author: CRITZ, J. CURETON, C. J.

text:
    SIGMOND ROTHCHILD CO. v. MOORE.
    No. 1432—5639.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.
    Maurice Epstein, of Houston, for plaintiff in error.
    R. A. Powell, of Montgomery, and Poster & Williams, of Conroe, for defendant in error.
   CRITZ, J.

B. R. Moore sued Sigmond Rothchild Company, a corporation, Ben Hicks, sheriff of Montgomery county, Tex., the sureties on Hicks’ bond, and Maryland Surety Company, surety on an attachment indemnity bond, in the district court of Montgomery county, Tex., for the alleged conversion of certain personal property consisting of flour, meal, etc. The suit is based upon the allegations that the property in question was levied upon by virtue of a writ of attachment issued in a suit pending in the district court of Montgomery county, Tex., wherein Sigmond Rothchild Company was plaintiff, and one F. E. Anderson defendant. It is alleged that such property was levied upon and sold by Ben Hicks, as sheriff, at the instance of Sigmond Roth-child Company; that such property belonged to Moore at the time of the levy and sale. The case was tried in the district court with a jury, but at the close of the testimony the trial court peremptorily instructed a verdict for Moore for $1,256.45, with 6 per cent, interest from the date of levy. The judgment finally disposed of all parties and issues in the case and made Sigmond Rothchild Company primarily liable for its payment. Sig-mqnd Rothchild Company appealed to the Court of Civil Appeals at Beaumont, which court affirmed the judgment of the district court. 22 S.W.(2d) 533. The case is in the Supreme Court on writ of error granted on application of Sigmond Rothchild Company. We here refer to the'opinion of the Court of Civil Appeals for further statement of the case. We, however, will make such further statement in the course of this opinion as is necessary to make our holding clear.

We shall hereafter refer to Sigmond Roth-child Company as Rothchild.

It seems from the record before us that at some time prior to the filing of this suit there was a suit pending in the district court of Montgomery county, Tex., wherein Rothchild was plaintiff, and one F. E. Anderson defendant. In that suit Rothchild was seeking a money judgment against Anderson. As ancillary to that suit Rothchild cáused a writ of attachment to issue against Anderson. This writ was levied upon the property above mentioned as belonging to Anderson, and later this property was sold by the sheriff of Montgomery county to satisfy the judgment that Rothchild obtained against Anderson. After the sale Moore filed this suit for conversion contending that the property so attached and sold belonged to him, and not to Anderson.

Rothchild pleaded a general demurrer, general denial, special denial, and estoppel. Rothchild also filed a cross-action against Moore alleging that he was a partner with Anderson.

From the statement we have made it is evident that both the trial court and the Court of Civil Appeals have held that the evidence in the trial court establishes, as a matter of law, that the property levied upon and sold under the circumstances above detailed-belonged to Moore. This holding is attacked by Rothchild by proper assignments and prop; ositions thereunder.

We here call attention to the fact that the trial court, at the request of Roth-child, filed his conclusions of law and fact. These findings were adopted by the Court of ’ Civil Appeals. This was a trial before a jury. It follows that there is no authority in the statute for the filing by the trial court of conclusions of law and fact. This is not a case where the findings of the trial court or the Court of Civil Appeals on disputed issues of fact are binding on the Supreme Court. Article 2208, R. C. S. of Texas, 1925; Schofield v. Texas Bank & Trust Co. (Tex. Civ. App.) 175 S.W. 506.

The trial court having given a peremptory charge for Moore, thereby holding as a matter of law that Moore was the owner of the property in dispute, and, the Court of Civil Appeals having affirmed that judgment, it follows that both such judgments must be reversed unless the evidence in the record affirmatively and conclusively establishes the ownership of Moore in the property at the time it was levied on and sold at the instance of Rothchild. In other words, ordinarily the jury are the judges of the facts proved, the weight to be given to the testimony, and the credibility of the witnesses, and the trial court is not justified in giving a peremptory instruction unless the evidence is so conclusive that reasonable minds cannot differ thereon. When we come to examine the testimony in this record, we find that it does not meet this test, and is not so undisputed and free from suspicion as to justify a peremptory charge for Moore.

The property levied on was in the possession of Anderson at the time of such levy, and Moore had the burden of proving affirmatively that the property belonged to him. The burden did not rest on Rothchild. The evidence on this point comes principally from three witnesses, all offered by Moore. These witnesses are F. E. Anderson,’the defendant in the suit in which the attachment was issued, Moore, the plaintiff in this suit, and James E. Gilmore, the cashier of the bank handling' the transactions hereinafter described.

F. E. Anderson testified, in substance, that the property in question belonged to Moore; that he held it as Moore’s agent under an agreement with Moore, by which he was to sell it for Moore on commission, and deposit the proceeds of such sales to Moore’s account in the bank. He admits, however, that the property was bought by him in his own name; that it came billed to him, drafts for the purchase price attached to the bills of lading; that the property was placed and exposed for sale in his place of business where he and his wife were conducting a grain and feed business; that he had control of such business; that when he sold any of the property he made out the bills' in his own name; that all checks received by him in payment for such sales were made payable to him; that there were no marks on the goods to identify them as the property 6i Moore; that when the property was levied on he told the officers making the levy that it belonged to Moore, but did not notify Moore for several days thereafter; that he did not write Moore about the levy, but told him when he.saw him. Also Anderson testified that he had come from Wichita, Kan., to Montgomery county, Tex., to testify as a witness for Moore at Moore’s expense. Anderson’s testimony is rather extended, but when it is taken as a whole the jury would be justified in considering him a biased witness for Moore, and, when his testimony is considered from every angle, it cannot be taken as true as a matter of law. Of course we do not mean to intimate that it was not true. What we hold is that the jury should have been allowed to pass on Anderson’s credibility as a witness and the weight to be given his testimony. ■ In other words, Anderson is not such a witness that his evidence must be given absolute verity as a matter of law.

James E. Gilmore, the cashier of the bank that handled the drafts and bills of lading, connected with the purchase of the property, and also the accounts of the parties, testified to facts which, if taken as true by the jury, would corroborate the claim of ownership of Moore. He, on the other hand, testified to other facts which might be taken by the jury as supporting the defense. He testified that the goods were shipped billed to Anderson, with the bills of lading in Anderson’s name, and that such bills of lading were attached to draft drawn on Anderson. He also testified, among other things, as follows: “It is a fact that he (meaning Moore) told me that so long as Mr. Anderson owed him this money as evidenced by those checks that he had issued to take up a portion of the drafts that Mr. Anderson was to deposit the money that he got for this merchandise to his,account in my bank. That is right. That is a fact.” Under all the facts, the jury should have been allowed to pass on Gilmore’s cred-, ibility as a witness, and the weight to be given his testimony.

Also, if Moore’s testimony is believed by the jury, he would be entitled to recover. However, he is a party plaintiff, and from the entire record it cannot be said that his testimony must be taken as true, as a matter of law. He testified that the goods belonged to him, and that Anderson had same in his place of business under an agreement between them that Anderson was to sell them on commission as his agent. However, he admits that he knew that the goods had been levied on, and were being advertised for sale as the property of Anderson, yet he made no claim of ownership to the officer in charge, nor to Kothehild, and asserted snch ownership for the first time by filing the instant suit. Moore’s credibility as a witness, and the weight to be given his testimony was for the jury. He is the most biased witness known to the law, a party to the suit, and directly and vitally interested in the result. Furthermore, his testimony is not, as a matter of law, undisputed and free from suspicion.

When we consider this record in its entirety, the credibility of all the witnesses who testified with reference to the ownership of the property here involved, and also the weight to be given their testimony, was for the jury. This is not a case for a peremptory charge either way.

We do not think any issue of estoppel or partnership is raised by th'e evidence.

We recommend that the judgments of the Court of Civil Appeals and the district court be both reversed, and the cause remanded to the district court for a new trial.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


source: Caselaw Access Project

author: LBDDY, J. CURETON, C. J.

license: Public Domain

text:
    TEXAS POWER & LIGHT COMPANY v. Iona CULWELL et al.
    Motions Nos. 9488, 9489; No. 1199—5549.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.
    For former opinion, see 34 S.W.(2d) 820, which reversed 19 S.W.(2d) 816.
    Beall, Worsham, Rollins, Burford & Ry-burn and A. S. Rollins, all of Dallas, and J. L. Gammon, of Waxahachie, for plaintiff in error.
    H. S. Beard, of Waxahachie, and .Miller & Price, of Waco, for defendants in error.
   LBDDY, J.

Both parties have filed motions for rehearing which have been given careful consideration. We have not been convinced that the questions discussed in the original opinion were not correctly decided.

Plaintiff in error insists in its motion that we should reform the judgment reversing and remanding the cause for another trial so as to affirm it- as to the father and mother of the deceased, against whom judgment was rendered in the trial court. This insistence must be sustained, as these parties did not appeal from the judgment rendered against them.

We recommend that defendants in error’s motion for rehearing be overruled, and that plaintiff in error’s motion be granted to the extent that the judgment heretofore rendered by us be reformed so as to affirm the judgment of the trial court as to S. L. Culwell and his wife, Mrs. S. L. Culwell. In all other respects plaintiff in error’s motion for rehearing is overruled.

CURETON, C. J.

The motion for rehearing by defendants in error' is oVerruled, and plaintiff in error’s motion is granted to the extent of reforming the judgment so as to affirm the judgment of the trial court in part as recommended by the Commission of Appeals, and otherwise overruled.


author: LEDDT, J. CURETON, C. J.

text:
    ST. LOUIS, S. F. & T. RY. CO. v. GREEN.
    No. 1249—5628.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      E. T. Miller, of St. Louis, Mo., Goree, Odell & Allen, of Fort Worth, and Freeman, Mc-Reynolds & Hay, of Sherman, for plaintiff in error.
    Randell & Randell, of Sherman, for defendant in error.
   LEDDT, J.

Defendant in error brought this suit against plaintiff in error alleging that he was employed by it in the shops at Sherman, Tex., as a laborer in building and rebuilding its ears. That while he was performing his work in using a sledge hammer to drive a rivet out of the sill of a car, the jar occasioned thereby caused a steel post, weighing about 125 pounds, which had been left unfastened at the top and insecurely fastened at the bottom, to fall upon him, inflicting serious and permanent injuries.

Upon the trial a jury answered all special issues submitted in defendant in error’s favor and judgment was rendered accordingly.

Plaintiff in error seeks a reversal of the judgment because of the trial court’s failure to give in charge to the jury special issues Nos. 3 and 4, requested by it, the same being as follows:

“No. 3. Before the time of the injuries complained of by the plaintiff, had he been directed and instructed as a part of the duties of his employment to examine or inspect a car before beginning to work thereon to see that the same was in safe condition to work on?”
“No. 4. Under the defendant’s rules and regulations and the usual customary methods of doing the work in which plaintiff was engaged, was it plaintiff’s duty to examine the ear in question, before beginning work on same, to see if same was in safe condition to work thereon?”

We think the trial court did not err in refusing to give either of these special issues. To have given them, in the form requested, would have resulted in submitting mere evi-dentiary matters; which it was the. duty of the jury to give due consideration in passing upon the issue submitted by the court as to whether defendant in error was guilty of contributory negligence.

We also overrule plaintiff in error’s complaint as to improper argument upon the part of defendant in error’s counsel in his closing argument to the jury. It appears that defendant in error was examined at the request of plaintiff in error, by its physician, Dr. Carroll, and that subsequently this witness’ deposition was taken by plaintiff in error. The deposition was not offered in evidence upon the trial, but it was admitted by plaintiff in error’s counsel in open court that the deposition of the witness had been taken and was on file. Under the circumstances defendant in error’s, counsel was within the bounds of legitimate argument in stating, in effect, that plaintiff in error’s failure to offer the deposition in evidence was evidently due to the fact that the testimony given by its physician was unfavorable to it in regard to the nature of the injuries found by him in the examination made at its request.

Even if it be conceded that the argument complained of was erroneous, no exception having been taken at the time it was made and no request having been made for the court to instruct the jury to disregard the-same, reversible error would not be presented, as the argument was not of such an inflammatory nature that any injurious effect on the jury could not have been prevented by proper and timely admonition from the trial court. Moore v. Moore, 73 Tex. 382, 11 S. W. 396, 401; Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S. W. 631, 632; Davis v. Kennedy (Tex. Civ. App.) 245 S.W. 259.

The Honorable Court of Civil Appeals, 22 S.W.(2d) 550, refused to sustain plaintiff in error’s assignment complaining of the trial court’s definition of proximate cause, assigning as a reason for its ruling that the issue of proximate cause was not a controverted one under the evidence, therefore if the definition was erroneous the error was harmless.

The trial court defined “proximate cause’’ as follows:

“ ‘Proximate cause,’ as used in this charge, is the cause which in a natural and continuous sequence, unbroken by any new cause, produces an event that without which the event would not have happened.”

The definition given is clearly erroneous under repeated decisions in this state in omitting ■ foreseeableness or anticipation of the injury, such element being an essential one, where proximate cause is an issuable fact. Texas & P. v. Bigham, 90 Tex. 223, 38 S. W. 162; Turner v. Stoker (Tex. Civ. App.) 289 S. W. 190 (writ of error denied); Dallas Ry. Co. v. Warlick (Tex. Com. App.) 285 S. W. 302; San Antonio & A. P. Ry. Co. v. Behne (Tex. Com. App.) 231 S. W. 354; Wichita Falls Traction Co. v. McAbee (Tex. Civ. App.) 21 S.W.(2d) 97, 102; Blanch et al. v. Villiva et al. (Tex. Civ. App.) 22 S.W.(2d) 490; St. Louis, S. F. & T. Ry. Co. v. Mullins (Tex. Civ. App.) 23 S.W.(2d) 489; Texas Pipe Line Co. v. Watkins (Tex. Civ. App.) 26 S.W.(2d) 1103, 1104; Linn Motor Co. v. Wilson (Tex. Civ. App.) 14 S.W.(2d) 867, 870.

Plaintiff in error, having timely excepted to the charge defining proximate cause, specifically pointing out the omission complained of, was entitled to have a correct definition thereof given by the court in its instruction to the jury. Gulf, C. & S. F. Railway Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183; Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570.

Plaintiff in error, under the charge as given, has been denied the right to have the jury pass upon the question as to whether the injury suffered by defendant in error was the natural and probable result of the negligence complained of which ought to have been foreseen by the plaintiff in error in the light of attendant circumstances.

Only in the event the state of the record is such we can say that defendant in error’s injury, as a matter of law, was shown to be the proximate result of plaintiff in error’s negligence, can the holding made by the Court of Civil Appeals be sustained. Dallas Ry. Co. v. Warlick, supra.

A careful consideration of the record convinces us that the trial court correctly interpreted the evidence as raising the issue of proximate cause, hence it was necessary that a correct definition of such term be given and the Court of Civil Appeals erred in its holding to the contrary.

A few brief excerpts from the testimony will be sufficient to show that proximate cause was an issuable fact upon the trial. On cross-examination defendant in error testified:

“This side post had been fastened at the top as well as at the bottom, but it was not fastened at the top at the time it fell and struck me. It was just fastened with one bolt at the bottom. If I had looked at the top of the post I could have seen that it was not fastened. I did not look at it to see if it wa-« fastened.”

Plaintiff in error’s witness W. A. Morgan, gave the following testimony:

“I am General 'Foreman for the -Frisco Railroad at the shops in Sherman. I have general supervision over the car shops as foreman. As General Foreman I instruct the employees as to the rules and working conditions, and see that the rules are carried out. ⅜ * * ⅛ dismantling and rebuilding cars there in the shops instructions are given the employees. We have safety meetings out there and instructions are given employees in groups and individually. I recall that Mr. Green had been present in the group meetings where we issued instructions, and the instructions were to see that his car was in safe condition before he goes to work on it. Under the ordinary, customary and usual way of doing the work on the cars in the shops the plaintiff’s' instructions were to make inspection to see that these posts were fastened to the top by plates, I mean bolts, before he went to work on it.”

Its witness J. J. Thurston testified:

“I am familiar with the rules under which the men work there in the shops and the instructions given and the method and manner of engaging in doing the work at the time Mr. Green was injured and prior thereto. I gave him instructions as to what his duties were in the rebuilding of cars. I instructed him that whenever he went to a car to work that his first duty was to look it over and see if it was in a safe condition and everything in shape so that nothing would fall anywhere or anything injure him. The man dismantling the car, everything that was to be left on the car, not taken off was supposed to bolt up and leave it safe for the next man. Before Mr. Green started .to work it was his duty to look and see that everything was in shape to work with and that it would not fall, and bolt it up if there was any post left up there that should be bolted before he started to work.”

George Poole, another of its witnesses, testified:

“The man rebuilding the car was not required to go around and inspect everything, but be was to ascertain that it was in a safe condition to work on.”

• In the light of the above testimony, we are of the opinion it was for tbe jury to determine whether plaintiff in error should have anticipated that the injury in question, or some similar injury, might be reasonably expected to result from its failure to have the upright post securely fastened at the top. If the jury found, in addition to its finding that plaintiff in error was guilty of negligence in the respect complained of, that such negligence was not the proximate cause of defendant in error’s injury, we think it could not be fairly said that such finding would not at least have some support in the evidence. If the jury believed plaintiff in error’s witnesses, who testified that defendant in error was given specific instruction to see whether the upright posts were fastened before engaging in the work of dismantling a car, such fact might have been used as a basis for a finding that plaintiff in error could not have reasonably anticipated if it left any of the upright posts unfastened injury to defendant in error would probably result, as it might assume such a result would be avoided by a compliance with its instructions upon the part of defendant in error.

. Because of the error indicated, we recommend that the judgments of the trial court and of the Court of Civil Appeals be reversed and the cause remanded for another trial. .

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals reversed, and cause remanded to the district court.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: CRITZ, J. GURETO'N, O. J.

text:
    UNION StOCKYARDS v. PEELER.
    No. 1435—5645.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.
    Terrell, Davis, McMillan & Hall, of San Antonio, for plaintiff in error.
    Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for defendant in error.
   CRITZ, J.

This is a suit for damages on account of personal injuries filed by Travis L. Peeler, whom we will hereinafter designate as plaintiff, against Union Stockyards, a corporation, whom we will hereinafter designate as defendant. The suit was filed in the district court of Bexar county. Trial in the district court before the court without the intervention of a jury resulted in a judgment for the plaintiff for $5,000. The defendant appealed to the Court of Civil Appeals at San Antonio, which court affirmed the judgment of the trial court. 21 S.W.(2d) 1076. The case is in the Supreme Court on writ of error granted on application of the defendant.

Omitting immaterial parts, Peeler’s petition in the trial court reads as follows:

“Plaintiff avers that the defendant, Union Stock Yards, maintains in the City of San Antonio certain pens and stock yards for the handling of stock, and on or about April IS,-1928, the plain tiff was lawfully in said stock yards, assisting in the handling of some cattle, and under the circumstances it was the defendant’s duty to exercise care to see that the pens and gates were in safe and secure condition. Notwithstanding this, the defendant negligently caused and permitted one of the gates and the latch thereof, which defendant maintained in said stock yards, to be in a defective, insecure and unsafe condition, and, by reason of defendant’s negligence, the latch of said gate broke when one of the cattle came in contact with it and thereby the plaintiff was thrown, and because of defendant’s negligence plaintiff sustained serious and permanent personal injuries as hereinafter described.
“Plaintiff avers that the defendant negligently caused and permitted said gate to be in a defective and insecure condition.
“The defendant also negligently caused and permitted the latch of said gate to be in a defective, insecure and unsafe condition so that it broke when one of the cattle came in contact with the gate.
“Plaintiff also avers that the defendant negligently caused and permitted the latch of said gate to become old, worn and weak.
“Plaintiff avers that each of said acts of negligence was a separate act of negligence and each directly caused and contributed to the plaintiff’s injuries. The facts and circumstances are peculiarly within .the possession of the defendant and plaintiff cannot set out defendant’s negligence more specifically than he has done herein.
“By reason of the defendant’s negligence, the plaintiff was thrown and because thereof one of the cattle stepped upon his leg and injured and broke it.”

The plaintiff testified in substance that he and John L. Kothe were moving cattle from one cattle pen to another; that he (plaintiff) was opening and closing the gates; that before he got away from the gate where the accident happened a wild and excited steer brushed against him, hit the gate, and broke the gate latch, thus causing the gate to swing open; that he had hold of the gate at the time and was jerked down, causing the feet to drag the ground and the steer stepped upon his leg and broke it; that if the latch on the gate had not broken, and the gate had not come open, he would not 'have been thrown; that when the accident happened he had already latched the gate; that he had reached back and was holding the gate at the 'time the latch broke; that about six inches of the gate latch broke off; and that the latch was an old piece of timber and was worn and loose.

John L. Rothe, a witness for Peeler, testified:

“I am in the live stock commission business with an office in the exchange building at the Union Stock Yards. On the day in question the plaintiff and I were moving cattle in the alley. Plaintiff was east of the' cattle and I had walked into the bunch and one steer ran out. When the steer came in contact with the gate the slat broke and the gate flew open. When the gate opened Mr. Peeler fell to the ground and the steer - jumped on him. Then the steer fan down the alley. The slat breaking and the gate giving away was what caused the plaintiff to fall and it was when he fell that his leg got into the position where the steer stepped on it. The latch seemed to be in a very weak condition due to constant use for a number of years and seemed to be worn down. The gate in question was closed across the alley and Peeler, walked towards the gate for the purpose of opening it and when he saw the steer coming he just turned around and put out his hands toward the steer. He was in the situation where he was protecting himself from that steer. The steer struck him and the slat broke and Mr. Peeler went down on the ground and the steer jumped on him. Mr. Peeler hadn’t gotten to the gate for the purpose of opening it as yet. He and the steer got there about the same time but he turned when the steer was upon him and put out his hands like this and wheeled around- and the steer struck him. I don’t know just where but pushed him against this gate and the slat broke and he went down and the steer jumped on him. These cattle were wild. As to whether their wildness was what brought this accident about, the steer striking him was what caused this accident; running against this gate and the thing breaking is what caused the damage. The steer was absolutely wild. When Mr. Peeler closed that alley and if these were wild steers, and as to why he didn’t get on the other side, I don’t think ihe was compelled to get on the other side. He didn’t expect this steer to run out there.”

It seems that the defendant offered no testimony as to how the accident happened, and the above is all of the testimony on this subject. It is not questioned that the stockyards in question belonged to and were being operated by the defendant. AVe also assume, for the purpose of this opinion, that plaintiff was an invitee in the yards at the time he received his injuries. Prom the statement we have made it is evident that the plaintiff’s cause of action is based upon the theory that the ■latch to the gate in question was defective, and that as a proximate result thereof he received the injuries here complained of. In this connection we assume that the latch was defective, and that such defective condition was due to the negligence of the defendant.

The defendant pleaded a general demurrer and certain special exceptions, also a general denial. Also the defendant pleaded that the injury to the plaintiff was caused by the happening of an unexpected and unforeseen contingency, which could not have been foreseen by the exercise of ordinary care or foresight, and, that, accordingly, the act of negligence complained of was not the proximate cause of the plaintiff’s injuries. The defendant also pleaded certain other matters not germane to this opinion.

The defendant, by various assignments of error, contends that both the pleadings and the evidence, considered in their most favorable light on behalf • of the plaintiff, show, as a matter of law, that the negligence of the defendant in maintaining a defective gate or gate latch was not the direct and proximate cause of the plaintiff’s injuries. We sustain this contention. Texas & Pac. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, 164.

The ordinary layman understands the term “proximate cause” to mean the nearest cause, but such is not the legal meaning of the term. In law an event may be the proximate cause, though it is not the nearest cause, and conversely an event may be the nearest cause in point of time, and not in law, the proximate cause. It is sufficient in law for an event to be proximate cause of an injury, if the injury is the natural and probable i;esult of the act of negligence, either by commission or omission. It is further a rule of law as applied to negligence that a party will not be held responsible for the consequences of an act which ought not reasonably have been foreseen. In other words, in order to warrant a finding that an injury is the proximate result of an act of negligence, either by commission or omission, it must appear that the injury was the natural and probable consequence of the negligent act complained of, and that the party committing the negligent act ought to have foreseen such consequences in the light of attending circumstances. All the above rules are laid down and exhaustively discussed by Chief Justice Gaines in the Bigham Case, supra.

When we test this case by'the above rule, and by the rules of law announced in the Bigham Case, we find that the pleadings and the evidence absolutely fail to establish the fact that plaintiff’s injuries were the proximate result of the negligence of the defendant in maintaining the defective gate or gate latch. In fact, -the similarity of the facts and circumstances of this case, and the Bigham Case, is such as to be very remarkable. Furthermore, the facts of this ease are so similar to the facts of the Bigham Case that there is no escape from the conclusion that if the facts in the Bigham Case fail to raise an issue of proximate cause, the facts of this case also fail to raise such issue.

An examination of the opinion and the original record in the Bigham Case shows that Bigham had made arrangements with the railroad company for the shipment of his cattle from Merkel to Waxahachie, both points in Texas, that he had penned his cattle in the stock pens of the railroad; that the gate to the entrance of such pens was out of repair, and its appliance for fastening defective ; that these conditions were known to the railroad; that the,defective condition of the gate, and its appliance was due to ¿he negligence of the railroad; that Bigham was an invitee of the railroad at the time of his injury; that in order to prevent the escape of his cattle Bigham was in the act of fastening the gate by means of a rope when the noise of a passing train so frightened the cattle as to reduce them to a condition of panic, and they plunged towards and upon the gate, one on top of the other, and before Bigham could escape hurled him to the ground some 20 feet away, where he fell unconscious, and was badly injured; and but for the act of negligence on the part of the railroad in permitting the gate to remain in a defective condition the cattle would not have escaped, and he would not have been injured.

In the instant case it is shown that plaintiff was lawfully assisting one Rothe in moving some cattle from one pen to another; that in doing so, he (plaintiff) was opening and closing the gates to the pen; that while he was performing the above acts a wild and excited steer brushed against the gate, broke the latch, .and caused the gate to fly open; that Peeler had hold of the gate at the time, and was jerked down thereby, and his feet caused to drag the ground, and the steer stepped on 'his leg and broke it, and otherwise injured him; that if the latch had not broken the gate would not have come open, and he would not have been thrown in the prone position, and- would not have been injured ; and that the defendant was guilty of negligence in maintaining the gate with a weak and defective latch.

In applying the law of proximate cause to the facts in the Bigham Case, Judge Gaines says:

“Ought the agents of the company to have foreseen that, as a result of the imperfect fastening of the gate, the injury, or any injuries similar in character, would probably result? In our opinion, nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff. The act of the defendant in permitting the fastening to its gate to become insecure was in itself lawful; and, since it was clearly out of the range of reasonable probability that an injury to the person of any one should result, it should be held, as a matter of law, that the negligence of the company gave no right of action for such injuries.”

When we come to apply the law of proximate cause to 'the instant case, we can but say the same as was said by Judge Gaines in the Bigham Case. Ought the agents of the defendant to have foreseen that as a result of the defective condition of the fastening to the instant gate the injuries to the plaintiff would result, or would such company be expected to foresee that as a natural and probable consequence of its failure to keep the gate fastening in good condition the injuries complained of, or that any injuries similar in character would result? In our opinion no person could reasonably be presumed to have anticipated the combination of events which resulted in the injury to the person of the plaintiff. The negligent act of the defendant in permitting the fastening, to its gate to become unsafe and defective was in itself lawful, and since it was clearly out of range and probability that an injury to the person of any one would result thereby, it should be held as a matter of law that such negligence gave no right of action -for the personal injuries here complained of.

The opinion of the Court of Civil Appeals attempts to distinguish the instant case from the Bigham Case as follows:

“The ease of T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, is presented and urged as authority against appellee’s contention. The Bigham Case is easily distinguishable from the instant case. It had nothing to do with the injury that in this case was caused by a defective latch. In the Big-ham Case the breaking of the gate did not of itself have any connection or causal relation with the plaintiff’s injury — it merely let the cattle out, which ‘hauled him some twenty feet.’
“Here plaintiff was actually holding to the defective gate, and, when toe latch broke, being itself defective, pulled the plaintiff down, and threw him undei; the foot of the steer, and dragged him in the path of the steer. This is not a case where animals ‘ escaped, but a case wherein there was a defect in the latch which caused the injury. In the Bigham Case the defective latch merely let the cattle escape, but here the defect in the gate itself pulled the plaintiff down and threw him under the feet of the steer. The direct causal connection between the defective latch and gate and the injury is apparent and definitely shown.”

. An examination of the original statement of facts in the Bigham Case shows that Big-ham testified, among other things, as follows:

“I put them (the cattle) in defendant’s stock pens ready to 'be shipped. The latch which went from the gate into the morticed groove in the gate post was broken. I called to one of my men to give me a rope with which to fasten the gate. One of them gave me a half inch rope. I had put it once around the gate post and the fence post and was trying to pass it around again when an engine passed on the defendant’s track just north of the pen and frightened the cattle; that suddenly, and while I had my arms around the post trying to tie the rope around again they ran with great force and violence into the gate. They broke the rope and drove the gate against me. I fell senseless about twenty feet from the gate post where I was trying to hold the cattle.”

A reading of, Bigham’s testimony above quoted, together with the statement we have made of that case, discloses that the distinction drawn between the Bigham Case and the instant case by the Court of Civil Appeals is not justified by the records of the two cases.

It appearing that the facts of this case have been fully developed, and that no purpose can be served by a remand, we recommend that the judgments of the Court of Civil Appeals, and of the district court, be both reversed, and judgment here rendered for the plaintiff in error.

GURETO'N, O. J.

The judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiff in error, as recommended by the Commission of Appeals.


author: SHARP, J. CURETON, C. J.

text:
    WOODS v. WEST et ux.
    No. 1434—5643.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.

      'j. R. Norvell and J. C. Looney, both of Edinburg, for plaintiff in error.
    E. W. Moran, of La Feria, for defendants in error.
   SHARP, J.

Oswell West and wife, Clemmie West, instituted this suit in the form of an action of trespass to'try title in the district court of Hidalgo county against W. A. Woods and G. C. Pinson, alleging, in substance, that they were the owners in fee simple of Lots H and I of subdivision of blocks Nos. 17, 20, and 21 in subdivision A of the lands of the La Blanca Agricultural Company’s tract in Hidalgo county; that plaintiffs on or about the 16th day of May, 1928, executed a certain deed of trust upon lots H and I to G. C. Pinson, trustee, as a security for the payment of a certain promissory note in the sum of $528.10, payable to the order of W. A. Woods; that a part of the amount represented by this note was for the payment of certain attorney’s fees due George L. Fryer of Paris, Tenn., for legal services rendered plaintiffs, etc.; that lots H and I constituted their homestead, and the note executed by them to Woods was not secured by lien on same. They also prayed for cancellation of the deed of trust given on lots H and I to secure Woods for the amount due him.

W. A. Woods, in addition to other pleadings, filed a cross-action against the plaintiffs and sought judgment for the amount of his note. He further alleged that the note described above w^ts secured by a valid deed of trust lien on lots H and I above described; that at the time of the execution of such deed of trust the premises herein described constituted no part of the homestead of plaintiffs; and that, if it should be found that said premises were impressed- with the hoihestead rights, -then that such deed of trust was superior to said rights, for the reason that the deed of trust was given to secure the purchase price of said tract of land; and defendant, Woods, prayed that said deed of trust be established as a valid, subsisting lien.

Defendant further alleged that on or about the 12th day of August, 1927, plaintiffs and defendant entered into a certain agreement whereby the plaintiffs agreed to convey to defendant Woods 117 acres of land, more or less, situated in Henry county, Tennessee, in exchange for a certain 10-acre tract in Hi-dalgo county, Tex., described as the west 10 acres, more or less, of block No. 158; that prior to that date plaintiffs had executed a certain contract whereby they agreed to convey a one-half interest in and to the Tennessee tract to George L. Fryer, which contract cast a cloud upon the title to that land; that defendant refused to accept the title to said Tennessee tract, whereupon plaintiffs agreed •to give defendant a valid lien upon the Hidal-go county land and did execute an instrument whereby they agreed that defendant would have a válid lien upon the tract of land, which he had conveyed to plaintiffs to secure him against all claim asserted against the Tennessee tract of land, because of the contract they had with Fryer, this lien or indemnity agreement to remain in force for a period of four years; that, in consideration of this contract or lien, plaintiffs and defendant exchanged land and plaintiffs warranted the title to the Tennessee tract to defendant as being clear of liens or incumbrances, except for a $3,500 mortgage held by the Prudential Insurance Company; that the value of the Tennessee land was $4,500 and the value of the Hidalgo county land was $1,000; that, after the consummation of the deal, plaintiffs left Tennessee and came to Hidalgo county, and Fryer filed suit in the courts of Tennessee to establish his claims against the land, and defendant was forced to settle with him to clear the title to his.land; that afterwards plaintiffs and J. C. Engleman entered into an agreement for an exchange of land, whereby plaintiffs agreed' to exchange the west 10 acres to Engleman for lots H and I; that Engleman- objected to the title to the west 10 acres because of the lien held by defendant, and that, in order to obtain a release of this lien, plaintiffs represented to Woods that they would transfer the lien to the property that they would acquire from Engleman, and in consideration of this agreement defendant released his lien upon the west 10 acres, and plaintiffs and defendant agreed that the amount due from plaintiffs to defendant was $528.10, which sum or indebtedness was. placed in the form of a note, and they executed a deed of trust to secure same upon the property that plaintiffs had received from Engleman. Defendant in his cross-action prayed for judgment establishing the amount of the note as a valid equitable lien upon the premises and that same be foi'eclosed.

The case was tried before the court without a jury. Judgment was rendered in favor of the defendant on his cross-action against plaintiffs for the sum of $595.43, but the court decreed that the deed of trust lien asserted by defendant against lots H and I should be canceled and plaintiffs recover title and possession of the lots as against defendant. Woods appealed to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was affirmed. 21 S.W.(2d) 1090. Woods applied for a writ of error to the Supreme Court, which was granted.

We will refer to the parties as in the district court.

Woods, who was the defendant in the trial court, and plaintiff in error here, contends that, as he held a valid subsisting lien against the west 10 acres of block No. 158 to secure the payment of money he had expended in order to settle the Fryer claim against the Tennessee land, which was the sum of $467.-30, when he released his lien against the 10-aere tract under an agreement whereby he was to be given a lien upon lots H and I, he in fact contributed to the consideration paid for said lots under the agreement that he was to have a lien upon said lots for the amount so contributed and is therefore possessed of a valid equitable purchase-money lien against the lots to secure the payment of that amount.

West and wife contend that lots H and I constituted their homestead, and rtnder the laws of this state' the lien executed by them was invalid and unenforceable.

The trial court made the following findings of fact:

“I further find as a fact that after plaintiffs had moved to Hidalgo county, Texas, they undertook to make an exchange of the west 10 acres of Lot 158 hereinabove mentioned, to J. O. Engleman for other lands located in Hidalgo County, Texas, described as Lot 1 of the Re-Subdivision of Blocks 17, 20, and 21 of Subdivision A, and Lot H of Re-Subdivision of Blocks 17, 20 and 21 of Subdivision A of the La Blanca Company’s tract", that the said Engleman objected to the title to said ten acres plaintiffs had acquired from defendant on account of the agreement entered into,' and mentioned in finding No. 5, and requested plaintiffs to secure some character of release from the defendant W. A. Woods from the terms of said agreement, and that plaintiffs then undertook negotiations with the defendant Woods to secure a release of said agreement to the end that they might convey same to the said Engleman for the land hereinabove mentioned as Lots I and H of the Re-Subdivision of Blocks 17, 20 and 21, and which negotiations finally resulted in the execution of the deed of trust hereinafter mentioned.
“I further find as a fact that after the plaintiffs had left the State of Tennessee and removed to Hidalgo County to use and occupy the Texas land, that the said W. A. Woods entered into some negotiations with the attorney G-. L. Fryer, by the terms of which he settled with Fryer for his claim against the Tennessee land by paying to said Fryer a certain amount of money in approximately the sum of $400.00, and by paying another attorney who asserted some right in the contract, the sum of $50.00, and court costs of the suit pending against plaintiffs by Fryer, in Tennessee, and also charging up to plaintiffs certain moneys that he claimed to have advanced them to make a crop in Tennessee, which amounts total the sum of $528.10; that he, the said Woods, thereupon notified plaintiffs of the amounts that he had been compelled to pay out for the purposes above stated, and that plaintiffs then and there agreed to execute to him a note evidencing said amounts, and did, as of date May 12, 1928, execute such note, which said note was to become due and payable October 2, 1928, and contemporaneously with the execution of said note executed and delivered to defendant Woods a deed of trust lien upon 20 acres known as Lots I and H of the Re-Subdivision of Blocks 17, 20 and 21 that they acquired from Engleman in exchange of the lands that he had theretofore acquired from the defendant Woods.”

The trial court gave judgment for defendant upon his cross-action 'against plaintiffs for the sum of $595.43, but further found as a matter of law that defendant did not have a lien against the two lots above described, because same constituted a homestead of the plaintiffs, and therefore was not subject to the lien claimed by defendant.

It is definitely settled in this state that the homestead of a family shall be protected from forced sale for the payment of all debts except for the purchase money thereof, or part bf such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in the last case only when the work and material are contracted for in writing with the consent of the wife given in the same manner as is required in making a sale and conveyance of a homestead. No mortgage,- trust deed, or other lien, on the homestead shall ever be valid, except for' the purchase-money therefor or improvements made thereon, whether such mortgage or trust deed or other lien shall have been created by the husband alone, or together with his wife. Unless the facts of this case bring it under one of the exceptions contained in the Constitution of this state,- it is not arguable, because the question is unquestionably foreclosed by article 16, section 50, Constitution of this state, and a long line of decisions.

The question presented here for decision under the facts alleged and developed is: Did the defendant Woods have a valid lien against lots H and I for the payment of his debt? We think so.

It is equally well settled in this state that:

(a) Where purchase money of land is advanced under oral agreement that the purchaser will execute a mortgage or give a lien as security, such agreement is enforceable in equity as a mortgage.

(b) Until purchase money for property is paid, the purchaser has no such interest therein as would support a homestead claim against the person who advanced the purchase money under the agreement whereby he was to have a lien.

In our judgment, the foregoing rules are fully supported by the following authorities: Floyd v. Hammond (Tex. Com. App.) 268 S. W. 146, 147; Johnson v. Portwood, 89 Tex. 235, 34 S. W. 596, 787; McCarty v. Brackenridge, 1 Tex. Civ. App. 170, 20 S. W. 997 (writ refused); Benavides v. Houston Ice & Brewing Co. (Tex. Civ. App.) 224 S. W. 385 (writ refused); Pipkin v. Bank of Miami (Tex. Civ. App.) 179 S. W. 914; Parker v. Bushong (Tex. Civ. App.) 143 S. W. 281.

Here there was an agreement for a lien, and, in fact a lien was executed, which in equity is treated as a lien for the purchase money, and, until such purchase money is paid, West and his wife had no such interest in the property as would support a homestead claim against Woods, the one to whom such purchase money was due. Floyd v. Hammond, supra; Roy v. Clarke, 75 Tex. 32, 12 S. W. 845, 847; Benavides v. Houston Ice & Brewing Co., supra; Mustain v. Stokes, 90 Tex. 358, 38 S. W. 758.

As fully sustaining the foregoing rules stated, we quote from some of the authorities:

Our Supreme Court in the case of Roy v. Clarke, supra, says: “The reason of the rule) that homestead rights cannot be asserted in a case like the present, is that no such rights are acquired as against the person to whom the purchase money is due for the homestead. This rule we understand has been long recognized in this state. Farmer v. Simpson, 6 Tex. 303; Stone v. Darnell, 20 Tex. 14; Flanagan v. Cushman, 48 Tex. 247. * * * Until the purchase money is paid, the purchaser has not such an estate as will support the homestead right. against the person to whom such purchase money is due.”

In Floyd v. Hammond, supra, in an opinion rendered by the Commission of Appeals, which was adopted as the opinion of the Su? preme Court, it is said: “While an equitable mortgage lien upon real estate may not be created by parol, yet it is definitely settled that, where one furnishes money to another with which to purchase land, under an agreement that the purchaser will execute a mortgage or give a lien upon the property in the future to secure the money advanced, the agreement will be enforced in equity as a mortgage, on the theory that it would constitute a fraud against the lender if it were not enforced.”

In the case of Black v. Rockmore, 50 Tex. 88, the Supreme Court says: “That the homestead right is subordinate to the vendor’s lien has been held in that [Robertson v. Paul, 16 Tex. 472] and other cases, and has since been incorporated into our organic law. It has also been decided by this court that the mere fact that a new note was given for the purchase-money, or that it embraced other and different considerations, or that a mortgage or deed of trust was taken to secure the same, would not, of itself, necessarily defeat the vendor’s lien as a conclusive presumption of law; but that they are questions of fact, to be decided from the circumstances of the- * ⅜ * ease. Swain v. Cato, 34 Tex. 395; Wasson v. Davis, 34 Tex. 159; Flanagan v. Cushman, 48 Tex. 241.”

Applying the principles of the well-established foregoing rules to the facts of this case, it follows,' therefore, that, to the extent of the purchase money furnished by Woods for lots H and I, there existed in his favor an equitable trust in the land to secure the same, and that such lien is valid. As to this, the deed of trust lien was exactly the same as the vendor’s lien. It is undisputed that the title to the Tennessee tract conveyed by West and wife to Woojls had partially failed; that West and wife recognized this fact and executed a lien on the 10 acres conveyed to them by Woods. The general rule is that a grantor or vendor of land has a lien on land sold to secure the purchase money. The rights of no third person intervening, under the law, Woods was entitled to a lien on the 10 acres conveyed by him to West and wife. For the express purpose of making the exchange of land with Engleman, West and wife obtained a release from Woods and agreed that his lien should be transferred from said 10-acre tract to lots H and I. Woods, by releasing the lien held by him on the 10 acres, allowed West and wife to exchange same at full value for lots H and I, upon the express agreement that Woods’ lien would attach against lots H and I; therefore the rights or lien of Woods became a part of the purchase money paid by West and wife for lots H and I.

This state of facts indicates no intention of Woods to waive the right which the law gave him; on the contrary, West and wife recognized this right and executed a lien against lots H and I in Woods’ favor to secure Ins debt. In legal effect this was considered as part of the purchase price of the land conveyed by Engleman to West and wife. White v. Street et al., 67 Tex. 177, 2 S. W. 529.

Therefore, under the authorities above cited, West and wife could not evade the payment of the amount contributed by Woods for the purchase price of lots H and I by claiming the land as their homestead. To permit West and wife to evade payment of the amount contributed by Woods by refusing to establish a lien in his favor on lots H and I, because claimed as a homestead, would constitute a fraud against Woods. To so hold would be both unsound and unjust. The law does not sanction such a doctrine.

In our judgment, both the trial court and the Court of Civil Appeals erred in holding as a matter of law that the defendant Woods did ■not have a valid lien upon lots H and I above described.

Therefore, for the reasons herein stated, we recommend that both the judgments of the trial court and the Court of Civil Appeals he reversed, and this cause be remanded to the district court for another trial in accordance with this opinion.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LEDDY, J. CURETON, C. J.

text:
    HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DIST. NO. 1 v. PETER et al.
    No. 1256—5642.
    Commission of Appeals of Texas, Section B.
    April 15, 1931.
    Neal A. Brown, of Edinburg, for plaintiff in error.
    J. E. Carl and J. C. Looney, both of Edin-burg, for defendants in error.
   LEDDY, J.

Defendants in error recovered a judgment against plaintiff in error for damages on account of permanent injuries to land and destruction of crops, sustained by reason of the negligence of the plaintiff in error in backing water up in its irrigation canal adjacent to their premises and permitting it to remain stored therein for an unreasonable period, thus causing the land to become water-logged and injuring the growing crops.

Plaintiff in error insists it was entitled to a judgment in. its favor notwithstanding the findings of the jury that the injury to defendants in error’s property was the result of its negligence. Its claim to exemption from liability for such damages is based upon the fact that, in carrying out its corporate purpose, it is a governmental agency engaged in the performance of a-public duty.

The fact that plaintiff in error is a governmental agency, engaged in the performance of a public duty, does not render it immune from liability for damages sustained by a citizen to his land when it is shown that the injury to the land for which a recovery is sought was inflicted by the corporation while acting through its duly authorized officers and employees. Fort Worth Improvement District v. Fort Worth, 106 Tex. 148, 158 S. W. 164, 48 L. R. A. (N. S.) 994; Hidalgo Water Improvement District No. 2 v. Holderbaum (Tex. Com. App.) 11 S.W.(2d) 506.

As a basis for the determination of the amount of damages suffered by defendants in error, the court submitted, among others, the following special issues:

“What do you believe and find from the evidence was a fair market value per acre for the land thus injured, if any you have found so injured, before said injury occurred?
“What do you believe and find from the evidence to be the present fair market value per acre of the land of plaintiff J. R. Peter since said injury occurred, if you have found, in fact, that said land has been injured through the negligence of the defendant?”

Plaintiff in error filed timely objections to the submission of these issues, and requested the‘court to modify the same so as to confine the jury in determining the reasonable market value of defendants in error’s land to a time “immediately before and at the time of such injury.”

It may be conceded that these issues on the measure of damages were incorrect in the form submitted, in that the jury was authorized thereunder to consider the value of the land at any time prior to the injury and at any time subsequent thereto when it should have been instructed to confine its consideration as to market value to the time immediately preceding and immediately subsequent to the injury. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S. W. 575; City of San Antonio v. Mullaly, 11 Tex. Civ. App. 596, 33 S. W. 256.

Under the facts shown by the record, we do not think the submission of these issues, although erroneous in the respect pointed out, could 'have operated injuriously to plaintiff in error.

Only one witness gave testimony as to the value of the land prior to the time of the injury. He testified: “In my judgment the 'land was worth on the market during the year 1927 about $250 to $275. That was the market value at that time.” No evidence was offered showing the market value at any other time than that described by this witness.

The jury found in answer to the special issues that the m'arket value of the land prior to the time it was injured was $200 per acre, a sum considerably less than the testimony showed was its value during the entire year 1927. The evidence also disclosed that water was backed up and stored in the plaintiff in error’s canal running through this land beginning in the fall of 1926, and that it so remained a large part of the following year. The seepage on the land was not manifested until the early part of 1927, when the crop planted thereon was injured. From the evidence it was practically impossible to locate the exact time when the injury to this land occurred, as it developed gradually during the year 1927.

The only witness offered on the question of value testified that the land had a market .value of the sum stated by him during the entire year 1927, and, since there was no evidence showing any different value, the latitude allowed the jury as to the time of fixing the market value could not have operated prejudicially to plaintiff in error. If there had been testimony showing a (higher market value of the land some time prior to the injury than that given by the above witness, and the jury had based its finding thereon, plaintiff in error’s rights would have been injuriously affected, but, as the market value of this land was given by the witness as being the same during the entire year of 1927, there was no basis in the evidence upon which the jury could have found a higher value. It actually found a value of $50 an acre less than the minimum sum which the witness testified was its market value throughout the year 1927.

We therefore conclude that, while the issues as submitted were in form erroneous, it affirmatively appears that the same could not reasonably have operated to bring about the rendition of an improper judgment in this case; hence it does not constitute reversible error.

Complaint is made of the order in which the court submitted special issues to the jury; the specific objection being “because the special issues submitted are not logically and chronologically arranged in that the court in Issue Five has the jury find on the amount of land injured before submitting the issue of contributory negligence raised by defendant’s pleading and evidence, which irregular submission of the issues would tend to confuse the jury in answering same.”

We are not aware of any statute or rule of law which requires a district court to observe any particular order or sequence in submitting special issues to the jury. To hold that the issues as submitted were not “logically and chronologically arranged” by the trial court would necessitate an announcement from us as to wbat would constitute such an arrangement. In the absence of a statute or rule prescribing a particular order in which such issues should be submitted, we cannot specify any particular arrangement without engaging in judicial legislating.

It is difficult to perceive how any injury could have resulted to plaintiff in error from the order in which the special issues were given to the jury, as it must be assumed the jury obeyed the instructions of the court and gave proper consideration in answering all of the questions submitted.

It is further contended that there was error in permitting a witness to testify in behalf of defendants in error, over objection, that, after this suit was filed in the latter part of May, 1928, plaintiff in error ceased to back up and store water in its canal adjacent to defend-, ants in error’s premises.

Plaintiff in error says that a tort-feasor may remove the cause and abate the continuance of an injury inflicted by him without such fact later being used against him, where it is sought to recover damages for the injury. In this connection it invokes the doctrine announced by the Supreme Court in Texas Trunk Ry. Co. v. Ayres, 83 Tex. 268, 18 S. W. 684, and kindred cases, wherein it is held that, upon consideration of public policy, evidence of repairs of defects in machinery after an injury has been inflicted will not be received as an admission of guilt or negligence.

The rule thus invoked can have no application to the facts of this case. It was not charged that plaintiff in error’s irrigation canal was in any way defective. The negligence relied upon was plaintiff in error’s act in storing water in the canal- for an unnecessary and unreasonable length of time. Plaintiff in error’s proof controverted the proposition that it had in fact stored water in such canal for an unreasonable length of time. The proof offered by it tended to show that it was necessary in the proper operation of its irrigation system for the water to remain in the canal adjacent to defendants, in error’s premises for the period of time it was in fact stored. Certainly defendants in error would be entitled to rebut this proof by showing that, since the filing of the suit, plaintiff in error had been able to successfully operate its irrigation system without the necessity of storing water in the canal as it had formerly done.

We think the remaining questions raised by plaintiff in error were properly decided by the Court of Civil Appeals [22 S.W..(2d) 324], and that they need not be discussed here.

We recommend the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

Judgment of the Court -of Civil Appeals affirming the judgment of the district court is affirmed, as recommended by the Commission of Appeals.


text:
    ROBERT OIL CORPORATION v. GARRETT.
    No. 1436—5647.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.
    John W. Mackey, of Breckenridge, and G. O. Bateman, Thompson, Knight, Baker & Harris, and J. H. Ranson, all of Dallas, for plaintiff in error.
    C. J. O’Connor and Frank S. Roberts, both of Breckenridge, and E. W. Bounds, of Fort Worth, for defendant in error.
   CRITZ, J.

The issues of this case are fully stated in the opinion of the Court of Civil Appeals. 22 S.W.(2d) 508. We refer to that opinion for a full statement of the issues and facts involved. We, however, here make a sufficient statement to render this case complete within itself.

This suit was filed in the district court of Stephens county, Tex., by A. F. Garrett against Robert Oil Corporation, a corporation, to recover damages on account of personal injuries alleged to have resulted to Garrett on account of being run down by an automobile belonging to the oil company. It is alleged that the automobile was being operated by, and under the control and possession of, II. L. Peterman, superintendent and agent of the oil company, and that the company, its agent, servants, and employees were guilty of negligence in certain particulars, fully set out in the petition. Trial in the district court resulted in a verdict on special issues, and, based on this verdict, judgment was entered for Garrett. On appeal to the Court of Civil Appeals at Eastland this judgment was reversed, and the cause remanded to the district court for a new trial. 22 S.W.(2d) 508. Both parties have prosecuted writs of error to the Supreme Court, and both writs have been granted.

The trial court submitted the following issue to the jury: “ ‘Special Issue No. 1. At the time the automobile in question struck the plaintiff, was it being driven by or under the direction of H. L. Peterman? Answer ‘Yes’ or ‘No.’ ” The jury answered the above issue “Yes.”

The Court of Civil Appeals holds in effect that there is evidence in the record to raise the fact issue as to whether Peterman was present in the car, but no pleading or evidence to raise the fact issue as to whether the car was being driven by another under the direction of Peterman. The question as worded includes the issue as to whether another was driving the car under Peterman’s direction, and the answer is an affirmative finding ■ thereto. There is absolutely no evidence in the record to justify the submission of such an issue or to support such a finding. In other words, there is no evidence in the record sufficient in law to support the finding that another was driving the car under Peterman’s direction. The oil company excepted to the issue at the proper time, and the matter presents reversible error.

It seems from the record, and the opinion of the Court of Civil Appeals, that the I>laintifC alleged several specific and distinct grounds of negligence. The trial court submitted the issue of negligence in one general question, without requiring a separate finding on each specific ground alleged. The jury found negligence in response to this one general issue. No complaint was made by either party to this form of submission. There is evidence to support some of the grounds of negligence alleged, but none to support others. As we understand the opinion of the Court of Civil Appeals, it holds that no judgment can be based on such a verdict, because it is impossible to tell which' of the grounds of negligence alleged were found by the verdict, and therefore the matter presents fundamental error. We disagree with this holding, and think that none of the authorities cited by the Court of Civil Appeals support the same. Of course both parties to this cause had the right to require each specific ground of negligence to be submitted to the jury separately and distinctly, but, in the absence of any objection, this form of submission does not present fundamental error.

The other questions presented will probably not arise on another trial.

We recommend that the judgment of the Court of Civil Appeals, which reverses the judgment of the district court and remands the cause for a new trial, be affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals affirmed.


author: RYAN, J. CURETON, C. J.

text:
    BRINKER v. FIRST NAT. BANK OF CLEVELAND, OKL.
    No. 1168—5481.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      Holland & Moore and George K. Holland, all of Dallas, for plaintiff in error.
    Robertson, Robertson & Payne, of Dallas, for defendant in error.
   RYAN, J.

On February 21, 1927, defendant in error brought suit in the district court of Dallas county against Clyde Turley and P. M. Brink-er, for recovery on the following promissory note:

“$1,890.00
“Cleveland, Oklahoma, March 1st, 1923.
“Six months - days, without grace, after date, for value received, we as principals, promise to pay to the order of
“The First National Bank, of Cleveland, Oklahoma, Eighteen Hundred- Ninety and no/100 Dollars, at the First National Bank, of Cleveland, Oklahoma, and interest thereon at the rate of ten per cent per annum, from Maturity until paid, and in case of legal proceedings to collect this note, or in case it is placed in the hands of an attorney for collection, agree to pay an additional- sum of ten per cent, on the amount of the note as attorney’s fees.’ The sureties,, endorsers and guarantors of this note severally waive extension of time of payment, presentment and deman4 for payment, protest and notice of protest for non-payment of this note.
“Clyde Turley
“Vick Wear
“P. M. Brinker
“Due September 1st, 1923.”

Indorsed:

Sept. 10th, 1923 paid $15.00

Sept. 26th, 1923 credit 10.00

Oct. 16th, 1923 credit 15.00

Interest paid to 12 — 1—1923.

It was averred in the petition that “Vick Wear is not made a party for the reason that he is dead and his estate is insolvent.”

The defendant Turley did not defend. The defendant Brinker pleaded as defenses:

(1) That he, at the bank’s request became only an accommodation indorser, received no consideration therefor, and, if the note sued on purports to have been made by him as a principal obligor, this was because of a mutual mistake between him and the bank.

(2) That, after the maturity of said note, the bank accepted the note of said Turley, individually, as of date December 1, 1923, and other notes in renewal thereof, also so signed by Turley, and which Brinker refused to sign, in payment of the note sued on, and the bank recognized the obligation as being only that of Turley; also that said Brinker did not consent or agree to any renewal or extension of the date of payment of the note sued on, and never, at any time, received any consideration whatsoever on account of any such renewal or extension, and, if any waiver or agreement as to extension of payment date is contained in said note of March 1, 1923, the same is invalid, unenforceable, and not binding on him, because no consideration therefor ever was received by him.

The proof shows that Brinker and Wear had a mercantile business at Cleveland, Okl., and Brinker in the spring of 1920 negotiated a sale of his interest to Turley for $2,500. Turley did not have the money, and he applied to the bank for a loan, which, according to Turiey’s testimony, the bank agreed to make upon a note signed by Turley and Wear. The president of the bank asked Brinker also to sign the note, which he finally did, and the proceeds were credited to Tur-ley, and by him paid to Brinker in consummation of the trade. This note was executed in 1920, and was due six months after date. There were several renewals brought about in the following manner: A renewal note was delivered ,to Turley, who in turn secured the signatures of Wear and Brinker, delivered the renewal note to the bank, and took up the old note.

Mr. Brinker testified that he executed the note of March 1, 1923, the one in suit, at the request of Mr. Turley. When it became due, Brinker refused to renew it, but the bank accepted a renewal signed by Turley and Wear alone. There were several subsequent renewals by Turley alone, as to each of which the preceding note was surrendered when the renewal note was delivered, but the bank always retained possession of the March 1, 1923, note.

When the original note to the bank was executed in 1920 by Turley, Wear, and Brink-er, the bank gave Turley a checking account, and Turley wrote and gave Brinker a check for the latter’s interest in the business' of Brinker and Wear.

The district court’s judgment was upon a directed verdict .in favor of the bank for the full amount of the note, against Turley and Brinker; this judgment was affirmed by the Court of Civil Appeals, on Blinker’s appeal. 16 S.W.(2d) 965.

The bank has retained and never surrendered possession of the note sued on herein; it has not been paid by the makers, and is a valid outstanding obligation against Brinker as one of such makers, unless he has been released as a matter of law because the bank accepted new notes from Turley alone in extension and renewals thereof, without Brink-er’s consent.

This brings us to the question whether Brinker was primarily or secondarily liable— if the latter, then such extensions by the bank, without his consent, had the effect to release him, and the plea of discharge urged by him should have been sustained by the trial court, unless such defense was abrogated by the Uniform Negotiable Instruments Act (title 98, Rev. Stat.. 1925 [article 5932 et seq.]).

In several of the states the doctrine is announced that, under the Uniform Negotiable Instruments Act, one who signs as principal maker of a promissory note, although in fact a surety and known to the payee to be such, is not discharged by the granting of an extension of time for payment to the principal debtor without his consent, upon the theory that the act designates five different ways (which are exclusive) whereby such discharge can be effected, not one of which embraces an extension of the time of payment, although it is expressly provided that those secondarily liable may be discharged by any agreement binding on the holder to extend the time of payment, or to postpone the holder’s right to-enforce the instrument unless made with the assent of the person secondarily liable, or unless the right of recourse against such party is expressly reserved. Union Trust Co. v. McGinty, 212 Mass. 205, 98 N. E. 679, Ann. Cas. 1913C, 525, and annotations thereunder, page 528.

In Iowa, however, says the annotator, it has been held that, where the issue is between the parties to the instrument, as between the payee and an accomodation joint maker, the Negotiable Instruments Act does not apply, tbe payee in such a ease not being regarded as a holder in due course, and therefore an extension of time by the payee to the principal debtor without the consent of an accommodation joint maker will release the latter. Fullerton Lumber Co. v. Snouffer, 139 Iowa, 176, 117 N. W. 50.

The view of the Iowa Supreme Court, as above stated, is expressly approved by our Supreme Court, in J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S. W. 800, 801, and must therefore be accepted in this state as the rule governing in cases like this.

This subject is so thoroughly discussed by Associate Justice Looney of the Court of Civil Appeals in the same case, reported in 280 S. W. 238, 240, and in the approving opinion by Associate Justice Greenwood of the Supreme Court, above referred to, we can add nothing thereto.

The conclusions reached in that case are applicable to the facts in this ease, viz. (a) the original payee is not a holder in due course, and the note is therefore subject to every defense to which it would be subject as if it were nonnegotiable; (b) a complete defense to the suit of a nonnegotiable note in behalf of an accommodation maker would be established by his pleading and proving that the holder of the note had made a binding agreement with the principal obligor to extend the ■ note for a definite time, with knowledge of the status of the accommodation maker and -without his consent.

Said Justice Looney: “The defendant in error is an original- party to the instrument sued upon, and therefore is not a holder in due course, within the meaning of the Negotiable Instruments Act. This being true, under the unambiguous provision of the statute just quoted, the defendant in error can occupy no better position than the holder of a nonegotiable instrument; it follows, therefore, that the discharge pleaded by plaintiff in error was available as a defense just as it existed at common law prior to the enactment of the Negotiable Instruments Act.”

Judge Greenwood used the following language: “A complete defense to the suit of a holder of a nonnegotiable note in behalf of an accommodation maker would be established by his pleading and proving that the holder of the note had made a binding agreement with the principal obligor to extend the note for a definite time, with knowledge of the status of the accommodation maker and without his consent. Burke v. Cruger, 8 Tex. 66, 58 Am. Dec. 102; Ryan v. Morton, 65 Tex. 260; Wylie v. Hightower, 74 Tex. 306, 11 S. W. 1118; Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128; Lonergan v. San Antonio Trust Co., 101 Tex. 77, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803; Brandt on Suretyship and Guaranty (2d Ed.) §§ 342, 375.

“The principle underlying all the cases on this subject is that one cannot be bound by a contract to which he has not given his assent. Consent to become surety for another’s promise to pay at one time is not consent to be surety for such other’s promise to pay at an altogether different time. The Negotiable Instruments Act recognizes the-essence of the engagement of the maker of a negotiable instrument to be ‘that he will pay it according to its tenor,’ and not according to quite different terms. Section 60 of art. 5936.”

Under the above rule, governing in this state, the bank is not a holder in due course under the- protection of section 29, art. 5933, Rev. Stat. 1925, and the pleaded defenses were available to Brinker.

The proceeds of the note were credited by the bank to Turley, and, while it is true Turley paid, over, by his own check, such proceeds to Brinker, the consideration for such payment to Brinker was the sale by Brinker to Turley of the former’s interest in the mercantile business of Brinker and Wear, and not the signing of the note by Brinker. It may be true that, without Brink-er’s signature to the note, the bank would not have made the loan, but the fact remains that the direct loan was made to Turley, and not to Brinker.

An extension of time, as in this case, by which the bank secured the benefit of an interest-bearing obligation for a definite peri-odj and Turley secured the benefit of a forbearance for the same period, is based upon a sufficient consideration to uphold the agreement of extension. 6 Tex. Jur. p. 827.

The extension between the principal obligor and the holder postpones the right of action and the commencement of the running of limitation until expiration of the period for which the extension is granted. Dalton v. Rainey, 75 Tex. 516, 13 S. W. 34; 8 C. J. 441.

In general, the giving and taking of the new paper simply operates as an extension of the time of payment of the original indebtedness. 6 Tex. Jur. p. 810; 8 C. J. 441; 7 Cye. 891.

While an extension of time of payment between the creditor and principal debt- or without a surety’s consent operates as a release as to the surety (Red River Nat. Bank v. Bray, 105 Tex. 315, 148 S. W. 290; Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St Rep. 128), this right may be waived by such surety, either in advance or afterwards (Darby v. Bank [Tex. Civ. App.] 253 S. W. 341; National Bank of Commerce v. Kenney, 98 Tex. 293, 83 S. W. 368; Jackson v. Bank [Tex. Civ. App.] 185 S. W. 893; Commonwealth Nat. Bank v. Goldstein [Tex. Civ. App.] 261 S. W. 538; Sharpe v. Bank [Tex. Civ. App.] 272 S. W. 321; 8 C. J. § 681; 7 Cyc. 922); such waiver enters into the contract of every person who signs, whether as drawer, maker, acceptor, or indorsor (Williams v. Rosenbaum [Tex. Civ. App.] 79 S. W. 594; Leeds v. Hamilton [Tex. Civ. App.] 35 S. W. 77; Daniels Neg. Inst., § 1092), and permits of more than one extension of the time of payment without the consent of and without* discharging the surety from liability (State Nat. Bank v. Vickery [Tex. Com. App.] 206 S. W. 841; Archenhold v. Smith [Tex. Civ. App.] 218 S. W. 808). Such a waiver does not increase the original liability of the surety; it merely renders unnecessary the performance of the acts waived in order to fix liability. State Nat. Bank v. Vickery, supra.

Therefore, because of such waiver, the various extensions did not release the parties secondarily .liable so long as the waiver clause was in effect, and Turley was authorized to agree with the bank for payment of the debt on some day subsequent to that previously stipulated (National Bank of Commerce v. Kenney, 98 Tex. 300, 83 S. W. 368) and thus bind Wear and Brinker by such agreement of extension (evidenced in this case by new notes signed by him alone), whether known to them or not, and to that extent he represented and acted for them— the relationship of agency was created, but, when that relationship ceased, as it did, at Wear’s death, Turley’s right to further bind them likewise ceased, and any extensions thereafter made by,him wore not authorized by the waiver, and, if made without the consent of Brinker and Wear’s proper representatives, operated their release. Rev. Stat. 1925, art. 5939, § 120, par. 6.

The proof shows that Wear died in 1923 or 1924, after execution of the note sued on, which was signed by Turley, Wear, and Brinker, and became due on September 1, 1923. In September, 1923,. Turley and Wear signed and delivered to the bank an extension note, which Brinker refused to sign. This was followed by the extension note dated December 1, 1923, for $1,S50, due February 1, 1924, and the extension note dated September 11, 1924, for $1,S50, due January 1, 1925, and the last extension note which was for $1,886 dated July 1, 1925, due October 1, 1925, all signed by Turley alone.

.Each such renewal note, when superseded by another, was surrendered to Turley by the bank, except the last note of July 1, 1925, which the bank retained.

■ It was agreed by the parties “that so far as concerns the notes given by Clyde Turley, individually, to the plaintiff bank, said notes being of date subsequent to March 1, 1923, the defendant Brinker did not consent to the extensions of the time of payment of the note of March 1,1923, and he received no consideration of any sort from the bank or anyone else for the extended time of payment thereof unless such consent for extension of time or such consideration was involved in or grew out of the original transaction or the note sued on.”

The agreements of extension made by Tur-ley, without the assent of Brinker, secondarily liable (all authority in Turley by force of the waiver having terminated at Wear’s death), made after Wear’s death, therefore released Brinker.

The relationship of agency is created, in its broadest sense, when one person acts for or represents another by the latter’s authority (2 Tex. Jur. 384; 2 C. J. 419), and is implied from the conduct of the parties and the circumstances of the particular case (Holmes v. Tyner [Tex. Civ. App.] 179 S. W. 887).

When Wear and Brinker, by the waiver clause, placed it within the power of Turley, to continue to' bind them by his acts of extension, and he did so, he acted as their representative and agent for that purpose. Wear and Brinker were joint principals in thus giving Turley such authority, and, when Wear died, Turley’s authority thereunder immediately ended. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Primm v. Stewart, 7 Tex. 178; Renfro v. Waco (Tex. Civ. App.) 33 S. W. 766; Long v. Thayer, 150 U. S. 520, 14 S. Ct. 189, 37 L. Ed. 1167: Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. Ed. 396; 2 C. J. 546; 21 R. C. L. 888.

We have reached the conclusion that Brink-er was released by reason of the extensions without his consent, made by the bank after Wear’s death, and therefore recommend that as to said Brinker the judgments of the trial court and Court of Civil Appeals be reversed and judgment be here rendered in his favor; as against Turley, such judgments should be affirmed.

CURETON, C. J.

The judgments of the district court and Court of Civil Appeals are both in part reversed and rendered, and in part affirmed, as recommended by the Commission of Appeals.