author: PELPHREY, C. J.

text:
    AMERICAN ASPHALT CO. v. O’REAR.
    No. 2553.
    Court of Civil Appeals of Texas. El Paso.
    July 9, 1931.

      See also (Civ. App.) 36 S.W.(2d) 779.
    Leachman, Gardere & Bailey, of Dallas, for appellant.
    J. B. Gotten, of Crane, Gary & Davenport, of Wink, and Thomas & Coffee, of Big Spring, for appellee.
   PELPHREY, C. J.

This suit was filed by appellee against appellant in the district court of Winkler county to recover damages for injuries to himself, and on account of the death of his wife.

Appellee alleged that during the month of September, 1929, appellant was engaged in the construction of a road between Monahans and Kermit, Tex.; that on the night of September 13, 1928, while he and his wife were riding in a Ford roadster automobile on said road going in the direction of Kermit, they suddenly came upon a barricade across said road, with no lights thereon; that the driver of the car was unable to stop the car because of loose gravel placed on the roadway by appellant, and that in attempting to stop the car it went off the road and into the borrow pit, turned over, and in so doing injured him and his wife; that as a result of such injuries he was totally and permanently disabled, and his wife later died.

The grounds of negligence upon which he sought to recover, were: 1. A failure to place signs on the highway, including red lights at nighttime, of sufficient size and brightness to warn travelers upon the highway coming from the south of the condition of the road; (2) failing to keep a watchman at all hours of the nighttime to maintain proper lights and signs, and to direct travelers coming from the south; (3) failing to maintain and provide a suitable byroad or detour for the traffic; (4) failing to work down the steep incline of the roadbed, so that traffic could go off the roadbed and into the borrow pit safely; and (5) failing to maintain the roadbed in front of the barricade in such condition that cars with good brakes could stop before colliding with the obstructions placed thereon by appellant.

Appellant answered by general demurrer, certain special exceptions, a general denial, and a plea of contributory negligence. In response to special issues, the jury found: (1) That appellee sustained personal injuries in the accident; (2) that appellant did not fail to maintain warning signs south of the barricade which could, by the use of ordinary care, be seen and observed; (3) that appellant did not fail to maintain a sufficient light on the barricade; (4) that appellant failed to provide a detour or byroad with a safe descent from the roadbed thereto; (5) that such failure was negligence and the proximate cause of the damages sustained by appellee; (6) that loose rock and gravel were spread over the roadbed for a distance of twenty to thirty feet from 'the barricade; (7) that the maintaining of such rock and gravel by appellant was negligence and the proximate cause of the damages sustained by appellee; (8) that the accident was not. unavoidable; (9) that appellee kept a proper lookout for his safety at the time and on the occasion in question; (10) that the automobile was traveling at a speed of from 25 to 28 miles per hour immediately prior to the accident; (11) that such speed was not negligence and was not a proximate or contributing cause of the accident; (12) that appellee did not protest to the driver of the car as to the rate of speed at which it was being driven; (13) that his failure to protest was not negligence and was not a proximate or contributing cause of the accident; (14) that the lights on the automobile were sufficient to illuminate the highway a safe distance ahead under.the conditions; (15) that appellee could not, by the use of ordinary care, have discovered the barricade in time to avoid the accident; (16) that $4,900 would fairly compensate appellee for his injuries; and (17) that $2,000 would fairly compensate him for 'the loss of his wife.

Upon such findings, the court rendered judgment in favor of appellee for $6,900, and the Asphalt Company has appealed.

Opinion.

Appellant’s propositions upon which it seeks a reversal of the judgment are, in substance: (1)That it was entitled to an instructed verdict ; (2) that, upon the findings of the jury, judgment should have been rendered in its favor; (3) that the court erred in refusing to permit it to withdraw its announcement of ready and not proceed until the minor daughter of the deceased wife was made a party to the suit; (4) that its requested issues 3, 4, and 5 should havq been submitted; (S) that issues 8, 9, 10, 11,12, 13, 14, and 31 were improperly submitted; (6) that “proximate cause” was not properly defined; (7) that the evidence being insufficient to sustain the findings of the jury on issues 8, 9, 10, 11, 12, and 13, the court should have set the verdict aside and granted a new trial; and (8) that a new trial should have been granted by reason of certain improper argument of counsel for appellee.

At the conclusion of appellee’s testimony, appellant moved to be allowed to withdraw its announcement of ready in the case and not to proceed in the trial of the ease until Ethel May O’Rear, who the evidence discloses was á minor daughter of the deceased wife of appellee, had been made a party.

This motion was overruled by the court, and his action in so doing is made the basis for the third assignment of error.

This assignment must be sustained. Dallas & Wichita R. R. Co. v. Spiker, 59 Tex. 435; S. A. & A. P. Ry. Co. v. Mertink, 101 Tex. 165, 105 S. W. 485; Galveston-Houston Elec. Ry. Co. v. Reinle (Tex. Civ. App.) 264 S. W. 783.

The Supreme Court in S. A. & A. P. Ry. Co. v. Mertink, supra, had this to say:

“For the death of Mrs. Mertink her surviving husband and four daughters had a right of action against the railroad company,, if the death was caused by the negligence of the employees of the company. The statute gives the right of action to all the parties to recover one sum — that is, the damages which resulted from the death of the mother — and authorizes the jury to apportion it. among the parties according to their several rights; but under the statute there can be but one action. Railway Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98; Railway Co. v. Le Gierse, 51 Tex. 189; Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820. * * *
“Five parties were entitled to sue, but two alone brought suit for themselves and recovered the damages without any notice being taken of the other three. The judgment rests upon a palpable error, and must be reversed. To sustain the judgment, we must hold that the three not joined are bound by the judgment, or that the railroad company is liable to another recovery by them. Either conclusion would be without support in the law and repugnant to our sense of justice.”

What was there said appears to apply with equal force to the case at bar, and calls for a reversal of the judgment. We cannot agree that appellant was entitled to an instructed verdict. Without discussing the evidence in detail, we are of the opinion that it was sufficient to raise issues of fact which were properly submitted to the jury.

The further contention is made by appellant that the jury having found in response to issues 2 and 5 that appellant maintained warning signs south of the barricade and along the highway, and a light of sufficient brightness at or on the barricade which could have been seen by motorists coming from the south along the highway, by the use of ordinary care, appellee was, as a matter of law, guilty of contributory negligence and could not recover.

This contention cannot be sustained, the jury, having also found in answer to issues 15, 24, and 27 that appellee was keeping a proper lookout, that the automobile in which he was riding was equipped with sufficient lights, and that, by the use of ordinary care, he could not have discovered the presence of the barricade in time to have avoided the accident.

We are unable to see how the failure to maintain a byroad or detour with a safe descent from the roadway thereto could have been a proximate cause of the accident. As we understand the record, appellee makes no claim that the accident occurred while he was attempting to use a detour, that there rested any obligation on appellant to provide a detour at the point where the car left the roadway, or that the detour was constructed in such an unsafe manner as to cause the driver of the car to collide with the barricade.

There also appears to be a conflict in the findings as to the liability of appellant as far as the maintaining of the loose rock and gravel on the roadbed just south of the barricade is concerned.

If proper warning signs and a sufficient light were maintained by appellant, then we fail to see how the driver of the car going at a rate of 25 to 28 miles per hour and keeping a proper lookout would have been unable to stop long before he reached the loose rock and gravel which the record shows extended, at the most, 30 feet south of the barricade. The question of unavoidable accident which, from the findings of the jury, appears to be in the case, should have been submitted so as to place the burden of proving the negative thereof on appellee. G. H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Com. App.) 7 S.W.(2d) 521.

Appellant’s requested issue No. 4 as to whether it was negligence to drive the automobile on the occasion in question with four people on the front seat should, we think, have been submitted. Whether it was a proximate cause of the accident would depend upon whether it prevented the driver or appel-lee from keeping a proper lookout or interfered with the operation of the car to such extent as to cause the accident, but the evidence showing that four people were on the seat, and appellant having pleaded that fact as contributory negligence, it was entitled to have the jury pass on the question.

Requested issue No. 3 should also have been given.

Requested issue No. 5 seems to be substantially covered by special issue No. 18, in answer to which the jury found that the automobile was traveling at a rate of from 25 to 28 miles per hour. Appellant in due time objected to the court’s definition of ■ “proximate cause” on the ground that it was misleading, ambiguous, calculated to mislead the jury, more onerous than the law required, did not include and define the terms “new. and independent cause,” “unbroken and continuous sequence,” and “foreseeableness.”

In all probability, this question will not arise on another trial.

In the case of Robertson & Mueller v. Holden, 1 S.W.(2d) 570, the Commission of Appeals discussed at some length a definition of the term and we suggest that, in case another trial is had, the holding there be followed.

The objections made to the submission of special issues 8, 9, 10, 11, 12, and 13 are untenable, and the assignments raising the questions as to their correctness are overruled.

The other assignments raise questions which will probably not arise on another trial, and we therefore shall not consider them.

For the errors above pointed out, the judgment will be reversed, and the cause remanded.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    SMITH v. BIGGERS et al.
    No. 12461.
    Court of Civil Appeals of Texas. Fort Worth.
    May 9, 1931.
    Rehearing Denied June 13, 1981.
    L. C. Counts, of Olney, for appellant.
    R. S. Morrison, of Archer City, for appel-lees.
   BUCK, J.

This is a suit by Mrs. Bevie Biggers, joined by her husband, D. B. Biggers, the original petition being filed on April 22, 1930, and the first amended petition being filed on May 19,--' 1930. The petition alleged that Lawrence' Smith, the former husband of Mrs. Biggers," had filed a cause of action for divorce against' Mrs. Biggers, then Mrs. Smith, and had been granted a divorce on August 25, 1928. Plain-. tiff alleged that her then husband, Lawrence’ Smith, and she had four children, to wit: ■ Lawrence Smith, Jr., a boy now about 13 years of age; August William Smith,- a boy ■ now about 11 years of age; Walter Ray Smith, a boy now about 7 years of age; and' Frances Marian Smith, a girl now about 5-years of age. That prior to the day set for the ■ trial of the former divorce case, Lawrence Smith came to the plaintiff and urged her not to attend the trial, and that he would have a judgment entered awarding to her the care, custody, and control of two of their said children, and that plaintiff relied upon the promises and representations of defendant, which were false, and did not appear and answer in said suit, and did not contend for the care, custody, and control of said two-minor children. She further alleged that the defendant,, is not a fit person to have the care, custody, and control of the children, and more par-, ticularly the two younger children; that defendant is a man of very high temper and habitually curses and swears in the presence, and hearing of said children, and pursues a course of harsh and tyrannical treatment towards them. She further pleaded for a partition of certain community property, consisting of $5,000 worth of Texas Company stock and about $3,000 in cash.

The defendant answered by a general demurrer and a plea of res adjudicata of all the issues which were available to the plaintiff in the former suit. He further pleaded that he had good reason to believe, and does believe, that at tlie time of said former trial, in 1928, the plaintiff was then engaged to marry D. B. Biggers as soon as he and she could procure divorces from their spouses, and. that said D. B. Biggers, defendant has been informed, abandoned his wife and minor children in order to take up with defendant’s wife prior to his filing suit against her, and that she likewise abandoned her minor children and this defendant to be with and finally marry D. B. Biggers, and defendant further pleaded that D. B. Biggers and Bevie Biggers, and neither of them, is a fit and proper person to have the care, custody, and control of the minor children.

The cause was tried on May 30, 1930, and the court entered judgment that the defendant, Lawrence Smith, have the care, custody, and management of the two younger children, to wit, Walter Ray Smith and Prances Marian Smith, from the 1st day of June, 1930, until the 1st day of September, 1930; that plaintiff Bevie Biggers have the care, custody, and management of the two older children, to wit, Lawrence Smith, Jr., and August William Smith, from the 1st day of June, 1930, until the 1st day of September, 1930. That the defendant Lawrence Smith have the care, custody, and management of the two older children from the 1st day of September, 1930, until the 1st day of June, 1931; that the plaintiff Bevie Biggers have the care, custody, and management of the two younger children from the 1st day of September, 1930, until the 1st day of June, 1931. The court further ordered that the above order of care, custody, and management of the children be continued from term to term until further orders of the court.

The judgment further stated that the plaintiff took a nonsuit without prejudice as to the question and settlement of the community property. The costs of court were equally divided between plaintiff and defendant. Prom this judgment the defendant has appealed.

¡Opinion.

The principal question raised by -the appellant is that the court should have sustained defendant’s general demurrer because plaintiff’s cause of action necessarily depended upon a subsequent change of conditions, such as would justify modifying or vacating the judgment rendered on the 25th day of August, 1928, and because plaintiff failed to plead any new, distinct, and different state of facts from those upon which the original decree awarding custody to appellant was made. He cites the cases of Keith v. Keith (Tex. Civ. App.) 286 S. W. 534, 535; Gazell v. Garcia (Tex. Civ. App.) 187 S. W. 410; Schultz v. Burk (Tex. Civ. App.) 227 S. W. 700, in support of his contention that the general demurrer and plea of res adjudicata should have been sustained.

The case of Keith v. Keith, supra, by the Austin Court of Civil Appeals, states that the original divorce decree cannot be urged as res adjudicata to prevent change of custody of a child on subsequent change of conditions jeopardizing the child’s welfare; and that the trial court’s judgment in divorce action as to.conditions and circumstances is res a.d-judicata as to all matters existing at that time concerning the welfare of the child. In that case is cited the case of Gazell v. Garcia, supra, and a quotation from the cited case is contained in the opinion of Keith v. Keith as follows: “We can appreciate the force of the contention that, when the power is expressly vested in a court to change its decree from time to time, the necessary implication is that such decree shall be conclusive until changed in the tribunal which is given the power to change it. But we find no provision in our statute authorizing the court to provide for' the support of the children in the divorce decree, and no provision authorizing the court to modify or change its decree from time to time. Our Legislature did not see fit to give the district court such power, and the statute -contemplates a judgment in the case which finally disposes of the custody of the children upon the facts before the court— a decree which is conclusive in that court or any other court with regard to the custody as long as the conditions remain unchanged. Our statute provides for the division of the property, and contemplates that a final decree with respect thereto shall be made. The judgment in a divorce suit with respect to division of property and custody of the children is as conclusive under our statute as in any other case, and we find no warrant for the theory that the court exercises a continuing supervision over the children and their custody. It adds nothing to a decree to say that for the time being the custody of the children is awarded to one party, and the court has no power to decree that it reserves to itself the exclusive right to determine in the future whether the custody shall be changed. The custody is conclusively adjudicated upon the facts then existing, and a new suit must be brought in that court or some other court of competent jurisdiction in order to change such custody.’’

As will be noted, this suit was filed some two years after the divorce suit was heard, which granted the care and custody of all of the children to plaintiff in that suit, defendant here. The plaintiff in this suit alleged that the defendant was not a fit person to have the care, custody, and control of the children, and especially of the two younger children. She made other allegations as to the reason why she alleged that he was an unfit person to have the care, custody, and control of the children.

The evidence showed that defendant had a Miss Hazel Martin, who had been formerly married and had gotten a divorce-and recovered her maiden name, to keep house for him, and that she had the control of the children» and whipped them, though the evidence does not show that she was cruel to them. The evidence further shows that Mr. Smith kissed her good-bye when he went to work in the mornings. Many witnesses testified both for the plaintiff and defendant below, and there is conflicting testimony as to the conduct of plaintiff and defendant since they were divorced, but we believe the evidence is suffi-eient to sustain the evident conclusion of the trial court that the best interest of the children, the paramount question, is best sub-served by awarding to each parent the care, custody, and control of said children for a part of the year'. The trial court evidently thought that the younger children ought to stay with their mother during that part of the year when schools were open, and the older children ought to stay with her during the vacation period. We think the allegation that the father was not a fit person to have the control of any of the children, and especially of the younger ones, is sustained by the evidence that Miss Martin kept house for Mr. Smith,_ and that evidences of affection between them occurred every morning, and probably undue intimacy existed between them. A trial court has a delicate duty to perform in determining which one of the parents should have the custody and control of the children, especially the younger .ones, and we d.o not believe that the trial court has violated this duty in the judgment rendered.

The evidence tends to show that the mother, since her second marriage, has lived an exemplary life. She denied the charges of profligate conduct made in the answer of her former husband, and some of which was testified to by witnesses. The court was the exclusive judge of the credibility of the witnesses and of the facts proved, and we do not see how, under the circumstances, we can disturb the trial court’s conclusion as to who should have the custody of the children. We think the trial court’s order as to a division of the custody of the children was proper, and that the judgment should be affirmed, and it is accordingly so ordered.


author: LANE, J.

text:
    GRIMES COUNTY v. SIDDALL.
    No. 9582.
    Court of Civil Appeals of Texas. Galveston.
    July 1, 1931.
    Rehearing Denied July 22, 1931.
    J. B. Leigh, of Navasota, and J. G. McDonald, of Anderson, for appellant.
    T. P. Buffington, of Anderson, for appellee.
   LANE, J.

In legal manner a public road was laid out by a jury of view appointed for such purpose in Grimes county, Tex., and through the town of Anderson in said county. The road as laid out passes through and takes a part of the lands of one George E. Siddall situated in the town of Anderson. The road at the point where it passes through Siddall’s land is 100 feet wide and it takes a strip of his land of such width 299 feet in length.

At the time the road was being laid out Siddall appeared before the jury of view and claimed damages in the sum of $1,000 in case the road should be established as laid out. The jury of view, consisting of C. E. Williams, Clarence Moore, J. N. Baylor, and O. A. Hamilton, fixed the value of the land of Siddall, taken for the road, at $200, and allowed Siddall $50 for fencing and for the removal of a small house from the roadway. A report of its action was made by such jury of view to the commissioners’ court of Grimes county, which court, over the protest of Siddall, approved the report and entered an order establishing the road as laid out.

Siddall appealed from the order of the commissioners’ court to the county court, and again set up his claim for $1,000.

In the county court, Grimes county answered, insisting that the award made by the commissioners’ court was a sufficient compensation to Siddall for all damages suffered by him. It alleged that “by reason of the building of said road the property of plaintiff (Siddall) other than that taken by said road will be considerably enhanced in value,” and prayed that, in the event it be found that Siddall’s land, not taken but which lies adjacent to that taken, would be damaged, the benefits or enhanced value to such land by reason of the construction of the road be offset against such damages.

The case was submitted to a jury upon two special issues, .in answer to which the jury found, first, that $200 would reasonably compensate Siddall for damage suffered by Mm by reason of the taking of the strip of land for the road; and, second, that $250 was a reasonable compensation to Siddall for damage suffered by him to his land adjoining the strip taken by reason of such faking. Judgment was rendered upon such findings for G. E. Siddall for the sum of $450. Erom such judgment Grimes county has appealed.

As already shown, appellant alleged that, by reason of the building of the road, the property of appellee, other than that actually taken for road purposes, would be considerably increased in value, in that such property will, after such construction, be accessible at all times to the road in all weather, whereas said property is now almost inaccessible in wet weather.

Appellant, Grimes county, called as its witnesses C. E. Williams, Clarence Moore, and J. N. Baylor, three of those composing the jury of view which laid out the road in question. Each of these witnesses testified on direct examination that he did not know the market value of property in the town of Anderson, -nor of the property of George Siddall; that in arriving at the value of Siddall’s property for the purpose of allowing him damages for the land taken for the road they made inquiry as to the value of land in the 'town of Anderson of like kind as the land of Siddall and were told that there had been no .sale of such land recently; that they then went to the tax records and found that Sid-dall- had rendered his property involved in this suit for taxes at the sum of $850; that they went upon and looked at the property. They were then permitted, over objections of Siddall, to further testify that, after taking into consideration the information, as stated, they fixed the value of the land actually taken for road purposes at $200; that from the facts stated they were of opinion that the sum of $200 awarded by the jury of view was a fair compensation to Siddall for such land.

At this stage of the proceedings, appellant propounded to each of the witnesses the following question: “State to the jury whether or not the building of a gravel road over the ■right-of-way in controversy would increase or ■diminish the value of defendant’s (Siddall’s) land adjacent to said right-of-way?” (Italics ours.)

Counsel for appellee, Siddall, objected to the witnesses giving answer to such question; such -objection being substantially, that there was no pleading to the effect that the construction of a gravel road on such right of way was contemplated. The court sustained the objection made by counsel for Siddall. If the witnesses had been permitted to reply to the questions asb;ed, each of them would have testified that the construction of such a road as inquired about would increase the value of defendant’s property adjacent to such road. Appellant assigns the rejection of the answers of the witnesses as'error.

We overrule appellant’s assignment. We think the inquiry as put by appellant to the witnesses was subject to the objection made thereto, and therefore the court did not err in refusing to permit the witnesses to make answer to same. It is not shown that after such -objection was made appellant offered to make any manner of change in the question.

We think the court properly rejected the answers of the witnesses upon two theories: First, because it is not made to appear by any of the proceedings for the condemnation of appellee’s land, nor in any record before us, that the construction of a gravel or any other specified class of road was to be laid upon the strip of land condemned ;# 'second, because the answers of the witnesses would not have signified that the construction of the road was of peculiar benefit to the land of appellee lying adjacent thereto, as distinguished from benefits to the properties of the residents of the town of Anderson generally. Only such benefits as are special and peculiar to the properties of appellee by reason of the construction of the road could be set off as against appellee’s damages, suffered by reason of such construction. The benefits sought to be offset against the damages to ap-pellee’s property were not pleaded as peculiar benefits, and it seems that the evidence sought from the witnesses would not show that the benefits alleged were special and peculiar to appellee’s property and not such as were received in common by the property -owners in the community where appellee’s property was situated.

Appellant complains of the admission of the testimony of W. S. McIntyre and A. D. Kennard, over its objection, as to the value of property in the town of Anderson not shown to have been in the same part -of the town as was the property of appellee. The objection urged was that such testimony was immaterial and irrelevant to any issue in the case.

We agree with the contention of appellant that the evidence had no tendency to prove the value of the strip of land actually taken, nor the damages suffered by the land of appellee adjacent thereto. We think, however, the admission of such evidence was harmless, especially so, since appellant had introduced evidence of like kind.

Appellant does not contend that the- award of $200 to appellee for the land actually taken is excessive, but its contention is only that by the construction of the road appellee's property had been benefited and that it should have been permitted to prove the value of such benefits as an offset against any award made tó appellee.

We have already disposed of the contention last mentioned, and it is therefore unnecessary to further discuss the same here.

Having reached the conclusions as above expressed, it becomes our duty to affirm the judgment, and it is accordingly so ordered.

Affirmed.


author: DUNKLIN, J. BUCK, J.

text:
    SHAW et al. v. RYAN et al.

    No. 12478.
    Court of Civil Appeals of Texas. Fort Worth.
    June 13, 1931.
    Rehearing Denied July 18, 1931.
    Marshall & King, of Graham, and L. H. Brittain, of Fort Worth, for appellant.
    S.A. Penix, of Graham, and E. G. Thornton, of Olney, for appellees.

      Writ of error granted.

   DUNKLIN, J.

Rex Ryan and H. R. Stastny did certain geological work looking to the discovery of favorable- locations for the development of oil and gas in the vicinity of what is known as Henry’s Chapel, in the southeastern portion' of Young county. That work was done at the instance and request of H. S. Singleton, as agent for T. G. Shaw. After-the work was finished, the following contract in writing was executed by the parties whose names are signed thereto, to wit:

“Ryan & Stastny, Consulting Geologists,
“Graham, Texas.
“February 11, 1928.
“Memorandum Agreement.
“This is to confirm a verbal agreement between T. G. Shaw, party of the first part and Rex Ryan and H. R. Stastny, parties of the second part.
“In consideration of geological services rendered by second party in the area of Hqnry’s Chapel in southeastern Young County, Texas,-first party agrees to pay second party two hundred ($200.00) dollars as a cash consideration and deliver an oil and gas lease assignment to an eighty acre tract of land, said eighty acres to be located within one-half mile of a well to be drilled or caused to be. drilled by first party.
“In event this well is never drilled it is understood that the lease assignment will not be binding.
“[Signed] H. S. Singleton,
“Agent for T. G. Shaw
“Rex Ryan
“H. R. Stastny.”'

The well referred to in that contract was never drilled; and this suit was instituted; by Ryan and Stastny against H. S. Singleton and T. G.'Shaw.

It was alleged in the petition that Singleton and Shaw were partners, but that if they were not partners, then that the work was done at the instance of Singleton, acting as the duly authorized agent of Shaw, and therefore the latter was liable as principal.

The petition embodied two counts, the first of which was for specific performance of the. contract to convey to plaintiffs the oil and gas lease mentioned in the written contract above set out, but upon tbe trial that count in the petition was abandoned. The second count in the petition was on a quantum mer-uit for the value of the geological work done by plaintiffs at the instance of defendants, and, from a judgment rendered in favor of plaintiffs on that count against the defendant T. G. Shaw, that defendant has prosecuted this appeal. In this conñection, it is to be noted that the court found that plaintiffs had failed to sustain their allegation of partnership between Shaw and Singleton, but had sustained the allegation that Singleton had acted as the agent of Shaw in the transaction, and Shaw was held liable as' principal, but that Singleton was not liable, and therefore judgment was rendered in his favor. And no complaint has been made by any of the parties of the judgment in Singleton’s favor.

The court did not err in overruling the defendants’ general demurrer to the second count in plaintiffs’ petition. While that count properly might have been more specific in the allegations, yet under the rule, to the effect that every reasonable intendment of a pleading must be indulged as against a general demurrer, we believe that pleading was sufficient to present the contention that plaintiffs were employed by the defendant Shaw through Singleton as his agent to do the geological work alleged in the pleadings, and that he thereby bound himself to pay the plaintiffs the reasonable value thereof, which was alleged ■ to be the sum of $10,000, and for which a judgment was sought, if the plaintiffs for any reason were not entitled to recover the oil and gas lease mentioned in the written contract.

The trial was before a jury, and the following special issues, with their findings, were submitted in the court’s main charge:

“1. Erom a preponderance of the evidence and from all the facts and circumstances in the case, what was the reasonable cash value of the geological services, if any, rendered by plaintiffs to defendants at the time and place such services were rendered, ánd which are referred to and contemplated in the written contract between the parties offered in evidence, exclusive of the $200.00 received by plaintiffsffrom defendants? Answer: $800.00.
“2. Did the defendants drill or cause to be drilled a well as specified under the contract between the plaintiffs and defendants of date February 11, 1928? Answer: No.
“3. Did the plaintiffs and defendants at the time of their contract of February 11, 1928, contemplate the drilling of a well on thfe Jarnigan land under the first contract made as of date of January 12, 1928, and which was placed in escrow in the Graham National Bank? Answer: No.”

1 Also the following instruction was given to the jury at the request of counsel for defendants:

“Was the service of the plaintiffs as geologists of any value to the defendants, other than and over and above the sum of $200.00 paid to said plaintiffs? Answer: Yes.”

The written contract copied reason-ably could not be construed as meaning that defendant would not be liable for the services already rendered by the plaintiffs, as recited in that contract, and as was conclusively established by the evidence, if the well mentioned in the contract should not be drilled. The stipulation contained therein, to the effect that if the well referred to is never drilled then the lease assignment would not be binding on Shaw, merely shows that Shaw had the option to discharge his full obligation to the plaintiffs for the services which they had already performed by assigning to them the lease on the 80 acres. It would be unreasonable to so construe that contract as to say that Shaw had the option to absolve himself from liability to the plaintiffs for the services which they had performed merely by electing not to drill the well; and the finding of the jury of the undisputed fact that the well was not drilled removed any obstacle to plaintiffs’ right, if any they had, existing before the contract was entered into, to enforce Shaw’s implied contract to pay for the services rendered. Nor did defendant plead any agreement by plaintiffs to accept the $200 cash as full payment for their services in the event of defendant’s failure to assign to them the 80-acre oil land. As showing the necessity of such a plea, see article 2014, Rev. Civ. Statutes of 1925.

In defendant’s answer, it was specifically alleged that the services rendered by the plaintiffs were rendered in view of a prior understanding, which contemplated that.the defendants would procure and obtain certain oil and gas leases covering the lands of Mrs. M. R. Jarnagin and her children and other lands owned by John Kissinger, who, it was contemplated, would furnish their lands as parts of a block to be drilled for oil and gas, but the arrangement was never consummated by reason of differences between the defendants and those landowners.

There were further allegations of an understanding with plaintiffs that the 89-acre lease referred to in the written contract was to be taken from the Jarnagin and Kissinger tracts; and defendants’ inability to procure leases out of those tracts was alleged as defendants’ excuse for failure to convey to plaintiffs the 80-acre lease mentioned in the written contract. But there were no allegations of an agreement by plaintiffs that they would receive nothing further for their services than $200 paid cash in the event of defendants’ inability to procure the J arnagin and Kissinger leases.

We fail to perceive how the facts so alleged could constitute any defense to plaintiffs’ suit for tlie value of tlieir services, and therefore there was no reversible error in excluding testimony sustaining those allegations.

Another defense alleged was that the services rendered by the plaintiffs were valueless, but that defense was rejected by the jury, and the findings thereon were amply supported by the evidence, as was also the finding in answer to issue No. 1 submitted by the court.

Nor do we perceive how it could be said, as insisted by appellants, that the findings of the jury were conflicting.

Accordingly, all assignments of error are overruled, and the judgment is affirmed.

BUCK, J.

(dissenting).

Briefly, for lack of time to go more thoroughly into the question, I shall state the grounds of my dissent. It does not appear from the memorandum of agreement copied in the majority opinion that any promise was made by defendant of payment in addition to the $200 cash payment. While defendant did specially plead payment in full, I think payment in full could be urged under the general denial. Plaintiffs alleged in their petition: “That on or about the said 11th day of February, 1928, and just prior thereto” the defendant employed plaintiffs to make the geological survey. The written contract is dated February 11, 1928. Therefore, the writer does not see any support for the evident conclusion reached by the majority that the work was evidently done some time before the written contract was made. The contract does provide that defendant was not bound by the agreement to execute the assignment covering 80 acres, unless the well shall be drilled on the tract. I-Ience it is not certain that defendant agreed directly or impliedly to pay any more than the $200 consideration, sincé it is shown that the well was not drilled. Henee I am of the opinion that under the pleading, plaintiffs urere not entitled to recover.


author: BAUGH, J.

text:
    NORMAN et al. v. WILSON.
    No. 7619.
    Court of Civil Appeals of Texas. Austin.
    July 1, 1931.
    Rehearing Denied July 22, 1931.
    E. A. Camp, of Rockdale, for appellants.
    E. A. Wallace, of Cameron, for appellee.
   BAUGH, J.

A. X. Norman held a judgment for $313 against R. R. Wilson. He sued out a writ of garnishment against the Rockdale State Bank. The bank answered that it owed Wilson $259, credited to Wilson under an agreement with- him that it would not be paid over until Wilson executed to the bank a -oond indemnifying it against loss from any otner claimant of said fund. It also asked that if said sum be awarded to Norman, he be required to indemnify the Bank against loss; and for costs and attorney’s fees.

Wilson intervened and claimed that said fund was exempt from garnishment as proceeds from the sale of a part of his homestead ; and (2) that the bank had unlawfully withheld from him the fund involved, alleged that the bank was guilty of conversion of said fund, and asked for judgment against it accordingly.

The trial court held the fund exempt as proceeds from the sale of a part of the homestead ; awarded the fund to Wilson, taxed the costs against Norman and the bank and in favor of the bank over against Norman. Norman and the bank have appealed.

The contention that said fund was exempt is based upon the following facts: Wilson, along with others, executed an oil and- gas lease on his homestead, being a part of a 691-acre drilling block, to T. M. Weathered. These leases were attached to an escrow contract placed in, and accepted in writing by, the Rockdale State Bank. Weathered placed on deposit in said bank $2 per aeré on the lands covered by said leases, appellee owning 129 acres of same. The portion of the contract pertinent here provided that if Weathered should begin drilling a well on said block of land within 60 days from the .date of the contract, the leases were to be delivered to him; -but if he did not do so, then the $2 per acre was to be delivered by .the bank to the landowners, and their leases returned to them. Weathered never began drilling such well. The leases were returned to the landowners after the expiration of the 60 days, 'and each given a deposit slip for his portion of the fund; but in order to protect itself against any claim from Weathered, the bank exacted an agreement from ■each of said parties to execute to it an indemnity bond before said money would be paid out to the respective depositors. Wilson agreed to this, but before he executed such bond, or attempted to check out or assign said -fund deposited to.,his credit, the writ of garnishment was served upon the bank.

The transactions described did not constitute a sale of any part of the homestead. Had Wilson’s lease been delivered to Weathered it would have conveyed an interest in the homestead. If the $2 per acre had be.en in part payment for said lease, the same result might have, obtained. But the consideration 'jfor all of said -leases was the commencement of a well within 60 days and diligent drilling of same to a depth of 2,000 feet or to paying oil or gas, as provided in the written contract. The $2 per acre was only forfeit money placed in escrow with the lease to guarantee Weathered’s performance of his contract, or to be paid to lessors as damages if he failed to do so.

It is now well settled that placing a conveyance in escrow to be delivered upon performance by the grantee of certain conditions passes no title to the property until delivered. And the grantee is not entitled to delivery until he has fulfilled the conditions imposed by the escrow agreement. Calhoun County v. American Emigrant Co., 93 U. S. 124, 23 L. Ed. 826; Manton v. San Antonio (Tex. Civ. App.) 207 S. W. 951; Crabb v. Bell (Tex. Civ. App.) 220 S. W. 623; 10 R. C. L. 629. While the grantee may have an equitable interest or title, dependent upon his performance of the condition imposed,' where, as in this case, he has never performed his part of the contract, never paid the ‘ consideration, and the conveyance has never been delivered, no title passed out of the grantor. The trial court erroneously concluded, therefore, that said fund was proceeds from the sale of a part of Wilson’s homestead, and as such exempt from garnishment.

Nor did appellee make any proof of conversion of said fund by the bank. There was no showing that the bank at any time claimed the fund itself or sought to pay it ■over to anyone else. On the other hand, it disclaimed ownership of the fund. Under ,the express terms of the contract it was the bank’s duty to pay over' the fund to Wilson when he demanded it. The bank wholly failed to plead or prove any such adverse’claimant to the fund as would justify it in withholding the fund from Wilson when he demanded it. When the bank accepted by written indorsement thereon the escrow agreement deposited with it, and which charged it with certain duties, it became the depository and trustee to carry out its terms, and if it improperly did so, would be liable to those injured thereby. 10 R. C. L. 634; 21 C. J. 893. Under the proof before us it improperly withheld Wilson’s funds from him. If in fact there was another claimant of that fund, and the -bank had reasonable grounds for its conduct in the premises, it should have so shown on the trial. If it did not, the question arises: What was Wilson’s injury resulting from the bank’s action? Does the fact that a nonexempt fund, improperly withheld by the bank, is impounded by garnishment because of the bank’s action, and thus applied to payment of Wilson’s debts, instead of being paid over to him, result in any injury to Wilson?

To the extent that same is used in paying the judgment against him, he was not injured. But if the bank wrongfully withheld from Wilson his money, and while being so wrongfully withheld same is subjected to a garnishment in its hands by which added expense to him is incurred, and which would not have occurred otherwise, we think such bank should be taxed with the costs of such garnishment proceeding, so far as Wilson is concerned, and that it would not be entitled to any attorney’s fees against him. There was no proof, in any event, as to what was a reasonable attorney’s fee for the bank in the instant case. The record discloses also that the same attorney who represented Norman also filed the answer for the bank and they prosecute a common appeal. In so far as their interests were conflicting he could not properly be paid a fee by both even though the representation be with the consent of both parties. Bryant v. Lewis (Tex. Civ. App.) 27 S.W.(2d) 604.

For the reasons stated the judgment of the trial court is reversed and the cause remanded. All costs of the appeal incurred by the bank are taxed against it. All other costs are taxed against appellee.

Reversed and remanded.


author: BLAIR, J.

text:
    FOLSCHINSKY v. ROCHA.
    No. 7630.
    Court of Civil Appeals of Texas. Austin.
    July 8, 1931.
    Rehearing Denied July 25, 1931.
    E. A. Wallace, of Cameron, for appellant.
    E. A. Camp, of Rockdale, for appellee.
   BLAIR, J.

The sole question involved in this appeal is the sufficiency of appellee’s petition to state a cause of action as against the general der murrer overruled. It alleges that appellee rented appellant’s land for the year 1929, on the halves; that appellee planted and gathered 92 bales of cotton; that appellant requested that all the cotton be delivered to him so that he might market same, which was done; that appellee owed appellant for supplies for the year, which were paid out of the first cotton sold, but that out of the last 48 bales of cotton so delivered appellant failed and refused to pay appellee his one-half; that appellant refused to furnish appellee an account of sales of any of the cotton, or to furnish him any information of the prices for which he sold the cotton, or the cotton seed, although all of the records and information were and are in appellant’s possession, which he was notified to produce on the trial, together with all records of sales, bills, or invoices, otherwise secondary evidence thereof would be offered; that appellee was unable to state the exact amount due him from appellant for his one-half of the cotton and cotton seed, but believed and alleged same to be $1,500, for which amount he prayed judgment.

The jury found that appellee was due $433.38, and judgment was accordingly rendered for that amount; hence this appeal.

We have reached the conclusion that the petition states a cause of action for an accounting upon the rental contract and for the amount due appellee out of the 92 bales of cotton and cotton seed, particularly the last 48 bales, delivered to appellant for sale, under the rule that as against the general demurrer the petition will be construed favorably to the pleader as stating a cause of action. Joiner v. Citizens’ Nat. Bank (Tex. Civ. App.) 186 S. W. 390; Saner-Ragley Lbr. Co. v. Spivey (Tex. Civ. App.) 255 S. W. 193.

Nor was appellee required to allege the specific amount due him. He alleged that all the cotton was turned over to appellant for sale, and that all information as to the sales price was in the possession of appellant, who refused to give any information or account to him for the cotton and cotton seed; and he was therefore excused from alleging any specific amount due him. Under such circumstances he was only required by his pleadings to advise appellant of the basis of his demand or cause of action. This he clearly did by informing him that he was demanding an accounting for the 92 bales of cotton and the cotton seed which appellee had turned over to him for sale; and particularly for the last 48 bales which appellant alone knew the amount they sold for, he being in possession of all records of prices, weights, and invoices.

Another rule applicable here, testing the sufficiency of the petition after verdict and judgment as against a general demurrer, is that stated in Humphreys Oil Co. v. Liles (Com. of App.) 277 S. W. 100, 102, as follows: “In testing the petition upon general demurrer the rule is, a liberal construction supplying every fact that may be reasonably inferred from the language used, and even more so after verdict, is the pleading favored. A verdict cures every defect except the want of a cause of action.”

The judgment of the trial court will be affirmed.

Affirmed


text:
    LEVINE v. TRAMMELL et al.
    No. 12480.
    Court of Civil Appeals of Texas. Fort Worth.
    June 13, 1931.
    Rehearing Denied July 11, 1931.
    Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellant.
    P. B. Cox and E. F. Frueehte, both of Wichita Falls, for appellees.
   BUCK, J.

This is a suit by Mrs. Clara Trammell and .her husband, F. C. Trammell, against Mike Levine. Plaintiffs below, appellees here, alleged that they were husband and wife, and were the parents of four children, and that Mrs. Trammell was at the time of the transaction of which they complain about the age of 35 years and was able and capable of performing all her duties as a housewife; that she has always enjoyed good health and has been able to bear and mother her said children. That some time prior to February 21, 1930, plaintiffs rented a certain house from defendant for a residence, said house being located at 304 Travis street, in Wichita Falls; that said rental was paid for the first week in advance and the second week was also paid in advance. That plaintiffs were laboring people and forced to pay their rents and expenses from their wages; that plaintiff F. C. Trammell was unable to find work in Wichita Falls and told defendant of his condition and that he had the promise of work in Oklahoma City and was going there to work, and that he would pay his next installment of rent as soon as he received his first pay; that defendant agreed that such arrangement would be satisfactory; that plaintiff then went to Oklahoma City and secured work, and had not received his first pay on February 21, 1930, as he had worked only a few days at that time, but would have been paid on the Saturday following and could and would have' paid defendant the next installment of rent.

Plaintiffs further alleged that on February 21, 1930, when said rent was three or four days past due, defendant came to the home of these plaintiffs and demanded another week’s rent in advance, notwithstanding his prior agreement with the husband that he would wait for the next installment from Mr. Tram-mell’s pay on his new job. That when Mrs. Trammell told him that her husband was away from home, and that she could not pay the rent at that time, defendant then cursed and abused her, and cursed and abused her husband, and used violent and inflammatory language to and about the plaintiffs and threatened to throw the furniture and furnishings, together with Mrs. Trammell and her children, into the street; that a Mrs. Carson, a neighbor of plaintiffs, went to the defendant and told him that Mrs. Trammell was In a delicate state and that she was pregnant, and for him not to further frighten and disturb her, and called his attention to the agreement he had made with Mr. Trammell, and also that the weather was very cold, and that Mrs. Trammell was very nervous and was in a state of great excitement and fear; that defendant returned again to plaintiffs’ home after the first occurrence with the smell of intoxicants on his breath, and in an angry, boisterous, and violent manner came into the plaintiffs’ home and again began to curse and abuse them, cursing them in the most vile and abusive terms, and then in a burst of rage grabbed a large butcher knife and waved it in a threatening manner at Mrs. Trammell and her children, and threatened to drive them into the street; that defendant then went to the gas stove and cut the connection 'and took the stove away and left plaintiffs without fire or means of heat in the home and threatened to return and do personal violence if plaintiffs did not pay him his rent for the week. That said conduct on the part of defendant was reckless, negligent, and without provocation and constituted a tort and a breach of the peace and was in violation of the statutes of this state, and proximately caused the damages hereinafter set out. That by reason of the wrongful, negligent, heartless, reckless, and willful conduct on the part of defendant, Mrs. Trammell became very suddenly ill and had a complete nervous breakdown; that she was put to bed by her neighbor, Mrs. Carson, who worked with her on into the night, and that during the night she had a miscarriage, giving premature birth, the fetus being from three to four months old; that she suffered great physical pain and mental anguish for many days and that she will continue to suffer; that her nervous system' is permanently affected, and that she is now in a very weak and nervous condition and unable to perform her duties as a housewife; that she is still suffering pain in her body and especially in her female organs, and that she will likely be an invalid for the balance of her life; that prior to the conduct of defendant she was strong and healthy and had a life expectancy of at least 30 years; that by reason of the suffering caused by defendant’s said wrongful acts, she had been damaged in the sum of $10,000; that plaintiff has been under the care of doctors and paid out for professional services and medicine the sum of $40, which said charges are reasonable, and will continue to pay out -money and expenses in further treatment, all of which was caused by the wrongful acts of defendant. That plaintiff’s husband has lost the services of his wife in keeping his home and caring for the children, and that he has also been damaged in the sum of $2,500. Actual damages in the sum of $12,540 and exemplary damages in the sum of $10,000 was asked.

Defendant filed his answer, consisting of a general demurrer and certain special exceptions, some of which will bé hereinafter noticed.

The cause was tried before a jury on special issues, and the jury found: (1) That a preponderance of the evidence showed that defendant, Mike Levine, used loud, vociferous, profane, and threatening language and threatening gestures in the presence and hearing of the plaintiff Mrs. Clara Trammell; (2) that the preponderance of the evidence showed such conduct on the part of defendant was the proximate cause of the injury to Mrs. Tram-mell ; (3) that she suffered actual damages in the sum of $1250; (4) that defendant’s conduct was willful, wánton, and malicious; (5) that $1,500 should be assessed as exemplary damages. From the judgment rendered on this verdict, the defendant has appealed.

Opinion.

Appellant urges that the trial court in submitting the case to the jury did not ask whether Levine had committed a trespass, whether he had committed a breach of the peace, and did not ask whether there was an assault upon Mrs. Trammell; that the court did not ask the jury whether the loud and vociferous language was such as was likely to constitute a breach of the peáce, or whether the threatening gestures showed an intent and were coupled with the ability to commit-a battery, or inquire whether Levine was in the wrong in even going to ask for his money. That the trial court assumed all of this was true.

The gravamen of plaintiff’s cause of action was a breach of the peace and a trespass on the part of defendant against plaintiff Mrs. Trammell, and not the breach of an agreement theretofore had between the defendant and Mr. Trammell. Hence the issue of such breach of agreement is not fundamental, and it is conclusively presumed to have been found by the court in support of the judgment. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

We think that where the trial court submits to' the jury issues of fact upon which exemplary damages may be allowed, defining the terms requested by defendant, and then, without any objections or request for a different issue, asks the jury “what amount of money do you find, if any, should be assessed as exemplary damages,” the court does leave the matter of assessing such exemplary damages entirely to the discretion of the jury, and the defendant cannot be heard to complain that the court assumed that defendant’s acts wore wanton, willful, and malicious, and that plaintiff was entitled to exemplary damages.

Where plaintiff sues for damages on account of injuries as a result of fright and nervous shock causing a miscarriage or premature childbirth, brought on by defendant by the use of loud, vociferous, profane, and threatening language in the home of plaintiff, which constitutes a criminal offense, and the court, in submitting to the jury the fact issue as to the conduct of the defendant, uses the language substantially of the Criminal Code (Penal Code 1925, art. 474) as to the terms that.constitute the offense, the issue is not fundamentally erroneous for duplicity, when an affirmative finding on either is sufficient to constitute the offense charged, and no objections are made to the manner in which it is submitted -in the trial court.

It has been held many times in this state, as enunciated in St. Louis S. W. Ry. Co. v. Alexander, 106 Tex. 518, 172 S. W. 709, 710, in an opinion by Chief Justice Brown of the Supreme Court, that a plaintiff is entitled to recover for mental and physical pain caused by fright, éte. The court said: “We conclude that where a physical injury results from a fright or other mental shock, caused by the wrongful act or omission of another, the injured party is entitled to recover his damages, provided the act or omission is the proximate cause of the injury, and the injury ought, in the light of all circumstances, to have been foreseen as a natural and probable consequence thereof.”

Appellant urges .that there was no evidence calling for the submission of an issue as to exemplary damages. If Levine went into the home ’of the Trammells after he had agreed to wait for his money until Trammell could send it from Oklahoma City, where he was at work, and used loud and vociferous language in demanding that Mrs. Trammell pay him the rent or get out of the house, and his act in so demanding in the manner he did was willful, wanton, and reckless, then we think exemplary damages were properly submitted to the jury. It is true that Mrs. Trammell in her delicate and nervous condition was unable to specifically testify to all the conduct of defendant, or the words spoken by him, but Mrs. Carson, who was present at all the uncalled for visits of the defendant when he exhibited an utter disregard for plaintiff in her condition, and who was a disinterested party to the lawsuit, testified: “He said that he did not see how that dam bitch could cause him any trouble as it was his house and he did not have to furnish her a home, and he kept on raving and called her a God dam bitch and said that she owed him money and that she could not cause him any trouble because it was his house. Mrs. Tram-mell was but ten feet from him in the very room and it made her very, very nervous, and I rubbed her limbs with rubbing alcohol because her limbs were numb.”

Defendant did not .file any objections to the charge as given. Article 2185, R. C. Statutes 1925, provides that a charge shall be in writing, signed by the judge, and filed by the clerk, and shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine and present objections thereto. As before stated, there does not appear in the record any objections filed by •appellant here of the instructions given, although there is some objection contained in a bill of exceptions apparently filed on August 20, 1930, while the charge of the court was given to the jury on the 29th day of April, 1930. Certainly the objection to the charge, should be made before the charge is submitted to the jury in order that the trial court may have the benefit of said objections. Certainly an objoctjon filed some three months after the trial comes too late.

We Lave carefully examined this record and conclude that we cannot disturb tne judgment below on any of the grounds urged, and therefore the judgment is in all things affirmed.


text:
    BRILEY et al. v. COCKRELL.
    No. 7620.
    Court of Civil Appeals of Texas. Austin.
    June 25, 1931.
    York & Camp, of Abilene, for appellants.
    W. H. Browning, of Lampasas, for appellee.
   BAUGH, J.

Appeal is from a judgment overruling ap? pellants’ pleas of privilege to be sued in Taylor county, the place of their residence. Ap-pellee asserted venue in Lampasas county lender subdivision 5, art. 1995, R. S. 1925, on tfie ground that appellants had/obligated themselves in writing to perform the obligation sued upon in Lampasas county.

Cockrell, a real estate broker, resided at Lampasas. J. P. Smith,. one of the defendants, resided in Callahan county. He owned lands in Brown county, which he had listed orally for sale or exchange exclusively with Cockrell. Cockrell thereupon sublisted same with W. G. Briley, a real estate broker who resided at Abilene, and wrote him on March 18, 1930, that he would divide commission with him in case Briley sold Smith’s land; but that in ease of trade of same for other lands Briley was to look to his client for commission, and Cockrell was to look to Smith, adding in said letter that “the commission liability or obligation being payable and performable in case of sale or trade at Lampasas, Texas.”

Appellee alleged in his petition that in July, 1930, W. G. Briley and J. D. Liles effected an exchange between J. P. Smith of his Brown county lands, and one C. A. Taylor for the latter’s property in Abilene; that Smith thereupon became indebted to said Cockrell for 2½ per cent, commission on said exchange; that because Briley and Liles were also claiming a commission from Smith, he had refused to pay appellee. Smith, Briley and Liles were all made parties defendant; judgment was asked against Smith for 2½ per cent, commission on the value of his Brown county lands, and that Briley and Liles be decreed, to have no interest therein.

There is no contention that venue of the suit against Smith would lie in Lampasas county. His agreement with Cockrell was oral. Any arrangement between Cockrell and Briley, whether in writing or oral, as to where Smith should pay either of them a commission would not be binding upon him. Nor could Cockrell prevent Smith from making such contract as he chose with Briley or Liles, so long as he complied with his listing contract with Cock-rell. The letter in question relates only to1 commission as between the agents themselves ; and the only obligation arising therefrom was that Cockrell, in- case of a sale of Smith’s lands by Briley, agreed to pay.to Bri-ley at Lampasas 2½ per cent, commission. If the land were traded, as alleged in appel-lee’s petition, Cockrell would owe Briley no commission. The suit was against Smith, and sought judgment only against him for a commission due Cockrell under his contract with '^mith — not under any contract with Briley or Liles subsequently made. Clearly Briley and Liles were not necessary parties to appellee’s suit against Smith. If Smith were in doubt as to his liability to the various agents, he could have impleaded them; but it was not necessary for Cockrell to do so. The allegations of appellee’s petition show that- the cause of action asserted was not upon the obligations contained in the letter from Cock-rell to Briley, and therefore no grounds for venue obtained in Lampasas county. See Johnson Const. Co. v. Bank (Tex. Civ. App.) 260 S. W. 1091.

The judgment of the trial court is reversed, and the cause remanded with instructions to ■transfer same to the county court of Taylor county, in accordance with appellants’ pleas of privilege.

Reversed and remanded, with instructions.


author: JACKSON, J.

text:
    WARE v. BURLESON et al.
    No. 3545.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1931.
    Rehearing Denied May 13, 1931.
    T. Wade Potter and Bills & Hazel, all of Littlefield, for appellant
    Lockhart, Garrard & Brown, of Lubbock, for appellees.
   JACKSON, J.

J. W. Ware, the plaintiff, instituted this suit in the district court of Lamb county, Tex., against the defendants E. M. Burleson and B. M. Willingham, to recover $1,250, with interest and attorney’s fees thereon, evidenced by a promissory note executed by the defendant and payable to the order of J. W. Ware & Co., a copartnership.

The plaintiff alleges that he has acquired the note from the copartnership and is the legal and equitable owner, thereof. The allegations of his petition are sufficient to authorize a recovery on the note, interest, attorney’s fees and costs.

The defendant F. M. Burleson answered by general demurrer, special exceptions, and general denial.

He pleaded failure of consideration, and alleged that in the fall of 1924 J. W. Ware & Co. were dealing in cotton futures in New Orleans, and maintained an office and agent for their business in Lubbock, Lubbock county, Tex. That he and his codefendant were engaged in buying and selling spot cotton, and that J. W. Ware & Co. were acting as brokers for those who desired to buy or sell future contracts, or what is commonly known as cotton futures. That the defendants purchased -through the plaintiff, as brokers, contracts for the sale and purchase of cotton futures. That the note was executed to cover a balance which the plaintiff claimed that the defendants owed by reason of the purchase and sale of cotton futures. That none of the parties to the transactions understood or contemplated that there would be any actual delivery of the cotton sold or acceptance of the cotton purchased. That all of such contracts constituted wagers, schemes for gambling, and were illegal; that the note was given to cover margins on the future cotton market and was not given for any cotton actually delivered or intended to be delivered. That all of such transactions were void under the laws and decisions of the state of Texas and of the United States, against good morals and public policy, and unenforceable.

No service having been had on B. M. Will-ingham, on motion of the plaintiff he was dismissed from the case.

The case was submitted to the court without the intervention of a jury, and he rendered judgment that plaintiff take nothing by his suit, and that defendant go hence without day with his costs, from which judgment this appeal is prosecuted.

The appellant, by numerous assignments, all of which we will consider together, assails as error the action of the trial court in rendering judgment against him, because of the insufficiency of the testimony to support the findings of the court.

The court found, in effect, that the transactions with the defendants were handled by the agent of J. W. Ware & Co., at Lubbock, Tex.; that J. W. Ware & Go. received the orders and the defendants sent the orders with no intention or agreement for the actual delivery of the cotton sold or bought; that it was not the intention of either of the parties to any of the transactions that the purchase and sale of the cotton should be consummated by actual delivery; that none of the parties had any facilities for handling the cotton, and that it was the intention of all the parties that the profits and losses should be determined by the fluctuations of the market ; that settlement should be made upon the basis of the market quotations at the New Orleans cotton exchange; that the note was given in settlement and as a continuation of gambling transactions in cotton futures; and that the defendants received no consideration for the execution and delivery of the note.

Mr. Keno, Jr., the office manager of J. W. Ware & Co., during the time the transactions were had with the defendants, testified that the company was a member of the New Orleans cotton exchange and cotton brokers engaged in selling and buying cotton futures for their customers. That they required a deposit of their customers of $5 to $10 per bale to protect fluctuation in prices. That they extended to the defendants credit on account for the sum of $1,000; that, when the account reached that sum, they demanded more margin, and the defendants gave the note sued on to J. W. Ware & Co. instead of paying cash. That the note represents a margin for the fluctuation on future contracts. That a round contract means a purchase and sale of one hundred bales. That the defendants made eight round contracts. That there had to be ‘two contracts all the time, one buying and one selling.” That the defendants bought eight hundred bales and sold eight hundred bales, the total price of which was, roughly, $176,000. That when a customer bought an order he must sell to get out. That the defendants never knew from whom they bought nor to whom they sold. That no actual cotton was received by the defendants and none delivered by them, because they did not have cotton on “tenderable” days. That, when the defendants ordered one hundred bales sold for future delivery, they would on that day, or in three or four days, buy one hundred bales, which closed the deal, and J. W. Ware & Co. did not contemplate delivery in such transactions. That such purchases and sales between the plaintiff and the defendants continued from October 20, 1024, to December 15th thereafter. That during that time the defendants bought and sold contracts covering sixteen hundred bales of cotton. That “these contracts were all to be settled on the basis of whether cotton had gone up or down and were settled according to whether or not they gained or lost on the transactions.” If the price went up, more money had to be put up. If it went down, the defendants would collect if they wanted the money and not the cotton. That after all the deals for the purchase and sale of cotton had been closed, the note sued on was given. That J. W. Ware & Co. handled the contracts personally. That the orders were sent from Lubbock; by their salesman, Mr. Denman, who was running the office at Lubbock, and some of the orders were signed by Willingham and some by Burleson and Willingham. That he presumed that J. W. Ware & Co. handled thousands of bales during that season from Lubbock, Tex. That the company contemplated the delivery of the cotton bought and sold by the defendants.

Mr. Burleson testified that, during the time of the purchase and sale of cotton future contracts by him through J. W. Ware & Co., the company was operating an exchange in Lubbock. That he understood they were cotton brokers in New Orleans. That he had some transactions with them in the Eall of 1924, buying and selling futures on the New Orleans cotton exchange. That it was what is commonly known as “bucking the board”; “lose today and win tomorrow.” That the. purchases and sales were handled by wire. That a telegram would be sent to J. W. Ware & Co., New Orleans, with the request to either buy or sell on the exchange. That Mr. Den-man sent the wires as a rule out of the building there in Lubbock. That Denman had a Western Union wire out of the building. That he would give the orders to Sam Denman, and he would send them. That he had been buying and selling cotton futures for twenty years and that he never did deliver or accept .a bale of cotton. That it was not his intention in making these contracts to deliver or receive the cotton that was contracted for. That he was not financially able to accept spot cotton, and could not handle it. That he did not have the money or the facilities or the credit to handle that much cotton. That it is customary to place a margin up when you make a contract. That he never received anything of value for the note, as it was given in settlement of the future contracts for the purchase and sale of cotton given to cover ■the margins placed on the contracts. That the note was for the- loss that was sustained in the transactions of purchase and sale. That J. W. Ware & Co. were not buying' and selling cotton for him on the New Orleans cotton exchange. That it was simply a purchase and sale of future contracts. That if he had been called on to deliver the cotton he would not have had to deliver it. That they did not expect him to deliver the cotton. That when he bought one hundred bales on the market, the way he got out was to sell one hundred bales and balance one against the other. That that was the invariable rule. If you won, they would pay you money, if you lost, you paid them.

There are many other facts and circumstances in the record tending to support the findings of the trial court, but we deem it unnecessary to go into the testimony in greater detail. If there is sufficient testimony to support the conclusion of the trial court, we are not authorized to disturb it; and, in our opinion, the testimony is sufficient to warrant the findings of the court.

The law seems to be definitely settled against appellant’s contention in the case of Allen v. Denman, and the authorities therein cited by Chief Justice Hall, reported in (Tex. Civ. App.) 278 S. W. 899.

The judgment is affirmed.


text:
    PENNSYLVANIA FIRE INS. CO. v. W. T. WAGGONER ESTATE.
    No. 3331.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1929.
    Rehearing Denied Jan. 8, 1930.
    Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, for plaintiff in error.
    .0. O. Franklin, of Vernon, for defendant in error.
   JACKSON, J.

This suit was instituted in the district court of Wilbarger county, Tex., by the plaintiff, W. T. Waggoner, trustee of the W. T. Waggoner Estate, against the defendant Pennsylvania Eire Insurance Company, to recover the sum of $2,000 on an insurance policy issued by the defendant securing plaintiff against loss or damage by fire to a 1925 model Reo -Speed-Wagon.

The plaintiff alleges that on March 30, 1927, the defendant issued its certain policy of insurance, by the terms of which it promised to pay to the W, T. Waggoner Estate a sum not to exceed $2,000, in the event a certain model 1925 Reo Speed-Wagon belonging to said estate was damaged or lost by fire.

That said policy of insurance was in full force a-nd effect on January 28,1928, on which date said Reo Speed-Wagon was, without fault of the plaintiff, totally destroyed by fire.

That the plaintiff, within the time and manner provided by the policy, promptly notified the defendant of the loss and filed with the defendant proof of loss and claim on blank forms furnished by the defendant and that plaintiff did everything provided in said policy as required. That the cash market value of said Reo Speed-Wagon at the time of its destruction by fire was the sum of $2,000, which amount was specifically covered by •said policy. That the defendant, though often requested, has refused and wholly failed to pay the defendant said’ sum or any part thereof for the loss and destruction of said Reo Speed-Wagon.

The defendant filed a plea in abatement, to which the plaintiff replied, but as no question is presented involving the -disposition of the plea in abatement, no further notice will be taken thereof.

The defendant answered by general demurrer and general denial, and for special answer alleged that if plaintiff held such policy of insurance as alleged, that it contained, among other provisions, the following: “In case the insured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser. The appraisers shall first select a competent and disinterested umpire, and failing, for fifteen days, to agree upon such umpire, then on request of the assured or this company, such umpire shall be selected by a judge of a court of record in the county and state in which the property insured was located at the time of the loss. The appraisers shall then appraise the loss and damage, stating separately sound value and loss or damage to each item and failing to agree, shall submit their differences only to the umpire. An award in writing so itemized of any two when filed with this company shall determine the amount of sound value of loss or damage. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.”

That shortly after the alleged loss, it placed the report thereof in the hands of its adjuster, who, after going into the matter, was unable to agree with the assured as to the amount of loss and damage. That the defendant then demanded an appraisal in writing, as required by the policy, and both plaintiff and defendant agreed to submit the matter of the damage or loss to appraisers. That plaintiff selected Bradford Hancock and the defendant selected John W. Barker, who were duly appointed as appraisers, in writing, on May 10, 1928. That said appraisers selected Ray Puckett as umpire, who agreed to act as such. That the appraisers undertook to determine the amount of the loss and were unable to agree, and their matters of difference were submitted to the umpire and an award was agreed to on May 22, 1928, in which the sound value of the Reo Speed-Wagon immediately preceding the loss was agreed to be ⅞600 and that the damage amounted to $600. That an award showing said loss and damage was duly made, signed by Appraiser J. W. Barker and Umpire Ray Puckett, and was duly filed with the company, and on July 12, 1928, the defendant company issued and delivered its cheek to the W. T. Waggoner Estate in the sum of $600 in payment of the loss in accordance with the award of the appraisers, but that said draft was refused by the plaintiff.

That the liability of the company under said policy became fixed, by reason of said appraisal, at the sum of $600. That since said award, the defendant has been ready, willing, and able to pay same in accordance therewith, and is now ready, willing, and able to pay to the plaintiff the sum of $600 and tenders to the insured, into the registry of the court, said sum, asks that plaintiff accept it in full satisfaction of the claim, and prays that the court limit defendant’s liability to said amount.

The plaintiff, by supplemental petition,.in reply to the defendant’s answer, pleaded, in effect, that the defendant made no bona fide attempt to agree with the plaintiff as to the amount of the loss and made no tender to the plaintiff of any amount prior to the purported arbitration alleged-by it. That said, purported arbitration was void and of no force and effect, was not conducted in accordance with the terms and provisions of the policy of insurance sued on, and the proceedings therein were not fairly and impartially conducted and should be held for naught. That plaintiff’s cause of action arose sixty days after notice of loss, which was given on March 22, 1928, and is entitled to interest on the principal provided in the policy at the rate of 10 per cent, per annum from and after said date.

In response to special issues submitted by the court, the jury found, in effect, that the appraisers who made the award on the arbitration were partial to the insurance company in fixing the amount of damages at $600; that said sum was grossly inadequate to compensate plaintiff for the loss by reason of the destruction by fire of the Reo Speed-Wagon; that the reasonable market value of the Reo Speed-Wagon involved in the suit immediately before it was burned was the sum of $1,-610. On these findings the court entered judgment that the plaintiff have and recover from the defendant'the sum of $1,640, with interest thereon at the rate of 6 per cent, per an-num from May 22, 1928, until paid, and the award of the arbitrators was adjudged void and held for naught. Prom this judgment, by writ of error, the insurance company, hereinafter called appellant, prosecutes this appeal.

The appellant, by several assignments which we will consider together, challenges as error the action of the trial court in refusing to direct a verdict as requested, limiting the appellee’s recovery to the sum of $600, the’ value of the loss and damage determined by the appraisers and reported in their award, and in submitting to the jury the value of the Speed-Wagon or truck at the time of the destruction thereof by fire, the inadequacy of the amount óf the award of $609 made by the appraisers for the loss and damage, and the bias or partiality of the appraisers in making the award, because the testimony presented no issue of fact to be submitted to the jury, and hence the court should have peremptorily instructed a verdict for appellant.

The record discloses that the appellant issued to appellee a policy on March 30, 1927, insuring the Speed-Wagon of appellee in a sum not to exceed $2,000, against loss by fire. That an additional 10 per cent, of the regular premium was charged to void the three-fourths value clause in the policy and the 2 per cent, monthly depreciation clause contained in the policy. That just before the policy was issued, an agent of the appellant inspected the Speed-Wagon, and that at the time, the policy was issued, the market value of the truck was $2,000. That at the time the truck was totally destroyed by fire on January 28, 1928, it had been run but little since tlie policy was issued and was practically in tile same condition when destroyed as it was when the policy of insurance was issued, except the appellee had placed on the truck five new tires, one for each wheel and one spare, and that said new tires cost $450'.

That proof of the loss of the truck by fire was made and the receipt thereof acknowledged by the appellant on March 23,1928, and it referred the adjustment of the amount of the loss to R. R. Moore, an insurance adjuster.

Mr. Moore, a witness for appellant,’ testified that in his effort to adjust the amount of the loss, Mr. Kolp, a representative of appellee, stated that in his opinion the cash market value of the truck at the time it was burned was $2,000. That witness did not feel that the truck had a value of $2,000, which fact would have to be established before appellant would be liable for that amount. That no agreement was reached. That under the terms of the policy, the appellant demanded an appraisement of the value of the loss and damage, by appraisers to be selected under the provisions of the insurance contract. That appellee selected Bradford Hancock, that appellant selected J. W.. Barker, and they, together, selected Ray Puckett as umpire. That J. W. Barker, the appraiser appointed by appellant, and Ray Puckett, the umpire of the appraisers, on May 22, 1928, made an award of the sound value and actual loss and damage in the sum of $600, which amount was reported to appellant. The appellant also introduced in evidence the sworn, proof of loss made by appellee, in which it is stated that the actual cash market value of the truck at the time of its destruction was $2,000. Mr. Barker, the appraiser appointed by appellant, testified, among other things, that he assessed the value of the truck at $400. That he arrived at that figure from second nature. That trading in automobiles was second nature with him and $400 was as much as he thought the truck was worth. That he never saw the truck before it was burned, did not know what condition it was in, and did not know what kind of tires it had on it except what he was told by Mr. Hancock. Mr. Puckett, the umpire, testified that all he knew about the truck was what Mr. Barker represented to him and what he was told by Mr. Hancock. That he never saw the truck, did not know what condition it was in and did not know how many miles it had been driven, did not know what kind of casings it had on it, but knew that it had been used for a hay truck, and he was considering that it was a secondhand truck bought in 1925. Mr. Hancock, the appraiser appointed by appellee, testified that he went from his home in Vernon to Wichita Falls and had a conversation relative to the value of the truck with Mr. Barker. That he and Mr. Barker selected Mr. Puckett as the umpire. That he did not agree with Mr. Barker or Mr. Puckett as to the value of the truck at the time it was burned. That Mr. Barker first estimated the value at $400 and then agreed to Mr. Puckett’s estimation of $600. That he tried to tell them that a truck would not depreciate like a car, as it was bought for service and not for looks. That they stated if they were going to buy such a truck they would not give over $400 for it. It did not make any difference what kind of condition it was in or what kind of tires it had on it.

The testimony shows that the appellee bought the truck new for the sum of $2,600, and that it was totally destroyed by fire.

“This court, speaking through the late Chief Justice Brown, in the case of Wininger v. Railway, 105 Tex. 56, 143 S. W. 1150, announced the colrect rule when testing the probative force of the evidence when it said: ‘If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff — then there was evidence to support their verdict. The same rule was announced by this court in the case of Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696.” Underwood v. Security Life & Annuity Co. of America, 108 Tex. 381, 194 S. W. 585, 587.

“The statement in ‘proof of loss’ and the jury’s finding in respect to ‘motors, dynamos,’ etc., both rest upon the fact or assumption of total loss, and the ‘proof of loss’ statement, at least when supported, as it is, by corroborating inferences from Ray’s testimony, is some evidence of total loss. Hence we have a case of two estimates of value — - one made in the policy a day or two before the fire, and one made in the ‘proof of loss’ some 83 days after the fire — conflicting to the extent noted. It cannot be said that either is wholly without probative force, and that therefore the jury’s finding is without' ‘any evidence.’ ” Great American Ins. Co. v. D. W. Ray & Son (Tex. Com. App.) 15 S.W.(2d) 223, 226.

Under these authorities and the testimony disclosed by the record, we are of the opinion that the court was authorized to submit to the jury the issue of the market value of the Speed-Wagon at the time it was destroyed by fire and that the jury was warranted in finding that the market value thereof was $1,640.

If the market value of the Speed-Wagon at the time it was destroyed by fire was $1,640, the finding of the jury that the award of $600 was grossly inadequate was amply supported by the testimony. “The inadequacy of the award was an important factor, entitled to be considered in determining the bias and prejudice of the appraisers,” and whether the appraisers were competent and disinterested was an issue of fact for the jury to determine. Royal Insurance Co. v. Parlin & Orendorff Co., 12 Tex. Civ. App. 572, 34 S. W. 401, 403. Also Security Insurance Co. v. Kelly (Tex. Civ. App.) 196 S. W. 874.

The testimony in the record shows, without contravention, that neither of the appraisers signing the award, nor the one who refused to sign, ever saw the truck, made any inquiry as to the miles it had been run, as to the care it had had, or as to its condition at the time it was destroyed. The two who signed the report based their estimate of the value “on second nature” and the fact that it was a secondhand truck that had been used for hauling hay, and their'attitude of indifference as to the condition the truck was in or the tires it had on it, with other circumstances,' considered together with the inadequacy of the amount of the award, is sufficient to support the finding of the jury on the issue of bias and prejudice.

“The policy by its terms required the selection by both parties of competent and disinterested appraisers. Appraisers' selected in such cases are to act in a quasi judicial capacity, and should be free from all partiality and bias in favor of either party so as to do equal justice between them. Being selected by the parties to act instead of the court, they must, like the court, be impartial and nonpartisan. An appraiser, to be disinterested, must not only be without pecuniary interest, but he must also be without prejudice against or bias in favor of either party. The award relied on by defendant in this case purported to be the act of said Hartshorn and the umpire, Smith, only, and was, according to the above finding of the jury, invalid. For such reason it did not preclude an investigation and determination by the court of the amount of plaintiff’s loss and the extent to which defendant was liable therefor.” Milwaukee Mechanics’ Ins. Co. v. West Development Co. (Tex. Civ. App.) 275 S. W. 203, 204; Id., 115 Tex. 361, 282 S. W. 562. Also Delaware Underwriters et al. v. Brock, 109 Tex. 425, 211 S. W. 779.

Appellant challenges as error the action of the trial court in refusing to give its requested charge which reads: “The term ‘gross inadequacy’ as used in the charge of the Court means such a sum as would indicate and show a total disregard for the truth and the deliberate idea to injure the plaintiff.”

■ Ordinary words of simple meaning need not be defined, but only terms which have such a distinct and fixed meaning in law that an ordinary person would not readily understand. In our opinion, “gross inadequacy,” as used in the court’s charge, under the facts revealed in this record, did not require a definition. Dunlop Tire & Rubber Co. v. Teel (Tex. Civ. App.) 14 S.W.(2d) 104; McCleskey v. McCleskey (Tex. Civ. App.) 7 S.W.(2d) 657; Stanton v. Boyd (Tex. Civ. App.) 299 S. W. 321. The definition requested by appellant is, in our opinion, incorrect, as the term as used by the court, we think, means a lack of fair and intelligent consideration, shocks the sense of justice! and is entirely unreasonable.

The judgment is affirmed.