author: DOERNER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Bert J. HOLBERT, Appellant.
    No. 31922.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.

      Rader & Love, Edwin Rader, Chester A. Love, Clayton, for appellant.
    Lawrence J. Lee, Pros. Atty., Curtis C. Crawford, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   DOERNER, Commissioner.

This is an appeal by defendant from a conviction for violating Section 338.010, RSMo 1959, V.A.M.S., which makes it unlawful for one not a licensed pharmacist to dispense or sell drugs prescribed by a physician. Defendant was represented in the trial by counsel of his own choice but he has filed no brief in this court, and in that situation we will review all' assignments of error properly raised in defendant’s motion for a new trial and those matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R. State v. Johnson, Mo., 394 S.W.2d 344.

The pertinent part of Section 338.010, RSMo 1959, V.A.M.S., provides:

“It shall be unlawful for any person not licensed as a pharmacist within the meaning of sections 338.010 to 338.190 to compound, dispense or sell at retail any drug, chemical, poison or pharmaceutical preparation upon the prescription of a physician, or otherwise, or to compound physicians’ prescriptions, except as an aid to or under the direct supervision of a person licensed as a pharmacist under sections 338.010 to 338.190. * * *”

The initiation of the prosecution in this case was somewhat unusual in that the charge against the defendant was in the form of an indictment returned by the grand jury of the City of St. Louis, although a violation of Section 338.010 is only a misdemeanor. Section 338.190. However, in accordance with Supreme Court Rule 21.02, V.A.M.R., the indictment was transmitted to the St. Louis Court of Criminal Correction, in which jurisdiction to try misdemeanors is vested. As returned by the grand jury the indictment alleged that the defendant:

“* * * on the 7th day of July, one thousand nine hundred and sixty-two, at the City of St. Louis aforesaid, was a drug store owner, doing business as the West End Pharmacy, 6107 Theo-dosia Avenue, City of St. Louis, and was not a licensed pharmacist; that the aforesaid Bert J. Holbert did unlawfully and feloniously dispense and sell at retail prices two ounces of the drug, Amphetamine Hydrochloride, to AMY IRMA BUTLER for ten dollars, in legal currency of the United States of America, upon the prescription of the physician, WILLIAM C. BRIDGES, under prescription number 29609.”

When the case was called for trial defendant filed a motion to quash the indictment on the ground that the exceptions mentioned in the statute (“except as an aid to or under the direct supervision of a person licensed as a pharmacist”) were not negatived in the indictment. The Assistant Circuit Attorney whom the Attorney General had appointed as Special Assistant Attorney General to aid in the prosecution of the case, Section 27.-030, RSMo 1959, V.A.M.S., thereupon asked the court for leave to amend the indictment. Leave was granted over defendant’s objection, and the Special Assistant Attorney General then amended the indictment by writing in, after the number 29609, the words, “and that said sale was not made as an aid to or under the supervision of a licensed pharmacist.” The court thereupon overruled defendant’s motion to quash, overruled his subsequent oral motion for a continuance, and the case proceeded on through the selection of the jury and the remainder of the trial.

Defendant’s first two assignments in his motion for a new trial are that the court erred in overruling his motion to quash; and that the court erred in permitting the State to amend the indictment. It would seem logical to consider these in their inverse order, for it is obvious that if it was permissible to amend the indictment the addition which was made thereto amply sufficed to supply the alleged deficiency.

When leave to amend was requested the court remarked that he thought that under the rules the State might amend the indictment. No specific rule was cited, and we find no statute or rule to that effect. It may be that the court had in mind Supreme Court Rule 24.02, V.A.M.R., which reads:

“The court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”

Manifestly, that rule furnishes no authority for the amendment of an indictment for by its terms it plainly restricts amendments to informations. In fact, under the doctrine of expressio unius est exclusio alterius it might be argued that the authority granted to substitute an information for a defective indictment excluded any other method, including that of amendment, of correcting the deficiency. For the very purpose of Rule 24.02, V.A.M.R., as was true of Section 545.300, RSMo 1959, V.A.M.S., which it superseded, “ * * * is to authorize the filing of an information in cases where the trial court finds the indictment insufficient, * * *” State v. Mandell, 353 Mo. 502, 183 S.W.2d 59, 60; or where, we may add, the validity of the indictment is questionable. State v. Elgin, Mo., 391 S.W.2d 341. And as the cases indicate, the established practice is to substitute an information for a questionable or defective indictment. State v. Elgin, supra; State v. King, Mo., 380 S.W.2d 370, cert. den., 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569.

At common law it was a well settled rule that while an information could be amended by leave of court, an indictment could not. The difference between the two, and the reason why no amendment of an indictment was permitted, was stated by Lord Mansfield in Rex v. Wilkes, 4 Burr. 2527, 2569, 98 Eng.Rep.Reprint 351, as follows:

“There is a great difference between amending indictments and amending in-formations. Indictments are found upon the oaths of a jury; and ought only to be amended by themselves: but in-formations are as declarations in the King’s suit. An officer of the Crown has the right of framing them originally ; and may, with leave, amend, in like manner as any plaintiff may do.”

The principle that an indictment could not be amended by the court or the prosecution but only by the grand jury which had returned it, was adopted in the landmark case of Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. While the application of the principle has been somewhat restricted by later cases which permit the court to disregard surplusage, Ford v. U. S., 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793, and while there is some authority to the contrary, at least as to matters of form, the generally accepted rule is that in the absence of an enabling statute or rule a court has no authority to make or permit any amendment of an indictment. United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; Commonwealth v. Snow, 269 Mass. 598, 169 N.E. 542, 68 A.L.R. 920; 42 C.J.S. Indictments and Informations § 230, p. 1239; 27 Amer.Jur., Indictments and Informations, Sec. 116, p. 675. Since there is no statute or rule in Missouri which authorizes the court to make or allow any amendment of an indictment it follows that the court erred in the instant case in permitting the State to do so.

We turn, then, to the defendant’s contention that the indictment as returned by the grand jury was defective in that it failed to negative the exceptions contained in Section 338.010, RSMo 1959, V.A.M.S. In the oft-cited case of State v. DeGroat, 259 Mo. 364, 375, 168 S.W. 702, the general rule regarding the necessity for negativing exceptions was stated as follows:

“The general rule as to the contents of an indictment which charges an offense, to which there are exceptions negativing guilt, is, that all such exceptions must be pleaded in the indictment when they occur as parts of the statutory definition of the offense, in all cases where if such exceptions be omitted, the offense cannot be accurately described. (State v. Meek, 70 Mo. 355; State v. Bockstruck, 136 Mo. [335] 1. c. 351 [38 S.W. 317]; 1 R.C.L. 80; State v. Casto, 231 Mo. 398 [132 S.W. 1115]; State v. Longstreth, 19 N.D. 268 [121 N.W. 1114]; State v. Wells, 35 Utah 400 [100 Pac. 681]. But where such exceptions are not a part of the statutory definition of the crime, where they are contained in distinct and independent clauses of the statute, or in separate sections, it is not usually necessary either to plead them or to prove them. Such exceptions are pure matters of affirmative defense. State v. O’Brien, 74 Mo. 549; State v. Doerring, 194 Mo. 398 [92 S.W. 489].”

As an example of a proviso which it is not necessary to negative although contained in the same section as that creating the offense, see State v. Brown, 306 Mo. 532, 267 S.W. 864. In the instant case Section 338.-010 does not declare every dispensation or sale by a person not licensed as a pharmacist of a drug prescribed by a physician to be an offense; but does so only when such unlicensed person is not acting as an aid to or under the direct supervision of a licensed pharmacist. In short, the exceptions must be negatived because they form a part of the statutory definition of the offense, and if they are omitted the offense cannot be accurately described. State v. DeGroat, supra; 42 C.J.S. Indictments and Informa-tions § 140, p. 1043. The defendant’s motion to quash should, therefore, have been sustained, and in failing to do so the court erred.

•The views we have expressed regarding the defendant’s first two assignments makes it unnecessary to consider the remainder.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James L. CELMARS, Defendant-Appellant.
    No. 32108.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.

      J. B. Mackler, Kramer, Chused & Kramer, Samuel H. Liberman, II, St. Louis, for defendant-appellant.
    Lawrence J. Lee, Pros. Atty., James I. Bucher, Allen I. Harris, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This cause was tried in the St. Louis Court of Criminal Correction upon an information which alleged the defendant unlawfully and intentionally stole sixteen cartons of cigarettes of the value of $48.00 from Allied Super Markets, Inc., a corporation doing business as Bettendorf-Rapp. A jury was waived and upon conclusion of the trial the court entered its verdict and judgment finding the defendant guilty and sentencing him to pay a fine of $250.00 and to serve six months in the workhouse. The defendant contends the judgment should be reversed for the reason that there was no evidence that a crime had been committed. In our opinion this contention is determinative of this appeal and the statement of facts which follows will be limited to those facts bearing upon this issue.

The evidence was that a Mrs. Bixler, one of the employees at the store, saw the defendant walking around inside the store and noticed that in spite of the fact it was a warm June day he was wearing a suit coat and a topcoat. She saw the defendant walk out through the check-out counter without purchasing anything. This occurred shortly before 5:00 o’clock. She got off work at 5:00 and her husband picked her up at the store. As she was riding in an automobile down the street, this witness saw the defendant on a parking lot across the street from a Katz drug store which was located about 50 feet from the Betten-dorf store. This was about 5 minutes after she saw the defendant leave the store. On this occasion she observed that cartons of cigarettes were sticking out of his suit pocket.

The arresting officer stated that at approximately 5:17 that afternoon which, as close as this record allows us to place it, was about twelve minutes after the employee last observed the defendant, he saw the defendant on the Katz parking lot looking around and walking around the lot in a manner the officer thought suspicious. He also described defendant’s manner as if he was attempting to determine if there was anybody in the vicinity. The officer was of the opinion the defendant was hiding something and drove over to the lot upon which the defendant was then standing and told him, “Get whatever you are hiding from behind there.” The defendant and the police officer then walked about ten feet to the rear of a store where the defendant lifted up a large piece of cardboard under which were sixteen cartons of cigarettes. Several of the cartons were in a large paper bag having the word “Bettendorf” on it. The officer asked the defendant where he got the cigarettes and the defendant stated that he had purchased them from a friend named Amos Johnson for $20.00. The officer testified that Mrs. Bixler had told him that she saw the defendant with some cartons of cigarettes in his pocket but that he did not have a bag. When the officer asked the defendant about the bag, the defendant stated that it came with the cigarettes from Amos Johnson. The officer also testified that the defendant told him that Amos Johnson put the cigarettes under the cardboard and told the defendant where to find them. The officer first took the defendant into the Katz drug store and then took him to the Bettendorf store to see the manager.

Other testimony pertinent to this issue is that while the cartons of cigarettes were identified as having come from the Betten-dorf store, the State’s witnesses testified they could not tell whether the cartons of cigarettes had been stolen or purchased from the store. The manager of the store also testified that he did not know of any merchandise being stolen from the store on the date of this incident. It is intriguing to note that the defendant, as a part of his defense, offered the testimony of a psychiatrist who testified that in his opinion the defendant was a “sociopath” and that, as to the defendant, this condition manifests itself in the stealing of cigarettes.

In this state the corpus delicti consists of two elements: (1) proof, direct or circumstantial, that the specific loss or injury charged occurred; (2) someone’s criminality as to the cause of the loss or injury, State v. Worley, Mo., 375 S.W.2d 44, [1], In other cases the corpus delicti has been stated to involve two things: a criminal act and the defendant’s agency in the production of that act. State v. Jones, 106 Mo. 302, 1. c. 312, 17 S.W. 366; State v. Knolle, 90 Mo.App. 238, 1. c. 241. In the instant case proof of the first element is absent from this record. There is no evidence, direct or circumstantial, to show these cartons of cigarettes were stolen. The State’s evidence is devoid of any identification of these cigarettes as having been stolen. To the contrary, the State’s witnesses admitted they could not tell if these cigarettes had been stolen or purchased. In addition the State’s evidence even includes testimony by the store manager that he did not know of any merchandise being illegally taken from the store on the date of this occurrence.

In State v. Jones, supra, the court held (106 Mo. 302, 1. c. 313, 17 S.W. 366, 369): “The corpus delicti must be established in every criminal prosecution before a conviction can be sustained. While it may be established by circumstantial evidence, the courts, and particularly the trial courts, should see to it that the evidence is cogent and convincing, and excluding all other reasonable hypotheses. Mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake. * * * ” The evidence in the instant case does not exclude “all other reasonable, hypotheses.” State v. Jones, supra. Absent proof these cigarettes were stolen, regardless of what this court or the trial court may believe as to the defendant’s guilt or innocence, this record merely shows the defendant in possession of some cigarettes under peculiar circumstances authorizing a suspicion he had stolen them. That is not sufficient to sustain the judgment rendered which must be reversed.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is reversed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: ANDERSON, Judge.

text:
    James GRIESENAUER and Betty Griesenauer, Plaintiffs-Respondents, v. EMSCO CORPORATION, Defendant-Appellant.
    No. 32070.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1965.

      Donald E. Dalton, St. Charles, for defendant-appellant.
    George E. Sullivan, O’Fallon, for plaintiffs-respondents.
   ANDERSON, Judge.

This is an action for damages for trespassing on plaintiffs’ land and constructing a ditch thereon without the consent of plaintiffs. There was a verdict for plaintiffs in the sum of $700.00 and defendant has appealed from the judgment entered. It is contended that plaintiffs did not make a submissible case; that Instruction No. 2 was erroneous, and that the verdict was excessive.

The petition alleged that they were the owners of a tract of land in the City of O’Fallon in St. Charles County known and numbered as S06 Westridge Drive (described by metes and bounds); that during the first week of August 1962, defendant, (a Corporation) through its agent and servant, G & P Ditching Company, entered upon said land and caused a deep ditch to be dug along the south and east edge of said property; that the ditch along the east edge of plaintiffs’ property was from four feet deep and three feet wide, very unsightly and dangerous and has diminished the value of plaintiffs’ property; that because of said excavation surface water which normally flows across plaintiffs’ property is causing erosion of earth adjacent to and in the ditch resulting in further damage and causing said ditch to become deeper and wider; that as a result of defendant’s acts there has been created a condition dangerous to plaintiffs, plaintiffs’ children, neighbors and their children and to the public generally.

It was further alleged that said ditch was excavated without the consent of plaintiffs. Damages were averred in the sum of $7,500, for which amount judgment was prayed.

In defendant’s answer its corporate existence was admitted. It was further averred that whatever digging or ditching was done on plaintiffs’ property was with the consent of and by agreement with plaintiffs. All other allegations of the petition were denied.

Plaintiffs are the owners of property located at 507 Westridge Drive in O’Fallon, Missouri. It is in a subdivision known as Westwood Acres. This subdivision was developed by the defendant Emsco Corporation. Plaintiffs purchased the property from John McLean and wife in July or August 1958. The McLeans had purchased same from Emsco Corporation. The property consists of a dwelling house situated on a lot 150 feet deep and 100 feet wide. Plaintiffs erected the house and moved into it in November 1958. The house faces west. The basement level was set six inches above the low level of the rear of the lot. Mr. Griesenauer had graded the front yard and deposited approximately six loads of dirt into the southwest corner of his lot. There is a 10 or 14 inch culvert under the street in front of plaintiffs’ house which leads to the southwest corner of plaintiffs’ property. It is two and one-half to three and one-half feet beneath the street. The water from the west side of the street flows through this culvert onto plaintiffs’ lot at its southwest corner.

In October 1958, plaintiffs were working in the house when an unusually heavy rain occurred. Mr. Griesenauer testified that was the first time he became aware of a surface water problem on his property; that he looked out the window and saw water coming from across the street onto his property at the southwest corner. It flowed eastwardly until it reached the rear of his house, then cut across the yard, flowing generally over the entire back yard. He stated the water did not run into the basement through the rear door on the east side. He further testified he did not know of the existence of the culvert until the big rain came. He discovered it the next day. On that day he went to see Mr. Emge, an officer of defendant Emsco Corporation and informed him that he had a terrific amount of water coming through his yard, and asked Emge if he could correct it in any way. Mr. Emge replied that he would take care of it; that something should be done about it; that there was too much water there. Mr. Griesenauer had several talks thereafter with Mr. Emge about the matter and each time Mr. Emge would say, “We will be doing something about it.”

In the early spring of 1962, probably in April of that year, Mr. Griesenauer was contacted by Mr. Emge who presented a paper to Mr. Griesenauer to sign, which the latter signed. This paper was not introduced in evidence, but Mr. Griesenauer testified that Mr. Emge was to construct a ditch along the southside of his property and another from the southeast corner to the northeast corner of his lot. He further testified that the ditch was to be “swailed” out and “he was to sow grass seed in it. I told him grass seed would not hold up if we had a rain and that I wanted it sodded, so he changed the grass seed to sod, and I signed the paper for him to go ahead and get a man in there to work on the ditch.”

Defendant employed the O’Fallon Asphalt Paving Company, which was owned by Ben Luetkenhaus, to do the work. Mr. Luetken-haus came to plaintiffs’ premises and informed Mr. Griesenauer that he was going to start the work, and Mr. Griesenauer told him: “that was fine, that I was glad that something was being done about it.” Shortly thereafter Mr. Luetkenhaus began work on the ditch. While Mr. Luetkenhaus was there either doing the work or in the process of starting it, Mr. Griesenauer had another conversation with Mr. Emge concerning the ditch. He told Mr. Emge he was glad to see something being done. He further stated: “I was informed that the ditch would run down to the end and then down the back of my property line.”

Mr. Griesenauer testified that Mr. Luet-kenhaus started at the culvert, and in order to get to the bottom of the culvert, had to dig four or five feet below the level of the front yard; that Mr. Luetkenhaus “shot the grades” and came up with the figure that by the time the ditch along the south side reached the end of the lot, the ditch would, be approximately three feet deep in order for the water to flow away; that the ditch between his neighbor’s house and his own would be five or six feet deep.

Griesenauer testified that on a visit by Mr. Emge to the property, he was told by Mr. Luetkenhaus that the ditch would be too deep and unsightly and it would be necessary to put a pipe in and cover it. That same day or a day or two afterwards, Mr. Griesenauer told Mr. Luetkenhaus that he would prefer a tile pipe there; that it could be covered up and he would end up with a decent yard. Mr. Emge testified that it was agreed that defendant would pay for the pipe to the back of Mr. Griesenauer’s house; that Mr. Griesenauer agreed to pay for the rest of it, and defendant would pay for the installation of it, and that Mr. Griesenauer agreed to put some concrete blocks at the east end of the pipe so that the water would be dispersed across the end of the lot. At this time Mr. Luetkenhaus was replaced by the G & P Ditching Service. This concern was a partnership, the members thereof being Paul Joseph Peine and one Graben-horst. Mr. Peine took charge of the work of digging the ditch and putting in the tile. During the noon hour the day Mr. Peine started, Mr. Griesenauer had a conversation with Mr. Peine. At that time the work of digging the ditch and putting in the tile had progressed for approximately two-thirds the length of the south boundary line. Mr. Griesenauer, at that time, had occasion to look at and inspect the work already completed. Mr. Griesenauer stated that when he came home from work that evening the work was almost to the eastern edge of the property. Mr. Peine dug the ditch across the back of the lot. He stated that the only way for the water to drain off the property was to dig a ditch across the back of the lot. Mr. Emge sent word to Mr. Peine through one of the latter’s men not to go around the corner with the tile unless he found out who was going .to pay for it. Obviously Mr. Emge, representing defendant did not intend to pay for the tile across the rear of the lot. Griesenauer testified he did not agree to pay either defendant, G & P Ditching Company or Emge for any part of the work done on his property. The ditch at that time was already dug across the back of the lot. Mr. Peine stated that if he had not stopped when he did he would have “made the corner and tiled it with another fifty or one hundred foot, whatever it took to run the water around the corner off of the Griesenauer property down the natural drainage.” The evidence shows that the lot drops off to the north and the natural drainage is toward the northeast corner and beyond. The pipe which was laid by Mr. Peine starts at a catch basin near the southwest corner of plaintiffs’ lot, and runs along the south property line almost to the rear of the property. Water passing through the pipe flows into the open ditch where it is dispensed across the yard to the northeast corner then off plaintiffs’ property. The end of the drain tile at the back of plaintiffs’ lot is approximately three feet below the level of the ground at that point. Griesenauer testified that at present the deepest part of the ditch is 2>Yi feet which extends for about twenty to twenty-five feet down the rear of the property, then, becomes shallow and extends for an additional 82 feet. Its deepest part is 8 to 10 feet wide and where it becomes \Yz to 2 feet deep, it is 3 to 4 feet wide.

Plaintiffs’ Instruction No. 1, which was a verdict directing instruction, charged the jury that if they found from the evidence that defendant through its agent and servant, G & P Ditching Company entered upon plaintiffs’ property and dug the ditch without the plaintiffs’ permission, and suffered damage as a direct and proximate result thereof, the verdict should be for plaintiffs and against defendant.

On this appeal it is urged that the Court erred in refusing to sustain defendant’s motion for a directed verdict for it at the close of all the evidence for the reason that plaintiffs failed to show that defendant’s entry upon their land and the digging of the ditch was without their consent, but on the contrary plaintiffs’ own testimony showed consent to said acts.

This is a civil action to recover damages for injury to plaintiffs’ land as a result of an alleged wrongful entry thereon by defendant and the digging of a ditch across the rear of plaintiffs’ lot, without plaintiffs’ consent. Such was the action stated in the petition and submitted by plaintiffs’ verdict directing instruction. At common law, the action would be classified as an action of trespass, but under modern statutes it is deemed a civil action for tort. However, the statute abolishing common law forms of action do not apply to matters of substance, and the fundamental requirements on which a right to recover remain the same as they were prior to the enactment of said statutes. Therefore, we must apply the principles governing the right to recover in trespass, as developed by the common law to the problem now before us.

The principle is elementary that trespass lies whenever an injury to plaintiffs’ property against his will, is the immediate result of a forceful, unlawful or wrongful act by a trespasser. In such cases the entry on the plaintiffs’ land may be wrongful or, if made with the consent, liability may arise where the scope of the license or consent is exceeded or abused, 87 C.J.S. Trespass, § 14, p. 967; and then only for acts committed in excess of such authority, 87 C.J.S. Trespass, § 17, p. 969; or for acts done after the license or consent is revoked. But where there is consent to enter the premises and perform the acts complained of, there can be no liability, 87 C.J.S. Trespass § 49, p. 1003; nor does a mere breach of an agreement by one lawfully on the premises constitute a trespass. 87 C.J.S. Trespass § 12, p. 965.

In the case at bar, it appears from plaintiffs’ own testimony that defendant’s entry on plaintiffs’ land and the digging of the ditch along the east boundary line of his lot was by consent. Nor is it shown that this license or consent was ever at any time revoked, or that defendant went beyond the scope of his license by any act performed on the premises. In our opinion, the trial court erred in not directing a verdict for defendant. It is therefore not necessary to pass upon the other points raised on this appeal by appellants.

The judgment is reversed.

WOLFE, P. J., and RUDDY, J., concur.


author: MURRAY, Chief Justice.

text:
    J. W. HILL & SONS, INC., Appellant, v. John A. WILSON et ux., Appellees.
    No. 14405.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1966.
    Rehearing Overruled Feb. 16, 1966.
    House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.
    Pat Maloney, San Antonio, for appel-lees.
   MURRAY, Chief Justice.

This suit was instituted by John A. Wilson and wife, Blanche S. Wilson, against J. W. Hill & Sons, Inc., hereinafter referred to as Hill & Sons, Inc., James Hill, Mitchell H. McDonald, and James Hobbs, seeking to recover property and personal injury damages sustained by the Wilsons when the automobile which they were driving in a southerly direction on U. S. Highway 81 in Frio County, Texas, collided with a Chevrolet pick-up truck owned by Hill & Sons, Inc., and allegedly operated by Mitchell H. McDonald. The case was tried to a jury and resulted in a recovery by Wilson and wife in the sum of $12,837.50 against Hill & Sons, Inc., and James Hobbs, jointly and severally, from which judgment J. W. Hill & Sons, Inc., has appealed.

Appellant’s first contention is that the court erred in overruling the motion of Franklin D. Houser, and the law firm of House, Mercer, House & Brock, asking leave to withdraw as attorneys of record for James Hobbs, because of a conflict of interest existing between James Hobbs and Hill & Sons, Inc., which action resulted in injury to the appellant. The recovery here was based upon the doctrine of respondeat superior. Hill & Sons, Inc., was the owner of the Chevrolet pick-up truck, and Hobbs was a general employee of Hill & Sons, Inc. The question being whether he was in the course of his employment on the occasion of the collision.

It was admitted that on July 10, 1960, the date of the collision, both Hobbs and McDonald were employees of the corporation — Hobbs was foreman of Hill & Sons, Inc., gravel and sand business, and McDonald was a truck driver. Hobbs was confined in the Leavenworth penitentiary at the time of trial and testified by deposition. He testified that about 4:30 p. m. on July 9, 1960, he started to Pear-sall to look at a piece of loading machinery which his employer was interested in leasing. Since he had been drinking, he requested McDonald to go along and drive for him. He testified that McDonald went as an employee of the corporation and was to be paid for same. Two-fifths of vodka was consumed by them and both got drunk. They became separated and Hobbs was found by Frio County authorities and placed in the Frio County jail. The pick-up was involved in a collision the following morning when it was being driven towards San Antonio.

Appellant’s first contention is that the court erred in overruling the motion of appellant’s attorneys to withdraw as attorneys for James Hobbs.

The firm of House, Mercer, House & Brock was employed by the liability insurance carrier for Hill & Sons, Inc., and in August, 1962, filed answers for the corporation and Hobbs. McDonald was made a party, but was never served and did. not appear or testify in the case. On October 2, 1964, appellant’s attorneys filed a motion to withdraw as attorneys for Hobbs and asserted a conflict of interests between the defendants, in that Hobbs said he was in the scope of employment at the time of the collision and during the events preceding it, while appellant said he was not. Appellant asserts that reversible and fundamental error was committed in requiring appellant’s attorneys to represent these conflicting interests at one and the same time before the court and jury.

There was a direct conflict of interest between Hill & Sons, Inc., and James Hobbs on the all important question of whether Hobbs was in the course of his employment with Hill & Sons, Inc., when he and McDonald took the Chevrolet and went to Frio County, which ultimately resulted in the collision in question.

The real party at interest here was the insurance carrier of Hill & Sons, Inc., which would not be liable if Hobbs was not acting in the course of his employment, and likewise Hill & Sons, Inc., would not be liable under such circumstances. “Course of employment” on the part of Hobbs was a vital issue in the case, and thus one firm of attorneys could not properly represent him and Hill & Sons, Inc. State Bar Rules, Article XIII, Canons of Ethics, Section 3, subparagraph 6, p. 234, Vol. 1A Vernon’s Ann.Civ.St.; Myers v. Crockett, 14 Tex. 257; Cochran v. Cochran, Tex.Civ.App., 333 S.W.2d 635; Eas-ley v. Brookline Trust Co., Tex.Civ.App., 256 S.W.2d 983; Barreda Corp. v. Ballenger, Tex.Civ.App., 116 S.W.2d 442; People v. Gerold, 265 Ill. 448, 107 N.E. 165.

The trial court very properly allowed Hobbs and Hill & Sons, Inc., six peremptory challenges each, and the attorneys were compelled to exercise these challenges to the best interest of their respective clients. In exercising Hobbs’ challenges they were required to do so in such a manner as was calculated to produce a jury favorable to Hobbs, while exercising the challenges awarded to Hill & Sons, Inc., in such manner as to try to produce a jury favorable to Hill & Sons. The failure of the trial court to allow the attorneys for Hill & Sons, Inc., to withdraw as attorneys for James Hobbs brought about this impossible and embarrassing situation. It in effect required the attorneys to strike the jury list for Hobbs with their left hand, and then to strike such jury list for Hill & Sons, Inc., with their right hand, and not let the left hand know what the right hand was doing, this, of course, cannot be done by any human being.

These attorneys stood before the jury as attorneys for Hobbs, contending that Hobbs on the occasion in question was acting within the scope of his employment, and at the same time, as attorneys for Hill & Sons, Inc., contending that Hobbs was not so acting. No trial judge should permit such a situation to occur in his court, much less require it to happen.

To require or even to permit an attorney or a firm of attorneys in open court, before a jury, to undertake the representation of defendants having a conflicting interest is error, regardless of how or who is responsible for this situation.

To have an attorney standing in open •court before a jury and the public, who have a right to be present, attempting to represent conflicting interests creates a situation which should never occur under our adversary system of trying cases. Bryant v. Lewis, Tex.Civ.App., 27 S.W.2d 604. Such a situation discredits the legal profession, and lowers the dignity of the court. It should never be permitted, even if agreeable to the adverse parties. Ward v. State, 33 Okl.Cr. 182, 242 P. 575. Such a trial would be fundamentally wrong and against the policy of the law. Malia v. Giles, 100 Utah 562, 114 P.2d 208.

Regardless of whether the motion to withdraw is tardily made, or made at such a time that if granted it would cause a continuance of the suit, and even if the attorney making the motion to withdraw is at fault in helping to create the situation, it is reversible error to not permit him to withdraw as attorney for one of the parties when he discovers that he is in a position of representing litigants who have a real and serious conflict of interest in the lawsuit.

There can be no question here but* that appellant was prejudiced by the fact that his attorneys were required to also represent Hobbs, who was contending that he was in the course of his employment during the events that led up to the collision between the pick-up truck and ap-pellees’ automobile, while appellant was contending to the contrary.

For the error pointed out, the judgment of the. trial court will be reversed, not only as to appellant, J. W. Hill & Sons, Inc., but also as to James Hobbs, who did not perfect an appeal, and the entire cause remanded for a new trial. See 4 Tex.Jur.2d, § 850, p. 424.

Reversed and remanded.


author: HUGHES, Justice.

text:
    COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. Sammie J. WASHINGTON, Appellee.
    No. 11356.
    Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1966.
    Rehearing Denied Feb. 23, 1966.
    McKay & Avery, Charlie D. Dye, Austin, for appellant.
    Jack Garey, Austin, for appellee.
   HUGHES, Justice.

This is a Workmen’s Compensation case in whieh the employe, Sammie J. Washington, recovered a judgment against the insurance carrier, Commercial Standard Insurance Company, awarding him benefits for total permanent incapacity.

Appellant’s first four points, jointly briefed, are to the effect that there is no evidence in the record to support the jury finding that appellee sustained total permanent incapacity.

We overrule these points. The evidence to sustain this finding is substantially as follows:

Appellee is 54 years of age. He cannot read or write, except to sign his name. He is a common laborer. When injured, he was working for Archie C. Fitzgerald in the construction of a new bank building in South Austin, Texas. He was stripping forms where concrete had been poured for a ceiling and “ * * * was prizing backwards with a wrecking bar, and I felt a little snap where it snapped in my back.” He had been standing on a scaffold and was working in a stooped over position. He rested for a few minutes and then went back to work. His condition became worse as the day progressed and by the next day his back was “sure enough sore.”

The next day he went to a Doctor Stephenson in Smithville, Texas, his family doctor. Dr. Stephenson gave him a shot in the arm and informed him that “it was just a nerve.” Later that evening the pain became so great that his family brought him from his home to Bracken-ridge Hospital in Austin. His wife then called at the office of Fitzgerald and Dr. Warran A. Ross was sent to the hospital to examine and treat him. Appellee was placed in traction, but was later advised that an operation would be necessary. On June 9, 1964, an operation was performed by Dr. Warran Ross and a portion of two discs in the lower portion of appellee’s back was removed. After removing the discs the spine was visibly unstablp and a spinal fusion was performed. Appellee remained in the hospital about five days thereafter. Dr. Ross cared for and treated him from May 29, 1964 up to “the present.” Trial commenced in this cause March .8, 1965.

A back brace was prescribed. For a period of six months from the date of operation, June 9, appellee had been instructed by Dr. Ross to refrain from any activity other than normal walking and sitting. This type instruction is a customary one made by Dr. Ross with reference to the type of operation performed on appellee. It has been Dr. Ross’ experience that at least six months is required to allow “maximum opportunity for disc bone to become solid.” X-ray pictures had been taken of appellee’s back as late as March 4, 1965, and by examination of the x-rays it was apparent to Dr. Ross that the bone was progressing as he had anticipated.

Dr. Ross testified that following the first six months’ period, an additional six months is required for the new bone (used in connection with the spinal fusion) to become more mature and stronger, and in a year’s time following surgery the new bone has reached as much strength as it is going to reach. During the second six-month period appellee was instructed to perform muscle building exercises to increase the mobility of his spine and build up muscle strength to support the spine. At the time of trial appellee was in the second six-month period. At the time of trial, appellee was nine months from surgery and there would be an additional three months, or to June 1965, until the second six-month period had transpired.

Appellee testified:

“Q Now, as I understand, Dr. Ross hasn’t released you to go back to any kind of work at the present time?
A No, sir.
Q Has he indicated to you whether or not you will go back to any type of activity, work activity in the future?
A No, sir, he hasn’t said.
Q Well, has he told you there would be any period of time involved in which you would have to wait before he would know what the situation would be?
A He said it would be three more months.
Q Before he would know?
A Before he could go into it.”

Appellee understood that a period of one year following the operation would be required before he would be released by Dr. Ross to try any kind of work. At the time of trial he was being treated by Dr. Ross. He had not been informed by Dr. Ross what type of work he would be able to perform after being released from treatment, but had been informed that after another three months Dr. Ross would inform him what he would be able “to start into.”

Appellee was satisfied with the way in which Dr. Ross had been treating him and felt as if he was progressing from that treatment. He testified:

“Q You indicated that Dr. Ross in about three months will tell you what you can do or not do. I believe I asked you once before in the deposition, but so the members of the jury will have it, you are going to rely on Dr. Ross’ opinion as to what you can do or can’t do, aren’t you, sir?
A Yes, sir.
Q And are going to rely on his opinion as to what you should or should not do?
A Yes, sir.
Q And also on his opinion as to what you should try to do?
A Yes, sir.”

Since his operation appellee has not tried to do any work. Appellee testified that he did not “believe” he would be able to do construction work, but testified that he would try to perform whatever work Dr. Ross suggested to him.

The rehabilitation of appellee’s back would be completed in June 1965, at which time, in the opinion of Dr. Ross, he would have received maximum medical benefit. It was the further opinion of Dr. Ross that at the conclusion of one year’s time, appellee would be able to return to some type of work. Dr. Ross recommended that appellee not lift excessive weights. By this he put an arbitrary limit of 50 pounds to the waist and 10 pounds over the head. When asked to assume an average man with a normal back, Dr. Ross placed a limitation of not lifting more than 75 pounds to the waist level, saying all people have limitations.

Testifying specifically with reference to future incapacity of appellee, Dr. Ross testified as follows:

“Q * * * In your opinion, Doctor, you have had occasion to be familiar with various patients that have been connected with so-called Workmen’s Compensation cases, which this is one. In your opinion, Doctor, is Mr. Washington so-called totally and permanently incapacitated from working?
A No, sir.
Q Doctor, in your opinion, is Mr. Washington and will he be in the future partially incapacitated to work?
A I believe so, yes, sir.
^ ^ ^ ^ sj*
Q Do you have an opinion, sir, with respect to whether or not there would be any period at all of total incapacity ?
A Yes, from the time of surgery until a year after surgery, I anticipate and have instructed him not to do anything.
Q What is your opinion as to when the period of partial incapacity that you spoke of a moment ago will start?
A Well, it should start at that time, we have stated that as the 9th day of June of this year.”

From a medical standpoint it was the opinion of Dr. Ross that an excellent result had been obtained in appellee’s case. Dr. Ross further testified:

“Q In the case of Mr. Washington, based on your observation of him this period of time, would you say (he has) a good ambition to return to work?
A He appears to have, yes, sir.
Q Would you fully anticipate that he will in the future return to gainful occupation ?
A Yes, sir.”

And by return to a “gainful occupation,” Dr. Ross understood that to mean “he was going back to do something for hire.”

On cross examination, Dr. Ross was queried about his testimony that appellee was not totally and permanently incapacitated from working and we quote his testimony in this respect:

“Q Now, I would like to ask you to assume that the term (total incapacity) defines or means the ability of a person or a worker to do the usual and customary tasks of a workman in such a way as to be able to get and keep a job, and I will ask you to further assume that in connection with the usual and customary tasks of a workman that there would be an occasion from time to time to lift weights of more than SO pounds above the waist and there would be occasions from time to time to lift more than 10 pounds of weight above the shoulders. Now, using that definition for total incapacity, after the year or year and a half or whatever it is when Sammie Washington reaches this period of — reaches the state of maximum, I believe you said the maximum medical benefit that he will receive, and assuming that everything goes just fine, with that definition, will you state whether or not, assuming that definition and assuming those tasks, will you state whether or not in your opinion if Sammie Washington follows your recommendations and advice he would be totally incapacitated ?
Q Doctor, do you understand what I asked you. If you have got any question, I want to be sure we get this point just exactly clear and right. In other words, using the definition. I gave you of total incapacity, if Sammie Washington follows your recommendations, state whether or not after a period of a year or a year and a half he will or will not be totally incapacitated, permanently?
A Well, it requires two answers. One would be the fact that I would not recommend that he did these things, of excess weights, and assuming then—
Q Well, just—
MR. DYE: Wait just a minute, Your Honor. Let him finish his answer.
MR. GAREY: I gave you the weights, Doctor. More than 50 pounds above the waist and more than 10 pounds above the shoulder, so we won’t talk in generalities, and I don’t want— I want to talk specifically, assuming that the job from time to time will require that, under your recommendations will he or will he not be able to do that work ?
A Well, under my recommendations, then, he would be incapacitated, using that definition.
Q Using that definition he would be totally incapacitated?
A Totally incapacitated.
Q To do that work?
A Yes, sir.”

Dr. Ross who was the doctor furnished appellee by appellant and whose skill and qualifications as a doctor are unquestioned testified that appellee should never engage in any type of work which would require him to lift more than ten pounds weight above his shoulder or fifty pounds above his waist or in work which would require prolonged bending or twisting the body or work which required a strained position of squatting or stooping or which would place him in a strained position for long periods.

Dr. Ross further testified that appellee has some loss of equilibrium which could cause difficulty in walking on rocks or rough terrain.

Dr. Ross testified that the greatest flexibility in the spine, below the neck, was found in the sacrum or lowest lumbar joint in the spine; that about fifty per cent of the motion in the lumbar spine is at the fourth and fifth vertebrae where the spinal fusion was performed by him on appellee. With respect to the effect of this fusion on appellee, we quote Dr. Ross:

“Q So that those two vertebrae that were fused or made immobile is where we would normally have in a back that was unfused the 50 per cent of your side bending and lateral motion as well as your forward and backward motion; is that correct?
A Yes, sir.
Q And if I understand you correctly, if your operation was a success, then that particular mobility of the spine is forever lost?
A That is correct.
Q That is a permanent condition, of course?
A That is correct.
Q That is, hopefully, it is permanent?
A Yes, sir, if it stays solid, yes, sir.”

Dr. Ross testified at some length to the impairment which appellee would have as a result of the spinal fusion in his physical agility; that he would be awkward; that activity would require use of normally unused or little used muscles; that he would tire easily; that he could not stand for more than three to five hours. He also testified that as a result of the fusion of the lower lumbar vertebrae the point of greatest stress in the lumbar spine is shifted to higher and weaker portions of the spine. With respect to the fusion, if successful, Dr. Ross stated that “It is not a real rigid piece of bone,” and that “repeated stress applied to this bone can cause it to break,” and that it is too early to say that appellee has a strong, solid fusion that would withstand heavy strain or heavy lifting.

The trial court gave to the jury the accepted definition of “total incapacity” and no objection to it was made. “Total incapacity” does not mean an absolute disability to perform any kind of labor, but a person who is incapacitated to such an extent that he is unable to procure and retain employment, doing the usual tasks of a workman.

This record suggests the difficulty which injured employees who perform manual labor have in obtaining employment of the same nature. Appellee is not equipped to do any work other than physical labor. It is suggested that he might work at a service station or that he might wash dishes. The record, however, shows that in performing these jobs, appellee would be required to do things which he either could not do or Dr. Ross has advised him not to do. It is also suggested that appellee might do work as a night watchman, but there is no evidence that such employment was available.

The test laid down by the court is a practical test. It is not chimerical. It is based on reality. What reasonable opportunity does this man have to obtain and hold the only kind of a job for which he is fitted? The jury said, in effect, “None.” We whole-heartedly agree with the jury.

Appellant cites Texas Employers' Insurance Association v. Hawkins, 387 S.W.2d 469, Tex.Civ.App., Amarillo, writ ref., n. r. e. In that case the Court stated, “It is apparent from Hawkins’ counsel’s questions directed to his witnesses and the jury argument that his contention throughout the trial was that Hawkins’ total incapacity was based on his inability to perform a job requiring him to bend, stoop and lift. This contention restricts the approved definition of total incapacity.” Hawkins, a boiler maker, was injured October 4, 1960. He returned to work December 14, 1960, and worked almost continuously thereafter. The Court, in holding that the jury finding of total and permanent incapacity was against the great weight and preponderance of the evidence, said, “The evidence is clear Hawkins’ condition did not, in the three years between the injury and second trial, prevent him from procuring and retaining regular, well-paying employment in the same ■field he was engaged in prior to the injury.” (Italics ours.)

There is no similar showing in this case and the obviously correct holding of the Court in Hawkins, supra, is of no benefit to appellant here. It is not shown that appellee has done any work since his injury and there is little, if any, evidence that he will ever be able to do any work in his “field.”

Appellant also cites Angelina Casualty Company v. Spencer, 310 S.W.2d 682, Tex.Civ.App., Beaumont, writ ref., n. r. e. The Court, in affirming a judgment for total incapacity for 300 weeks, stated, in overruling appellant’s contention that there was no evidence to support this finding, that appellant “argues that if we allow such a verdict and judgment to stand, then we will be giving controlling effect to the bare conclusion of the appellee, a non-expert, and the equivocal opinion of appellee’s sole medical witness that it was doubtful if appellee could do his customary work. We cannot agree with this contention. The question of duration of the incapacity of an injured person can never be answered precisely. The injured party’s own statements about how he got hurt, where he hurts at the time he was testifying and what he is able to do and what he is unable to do, can serve only as aid to the jury in making some reasonable, fair estimate of the term of disability. The opinions of medical experts have been held not to be controlling and can also be only a matter of aid to the jury in making their reasonable estimate of the term of disability.” (Italics added.)

We fail to find anything in this case of comfort to appellant. It merely affirms the authority of the jury to make a fact finding on inconclusive evidence. There is no dearth of medical evidence here as to the nature and extent of appellee’s injuries and the permanent effect they will have upon him in pursuing his “customary” work.

We overrule the points under consideration.

Points five through eleven are jointly briefed. They present, in various forms, the insufficiency of the evidence to support the jury finding that appellee sustained an injury which totally and permanently incapacitated him, and ask us to hold that such finding is against the great weight and preponderance of the evidence, is clearly wrong and should be set aside.

We refer to our statement of the evidence heretofore and hereafter made. Upon consideration of the entire record, we overrule points five through eleven. There is little, if any, evidence that appellee will ever be able to procure and retain employment in his “field,” or that he will be able to procure and retain employment in pursuing his “customary” work, or that he will be able to procure and retain employment in doing the usual tasks of a workman. The evidence, in our opinion, is overwhelming to the contrary.

The twelfth point is that the trial court erred in overruling appellant’s objection to the testimony of Dr. Ross, given on cross examination, that appellee would be totally incapacitated if the usual and customary tasks of a workman required him to do those things which Dr. Ross had recommended that he not do. The question and the answer of Dr. Ross have been quoted above. The objection of appellant was as follows:

“MR. DYE: Excuse me, doctor. Your Honor, may the record just reflect our objection to the assumption on the part of counsel as to what the definition of total and permanent incapacity is with respect to these specific things, because I believe the law is otherwise. The law simply speaks in terms of usual tasks of a workman so as to get and keep a job, but it is not restricted to jobs involving heavy lifting and bending and whatnot.”

Appellant, on direct examination of Dr. Ross, had questioned Dr. Ross as shown below:

“Q In your opinion, Dr. Ross, you have had occasion to be familiar with various patients that have been connected with so-called workmen’s compensation cases, of which this is one. In your opinion, doctor, is Mr. Washington so-called totally and permanently incapacitated from working?
A No, sir.”

Appellant cites in support of this point the Hawkins case which we have discussed above and Texas Employers' Insurance Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000.

In Mallard the Court disapproved a definition of total incapacity in a charge which included the phrase, “in the usual occupation which he is suited to perform,” saying, in part, “That unduly restricted the definition. An employee is not entitled to recover for total incapacity merely because he is unable to procure and retain employment in his usual occupation. The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation.”

We are of the opinion that the question appellee propounded to Dr. Ross was fair cross examination since appellant had first obtained the opinion of Dr. Ross, in effect, that, under the Workmen’s Compensation Law, appellee was not totally and permanently incapacitated from working. Appellee was entitled, we believe, to counteract the effect of this testimony by having Dr. Ross testify that appellee, in his opinion, was so incapacitated if, in the course of his work, he was required to do certain specified physical acts.

In the event we are in error in this holding, we are of the opinion that the error is harmless under Rule 434, Texas Rules of Civil Procedure. Dr. Ross had testified that he was not an expert in any field except medicine and that he was only qualified to express an opinion on appellee’s physical limitations from a medical point of view. His opinions on job opportunities, employment practices and the law were, by his own admission, valueless. We do not believe that the jury was influenced by any opinion stated by the Doctor on such subjects. We overrule point twelve.

Points thirteen and fourteen are that the trial court erred in granting appel-lee leave to file a trial amendment amending his prayer to read, “that plaintiff have judgment against defendant for Workmen’s Compensation at $35.00 per week for 401 weeks” in lieu of the former pleading that he recover such benefits for “400 weeks,” for the reason that there was “no evidence in the record that any total incapacity of plaintiff would be permanent” and because “there was insufficient evidence that any total incapacity of plaintiff would be permanent.”

We have held under other points that there was evidence and that it was “sufficient” to support findings that the total incapacity of appellee was permanent. We, therefore, overrule these points without further discussion.

Finding no error of a reversible nature, we affirm the judgment of the trial court.

Affirmed.

      . Page 158.


author: DUNAGAN, Chief Justice.

text:
    CITY OF MESQUITE, Appellant, v. John A. RAWLINS, Appellee.
    No. 179.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 27, 1966.
    Rehearing Denied Feb. 24, 1966.

      Tim Kirk, Saner, Jack, Sallinger & Nichols, Dallas, for appellant.
    Robert Lee Guthrie, Johnson, Guthrie, White & Stanfield, Dallas, for appellee.
   DUNAGAN, Chief Justice.

The City of Mesquite, appellant, instituted this suit against the appellee, John A. Rawlins, for delinquent taxes for the years of 1962 and 1963. The appellee, in addition to his answer, filed a cross action for damages against the appellant alleging that it had illegally, negligently and improperly installed new paving obstructing a drainage ditch which diverted the natural flow of service waters causing defendant’s houses and lots adjacent thereto to be flooded with water, which has caused the piers and foundations to rot and the land to remain wet and soggy over long periods of time. The case was tried before a jury, and upon the findings of the jury to Special Issues a judgment was signed and entered on March 1, 1965, that the appellee take nothing by his cross action from which judgment no appeal was perfected; and, awarding appellant judgment in the sum of $2,588.56 for taxes due it for the years of 1962 and 1963 being less than the amount the appellant claimed was due and owing, from which judgment appellant duly perfected its appeal. Appellant is seeking to have this court render judgment for the additional amount of taxes, penalty, interest and attorney’s fees sued for which was not recovered by the judgment.

On March 11, 1965, the appellee, John A. Rawlins, wrote Mr. Jimmie Mormon whom the record shows is the Tax Assessor-Collector for the City of Mesquite, as follows:

“March 11th, 1965.
“Mr. Jimmie Mormon, Tax Department, City of Mesquite, Texas.
“Dear Sir:
“RE: Cause Number 78308-1 City of Mesquite, Plaintiff
versus
John A. Rawlins, Defendant.
“By final judgment, dated March 1, 1965, plaintiff was awarded the amount of $2588.56 covering 1962 and 1963 taxes on real estate owned by defendant within the city.
“I enclose herewith CASHIER’S CHECK on the EMPIRE STATE BANK OF DALLAS, numbered A 92020, in payment thereof.
“Very truly yours,
/s/ J. A. Rawlins”

Appellee received from the Tax Department of the appellant a receipt dated March 12, 1965, the following portion written in longhand, which reads:

“Received from John A. Rawlins Cashiers Check Re $2,588.56 for 1962 & 1963 taxes awarded by court.”

The following correspondence between the attorneys for the parties followed:

“March 15, 1965
"Mr. Robert Lee Guthrie Attorney at Law Republic National Bank Building Dallas 1, Texas
“Re: Rawlins vs. City of Mesquite
“Dear Mr. Guthrie:
“The City of Mesquite has received a Cashier’s Check from Judge Raw-lins in the amount of $2,588.56. In his letter he stated that it was the amount determined by a final judgment dated March 1,1965.
“Since we are in the process of appealing this case, please advise me whether or not you desire that' we retain this check without prejudice to the rights of parties on either side, or whether you desire that we return it to Judge Rawlins. It is my understanding that if the check' is'retaiñed there will be no additional penalty or interest.
“I will hold the check until I hear from you.
“Very truly yours,
SANER, JACK, SALLINGER & NICHOLS
By -
H. Louis Nichols”
“March 16, 1965
“Mr. H. Louis Nichols Attorney at Law 1200 Republic National Bank Bldg. Dallas, Texas
“Re: No. 78,808-1
City of Mesquite vs. John A. Rawlins
“Dear Louis:
“In reply to your letter of March 15, 1965, Judge Rawlins says he intended for the cashier’s check in the sum of $2,588.56 to be a tender of the amount due on the above judgment. He used a cashier’s check because he thought this would be more convenient for the City, as well as for himself. If the City objects that the tender was not made in cash, he will be glad to pick up the check and substitute cash therefor. Judge Rawlins wishes to preserve all the rights that such tender gives him.
“Sincerely yours,
Bob
Robert Lee Guthrie”
“March 17, 1965
“Mr. Robert Lee Guthrie Attorney at Law 1410 Republic National Bank Building Dallas, Texas 75201
“Re: No. 78308-1, City of Mesquite vs. John A. Rawlins
“Dear Bob:
“Thank you very much for your letter of March 16, regarding the payment of the judgment in the above styled case. The Cashier’s Check is perfectly satisfactory, but I wanted to be sure that it was agreeable with you that werretain the check in view of the fact that we are appealing the Judgment. There is no reason for the check to be picked up, and of course, since the amount of the Judgment has been paid that will stop the running of any penalty and interest.
tt * *
“Thanking you very much for your cooperation in this matter, I am “Very truly yours,
SANER, JACK, SALLINGER & NICHOLS
By -
H. Louis Nichols”

The appellee has filed motion to dismiss the appeal, because after the appeal was perfected, the appellee tendered to appellant and appellant voluntarily accepted all sums due under the judgment of the lower court and hence having retained the fruits of the judgment, it is estopped to assert the trial court erred in rendering such judgment. We sustain the motion.

The rule is thus stated in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004:

“A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that ‘ * * * where the reversal of a judgment cannot possibly affect an appellant’s right to the benefit secured under a judgment, then an appeal may be taken, * * 2 Am.Jur., Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment, he is not estopped to prosecute an appeal which involves only his right to-a further recovery.” The court further said: “The exception is narrow.”

The court in the case of Graham v. Caballero, 243 S.W.2d 286, (Tex.Civ.App.) 1951, writ refused, n. r. e., said:

“It is generally and universally held a litigant may not treat a judgment as both right and wrong, and if he accepts the benefits of the judgment, he will not be heard on an appeal therefrom. Carle v. Carle, [149 Tex. 469], 234 S. W.2d 1002. This is but another way of saying a litigant cannot accept the benefits of a judgment and then attack it as wrong.” See also Mueller v. Banks, 332 S.W.2d 783, 786, (Tex.Civ.App.) 1960, n. w. h. and Marshall v. Lockhead, 245 S.W.2d 307, 308, (Tex.Civ. App.) 1962, writ refused, n. r. e.

Appellant recognizes the general rule, but contends that it comes within the exception. In the case of Latimer, et ux. v. State of Texas, 328 S.W.2d 242, (Tex.Civ.App.) 1959, writ refused, n. r. e., a condemnation proceeding, the appellee after the appeal had been perfected paid into the registry of the court all sums due under the judgment of the lower court and from there withdrawn by appellants. The appellee filed a motion to dismiss the appeal because the appellants had voluntarily accepted all sums due under the judgment. The court in dismissing the appeal following the rule pronounced by the Supreme Court in Carle v. Carle, supra, said:

“The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was. awarded by the judgment from which the appeal was taken. Ap-pellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment. It did not tender any sum of money to appellants until after the judgment was rendered, did not tender any sum of money in court, * *

It can likewise be said of the case at bar that appellant has no legal assurance that upon another trial, it would be awarded as much as was awarded by the judgment from which the appeal was taken; that appellee has never conceded and is not bound to concede that he is intrinsically indebted to appellant for as much as was awarded by the judgment or that the judgment of the trial court was correct or that he had no grounds for appeal; that he did not tender any sum of money to appellant until after the judgment was rendered, nor tender any sum of money in court. At the time the judgment was rendered in the trial court, appellee duly excepted to the judgment of the court.

It might be pointed out that up to March 11, 1965, both sides were attacking the judgment of the trial court. Apparently Raw-lins decided to put an end to the controversy and sent to the City Tax Assessor and Collector of the City of Mesquite a cashier’s check in full payment of the judgment. The check was accepted by appellant and subsequently cashed.

In the case of Dunham v. Randall & Chambers Co., 11 Tex.Civ.App. 265, 32 S.W. 720, 1895, writ refused, the court said:

“ * * * ‘It is a settled doctrine that where a party recovering a judgment or decree accepts the benefits thereof, voluntarily and knowing the facts, he is estopped to afterwards reverse the judgment or decree on error. The acceptance operates as and may be pleaded as a release of error.’ * * *
“ * * * The rule has often been enforced by our courts that a litigant, except in the matter of pleading his defenses, cannot occupy inconsistent positions. For him to accept the benefits of a judgment while prosecuting an appeal to have it set aside as erroneous is clearly an instance of such inconsistency, giving him, in case of reversal, an undue advantage over his antagonist, and embarrassing the proceedings in the trial court. * * * ” See also Hopkins v. City of Dallas, 106 S.W.2d 783, (Tex.Civ.App.) 1937, writ refused, and Cox v. Esso Shipping Company, 5 Cir., 247 F.2d 629, 637.

In the case at bar the appellant was not compelled to accept appellee’s payment of the judgment awarded by the court and receipt him for the payment thereof. Its act in so doing was voluntary.

We are not unaware of the letter of April 14, 1965, that appellant’s attorney Nichols wrote appellee’s attorney Guthrie informing him that he was herewith returning the cashier’s check which the appellant had received from appellee Rawlins in connection with the City of Mesquite case, because it had not been indicated that this check could be retained by the city without prejudice to its rights on appeal, or without prejudice to the rights of Judge Rawlins. Further seeking by said letter an agreement that the check be accepted without prejudice to the rights of either party in connection to the pending appeal.

This was the first time that the appellant had requested or demanded any condition be attached to it accepting Rawlins’ check in full payment of the judgment. The appellant on March 12, 1965, accepted the check, receipted Rawlins therefor, and appellant’s attorney Nichols, in his letter to appellee’s attorney Guthrie, dated March 17, 1965, admitted that the judgment had been paid. After the appellee for the first time was so informed that appellant had apparently reversed the action of its unqualified acceptance of the check in payment of the judgment and was now demanding that certain conditions he attached to it accepting and retaining the check, as more than 30 days had elapsed from the date of the judgment, it was too late for the appellee to exercise his right to perfect his appeal, if he so desired, from the portion of the judgment denying to him a recovery on his cross action because the time for perfecting the appeal had expired, and the judgment against appellee on his cross action had become final.

The Supreme Court in Carle v. Carle, supra, said that the general rule therein stated was based on the principle of es-toppel.

It was held in Thompson v. Williams, 249 S.W.2d 238, (Tex.Civ.App.) 1952, affirmed 152 Tex. 270, 256 S.W.2d 399, that:

“ * * * ‘Estoppel is always predicated upon the conception that one pleading it has been mislead to his prejudice by some statement, act, or conduct of another who • thereafter seeks to assert a right inconsistent with such statement, act, or conduct. The basis of estoppel is deception.’ Shear Co. v. Wilson, Tex.Com.App., 294 S. W. 843. * * *”

It is not necessary to an equitable estoppel that the party should design to mislead, if his act was calculated to mislead another acting upon it in good faith, and exercising reasonable care and diligence under all the circumstances. Glaser v. Henderson, 2 S.W.2d 987, (Tex.Civ.App.) 1928, n. w. h.; Westbrook v. Guderian, 3 Tex.Civ. App. 406, 22 S.W. 59, (Tex.Civ.App.) 1893, n. w. h.

A party is estopped whenever he has gained an undue advantage, and has caused his adversary a loss or injury. Johnson v. Byler, 38 Tex. 606 (S.Ct.) and Glaser v. Henderson, supra.

Attorney Guthrie returned the check to attorney Nichols, accompanied by his letter dated April 15, 1965, in part stating:

“Since Judge Rawlins by this check paid the taxes due on property owned by him in the City of Mesquite, he does not have any interest in the check but it is the property of the City of Mesquite. He has asked me to return it to you.”

Attorney Nichols’ letter of April 16, 1965, to attorney Guthrie, in part reads:

“Since you and your client insist this check be retained by the City of Mesquite and since we do not intend to become involved in merely sending the check back and forth in the mail to eaeh other, I am advising the city that the amount of the check may be applied to the taxes owed by Judge Rawlins, but that the amount does not satisfy the claim of the city for taxes. * * *
“By acceptance of this check, the City of Mesquite does not agree that it is accepted in full payment for the taxes due by Judge Rawlins, nor is it accepted in settlement of the pending lawsuit, nor does it constitute an acknowledgement that the taxes have been paid in full by Judge Rawlins.” Thereafter, the Rawlins’ check was cashed by the City of Mesquite.

It is the settled law of this state that, when an account is made the subject of a bona fide dispute between the parties as to its correctness, and the debtor tenders his check to the creditor upon condition that it be accepted in full payment, the creditor must either refuse to receive the check or accept the same burdened by its attached condition. If he accepts the check and cashes the same, he impliedly agrees to the condition, although he may expressly notify the debtor that he is not accepting the same with the condition, but is only applying the same as a partial payment on the account. Tarrant Wholesale Drug Co. v. Kendall, 223 S.W.2d 964, (Tex.Civ.App.) 1949, n. w. h.; Root & Fehl v. Murray Tool Co., 26 S.W.2d 189, 191, 75 A.L.R. 902, (Tex. Com.App.); Industrial Life Insurance Company v. Finley, 382 S.W.2d 100, (S.Ct.) 1964; Groves v. Sawyer, 384 S.W.2d 193, 194, (Tex.Civ.App.) 1964, writ refused, n. r. e.

The conditions stated in the letters from Nichols to Guthrie dated April 14th and 16th, 196S, were never agreed to or accepted by the appellee Rawlins. Nor was the check tendered or accepted with such conditions attached. Moreover, the check had been tendered by appellee and accepted by appellant as payment for the full amount of the judgment long prior to these two letters.

Appellee Rawlins, in his letter of March 11, 1965, with his check enclosed, clearly stated without qualifications, he was tendering the check for the payment of the judgment, which necessarily meant pay in full thereof as the check covered the full amount of said judgment. The appellant received and accepted the check burdened with its attached condition which it subsequently cashed.

Even though the words “in full settlement” or “in full satisfaction” were not used by Rawlins in his letter of March 11, 1965, to appellant, nevertheless where the language in which the conditions were named was couched in different terms, but was equivalent in plain meaning, the result would be the same. To our minds, the necessary effect of the langauge of appellee’s letter of March 11, 1965, was to name conditions, the acceptance of which would close the controversy and satisfy appellant’s judgment; and it is immaterial that he did not employ such phrases as “in full settlement” or “in full satisfaction.” Early-Foster Co. v. W. F. Klump & Co., 229 S.W. 1015, 1019, (Tex.Civ.App.) 1921, n.w.h.

It is not contended by Rawlins that he tendered the check to appellant in payment of the amount of the claim that it sued upon. Appellee’s contention is that the check was tendered in full payment and satisfaction of the judgment which appellant received against the appellee, and that appellant having accepted the check so tendered that it (appellant) comes within the general rule set out in Carle v. Carle, supra, and therefore is estopped from prosecuting its appeal from the judgment. With this we agree.

It is not appellant’s contention that the check was not tendered and accepted in full payment of the amount of the judgment rendered by the trial court in this case. It contends that the correspondence between the attorneys shows that the check was not accepted in settlement of the judgment or as full payment for the taxes claimed by it, and therefore it is not estopped from prosecuting this appeal for the further recovery of the additional taxes claimed, interest, penalty and attorney’s fees, all of which were denied to it, relying upon the exception to the general rule stated in Carle v. Carle, supra.

The case at bar is within the rule but not within the exception as pronounced in the case of Carle v. Carle, supra.

The question before this court in disposing of the motion to dismiss is not, Was the check tendered in payment of the amount of the claim appellant sued upon? The question is, Did the tender of the check by the appellee on March 11, 1965, in full payment of the judgment and its acceptance by the appellant satisfy the judgment? We think it did. The acceptance of the check by the appellant is shown by its receipt therefor on March 12, 1965, and its attorney’s (Nichols) letter of March 17, 1965, to Guthrie. It is noteworthy that in Guthrie’s letter of March 16, 1965, Nichols was informed that “Judge Rawlins wishes to preserve all the rights that such tender gives him.”

Appellant’s claim which forms the basis of its suit was adjudicated by the court and reduced to judgment in favor of the appellant in the sum of $2,588.56. Therefore, at the time appellee tendered his check to appellant in the sum of $2,588.56, the only lawful claim appellant had against appellee was the judgment. Consequently, the check having fully paid the judgment, the same was satisfied.

As a general rule, questions involved in an appeal become moot when the judgment is voluntarily satisfied or complied with by the complaining party and an appellate court will not retain jurisdiction to decide a case after all the parties litigant settle the case. Broadway Plan v. Ravenstein, 364 S.W.2d 741, 743, (Tex.Civ.App.) 1963, writ refused, n. r. e.; Parr v. First State Bank of San Diego, 307 S.W.2d 309, (Tex.Civ.App.) 1957, n. w. h.; City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638, (S.Ct.) 1939.

In addition to the other authorities herein cited, our holding that the issues in this case are moot is supported by Padgitt v. Young County, 111 Tex. 98, 229 S.W. 459; Employees Finance Company v. Lathram, 369 S.W.2d 927, (S.Ct.) 1963; McDonald v. Nolan, 346 S.W.2d 952, (Tex.Civ.App.) 1961, n. w. h.

Perhaps appellant was not aware that its acceptance of appellee’s check in full payment of the judgment would render moot all disputes between the parties and it could not thereafter prosecute an appeal therefrom. However, it has been held that it is not necessary that it be shown that the appellant knew the legal result of its acceptance of the check, and the mere acceptance will be regarded as assent. 1 Am. Jur., page 226, Sec. 24; First National Bank of Ritzville v. White-Dulaney Company, 123 Wash. 220, 212 P. 262, (S.Ct. of the State of Washington).

The appeal is accordingly dismissed at the cost of appellant.


text:
    DAL-PAK, INC., Appellant, v. RALPH ROSEN ASSOCIATES, INC., Appellee.
    No. 182.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 27, 1966.
    Rehearings Denied Feb. 24, 1966.

      John A. Gilliam, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    Curtis White, Johnson, Guthrie, White & Stanfield, Dallas, for appellee.
   DUNAGAN, Chief Justice.

The plaintiff, Walter F. Reeves, Jr., in this case in the trial court brought suit for personal injuries for himself against Dal-Pak, Inc., appellant and Ralph Rosen Associates, Inc., appellee, and recovered judgment jointly and severally against both defendants for the sum of $35,000.00. This judgment likewise provided for each defendant to have judgment over and against the other for any sum it paid on the judgment in excess of one-half of the judgment. The judgment in favor of plaintiff has been paid, and this appeal is by both defendants. Defendant Dal-Pak, Inc., is referred to as appellant and Ralph Rosen Associates, Inc., as appellee.

The facts developed on the trial are as follows:

Prior to the accident in question appellee entered into an agreement with representatives of the Hot Stream Heater Company to conduct an auction of 5000 Singleton Avenue, Dallas, Texas, the former place of business of Hot Stream Heater Company, for the purpose of liquidating and disposing of the assets of that company.

On April 3, 1962, the auction was conducted personally by Mr. Ervin Rosen. Mr. Rosen was aware of the fact that there were a number of pieces of electrical machinery in the building which would be sold and removed by working men. Assisting Mr. Rosen were two of his employees, Messrs. Leo Haas and Dick Harrell. These men were responsible for ascertaining that the purchasers obtained the proper equipment after the auction. It was part of their normal duties to disconnect the electrical current which was supplied to the machines before the machines were removed. This was done to prevent accidents such as occurred in the instant case. Mr. Rosen did not inspect the premises or the machines to make certain the current was cut off, but left this undertaking to his employees, Messrs. Haas and Harrell.

At the auction, several items were bid upon and purchased by appellant, including a drill press. The plaintiff’s employer, Duro Metal Manufacturing Company, also purchased various items, including a paint conveyor.

On April 4, 1962, the day after the auction, Mr. Leo Haas went to the plant to turn off all of the electricity so that the machinery could be removed in safety. He knew that if the electricity was left “on” this would create a dangerous situation and that people could be injured. He arrived at the building around 9:00 A.M. and proceeded to make certain that all of the electricity was turned off, including the lights. He remembered people complaining about the lights being off prior to the accident.

Mr. D. K. Sanderlin, an employee of appellant, arrived at the building around 9:00 A.M. to remove the drill press which appellant had purchased. He testified that the lights were off in the building and that it was very dark at that time. In fact, some of the workmen were working by the lights of two pick-up trucks. The drill press received its electrical power through a conduit which was connected to the electrical system in the building. After testing the drill press to make certain that it was not electrically charged, Mr. Sanderlin broke the conduit from the drill press and bent the loose wires against the side of the conduit. Then he removed the drill press from the building. Mr. Sanderlin recalled there being at least one auctioneer in the building at that time.

Mr. Rosenberg, president of the Duro Metal Manufacturing Company, testified that when he entered the building there were no lights on in the building. He had some conversation with either the auctioneer or an employee of the auctioneer at that time. Mr. Rosenberg left the building prior to the accident.

Mr. Roy B. James, an employee of the Frank Hollister Company, entered the building around 9 :Q0 or 10:00 A.M. to remove a degreaser. Mr. James had worked for the Hot Stream Heater Company previously and was familiar with the electrical system in the building. After Mr. James arrived he was approached by Mr. Tarleton, the former plant superintendent for Hot Stream, and another man who was putting tags on the equipment and telling everyone which company had bought which equipment. At the latter’s request, Mr. James showed the man where to turn on the electric lights. The electric lights were subsequently ignited. Mr. James could not recall whether he or the man who was with him actually turned on the lights. They also attempted to switch off all of the electric current except that needed for the electric lights.

Mr. Louis Young, foreman for the Duro Metal Manufacturing Company, testified that he and his crew arrived at the building between 9:00 and 10:00 A.M. to remove the paint conveyor. They were informed by the auctioneer that all of the electricity had been turned off. There were no lights on in the building during the morning hours, but the lights were burning when they returned to the building after lunch at approximately 1:00 P.M. The accident occurred around 1:30 P.M. when the plaintiff was asked to move a piece of conduit. He reached under the bottom of the conduit to push it aside and was electrocuted.

Plaintiff testified that when the crew first arrived at the building that morning the electric lights were off. Mr. Young stated to him that they were having difficulty with the lights and asked a man when they would be turned on. The man, who plaintiff believes was Mr. Haas, told Mr. Young that they could proceed with their work. Mr. Leo Haas testified that although the lights came back on before the accident he did not at any time thereafter return and check the switches or the current to see if the electricity was being supplied to the machinery.

The trial was to a jury and many issues of negligence were submitted to the jury, which found Ralph Rosen Associates negligent, which was the proximate cause of the injury to- the plaintiff. The jury likewise found Dal-Pak guilty of negligence, which was the proximate cause of the accident, as follows:

“SPECIAL ISSUE NO. I:
“Do you find from a preponderance of the evidence that on the occasion in question, the failure of Mr. Sanderlin to insulate the end of the electrical wiring in question was negligence as defined herein?
“Answer ‘Yes’ or ‘No.’
“ANSWER: Yes.
“SPECIAL ISSUE NO. 1-a:
“Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause, as defined herein, of the injuries, if any, sustained by the plaintiff on the occasion in question?
“Answer ‘Yes’ or ‘No.’
“ANSWER: Yes.”

The court gave the following definitions to the jury, among others:

“‘PROXIMATE CAUSE’ means that cause which, in its natural and continuous sequence, unbroken by any new and independent cause, produces a result, and without which cause, such result would not have occurred, and which result, or some similar result, would have been reasonably foreseen by a person of ordinary care in the light of the attending circumstances. There may be more than one proximate cause of a result.
“ ‘NEW AND INDEPENDENT CAUSE’ means the act or omission of an independent agency, which breaks the causal connection between the original cause and the result complained of, and which, in itself, becomes the immediate cause of such result.” Another issue submitted to the jury was No. 16:
“Do you find from a preponderance of the evidence that insofar as any act or omission of Mr. Sanderlin is concerned, the turning on of the electrical current into the electrical wires in the conduit in question after Sanderlin had completed disconnecting the drill press was not a new and independent cause, as defined herein, of whatever damages Walter F. Reeves, Jr. may have suffered?
“Answer: ‘It was not a new and independent cause’ or ‘It was a new and independent cause.’
“ANSWER: It was a new and independent cause.”

When the jury returned its verdict the appellant moved the court to declare a mistrial insofar as it was concerned on the ground that Issues Nos. 1 and 1-a were in irreconcilable conflict with Issue No. 16.

The appellee moved the court to disregard the jury’s answer to Issue No. 16. The court overruled both of the motions and entered judgment jointly and severally against both defendants, Dal-Pak and Ralph Rosen Associates. From this judgment both defendants appealed.

This appeal by appellant Dal-Pak presents one question and that is, Was there a direct and irreconcilable conflict in the jury findings which precluded the judgment from being entered against defendant Dal-Pak? We are of the opinion that this issue must be sustained. This identical question was passed on by the Commission of Appeals in the case of Terry v. English, 130 Tex. 632, 112 S.W.2d 446, and Judge Hickman, speaking for the court, held:

“Keeping in mind the definitions of proximate cause and new and independent cause, above set out, neither of which is challenged here as to its accuracy, the conclusion is inescapable that the findings are in conflict. By its answers to the several issues submitting proximate cause in connection with the primary negligence of the defendants in error, the jury determined that each such act of negligence unbroken by any new and independent cause produced the results complained of. It then found the existence of a new and independent cause. In so finding it found that the act of a third-party over which neither party had any control either alone brought about the result complained of, or aided in bringing it about, and that, if such new and independent cause merely aided in bringing about the result, it was such a concurring cause as a person of ordinary prudence would not have reasonably foreseen. The Court of Civil Appeals correctly held that these findings of proximate cause and of the intervention of a new and independent cause cannot be reconciled. This must be true, for the jury found that a new and independent cause was both absent and present.”

Appellee contends that Issue No. 16 was evidentiary and should be disregarded. We overrule this contention. This question was passed on in the case of Cox v. Ekstrom, 163 S.W.2d 845, (Tex.Civ.App.) 1942, writ refused, w. m., where Judge Murray, speaking for the court, held:

“Appellant contends, in his first point, that we should disregard the jury’s finding on new and independent cause and render judgment in his favor on the verdict, as the question of new and independent cause was not a controlling issue and should not have been submitted to the jury in the first place. Rule 279, R.C.P. It may be that the trial judge could properly have refused the issue in view of his definition of proximate cause but having submitted it, and having elicited a finding from the jury which is destructive of their finding of proximate cause, such finding cannot now be disregarded as immaterial and judgment rendered in favor of appellant.”

The judgment of the trial court is reversed and the cause remanded to the trial court to determine the rights of contribution and indemnity as between appellant and appellee.