amendment are so positively conflicting with the provisions of article 7 for removal by the mayor, that a repeal of sudh provision must be implied. The term of any office not being otherwise fixed by law is restricted to two years by our Constitution. We think the allegations of appellant’s petition show that he is not an officer of the city, but a highly qualified expert employee working in the police department of the city. If he can be classed as an officer of the city, his petition alleges that he was reappointed in 1933, and is therefore protected by the civil service amendment for af least a term of two years.

Tlie' provision of section 6, art. 9, of the charter to the effect that all appointed officers, or all officers whose positions are created by charter or ordinance, not elected by the people, shall hold their offices subject to the will and pleasure of the mayor, must also he held repealed to the extent indicated by the conflicting provisions of the civil service amendment. In addition to the provisions before set out, that amendment contains the following:

‘‘Sec. 3. Removal of Employees — Any employee may be suspended by the head of the department under which he is employed, and thereupon his salary shall cease. The officer making the order of suspension shall forthwith file with the Civil Service Commission a statement of the suspension and his reasons therefor. Within ten days after such suspension the employee so suspended may, if he desires, file an appeal with the Civil Service Commission, who shall hold an inquiry within ten days thereafter, and said Commission shall make a decision within ten days after the hearing whether the employee shall be permanently dismissed from the service of the city or reinstated in his employment. All such hearings shall be public; tbe decision of the Commission shall be final. In order for an employee to file an appeal as hereinbe-fore provided it shall only be necessary for him to file a written statement showing in what department he was employed, when and for what he was suspended and a statement by him denying the truth of the matters charged in the statement of the officer so suspending him, and that he desires an appeal from the decision of said officer suspending him, which statement of appeal shall be signed and sworn to by the employee so suspended. In all hearings on appeal from the order of suspension by the Civil Service Commission, the judgment of the officer suspending the employee shall be presumed to be correct; the burden of disproving the charges made against the employee that resulted in his removal shall be upon the employee.”
“Sec. 5. Officers, Employees and Appointees Not Under Civil Service — That as to all employees, officers and appointees not under civil service the provisions of the present Charter shall remain in full force as to such appointment, removal, salary, services and duties, unless amended at this or some other subsequent election. (Added by amendment, 1913.)”

It seems clear to us that these provisions of the amendment comprehend the entire subject of removing city employees classified under the civil service amendment, and create an independent and exclusive method for the removal of such employees. The provision of section 5 which in effect limits the former powers of the charter giving authority to the mayor and city council to remove at will all appointive officers and employees of the city, to those not under the civil service provisions of the charter, can only be reasonably construed as showing the intention of the amendment to repeal such former charter provisions as to officers and employees classified under the civil service amendment.

The general rule of construction of statutes is thus stated in Sutherland on Statutory Construction, p. 412: “Where authority is given to do a particular thing and the mode of doing it is prescribed, it is limited to be done in that mode; all other modes are excluded. Such affirmative legislation and any other which introduces a new rule imply a negative.”

.This rule of construction is based upon the legal maxim that the expression of one thing is exclusive of another. When the civil service amendment expressly provides that any of the employees and officers of the city classified under the civil service amendment may be suspended by the head of the department in which he is employed, and further provides that the decision of the civil service commission upon appeal thereto of the employee or officer so suspended shall be final, it prescribes the only method for removal of such employee. This purpose and, intention is further emphasized and made clear by the declaration in section 5 of the amendment, which only preserves the power of the mayor and city council to remove officers , and employees at will, as to officers' and employees not under civil service rules.

This holding as to the effect of the civil service amendment upon former provisions of the charter before discussed is fully supported by the opinion of our Supreme Court in Bryan v. Sundberg, 6 Tex. 418, in which it is said in discussing the question of repeal by implication: “It undoubtedly is true that a construction which repeals former statutes, by implication, is not to be favored; and it is also true that statutes in pari materia, and relating to the same subject, are to be taken and construed together; • because it is inferred that they had one object in view, and were intended to be considered as constituting one entire, and harmonious system. But when the new statute, in itself, comprehends the entire subject, and creates a new, entire, and independent system, respecting that subject matter, it is universally held to repeal and supersede all previous systems and laws respecting the same subject matter. ([Goodenow v. Buttrick] 7 Mass. 140; [Bartlet v. King] 12 Mass. 537, 545 [7 Am. Dec. 90]; [In re Ashley] 4 Pick. [Mass.] 21, 23; [Com. v. Cooley] 10 Pick. [Mass.] 39; [Mason v. Waite] 1 Pick. [Mass.] 452; [Ellis v. Paige] 1 Pick. [Mass.] 43; [Blackburn v. Inhabitants of Walpole] 9 Pick. [Mass.] 97; [Towle v. Marrett] 3 Greenl. [3 Me.] 22 [14 Am. Dec. 206]; [Com. v. Cromley] 1 Ashm. [Pa.] 179.)”

In our opinion the provisions of the civil service amendment clearly evidence that the purpose and intention of the city council in adopting and submitting such amendment to the voters for incorporation in the city charter was to create a new mode or system of selecting employees for appointment to nonpolitical positions in the service of the city by providing that only those found qualified by the civil service commission for the duties of their employment and so classified as directed by the amendment shall be appointed to fill vacancies, and also providing an independent exclusive method for the removal of employees so selected and qualified, and such provisions must be held to supersede all previous provisions of the charter respecting the appointment and removal of such classified employees.

Civil service laws and rules respecting the selection and removal of employees of government, whether national, state, or municipal, whose duties are wholly nonpolitical, have as their primary purpose the improvement of such governmental service by making its duration entirely independent of the employees’ political views or preferences for candidates for election to office, so long as such employees do not become improperly active and partisan in political elections. With this purpose, as we think, clearly shown by the language of the amendment and by the rules and regulations of the civil service commission, the appellee mayor was without authority to discharge appellant, and the civil service commission should proceed to hear and act upon appellant’s appeal. We are wholly unable to agree with appellees’ contention that the council in adopting the civil service amendment, and the voters of the city in ratifying that amendment, only intended to restrict heads of de-imrtments of the city government from removing at will employees classified and protected by the civil service amendment, and did not intend to protect such employees from removal at the will and pleasure of the mayor or city council. Such a civil service system would in our opinion be farcical, and defeat the primary purpose of the amendment.

The partisan claim that “to the victors belong the spoils,” which originated after the election of Andrew Jackson to the office of President, and which at that time may have been entirely proper and reasonable in view of the entrenched position of the Federalist or Whig Party, and the partisan activities of the employees of that party against General Jackson’s candidacy, has long since been modified by civil service legislation approved by the great leaders of both of the great political parties in our Union of States, which'in effect declare'that the nonpolitical position of any employee of our government shall not be regarded as “spoils” belonging to the successful party candidate. The justice and wisdom of such civil service legislation is apparent, and is generally so recognized. These laws and regulations accord to such employee the full privilege of exercising his right and duty of citizenship to cast his vote in accordance with his honest convictions of what is best for his community, state, or nation, but forbid him to become an active partisan in any political contest. Such laws not only tend to promote efficiency in the public service, but prevent the organization by office holders of an army of workers to secure their re-election, or the continuance in office of the representatives of any political party.

There can be, we think, no doubt of the availability of the writs of mandamus and injunction, if necessary to secure appellant a hearing on his appeal. We cannot believe, however, that it will become necessary for either of such writs to issue. Appellees Have the right, and we presume will apply to our Supreme Court for a writ of error from our decision of the fundamental questions of the mayor’s authority to discharge appellant and of the appellant’s right to appeal therefrom to the civil service commission.

In event appellees’ contention should be sustained by the Supreme Court, the judgment of the trial court will be affirmed. If our conclusions are sustained, we do not anticipate that any writ of injunction or mandamus will be required for the compliance by the mayor and civil service commission with our decision.

It follows from our conclusions before expressed that the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

The very earnest motion for rehearing presented by appellees’ attorneys has received our careful consideration, but fails to raise any doubt in our minds of the soundness of our decision of the questions presented by the record of the case. The criticisms in the motion of some of the conclusions expressed in our main opinion are apparently due to a misconception of the grounds upon which the conclusions are based, which may have been caused by the failure of the writer to more fully and clearly state such grounds.

The first complaint presented in the motion is thus stated: “Because the Court erred in holding that because the Appellee, Oscar F. Holcombe, assigned no reason for discharging the Appellant, the provision of Section 2, Article 5 holding in substance that the Mayor may remove employees in the service of the City for cause whenever in his judgment the public interests demand or will be better served thereby, cannot be invoked by appellees to support the discharge of Appellant, W. R. (Bobby) Ellis.”

We made no such holding, and we find nothing in our opinion which seems to us can be reasonably construed as making the holding stated in the motion. The statement in the opinion that the mayor in his letter of discharge “gives no intimation of the cause (of appellant’s removal) further than may be inferred from the statement that Director Woods in his letter of May 1st, removing appellant, was acting under the mayor’s instructions,” was not intended, and we do not think can be reasonably construed, as a holding that because of this failure of the mayor to more specifically state the cause of appellant’s discharge, he cannot now claim that the discharge was made for cause. This statement was inserted as showing, by its indorsement of Wood’s statements in his letter removing appellant, that such removal was not for cause.

But regardless of whether this is a sound conclusion, there was a general demurrer to appellant’s petition, and the correctness of the trial court’s ruling on the demurrer is the final question presented by the appeal. As pointed out in our former opinion, the petition alleges facts which, if true, and upon general demurrer they must be taken as true, show that the reason for appellant’s discharge was political and not for any cause affecting his character, or his qualification for the discharge of the duties of his employment, or that he had ever been unfaithful in the discharge of those duties.

From other conclusions expressed in the opinion, it is clear that this court holds that under the civil service amendment to the charter, the mayor, if he could directly discharge for cause any of the city officers or employees classified under the charter provision as civil service employees, cannot, by so removing such classified employees, deprive them of their right of appeal to the civil service commission. We do not think, however, he can act directly in such removal. The civil service amendment requires such removal to be made by the head of the department under which the employee is working and the department head must first suspend the officer or employee, and such suspension does not become permanent unless the employee fails to appeal to the civil service commission within the time fixed by the civil service amendment, or unless upon such an appeal the commission decides that the employee shall not be reinstated. This construction of the amendment in no way lessens the authority and duty of the mayor to be vigilant in requiring all officers and employees of the city to faithfully discharge their duties. If he learns, or is informed, that any of such employees are not so discharging their duties, he can, just as he did in this case, instruct the head of the department in which the employee is classified to make the remov-, al or suspension, and such suspended em-' ployee could then appeal to the civil service commission for final decision of whether his removal should be made permanent. Under the civil service amendment the may- ‘ or or city council have power to remove any head of department when in their judgment the best interests of the city will be sub-served thereby, and it follows that direction of the mayor to remove any employee for cause would be followed by any head of a department so directed who eared to retain his office.

The second error assigned in the motion is: “Because the court erred in holding that the Oivll Service Amendment to the Charter of the City of Houston superseded and repealed those sections of the Charter which gave the Mayor and the City Council the power to remove or discharge employees of the City of Houston.”

1-Iere again it can be said this court made no such holding. Attorneys for appellee® seem to ignore the plain and unambiguous statements in our former opinion which expressly limit our conclusions, restricting the power of appellees to discharge at will, to officers and employees classified in accord' anee with the provisions of the civil service amendment.

The third 'assignment in the motion is: “Because the Court erred in holding that when the Civil Service Amendment to the Charter of the City of Houston expressly provides that any of the employees and officers of the City classified under the Civil Service Amendment may he suspended by the head of the department in which he is employed and further provides that the decision of the Civil Service Commission upon appeal thereto of the employee or officer so suspended shall be final, it prescribed the only method for removal of such employee.”

This assignment correctly states the holding of this court. The soundness of this holding seems so clear to us that we do not deem it necessary to add anything in its support to what is said in our main opinion. However, we add, as we have before indicated in this opinion, that section 3 of the civil service amendment, which,is set out in our main opinion, under the title of Bemoval of Employees, provides in substance that the removal of civil service employees shall be accomplished by a suspension of the employee sought to be removed by the head of the employee’s department, and such suspended employee shall have the right of appeal to the civil service commission, and the suspension shall not become permanent unless sustained by the commission. We adhere to our conclusion expressed in our former opinion that this is the exclusive method provided by the city charter for the discharge or permanent removal of officers or employees of the city classified as civil service employees in accordance with the provisions of the civil seryice amendment. The fact that the case of Bryan v. Sundberg was not a case involving the construction of laws pertaining to the removal of public officers and employees in no way affects or lessens the force of its declaration of the rule which generally applies on the question of repeal by implication, and which we think is the rule applicable to that question upon the facts of this case.

The next complaint in the motion attacks the conclusions of the court that the provisions of the civil' service amendment ‘‘create a new mode or system of selecting employees for appointment to municipal positions in the service of the City of only those found qualified by the Civil Service Commission for the duties of their employment and are so classified as directed by the Amendment, and also provide an independent method for the removal of employees so selected and qualified”; and that such methods must be held exclusive, and to supersede all previous conflicting provisions of the charter respecting the appointment and removal of such classified employees. This conclusion is assailed on the ground that in so far as it relates to the appointment of employees to nonpolitieal positions it is ob-iter dicta. This criticism may be technically justified, but how does it harm appellees? The writer did not have in mind the question of obiter dicta when he wrote the conclusion complained of, but the new methods for the selection and removal of civil service employees of the city are so interwoven in the amendment that the clear purpose and intent evidenced by the language of the civil service amendment is that these methods for selection and removal were both exclusive. The court feels under no compulsion to withdraw this conclusion, since our. views upon the question of appointment cannot possibly affect the question involved in this case, or the right of the mayor to arbitrarily remove a civil service employee of the city of Houston.

The two remaining assignments in the motion complain of what appellees contend are contradictions or inconsistencies in the construction placed by us upon the civil service amendment. The last of these assignments is: “In the event the Court in its opinion held that the power of the Mayor to discharge has not been entirely taken away by the Civil Service amendment to the Charter, but that by said amendment said power of discharge has been limited and restricted to that of suspension only and that said suspended employee may appeal from said suspension to the- Civil Service Commission as is provided in Article 5a of the Charter, then the Court erred in so holding.”

If we have not already made ourselves clear* upon the question of the right of the mayor to discharge a civil service employee, the writer must despair of being able to make himself clear to attorneys for appellees. It follows from what we have said that the motion for rehearing should be overruled, and it has been so ordered.

There is, however, one paragraph of our main opinion, not referred to in the motion, which contains needless repetitions which tend to produce some ambiguity in the statement therein made. This confus ing statement in the opinion is found in the discussion of section S, art. 7, of the charter, on page 453 [of 69 S.W.(2d)] of our former opinion. The whole section had. been previously copied in the opinion, and we should have only set out in our discussion of the question then being considered the following clause in the provision of the section: “and any incumbent of any office, except the Comptroller, may be removed at any time by the Mayor, with or without the concurrence of the Council.” This is the part of the section under which appellee mayor claims the right to remove the appellant and which we hold in the main opinion was repealed by the civil service amend-ment so far as it relates to civil service employees.

Motion refused.


author: LANE, Justice.

text:
    STANDARD FINANCE CORPORATION v. MOORE.
    No. 9922.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 9, 1934.
    Rehearing Denied March 8, 1934.
    W. H. Dunlay, of Houston, for plaintiff in error.
    A. T. Carleton, of Houston, for defendant in error.
   LANE, Justice.

This suit was brought by I. S. Moore against Standard Finance Corporation, hereinafter for convenience referred to as the finance corporation and as defendant.

Plaintiff alleged that he borrowed $60 from the finance corporation on the 21st day of November, 1931, and to secure repayment thereof he gave a lien, to said corporation on a certain automobile; that by the instrument evidencing the money borrowed and the lien, it was sought to obligate plaintiff to pay to defendant four installments of $19.75 each, a total of $79; that the first installment was to become due one month after its date, and the others, one each on the same date of each succeeding month thereafter; that the plaintiff was allowed to keep possession of said automobile; that by said instrument executed by plaintiff it is provided, among other things, that in case default be made in the payment of said debt after maturity, then the mortgagee shall have the right to decláre the whole indebtedness due and payable, and the mortgagee is authorized to enter upon the. premises where the property is found and take' the same by process of law or otherwise, and sell the same either at public or private sale, with or without notice, and out of the proceeds of such sale to pay such debt, expenses, and cost as may accrue by reason of such sale, the balance, if any, to be paid to the mortgagor.

Plaintiff alleges that when the second installment became due, the plaintiff was confined to his bed by sickness, and that by rea.-son thereof was unable to pay said second installment; that defendant was informed of his illness and was told by plaintiff’s wife that plaintiff was unable to go to defendant's office to make arrangement for payment of the installment then due; that in a few days after such information was given to defendant, one Greer, an agent of defendant, came to the place where plaintiff was then living and inquired as to when plaintiff would pay the money then due; that plaintiff told said agent that he had lost his home by fire upon which he had a policy of insurance and that as soon as he got payment on his insurance policy he would pay the debt; that defendant’s agent in a few days thereafter came and told plaintiff, who was still sick, that the bank had required his company to take possession of the car and store it in a fireproof warehouse; that he told said agent that he did not want to give up the car; that the agent tlj.en told him that his company did not want any trouble about the matter and assured plaintiff that the car would be stored in the warehouse and kept for him until he could get his insurance adjusted; that the car would be ready for plaintiff when he should call for it-; that by reason of such promises made to him by said agent, plaintiff allowed the agent to take the car; that in a short while after Ms car was taken he collected $2,000 and went to defendant’s office to pay off his indebtedness to it; and that he was told that the car had been sold to pay the debt. He - alleges that the car was obtained by defendant by false and fraudulent acts and representations which were done and made in violation of plaintiff’s rights, to his actual damage in the sum of $250, same being the value of the car taken and wrongfully sold. Substantially the plaintiff alleges that defendant got possession of the car by false and fraudulent representations and sold the same in utter disregard of his rights. -

He alleges that the contract is usurious, in that it undertakes by its terms to obligate plaintiff to pay defendant interest in excess of that allowed by law. That the actual amount of money that plaintiff received from the defendant was the sum of $60, yet he was required and compelled to sign said instrument providing for the payment of $79 in four months time, the interest in excess of the highest rate allowed by law amounting to the sum of $15 as the interest on said sum of $60 at the highest rate would have amounted to $4.

Plaintiff prayed for the recovery of $250 actual damages, $250 as exemplary damages, and for $3$, same being the double amount of the interest provided for in the usurious contract.

Defendant answered by general denial and specially alleged that under the terms and provisions of the mortgage mentioned in plaintiff’s petition it was authorized by the plaintiff to take the automobile -and sell it either at public or private sale, with or without notice, etc.; that it relies on all the provisions of said mortgage as a defense to show that the car was not unlawfully taken or converted by defendant, but that it was lawfully taken and disposed of by defendant in pursuance of the terms and provisions of said mortgage ; that plaintiff was, at the time the car was taken, in default in the payment of one of the installments of the note secured by the mortgage and had ’otherwise defaulted in the terms and provisions of said mortgage ' and note; and that by reason of such default defendant took said automobile and disposed of it under authority of the terms of the mortgage. Defendant specially denied the plaintiff’s allegation of usury.

In the alternative, defendant pleaded that if it be held that defendant unlawfully took and disposed of the automobile, which is denied, defendant says that plaintiff is indebted to it as evidenced by his promissory note and it pleads same as a set-off to any recovery which might be awarded to the plaintiff. '

The cause was tried before a jury on special issues, in answer to which they found: First, that at the time the plaintiff surrendered his automobile to defendant, February 4, 1932, the defendant promised and agreed with plaintiff to hold it for him and that it would not sell the same; second, that the cash market value of plaintiff’s automobile at the time it was disposed of by defendant was $190; third, that defendant disposed of the automobile with fraudulent, malicious, and willful intent to deprive the plaintiff thereof; and fourth, that plaintiff is entitled to $250 compensation for such fraudulent, malicious, and willful disposition of his automobile.

Upon the findings of the jury and the evidence the court rendered judgment in favor of the plaintiff against the defendant for the sum of $148.75 actual damages, and for $250 exemplary damages. Such judgment contains the following recitals:

“The court finds as a matter of fact that defendant’s agent, • Greer, was specially authorized by defendant to obtain possession of the plaintiff’s car, and that acting under such authority, he did obtain possession of same under agreement as found by the jury in answer to Special Issue No. 1, and that defendant so authorized the taking of said car, and did thereafter dispose of the ear under the facts as found toy the jury in answer to Special Issue No. 3; that the Court finds as a matter of law that the defendant is lia-hle to the plaintiff for the sum of exemplary damages as found by the jury in answer to Special Issue No. 4.
“That the Court further finds as a matter of fact and of law that the note given by plaintiff to defendant was usurious, and that the payment of $19.75 admittedly made by tbe defendant should be credited only as to the valid portion of the loan, viz., the $60.00 actually received, therefore leaving a balance of $41.25 that plaintiff has received of defendant’s money on said ear, and that this sum should be deducted from, the $190.00 found by the jury in answer to Special Issue No. 2, as the value of the car, leaving a bal-anee of $148.75 that plaintiff should recover from the defendant as his actual damages, and that the chattel mortgage and note should be cancelled.”

The Standard Einanee Corporation has appealed.

Appellant contends that the judgment was erroneously rendered against it, in that under no view of the pleadings and evidence is the appellee entitled to such judgment; that the plaintiff’s petition and the undisputed evidence fail to show that plaintiff’s automobile was unlawfully taken, converted, and sold, but, on the contrary, show that same was lawfully taken and sold by the defendant under the terms of the chattel mortgage executed by the plaintiff authorizing and empowering the defendant to do so, the plaintiff’s petition and the undisputed evidence showing that there was no consideration for any alleged promise and agreement by the defendant that it would hold said automobile for the plaintiff and would not sell the same.

We overrule appellant’s contention. After a careful consideration of the pleadings and the evidence, we have reached the conclusion that they are sufficient to support the findings of the jury and of the court and the judgment rendered.

Appellee Moore testified that appellant’s agent, Greer, told him that the bank required payment of the installment due or the taking of the car and having it put in a garage, and that he, Moore, agreed to deliver the car for such purpose, with the understanding that it would be held for him until he could get out of his bed and could see about the collection of certain insurance money due him, and that before he let said agent take the car he made the agent give him a receipt therefor; that he would not have surrendered the possession of the car if he had thought defendant was getting possession to sell it under the mortgage.

The wife of appellee testified that when the second installment fell due she informed the appellant company that appellee’s house had been destroyed by fire and that her husband, appellee, was sick in bed. She substantiated the testimony of her husband to the effect that appellant’s agent, as a means to get possession of the car, told him that he would store the car and hold it for him until he was able to get up.

Greer, the agent who got the car from ap-pellee, testified: “I told Mr. Moore that I could not go on any longer with the account , delinquent” ; that he told appellee that if he would let him take the car and store it they would hold, it for a few days.

Xj. M. Canton testified that he bought the car from appellant, for which he paid $59; that he held it a week and sold it to a Mr. Gordon; that the Standard Finance Corporation, appellant, turned the car over to his company, the Atlas Finance Corporation, directly after it got it from Mr. Moore; they sold it to the Atlas Finance Corporation on the 11th day of February.

A. E. Suvervielly, vice president of the Standard Finance Corporation, testified that he told Greer to go to see Mr. Moore and tell him that they had to bring the matter to some conclusion; that the automobile was obtained. by Greer and it was turned over to the Atlas Finance Corporation, which corporation was owned by himself and Mr. Josey, who also owned the Standard Finance Corporation; that he knew that Moore had been told by Greer that the car would be held for a few days; and that as Moore did not come down to see about the car they assumed that he did not want it.

The mortgage and notes disclose the fact that usurious interest was charged as found by the court.

The judgment is in all things affirmed.

Affirmed.


author: HICKMAN, Chief Justice.

text:
    ADAMS v. GRAPOTTE.
    No. 1230.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1934.
    Rehearing Denied March 23, 1934.

      T. M. West and Nat L. Hardy, both of San Antonio, for appellant.
    Carter & Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.
   HICKMAN, Chief Justice.

The appeal is from a judgment in favor of appellee against appellant for damages for personal injuries. At the time appellee sustained her injuries she was walking along a sidewalk on St. Mary’s street in the city of San Antonio, and was caused to fall by stepping into a hole, or depression, about three inches deep in front of a garage which appellant was operating as the tenant of J. M. Nix. Neither the city nor the owner of •the building was made a party defendant; the contest being alone between the appellee and the tenant.. In some unexplained manner an abrasion was made on the concrete sidewalk before appellant became the tenant of the building and, by the action of cars in passing over it upon entering and departing from his place of business, the hole, or depression, was made deeper during the few months of his occupancy prior to the injury. The jury found that appellant’s operation of the garage and use of the drive-in-way in question directly caused or contributed to the hole or depression, and convicted him of negligence in the following particulars: (1) In causing this condition to exist; (2) in permitting this condition to exist; and (3) in failing to have the hole or depression repaired before the accident. In due time, appellant requested the court to peremptorily instruct a verdict in his favor, and the failure of the court to do so is made the basis of the first assignment of error.

The Star Garage, operated by appellant, abutted upon St. Mary’s street. In order for customers to enter and depart from the garage, it was necessary for them to drive over the sidewalk. No question is presented that the drive-in-way did not in all respects conform to the requirements of the city, if any it had. Liability was not predicated upon any statute or any ordinance, but solely upon the common law. The theory, as disclosed by appellee’s brief, seems to be that appellant was enjoying some kind of special privilege in the sidewalk by using same as an integral part of his business, for which reason the duty devolved upon him, as the proprietor of the business, to keep the sidewalk in repair. There is not found in the record any evidence whatever that appellant conducted any business on the sidewalk; that he, by any affirmative act, or otherwise, made this depression therein, or caused the one existing when he became the tenant to be mád'e deeper, but only that his customers caused same to be made deeper by driving their automobiles over it.

It would scarcely seem necessary to cite authorities in support of the proposition that sidewalks are a part of the street, that the duty to exercise ordinary care to maintain them in a reasonably safe condition for the use of the public rests upon the city, and that an abutting owner owes no1 duty in that regard. City of San Antonio v. Wildenstein, 49 Tex. Civ. App. 514, 109 S. W. 231; Werner v. Trout (Tex. Civ. App.) 2 S.W.(2d) 525; Breen v. Johnson Bros. Drug Co., 297 Mo. 176, 248 S. W. 970; Elliott on Roads & Streets (4th Ed.) § 898. Appellee recognizes this doctrine to be sound. She does not contend that the sidewalk was private property, but alleged in the petition upon which she went to trial that “said sidewalk in the place where plaintiff fell was a much used public thoroughfare.” She is not suing the owner of the building, thereby impliedly recognizing that no liability exists against him by virtue .of his ownership. She seeks to hold the tenant liable on the ground that he contributed to this condition by inviting his customers to use the drive-in-way over the sidewalk. Her theory is based essentially upon the assumption that appellant was making a wrongful use of a portion of the public thoroughfare. Is the assumption correct? We think not. Access to a public highway is an incident to the ownership of land abutting thereon, and the right to such access is private property passing to the lessee. That right cannot be taken for public purposes or destroyed without adequate compensation being made therefor. Const, art. 1, § 17; Gulf, C. & S. F. Ry. v. Allbright, 7 Tex. Civ. App. 21, 26 S. W. 250; McCammon & Lang Lumber Co. v. T. & B. V. Ry. Co., 104 Tex. 8, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870; Anzalone v. Metropolitan District Commission, 257 Mass. 32, 153 N. E. 325, 47 A. L. R. 897, and the annotation following same; 13 R. C. L. p. 142 et seq., § 125; 44 C. J. § 3711, p. 943, et seq. This right of access extends to the invitees of the owner and lessee. 44 C. J. 945. It is true that sidewalks are built primarily for pedestrians, and pot for vehicular traffic, but it does not follow that vehicles have not the same right to pass over them as a means of access to places of business abutting thereon that pedestrians have to walk longitudinally upon them. In the case of Schindler v. Schroth, 146 Cal. 433, 80 P. 624, 625, 2 Ann. Cas. 670, the opinion by the Supreme Court of California states: “The use of a sidewalk by the owner of a lot for purposes of communication with the street is equally legitimate, and equally an ordinary use, as that of passing longitudinally along it.”

The liability of appellant is not different from that which would have existed had ap-pellee been injured by a depression, not in the sidewalk, but in the street. In the case of Noonan v. City of Stillwater, 33 Minn. 198, 22 N. W. 444, 53 Am. Rep. 23, there was involved the question of the constitutionality of a city charter making abutting owners liable to all persons injured by their failure to keep sidewalks in repair and safe for traveling. In holding same unconstitutional, the court employed the following language: “Can the legislature make it the duty of-lot-owners in cities to construct and keep in repair so much of the street to the center of it as lies in front of the lots, and upon their failure so to do make them liable, not to the city, but to any one of the public who may be injured in consequence of the neglect to construct or keep in repair? Some cases attempt to make a distinction between the sidewalk and the remainder of the street in respect to the method of laying the burden of constructing and maintaining the same. But there is no basis for such a distinction. The sidewalk and the remainder of the street are equally for public use, — the rights of the public are the same in each. The rights as far as the center of the street, of the owner of an abutting lot, are the same in each. That one is reserved for passers on foot, and the other is for the use of vehicles, is only a regulation -of the public use for the public good, the public authorities determining how much shall be reserved for sidewalk. The improvement of one is just as much,a public improvement, and must have the public need to justify it to the same extent, as the improvement of the other; therefore, if the provisions of this charter as to sidewalks are valid, the legislature may extend them over the remainder of the street, — certainly, to the center.”

In its last analysis, the judgment in the instant case can be upheld alone upon the ground that it is the duty of abutting owners, and likewise of their lessees, to repair the public thoroughfares adjoining their premises. That duty does not exist, but rests exclusively on the municipality, and where there is no duty there can be no negligence.

Appellee relies upon Kampmann v. Rothwell, 101 Tex. 535, 109 S. W. 1089, 17 L. R. A. (N. S.) 758, and other cases involving similar facts. The distinction between that line of cases and the instant one, it seems to us, is readily apparent. Appellant did not use the sidewalk as a place to carry-on his business and did not, as in the Kampmann Case, create any dangerous condition thereon. I-Iis customers, who created or added to the danger of the condition, were as much a part of the traveling public when crossing the sidewalk as when they were driving in the street approaching it. The peremptory instruction should have been given.

We can see no reason for remanding this cause for another trial. The case presents only a question of substantive law, and there is no indication that the facts were not fully developed upon the trial. It is accordingly our order that the judgment of the trial court he reversed, and that judgment be here rendered that appellee take nothing by her suit.


author: WALTHALL, Justice.

text:
    CAMDEN FIRE INS. ASS’N v. CLARK.
    No. 2958.
    Court of Civil Appeals of Texas. El Paso.
    March 1, 1934.
    Rehearing Denied March 22, 1934.
    _ Cox & Hayden, of Abilene, for appellant.
    W. C. Jackson, of Ft. Stockton, and Millard Parkhurst, of McCamey, for appellee.
   WALTHALL, Justice.

This suit was brought by C. M. Clark against Camden Fire Insurance Association to recover on a fire insurance policy, insuring Clark against loss by fire on a stock of-groceries, flour, sugar, and staple goods of all kinds, located at Crane, Tex., and alleged to have been totally destroyed by fire while the policy was in force.

The defendant insurance company answered by a plea in abatement to the effect that the insurance policy sued on provided that no suit should be brought on the policy until sixty days after due notice, ascertainment,1 estimate, and satisfactory proof of the loss required have been received by the company, and that insured shall file a verified inventory of his loss within ninety-one days after said loss, and that insured failed to file such estimate and statement before bringing suit. Defendant company further answered by demurrer, general and special, and general denial and special denial. The court overruled defendant’s plea in abatement and its demurrers, to which defendant excepted.'

The case was tried without a jury. The court entered judgment for plaintiff in the sum of $500, with interest, from which, defendant prosecutes this appeal.

Opinion.

No findings of fact were made by the trial court.

We will designate the parties, respectively, as plaintiff and defendant, as in their pleadings.

Defendant complains of the overruling by the court of its plea in abatement.

Plaintiff’s petition does not contain a sworn statement of the loss .submitted to defendant within ninety-one days after the loss as provided in the policy, but to the contrary, and for that reason defendant suggests error in overruling its plea in abatement point-, ing out such omission.

The policy sued on provides: “If fire occurs, the insured, shall protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and within ninety-one days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and all others in the property; the cash value of each item thereof and the amount of loss thereon; all encumbrance thereon'; all other insurance, whether valid or not, covering any of said property.”

The policy then provides that the sum for which the company is liable shall be payable “sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by the Company in accordance with the terms of this policy.” The record shows that no such verified statement of loss by fire was rendered to the defendant company at any time.

' Defendant’s plea in abatement, as found in the record, was presented to the trial court in its first amended original answer. The trial court overruled the plea, and defendant complains here of the court’s action in overruling its plea.

There is nothing in the facts of the case, or in the pleading of plaintiff, as disclosed by .the -record, that would justify or sho.w the necessity of the interposition of the plea for. the first time in defendant’s amended 'answer. In such case the plea in abatement comes too late if there has already been filed an answer to the merits. Foster v. Gulf, C. & S. F. Ry. Co., 91 Tex. 631, 45 S. W. 376; Gold v. Insall (Tex. Civ. App.) 8 S.W.(2d) 542; Texas Juris, vol. 1, pp. 165, 166.

Ordinarily, matter in abatement is waived if it is not in defendant’s first pleading to the merits. The rule is stated to be that when the defendant desires to file a plea out of due order he should ask leave of the court to withdraw his former pleading for the purpose of filing his plea, and it is a matter of discretion with the court to permit such Withdrawal. The record shows no such procedure. Where the record does not show the ground upon which the'trial court overruled the plea, it will be presumed in favor of the judgment unless error is made to appear. In this particular ease, it should be made to appear that the plea in abatement was filed with the first answer, and preceded the answer to "the merits. Such is not done, and the record shows no error in overruling the plea.

Defendant complains of the overruling of its special exception pointing out that plaintiff’s petition did not itemize the various articles and their values destroyed by the fire.

Plaintiff alleged and the proof shows that in due time he notified defendant to supply him with forms with which to fill out proof of loss, but that defendant unconditionally denied liability under its policy and refused to supply plaintiff with such form upon which to prepare proof of loss.

The rule is unquestioned in this state that where the insurance company denies liability proof of loss is waived and a recovery may be had without furnishing such proof. Texas Juris, vol. 24, p. 1111 et seq., and cases cited under par. 292. There was no error in the court’s ruling on the exception.

Defendant submits that the judgment for $500 is excessive, in that plaintiff alleged the stock of goods to be worth $1,300.82 at the time of the fire, the policy and evidence showing there was a total insurance on said property of $1,500 and said loss should be prorated.

The proposition presents some confusion. Defendant did not plead other policies of insurance on the goods insured, nor ask for. a distribution of damages on the loss.- Plaintiff alleged that the stock of goods at the time of the fire was of the value of $1,300.82, and the evidence shows the loss to be the value alleged, and more. Plaintiff asked judgment for $500. The policy states the liability on amount insured to be $500, and concurrent insurance permitted, including the policy sued on, $1,000. The evidence shows there were two other policies of $500 each, and that $650 had been paid on the two policies. Defendant insists that under the facts shown the judgment is excessive by $174.80.

We think, however, in view of the issues presented by the pleading defendant is not relieved of liability to the extent of its policy contract, and that the judgment is not excessive.

We have considered other propositions not discussed, and think they present no reversible error.

• The judgment .is affirmed.