McMillan v. Dean

• Decision Date: 20 October 1943
• Docket Number: No. 9408.,9408.
• Citation: 174 S.W.2d 737
• Parties: McMILLAN v. DEAN, Sheriff, et al.
• Court: Texas Court of Appeals

174 S.W.2d 737

McMILLAN v. DEAN, Sheriff, et al.

No. 9408.

Court of Civil Appeals of Texas. Austin.

October 20, 1943.

Rehearing Denied November 3, 1943.

Appeal from District Court, San Saba County; Raymond Gray, Judge.

Action by C. H. McMillan against Dennis Dean, Sheriff, and others, to enjoin defendants from selling certain trucks and trailers pursuant to a writ of execution. From judgment entered, the plaintiff appeals, and the defendants cross-appeal.

Affirmed.

J. Mitch Johnson, of San Saba, and Wilkinson, Johnson, Griffin, & Bohannon, of Brownwood, for appellant.

Allen, Helm, & Jacobs, of Houston, and C. K. Ford, of San Saba, for appellees.

BLAIR, Justice.

Appellees, Mrs. Mary Elizabeth Gage and her five children, recovered a final judgment for $3,215, with interest thereon, as damages for injuries resulting in the death of their son and brother when he was run over by a truck and trailer belonging to appellant, C. H. McMillan. Appellees caused a writ of execution to be issued and levied upon four certain large trucks with large trailers attached to each of them belonging to appellant, which were to be sold at sheriff's sale in satisfaction of the judgment. Appellant filed this suit against appellees and the sheriff for a temporary injunction, to be made permanent on final hearing, to enjoin them from selling the trucks and trailers, claiming that three of the specifically described trucks and trailers were exempt from forced sale to him as the head of the family, under Subdivision 5 of Art. 3832 of our statutes, Vernon's Ann.Civ.St. art. 3832, subd. 5, which reserves "to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts * * * all tools, apparatus and books belonging to any trade or profession"; and claiming that the remaining specifically described truck and trailer were exempt to him under Subdivision 9 of the same statute, in lieu of "two horses and one wagon," as therein provided.

The trial court held that the three trucks and trailers claimed to be exempt from forced sale as tools or apparatus belonging to any trade or business were not so, and denied the injunction restraining their sale; but held that the truck and trailer claimed to be exempt from forced sale as or in lieu of two horses and one wagon were so, and enjoined the sale of them. Appellant has appealed on supersedeas bond from the judgment refusing to enjoin the sale of the three trucks and trailers sought to be exempted as tools or apparatus of trade or business; and appellees have appealed from the judgment enjoining the sale of the truck and trailer held to be exempt in lieu of two horses and one wagon. This statement of the case presents the questions to be determined.

Appellant and his wife compose the family. He used the four trucks and trailers under permits issued by the Railroad Commission of Texas and the Interstate Commerce Commission in carrying on the business of hauling or transporting for hire cattle, livestock, wool, mohair, and feed. Appellant was also engaged in the business of operating two sets of race horse starter gates, which he and his employees operated during the racing season in several states. These gates assembled were about 42 feet long and weighed about 15,000 pounds. He hauled them from one state and from one race track to another on the truck which he claimed to be exempt in lieu of two horses and one wagon. In 1942 he received about $7,000 gross revenue from the gate starter business, netting about $900 revenue to him. His estimated revenue from the trucking business was about $2,000 each three months. When he was away operating his gate starter business, his trucking business was operated by a manager who had been employed seven or eight years on an annual salary basis. When he was at home he managed his trucking business and the manager aided him and drove one of the trucks. Appellant also drove one of the trucks when he could not employ drivers for all of them. He used from three to seven drivers and employees in his trucking business. The livelihood for himself and wife came from the two aforementioned businesses, the greater part coming from the trucking business, which he had operated and built up since 1929.

The truck claimed to be exempt as or in lieu of two horses and one wagon weighed 3,800 pounds and was suitable for hauling any kind of load, and the trailer attached was 25 feet long. The three remaining trucks weighed from 3,800 to 4,500 pounds, and all trucks were from 12 to 14 feet long. Each trailer had four wheels, three of them were 25 feet and one 30 feet long, and weighed from 9,500 to 11,000 pounds. The permits issued by the state and federal authorities covered each truck and trailer attached thereto as one unit, and each was ordinarily so operated, although the trailers could be detached and the trucks alone could be used for the hauling or transporting business.

Under the foregoing facts the trial court correctly construed Subdivisions 5 and 9 of Art. 3832 as regards each appeal presented, and we accordingly affirm its judgment as to each appeal. No useful purpose can be served by a lengthy review of the numerous cases that have arisen under these two subdivisions of the statute. Suffice it to say that no case has been cited or found supporting the claim of appellant McMillan that the three large and expensive motor propelled trucks and trailers are exempt from forced sale for debt under Subdivision 5, as tools or apparatus belonging to the trade or business of hauling or transporting merchandise for hire.

In the first place, the trial court took the position that since appellant elected to claim one truck and trailer to be exempt as or in lieu of two horses and one wagon under Subdivision 9, he could not then classify the remaining three trucks and trailers as tools or apparatus of his trade or business of hauling merchandise for hire under Subdivision 5. To so construe these two separate subdivisions of the statute would result in the exemption of what is equivalent to eight horses and four wagons, whereas Subdivision 9 only reserves two horses and one wagon. That such was not the intention of the Legislature is manifest from these and similar statutes.

Subdivision 5 of Art. 3832 reserves to the family from forced sale for debt "all tools, apparatus and books belonging to any trade or profession"; and Subdivision 3 of Art. 3835, by identical language, reserves the same property to the individual from forced sale for debt. Subdivision 9 of Art. 3832 reserves to the family from forced sale "two horses and one wagon," and Subdivision 4 of Art. 3835 reserves to the individual from forced sale "one horse, saddle and bridle."

These statutes each has the important provision, applicable to the family and to the individual alike, which reserves "all tools, apparatus and books belonging to any trade or profession," and each has a provision for exemptions of horses, wagon or saddle, etc., to the family and to the individual. From these statutes it is manifest that the Legislature intended to provide that Subdivision 5 and Subdivision 9 should apply to different things or property. If this were not so, there would have been no need for making the separate provisions. So, if a truck and trailer may under modern conditions be exempt as or in lieu of two horses and a wagon, or of a wagon, then it is clear the statute only intended to exempt one of them. It was not intended by the Legislature to exempt three more trucks and...