Meyers v. Baylor University in Waco

• Decision Date: 21 April 1928
• Docket Number: (No. 10180.)
• Citation: 6 S.W.2d 393
• Parties: MEYERS et ux. v. BAYLOR UNIVERSITY IN WACO.
• Court: Texas Court of Appeals

6 S.W.2d 393

MEYERS et ux. v. BAYLOR UNIVERSITY IN WACO.

(No. 10180.)

Court of Civil Appeals of Texas. Dallas.

April 21, 1928.

Rehearing Denied May 26, 1928.

Error from District Court, Dallas County; Kenneth Foree, Judge.

Suit by the Baylor University in Waco against William J. Meyers and wife. Judgment for plaintiff, and defendants bring error. Affirmed.

J. N. Townsend, of Dallas, for plaintiffs in error.

Touchstone, Wight, Gormley & Price, of Dallas, for defendant in error.

LOONEY, J.

Baylor University in Waco, a corporation, sued William J. Meyers and wife, Mary S. Meyers, to establish a constructive trust in and to recover from defendants title and possession of certain real and personal properties.

Plaintiff alleged, in substance, that William J. Meyers was in its service in connection with the operation of institutions located at Dallas, and had for more than ten years systematically embezzled and appropriated to his use its funds that exceeded in amount the sum of $25,000, and invested same in the properties sued for, to wit, a certain lot of land at 6147 Bryan Parkway, in the city of Dallas, the improvements thereon, the furniture and furnishings for same, and also a share of stock in the Dallas Athletic Club.

Defendants answered by general demurrer and general denial.

The case was tried without a jury, resulting in judgment for plaintiff for the properties mentioned, and enjoining defendants from in any way selling or disposing of same. From this judgment defendants have appealed by writ of error.

Appellants contend that the burden of proof was on plaintiff to trace the embezzled funds into the identical properties sought to be impressed, and, as the evidence was insufficient to discharge this burden, the court erred in rendering judgment for plaintiff.

This proposition challenges the sufficiency of the evidence to sustain the judgment, and presents the only material question for consideration.

The evidence warrants these conclusions: William J. Meyers was an employee of plaintiff for a period of ten years and ten months, beginning in March, 1916, and ending in the month of December, 1926, in connection with the management of several of its institutions located at Dallas, and, by virtue of this connection, was authorized to, and did, collect and disburse moneys belonging to plaintiff.

In December, 1926, certain irregularities pertaining to business matters were discovered. Meyers was under suspicion, and, on being questioned, denied guilt, but later, when confronted with evidence, confessed that he had embezzled funds belonging to plaintiff to an amount not exceeding $1,200. During the progress of the investigation, as additional revelations were made, he confessed that his embezzlements amounted to various sums, to wit: $3,000, $3,300, $5,000, $6,000, and even as much as $7,500. An audit of the accounts kept by him with three banks showed that, from and including March, 1916, to and including December, 1926, he deposited to his personal accounts the gross sum of $81.589.22, of which $32,975 was his salary. He furnished, at the request of officials of plaintiff, a statement showing that all moneys of whatever nature or origin, other than salary, deposited in these accounts, amounted to the sum of $23,325.16. He thereupon admitted that the sum of these items, to wit, salary and other moneys deposited shown in statement, subtracted from the total deposits in the banks, revealed the total amount of his embezzlements, which, by this method, were shown to be in excess of $25,000.

The record justifies the conclusion that Meyers began his wrongdoing practically at the beginning of his service in March, 1916, and that it extended throughout the 10 years and 10 months of his service. In only 1 month of the 130 involved did his salary exceed his deposit, and in only 7 were his deposits and salary equal in amounts, whilst for the balance of the time, 122 months, his deposits were uniformly larger than his salary, in amounts ranging from $7, the lowest, to $1,993.80, the highest.

On being questioned in regard to a certain lumber transaction, at first he denied any guilt, but later admitted that lumber, worth $368.00 belonging to plaintiff, was used by him in constructing the garage on the land in controversy.

The residence property and improvements cost in 1921 $16,500, for which he is still indebted $5,000; the furniture and furnishings cost $6,000, for which he is still indebted $1,500, and the Dallas Athletic Club stock cost $500. He also invested in building and loan association stock of the value of approximately $4,700, which was surrendered to plaintiff on his shortage. Altogether these items show total investments of $21,200. Meyers deposited in the banks money taken from plaintiff with his own — destroying the identity of each fund — and evidently drew on this mixed fund to pay for the properties in controversy, as it appeared from the evidence that he had no other money or property with which to make the investments. In order to avoid detection, he systematically abstracted and destroyed plaintiff's records of business transactions, as well as records of his personal accounts and canceled bank checks.

Do these facts sustain the judgment? We think so.

Our courts have often said that, in order to establish a trust, such as is attempted in this case, the trust fund must be clearly traced into other specific property; that nothing must be left to conjecture, and that no presumptions, except the usual and necessary deductions from facts proven, can be indulged (King v. Gilleland, 60 Tex. 271; Glasscock v. Hamilton, 62 Tex. 143; Continental Nat. Bank v. Weems, 69 Tex. 489, 6 S. W. 802, 5 Am. St. Rep. 85; Texas Moline Plow Co. v. Kingman, etc., 32 Tex. Civ. App. 343, 80 S. W. 1042; Blumenthal v. Nussbaum [Tex. Civ App.] 195 S. W. 275; Brooks v. Cherry [Tex. Civ. App.] 298 S. W. 170, 175); yet this does not mean that the trust must be established beyond a reasonable doubt (King v. Gilleland. 60 Tex. 274), nor that any more than a fair preponderance of the evidence is required to determine the issue, as in other civil cases (Mitchell v. Mitchell, 80 Tex. 101, 113, 15 S. W. 705; Mitchell v. Mitchell, 84 Tex. 303, 307, 308, 19 S. W. 477).

It is quite true that the burden of proof was upon plaintiff to establish...