Potomac Fire Ins. Co. v. Finck Cigar Co.

SMITH, J. A question of jurisdiction has arisen in the case. It appears that appellee originally brought this suit against several defendants in the court of a justice of the peace to recover $154 from said defendants, jointly. Trial in the justice’s court resulted in a judgment in favor of appellee as plaintiff against two of the named defendants, and against ap-pellee as plaintiff as to the two remainipg defendants. Appellee as plaintiff appealed to the county court from the judgment against it in the justice’s court, but filed no appeal bond in support of that appeal. If such appeal bond was required by law, then the county court obtained no jurisdiction of the cause, and, if the county court had no jurisdiction, then this court has none. The question recurs, then, Was it necessary for the plaintiff to give bond as a basis of its appeal to the county court from a judgment denying recovery to it in the justice’s court? The authorities seem to be uniform in holding that no bond is necessary to such appeal. It has been repeatedly so held by our Supreme Court (Houston & T. C. Ry. Co. v. Red Cross Stock Farm, 91 Tex. 628, 45 S. W. 375; Yarbrough v. Collins, 91 Tex. 306, 42 S. W. 1052; Edwards v. Morton, 92 Tex. 153, 46 S. W. 792, 793), and by the several Courts of Civil Appeals (Missouri, K. & T. R. Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W. 655; Albritton v. First Nat. Bank, 85 S. W. 1008; Samuels & Co. v. Morgan & Friedlander, 207 S. W. 338; J. A. Kemp Grocer Co. v. Keith, 48 S. W. 743 ; Brown v. Dutton, 38 Tex. Civ. App. 294, 85 S. W. 454; Willett v. Herrin, 161 S. W. 26), including this court (Thomas v. Hogan, 57 S. W. 300; Clifford v. Kohr, 61 S. W. 424; Karnes County v. Ray, 57 S. W. 76, 77; Feagan v. Barton-Parker Mfg. Co., 42 Tex. Civ. App. 373, 93 S. W. 1076; Karnes County v. Nichols, 54 S. W. 656; Johnson County Sav. Bank v. Midkiff & Caudle, 106 S. W. 1131). There seems to be no authority to the contrary. We therefore hold that the county court and this court had and have jurisdiction of the case on appeal. Mrs. H. B. Childress owned and operated the “Harbor Drug Store” at Aransas Pass, She had the business insured against fire in the Potomac Fire Insurance Company, in the' sum of $3,000. The business was totally destroyed by firé prior to April, 1929, and in due course the insurance company paid the full amount of the policy to Mrs. Childress. The policy was issued to and payable to “Harbor Drug Store, Mrs. H. B. Childress, proprietor.” Mrs. Childress was the sole and exclusive owner of the business, and was entitled to the entire amount of the insurance. It appears that Mrs. Childress’ daughter, Mrs. Lillie Dowdy, worked in the drug store, with authority to purchase and pay for stock carried in the store. The Finck Cigar' Company sold a line of cigars to the store, through Mrs. Dowdy. When the store was destroyed by fire, the cigar company claimed that it had an unpaid account of $154 against the store. The agent of the company, finding that Mrs: Childress was the sole owner of the destroyed business, and of the insurance payable thereon, called on her and her daughter, Mrs. Dowdy, in regard to this account. He testified very vaguely about what transpired, but it is inferable from his testimony that on that occasion the two women, or one or the other of them, agreed to give him a written assignment of a sufficient amount of the insurance money to cover his account. No such assignment was made at the time. But later on Mrs. Dowdy did execute and send the cigar company the following document: “Aransas Pass, Texas, April 30, 1929 “I herewith instruct William T. Kopperl, Agent of the Potomac Insurance Company, *508 Washington, D. C., to pay the Pinch Cigar Company in San Antonio, Texas, $154.05, the amount of the account of the Harbor Drug due the Pinch Cigar Company out of the proceeds of the insurance due on the fire loss of the Harbor Drug. “[Signed] Mrs. Lillie Dowdy.” The cigar company sent the document to appellant’s agent at Aransas Pass, and the latter, when the company sent him ehech for the amount of the insurance, payable to Mrs. Childress, tooh the check and the assignment to the latter for the purpose of concluding the settlement of the insurance matter. When presented with the assignment by Mrs. Dowdy, Mrs. Childress repudiated it and denied Mrs. Dowdy’s authority to bind her by such assignment, and demanded the full proceeds of the checlr, which the agent thereupon paid over to her, less the landlord’s rental, which Mrs. Childress permitted to be deducted from the insurance money. Subsequently, the cigar company brought this suit against Mrs. Dowdy, Mrs. Childress, the insurance company, and Kopperl, the agent of the insurance company, to recover solely upon said assignment; the suit was not upon any account or other debt, nor was any alleged or proved. The cigar company recovered jointly and severally against all the defendants, Kopperl recovered over against Mrs. Childress and Mrs. Dowdy, and the insurance company recovered over against all its codefendants. The insurance company alone has appealed. The record shows that Mrs. Dowdy was such agent of Mrs. Childress as could bind the latter in ordinary matters arising in the operation of the drug business, such, for instance, as making the cigar account with appellee, cigar company. And by virtue of that transaction Mrs. Childress became liable to appellee on that account. But Mrs. Dowdy’s authority as an agent in the usual course of operation of the drug business could not be extended by implication so as to give her authority to appropriate the proceeds of the insurance policy in controversy. She had. no- such authority in fact; it was expressly and promptly repudiated by Mrs. Childress .when, the question first arose. She had no more implied authority to appropriate the proceeds- of the insurance policy than she had to appropriate the proceeds of the sale of the stock of goods had it been made in bulk by Mrs. Childress. There was no evidence of any oral assignment by Mrs. Childress, nor was any alleged. The most that can be said in favor of appellee is that Mrs. Childress promised to give it an assignment. But, if she made such promise, she did not perform it, and authorized no one to perform it for her. 'She repudiated the purported assignment made by Mrs. Dowdy, and directed the insurance company to disregard it. Had the insurance company recognized the assignment made by Mrs.' Dowdy, a stranger to the contract, and had it paid the cigar company’s account out of the amount due Mrs. Childress, over her protest, the latter could have recovered therefor from the insurance company. The latter was required under the contract to pay the amount thereof to Mrs. Childress, or her order. It did so, and could not be required to pay the amount again to a third party, a stranger to the contract, except upon a showing that Mrs. Child-ress had previously assigned the same to the third party, with notice to appellant. No such showing was made. The judgment in favor of appellee against the insurance company will be reversed, and judgment here rendered that appellee take nothing' by reason of its suit against said company. As none of the other defendants complain of or appeal from the judgment against them, that judgment must be affirmed. Reversed and rendered in part, and in part affirmed, at the cost of appellee.