*1
special
formance of a
service
em-
to the
Dryden
Beaumont to Nederland.
and the
ployer. The means
transportation
was
employer knew that
the members of the
employer
selected
accepted by
proper
crew must
prop-
have the
tools to
Dryden. The
employment
contract of
erly
be-
adequately
perform their duties.
gan the
Dryden
moment
started
loading
In the case of
Alliance
v. Western
Jecker
tools. The
employment
contract of
had not
Co.,
(Tex.Sup.1963),
Ins.
responsibility transportation. to furnish the
In order to fulfill his contract to build a
house and incidentally profit, earn a Fonte- Dryden turned to transportation.
The arrangement Dryden’s use equivalent
automobile wаs employer ARTHUR, Petitioner, transportation. furnishing Dryden accept- The CITY OF PORT employment and while out carrying agreement his injured. Dryden was di- al., Respondents. Harrell TILLMAN et G. rected employer his proceed No. A-10444. Pinewood addition to Evádale and from Evadale transportation to Nederland. The Supreme Court of Texas. of the tools was under the control of the July 28, 1965. employеr. Dryden, transpor- so far as the tation of concerned, tools was was un- Rehearing Jan. Denied der the absolute control and dominion of his employer. Court, in the case of v. Texas Jаnak
Employers’ Ass’n, Insurance
176 (Tex.Sup.1964), held that travel dur-
ing a deviation regular from a route was employer’s furtherance business. Janak,
In pusher” the “tool knew that the procure
crew “must ice if were to case, for their water.” In our
Dryden agreed knew that he had to deliver job
tools site Nederland. He knew
that he had to travel from his home in Jas-
per County, through the town of Texas,
Vidor in Orange County, through thence *2 all
charged performing of of duty 20, March its functions services. On and 1962, petitioner allegedly discovered practiced upon its Tillmans fraud of the district, February predecessor, on the water than the some ten months earlier city, city. as annexation The formal 19, 1962, subrogee, this action on filed June Hannah, respondents alleging that also Boutte, Paul, Bridges, Prejean as di- and County Con- rectors of Water Jefferson 11, had violated аnd trol District No. statutory duties breached various of their district as trustees and of said directors damages were liable in for such actions and $5,- of their amount officialbonds in the 000 each. resрondents reply pleading
The
said
special exceptions
two-year
urging the
filed
limitations,
peti-
asserting
statute of
pleadings upon
face showed
ioner’s
their
City
alleged causе
of Port Arthur’s
respondents
against
of action
said
two-year
barred
statute of limitations.
hearing
trial court after
sustained
respondents’ special exception urging the
Arthur,
Young, City
Port
Cary
City
statutе of limitations.
pe-
Atty., for
Wikoff,
City
Asst.
George B.
amend,
of Port Arthur refused
where-
titioner.
upon
its suits
the trial court dismissed
Dallas,
Durham,
W. J.
against
respondents.
City
of Port
& Tillman.
Tillman
appealed
Arthur
to the Court of Civil
peals,
III,
judgment
which affirmed the
of
Hannah,
Willard, Mack H.
Johns
trial court.
HAMILTON, Justice. spondents’ speсial exceptions urging the Arthur, Petitioner, City limitations, suc- of Port as statute of rights Ann.Civ.Stats., subrogee (Title 91), against cessor and Vernon’s Jef- Improve- County petitioner, Control Arthur. ferson Water brought suit ment District Nо. two-year statute of limitations wife, respondents, Harrell G. Tillman incorporated City Port as to the Hannah, Tillman, Jr., Hamilton Mack D. D. Ar because of applicable in this case Paul, Prejean and Emily Bridges, Isaac Ann.Civ.Stats., which ticle Vernon’s incorporated As an Frank Boutte. Texas, petitioner alleged that the state of counties, the above-mentioned had annexed and all school dis- 26, 1959, pursuant to December district on any tricts shall not be barred 1182c-l, Ann.Civ.Stats. nor shall this district powers of the It succeeded to the occupancy acquire, by or person evеr and liabilities well as to its assets possession, any right sonably or title to free from doubt.’ 50* adverse Am.Jur. road, street, portion 241. The act amended alley, sidewalk, has the statute un- grounds which be- remained on books town, changed wording city, county, since long liberty depart are not at have been donated or dedicated public literal this any such article at use to *3 thereof, time.” county by the owner out or dedicated which have been laid applied action, As to this since the two- public use in in manner to year statute of limitations Title falls within in county this State.” 91, petitiоner bringing is not barred from (Emphasis added.) See Article against any this suit of the Vernon’s Ann.Tex.Stats. petitioner’s various theories as set out Authority In the case River of Brazos petitioner formally above. When the an- Graham, City of 354 163 Tex. S.W.2d nexed the water district and sub- became (1961), following: 99 we the wrote rogated rights, only to its some ten months period of the limitation had run the “The Title to in Arti- referred applied Article the district. 5517 to relating cle 5517 is Title to Limita- 91 petitioner at that time and the argues Authority tions. apply. statute of limitations does not Chapter Legislature refer to meant to only of Title contains 1 91 which of the Court of Civil relating to articles suits for peals and the trial court are reversed brings land. the maxim to mind the cause is remanded to the trial court that ‘If not mean Parliament does what trial. says, say it it 3 must so.’ Newton v. Barnes, Tex.Civ.App., ON MOTION FOR REHEARING approach wr. ref If we were On motion rehearing problem standpoint of the have point raised the that even if Articlе enactment, Legislature wisdom of the 5517, Vernon’s Annotated Civil perhaps could conclude that prevent does statute of limita- Legislature may property had real tion, Article Civ- Annotаted only limitations in mind. But this is il Statutes, petitioner’s al- barring from approach may employ not be leged action, cause will that Article 5544 by may the courts. not invade city’s bar 5544 of action. Article cause legislative Am.Jur., 212, 50 field. nothing ambiguous 228. There is uncertain literal meaning about the period “The of limitation shall not explore the Act and hence no need to by be the conneсtion one extended legislative history. simply its Act another; and, disability with when that, right states ‘The of the run, law begin limitation shall counties, incorporated cities and all run, notwithstanding shall continue to schоol districts shall not be barred disability party any supervening of the provisions Title, of the of this entitled to or liable sued.” sue to be * * part *.’ is a Article 5526 of the Title of argument the Revised Statutes refеrred trouble with permitting departure is a of Title ‘The rule that Article 5544 just keeps it as is meaning appli- from the literal has no 5517 cation from cities. applying at all where the statute is un- quoted оpinion, ambiguous original and embodies a definite ** * * * * incorporated cities legis- the intention of the provi- of the shall not be barred expressed lature law is rea- * * *. [Emphasis sions of this
ours.]
Respondents point make the further taking
over said Water District No.
purpose engaging proprietary enter
prise and should not he
construed to immunize the
statutеs of limitation in such a situation. say would cause the that to do so equal protection conflict
statute to Texas and of the law Shuman, Brown, Brown Clifford W. *4 They argue United Constitutions. States Lubbock, appellant. it, statute, as we have construed Austin, Douglas, Leon B. State’s exempting the effect for the State. an unrea statutes in Title sonable classification and is unconstitution MORRISON, Judge. holding al. cite us to no cases so any. conclud have not found We have dry beer The offense is sale of in a unreason the classification is not area; that punishment, a fine of $400.00. able. perfected, and The record has now been prior opinion appeal is dismissing for re- overrule motion men, ages eighteen young withdrawn. Two hearing. nineteen, they that went to testified аppellant’s cafe Matador bought four from one bottles of beer Jessie ap- T. Sims. Neither witness testified that pellant present partici- at the cafe or pated in making the sаle to Neither them. pur- witness remembered the date of the chase. deputy The Sheriff and his testified JONES,
Gye Appellant, they they saw the two left witnesses immediately apprehend- cafe аnd thereafter ed them and seized the beer. Neither offi- Texas, Appellee. STATE cer testified as to when arrested No. 38893. appellant. They both fixed the time of the 11:00 seizure at between 10:00 and Court of Criminal of Texas. January night of 23. The information Feb. 1966. charged the offense to have occurred on or January about ' soon as in- the time and date of the formation, upon gо- which the State was known, rely appellant’s ing to was made permit counsel moved the him to court to ready withdraw his announcement of secure might continue the case so that he ap- testify alibi witnesses who would