Padgett v. Young County

On Rehearing. It is true, as urged by appellants in their motion for rehearing, that in the petition in the trial court plaintiff alleged that the warrants drawn by the county clerk were paid by I. B. Padgett as county treasurer, and there was no allegation that he issued checks upon those warrants, and that the checks so drawn were paid by the county depository. Accordingly the statement contained in our original opinion, to the effect that the petition contained an allegation that Padgett took up the warrants upon checks drawn by him upon the county depository, is withdrawn for the sake of accuracy. But we do not think that such difference is material, since the essence of the complaint was that Padgett negligently caused the county's money to be plaid out by honoring the warrants. Besides, we find nothing in the record to snow that the proof made of the issuance by Padgett of checks upon the warrants and the payment of those checks by the depository was objected to by defendants on the ground of variance with the allegation in the petition that Padgett himself paid the warrants.

We were also in error in reciting in the original opinion a finding by the trial judge that, when Padgett issued the 1,647 checks on warrants other than the 143 involved in this suit, he required receipts therefor to be written across the face of the warrants. In the motion for rehearing the following is said:

"This honorable court erred in finding that the trial court found as a fact that the appellant Padgett was guilty of negligence in issuing the checks upon which the questioned warrants were taken up, because the record shows that the trial court made no findings of fact whatever concerning the issue of negligence, but concluded as a matter of law that the appellant Padgett was guilty of negligence in certain particulars. * * *"

And in that connection it is further insisted that such ruling by this court is in conflict with the following decisions: Bogart v. Cowboy State Bank Trust Co., 182 S.W. 682; Farmer v. Hale, 14 Tex. Civ. App. 73,37 S.W. 104; Edwards v. Chisholm (Sup.) 6 S.W. 558; Midland Ry. v. Johnson, 65 S.W. 388; Zachariae v. Swanson, 34 Tex. Civ. App. 1, 77 S.W. 627; West End Town Co. v. Grigg, 93 Tex. 456, 56 S.W. 49.

But in Wells v. Yarbrough, 84 Tex. 663, 19 S.W. 865, our Supreme Court used this language:

"In this connection the appellants complain of the findings on the ground that the conclusions of law were not separated from the conclusions of fact, contending that the fourth conclusion of fact is in reality a conclusion of law. Such conclusions should be kept distinct, but the failure to do so cannot, as a general thing, be treated as a ground for reversing the judgment. While we think that the fourth finding should have been treated as a conclusion of law and not of fact, there is about it nothing confusing or misleading. It is clearly stated, and its place in the record was no doubt the result of a harmless inadvertence upon the part of the trial judge."

The general rule announced in that decision is followed in the following cases: Lastovica v. Sulik, 33 S.W. 910; Robert McLane Co. v. Swernemann, 189 S.W. 282, and other cases therein cited. And in all those cases it was held that the improper intermingling of findings of fact and conclusions of law by the inclusion of the findings of fact in the list of conclusions of law and vice versa did not amount to reversible error.

We confess that it is difficult to escape the conclusion that there is a conflict between the decisions so cited by appellants and those last cited by us. However, by no assignment of error contained in appellants' brief was the specific contention presented that the judgment could not be sustained by reason of a failure of the trial judge to find, as specific questions of fact separate from the conclusions of law, that Padgett was guilty of negligence in the particulars enumerated under the heading "Conclusions of Law." While in several assignments it was insisted that the trial judge erred in finding as a conclusion of law that Padgett was guilty of negligence in respect to certain particulars, yet in giving reasons for such contentions, both in the assignments of error themselves and propositions and discussions thereunder, the specific question now under discussion was not raised, but, on the contrary, such findings of negligence so challenged were discussed as findings of fact unsupported by evidence or as being contrary to the evidence.

We think it is sufficiently clear from the record that the findings of negligence by the trial judge were really intended as findings of fact, and not as mere conclusions of law, although, in one Instance at least, one of such findings appears to have been intended to be a findling of negligence per se and therefore negligence as a matter of law as well as a question of fact; and under the circumstances noted we do not think that we erred in treating the findings of negligence as findings of fact rather than as conclusions of law.

Appellants insist further that we erred in our original opinion in stating, in substance, that all parties have proceeded upon the theory that the county is now estopped to recover against the bank by reason of failure of its officers to bring to the notice of the bank the forgeries by Padgett until after Fry had disposed of his property out of which the bank otherwise could have made good some of its losses resulting from the payment of the forged checks. This statement was predicated upon the fact that neither in the trial court nor in this court did the county in any manner contend that the bank was liable, and the further fact that we found no assignment in appellants' brief specifically attacking the conclusion of the trial judge that the county was so estopped. However, for the sake of entire accuracy, such statement in our original opinion is hereby withdrawn, in view of appellants' plea over against the bank, upon the doctrine of subrogation to the county's right to hold it liable, and the further fact that in Padgett's reply brief to the briefs by the bank it was strenuously insisted that the county could not be so estopped by reason of the provisions of section 55 of article 3 of our State Constitution, reading as follows:

"The Legislature shall have no power to release or extinguish, or to authorize the release or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual, to this state, or to any county, or other municipal corporation, therein."

And in connection with the citation of that constitutional provision appellants also have cited upon the same question such decisions as the following: Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 419; Slaughter v. Hardeman Co., 139 S.W. 662; Tarrant County v. Rogers, 125 S.W. 592; Lindsey v. State of Texas, 96 Tex. 586, 74 S.W. 750.

With the foregoing corrections in our original opinion the motion for rehearing is overruled. Overruled.

CONNER, C.J., not sitting, serving on Writ of Error Committee at Austin.